Chatfield East Well Co., Ltd. v. Chatfield East Property Owners Ass'n, 1
| Decision Date | 20 April 1998 |
| Docket Number | No. 97SA52,No. 1,1,97SA52 |
| Citation | 956 P.2d 1260 |
| Parties | CHATFIELD EAST WELL COMPANY, LTD., Applicant-Appellant, v. CHATFIELD EAST PROPERTY OWNERS ASSOCIATION; The State and Division Engineers for Water Division; George McMakin; Ronald Ralph Martinez; Verna A. Pope; Valentine and Gloria Poljanec; Thomas G. Bettinger; Kenneth Stramel and Marcia Thomas-Stramel; Keith and Valerie A. Lehmann; Loye and Dawna Williams; Frederick S. Walz; John and Valorie Havercamp; David and Jennet White; Mitchell and Margaret Koppel; Richard and Kathleen Dunham; Gary and Marcia White; John and Sharon Tracey; Daniel and Holly Bohlen; Darvin and Joanne Robertson; J. Roy White; Kenneth Walter, Sr.; Paul and Mary Susan Gibboney; Gary and Donna L. Ross; Frank A. and Sally A. Moragas; Michael A. Gilsdorf; Al and Kay Johnstone; Donald G. and Alberta J. Macumber; David R. Weilage; Ivan R. Jones; John P. Gorzelanski; Jerald L. and Bette F. Cox; Susan Perez; Robert W. O'Brien; Merrilee S. Ellis; William Matthias, Jr.; Diana D. Davis; Phillip R. and Marjorie A. Kaspar; Terry L. and Linda M. Ohlsen; Gary L. McNee; Veryl and Margaret Moser; James P. and Leslee J. Masolotte; James Thompson; David G. Feldman; Anthony L. Zalatan; Harold Dale Slaughter, Jr.; Larry and Sandra Johnson; Joseph R. Manning; Vicky Christopher; John and Nancy Polak; Bud and Mary Lou McNemee; David and Rhonda Franklin; Larry and Noel McCain; Theresa W. Bayani; Donald N. Lascody; Centennial Water and Sanitation District; Linda and Arthur Seely; Louis and Mary Gross; Timothy and Joann Stover; Robert L. Jones; STM Mortgage Co.; Duane and Alice Dunn; James R. Hoagland; Ron Koch; Charles and Shirley Warren; Robert Kennedy; Roger and Carole Henning; James Craig McBride; Michael and Barbara L. Troxel; Rodney R. Green; Timothy and Cheryl Ludwig; Farmers Reservoir and Irrigation Company; Burlington Ditch Reservoir and Land Company; Brenda Winberg; Patrick H. Fieldman, and Michael R. Lingle, Objectors-Appellees. |
| Court | Colorado Supreme Court |
Holly I. Holder, P.C., Holly I. Holder, Margaret O'Donnell, Petrock & Fendel, P.C., Frederick A. Fendel, III, Denver, for Applicant-Appellant.
White & Jankowski, David F. Jankowski, Austin C. Hamre, Denver, for Objector-Appellee Chatfield East Property Owners Association.
Grant, Bernard, Lyons & Gaddis, a Professional Corporation, Steven P. Jeffers, Longmont, for Objector-Appellee George T. McMakin.
Moses, Wittemyer, Harrison and Woodruff, P.C., David L. Harrison, Veronica A. Sperling, Gilbert Y. Marchand, Jr., Boulder, for Objector-Appellee Centennial Water & Sanitation District.
Gale Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Joseph C. Smith, Jr., Deputy Attorney General, Lee E. Miller, First Assistant Attorney General, Natural Resources Section, Denver, for Objector-Appellee State and Division Engineer, Water Division No. 1.
This appeal is from an order of the District Court for Water Division 1 (water court) dismissing the application of the Chatfield East Well Company (Well Company) for a decree to extract and use 332 acre feet of ground water per year from the Arapahoe aquifer, one of the Denver Basin aquifers underlying the Chatfield East Subdivision (subdivision). 1 The Well Company claims the water based on deeds purporting to reserve the ownership of nontributary ground water underlying the subdivision when the Chatfield East Development Company (Development Company) conveyed lots to the homeowners. The Development Company subsequently quitclaimed any rights it had in the ground water to the Well Company. The water court dismissed the Well Company's application. We affirm.
We hold that Denver Basin aquifer water is a public resource, the ownership of which cannot be reserved in a deed conveying the surface estate to another person. Under the plain language of the deeds, the Development Company reserved at most the inchoate right to extract and use "underground nontributary water" under the subdivision. The state engineer and the water court acted within their authorities in determining that the Arapahoe aquifer water under the subdivision is not nontributary. 2 The deeds did not withhold from the homeowners their inchoate right to use the not nontributary water under their lots. The homeowners have not consented to the Well Company's application. Accordingly, the water court correctly dismissed the application.
The dispute in this case is primarily between a water company and residents of a subdivision. The subdivision is located in northern Douglas County near the Chatfield Reservoir and covers approximately 600 acres of land. The Development Company divided the property into 103 individual lots, each consisting of about four acres, with approximately 130 acres of common area. The Development Company sold the lots to various individual buyers between 1978 and 1981, and conveyed the common areas to the Chatfield East Property Owners Association (POA), which consists solely of the homeowners.
All of the deeds to the homeowners included the following language: "Reserving unto the Grantor all underground nontributary water and Grantees hereby consent to the use of said water upon any land or area, regardless of where located." (Emphasis added.) The Development Company quitclaimed any interest it had in the ground water to the Well Company in 1992.
Three of the four bedrock aquifers of the Denver Basin underlie the subdivision: the Denver aquifer, the Arapahoe aquifer, and the Laramie-Fox Hills aquifer. The fourth water bearing formation, the Dawson, does not exist below the property. Water in the Denver Basin aquifers is a nonrenewable, exhaustible resource governed by the Groundwater Management Act. See §§ 37-90-102 to -143, 10 C.R.S. (1997).
As part of the subdivision approval process, a developer is required to provide "adequate evidence that a water supply that is sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water for the type of subdivision proposed." § 30-28-133(3)(d), 10 C.R.S. (1997). In this case, the Development Company took initial steps in the water court to develop a plan for the new community's water supply. Under the Development Company's plan, the individual homeowners would supply themselves with water from small capacity wells drilled into the Denver aquifer. Since an augmentation source to replace depletions to the natural stream system would be required for the homeowners to operate their wells, the Development Company proposed to change a surface right from its historic irrigation use for this purpose.
However, in its decree of May 15, 1978, the water court found the yield of the surface right to be insufficient and added an augmentation well to be constructed into the "non-tributary aquifer known as the Arapahoe formation." However, the resume notice accompanying the Development Company's application did not identify that ground water would be an augmentation source, nor did it notice any claim for nontributary ground water.
At no time thereafter did the Development Company obtain a well permit or complete an Arapahoe aquifer well. Instead, it applied for and received a well permit for a Laramie-Fox Hills augmentation well; the prior decree was amended, pursuant to resume notice, to substitute the Laramie-Fox Hills well for the uncompleted Arapahoe well. The Development Company transferred its interests in the augmentation decree and well to the POA for operation in connection with the small capacity wells constructed by the homeowners.
In December of 1993, a year after it acquired the quitclaim deed from the Development Company, the Well Company filed an application with the water court for a decree recognizing its right to withdraw and use what it described as "underground nontributary water" of the Arapahoe aquifer. It proposed to construct three wells of approximately 300 gallons per minute per well for municipal, domestic, industrial, commercial, fire protection, irrigation, stock watering, recreational, fish and wildlife preservation and propagation, and other beneficial uses.
An application for a decree to extract and use Denver Basin water may be filed in water court with or without a well permit application having been made to the state engineer; 3 like the state engineer, the water court is required to apply the standards of the Groundwater Management Act. See § 37-90-137(6); §§ 37-92-302 to -305, 10 C.R.S. (1997). The water court must consult with the state engineer regarding the decree application and give presumptive effect to the state engineer's findings of fact. See § 37-92-302(2)(a); § 37-92-305(6)(b), 10 C.R.S. (1997).
Water in the Denver Basin aquifers is regulated as nontributary or not nontributary, depending on the aquifer characteristics and the applicable legal standards. Under section 37-90-103(10.5), 4 Denver Basin aquifer water is nontributary if its withdrawal will not, within one hundred years, deplete the flow of a natural stream at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. On the other hand, under section 37-90-103(10.7), 5 aquifer water is not nontributary if its withdrawal will cause a depletion in excess of that amount.
An applicant for recognition of a right to use ground water in the Denver Basin aquifers, whether nontributary or not nontributary, cannot receive a well permit or decree unless he or she is the overlying landowner or has the landowner's consent as provided in section 37-90-137(4)(b), 10 C.R.S. (1997). Neither the Development Company nor the Well Company owned any land in the subdivision when the Well Company filed its application for a decree with the water court, nor had they completed a well into the Arapahoe aquifer, nor had they obtained the consent of the homeowners to the application....
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