City of Broomfield v. Consol. Ditches of Water Dist. No. 2
| Decision Date | 01 July 2019 |
| Docket Number | Supreme Court Case No. 16SA291 |
| Citation | 444 P.3d 278 |
| Parties | CONCERNING THE APPLICATION FOR WATER RIGHTS OF the CITY AND COUNTY OF DENVER, acting BY AND THROUGH its BOARD OF WATER COMMISSIONERS in Douglas, Jefferson, Arapahoe, Denver, Broomfield, Weld, Adams, and Park Counties. The City and County of Denver, acting by and through its Board of Water Commissioners, Applicant-Appellee. v. Consolidated Ditches of Water District No. 2; Parker Water and Sanitation District; Central Colorado Water Conservancy District; City of Aurora; and Farmers Reservoir and Irrigation Company, Opposers-Appellants, and Bijou Irrigation Company and Bijou Irrigation Ditch, Centennial Water and Sanitation District, City and County of Broomfield, City of Brighton, City of Commerce City, City of Louisville, City of Thornton, City of Westminster, Coors Brewing Company, East Cherry Creek Valley Water and Sanitation District, Fairmount Cemetery Company, Farmers High Line Canal, Fulton Irrigation Ditch Company, Henrylyn Irrigation District, New Brantner Extension Ditch, Northern Colorado Water Conservancy District, Platte Valley Irrigation Company, Public Service Company of Colorado, South Adams County Water and Sanitation District, South Suburban Park and Recreation District, Denver County Club, Upper Cherry Creek Water Association, and United Water and Sanitation District, Opposers-Appellees, and Concerning Corey DeAngelis, Division Engineer, Water Division No. 1; and Kevin Rein, State Engineer, Appellees Pursuant to C.A.R. 1(e). |
| Court | Colorado Supreme Court |
Attorneys for Applicant-Appellee City and County of Denver: Patricia L. Wells, Daniel J. Arnold, Casey S. Funk, Denver, Colorado
Attorneys for Opposer-Appellant Consolidated Ditches of Water District No. 2: Hoskin Farina & Kampf, P.C., William A. Hillhouse II, Eliza F. Hillhouse, John P. Justus, Grand Junction, Colorado, Law Office of Brice Steele, P.C., Brice Steele, Brighton, Colorado
Attorneys for Opposer-Appellant Parker Water and Sanitation District: Krassa & Miller, LLC Robert F. T. Krassa, Boulder, Colorado
Attorneys for Opposer-Appellant Central Colorado Water Conservancy District: Lawrence Jones Custer Grasmick, LLP, Kim R. Lawrence, David P. Jones, Wesley S. Knoll, Johnstown, Colorado
Attorneys for Opposer-Appellant City of Aurora: Hamre, Rodriguez, Ostrander & Dingess, P.C., John M. Dingess, Peter C. Johnson, Denver, Colorado
Attorneys for Opposer-Appellant Farmers Reservoir and Irrigation Company: Fairfield and Woods, P.C., Joseph B. Dischinger, Beth Ann J. Parsons, Beth Van Vurst, Dean C. Hirt, III, Denver, Colorado
Attorneys for Opposer-Appellee Northern Colorado Water Conservancy District: Trout Raley, Bennett W. Raley, Douglas M. Sinor, William Davis Wert, Denver, Colorado
Attorneys for Appellees Pursuant to C.A.R. 1(e) Corey DeAngelis, Division Engineer, Water Division No. 1; and Kevin Rein, State Engineer: Philip J. Weiser, Attorney General, Paul L. Benington, First Assistant Attorney General Denver, Colorado
Attorneys for Amicus Curiae Board of County Commissioners of Summit County, Colorado: Petros & White, LLC Charles B. White David S. Hayes Denver, Colorado
Attorneys for Amicus Curiae The Colorado River Water Conservation District: Peter C. Fleming, Jason V. Turner, Glenwood Springs, Colorado
Attorneys for Amicus Curiae City of Colorado Springs: City Attorney's Office, Michael Gustafson, Colorado Springs, Colorado, Hill & Robbins, P.C., David W. Robbins, Matthew A. Montgomery, Denver, Colorado
Attorneys for Amici Curiae Eagle River Water & Sanitation District and Upper Eagle Regional Water Authority: Porzak Browning & Bushong LLP, Glenn E. Porzak, Boulder, Colorado
Attorneys for Amici Curiae Grand Valley Water Users Association, Orchard Mesa Irrigation District, and Ute Water Conservancy District: Williams Turner & Holmes, P.C., Kirsten M. Kurath, Grand Junction, Colorado
Attorneys for Amicus Curiae Middle Park Water Conservancy District: Cazier & McGowan, Stanley W. Cazier, Granby, Colorado
Attorneys for Amicus Curiae Palisade Irrigation District: Dufford, Waldeck, Milburn & Krohn, LLP, Nathan A. Keever, Grand Junction, Colorado
No appearance on behalf of: Bijou Irrigation Company and Bijou Irrigation Ditch, Centennial Water and Sanitation District, City and County of Broomfield, City of Brighton, City of Commerce City, City of Louisville, City of Thornton, City of Westminster, Coors Brewing Company, East Cherry Creek Valley Water and Sanitation District, Fairmount Cemetery Company, Farmers High Line Canal, Fulton Irrigation Ditch Company, Henrylyn Irrigation District, New Brantner Extension Ditch, Platte Valley Irrigation Company, Public Service Company of Colorado, South Adams County Water and Sanitation District, South Suburban Park and Recreation District, Denver County Club, Upper Cherry Creek Water Association, and United Water and Sanitation District.
¶1 This appeal from the water court in Water Division 1 represents the latest chapter in litigation over a 1940 water use agreement (1940 Agreement) between the City and County of Denver, acting by and through its Board of Water Commissioners (Denver) and the ditch company members of Consolidated Ditches of Water District No. 2 (Consolidated Ditches).1 The purpose of the 1940 Agreement was to resolve the parties' disputes regarding seepage and evaporation losses from three of Denver's streambed reservoirs located on the South Platte River. Under the 1940 Agreement, in lieu of making releases from the streambed reservoirs to replace seepage and evaporation losses, Denver agreed not to reuse or successively use2 return flows from water imported from the western slope and used in Denver's municipal water system.
¶2 Earlier litigation in Case No. 81CW405 established that this reuse prohibition in the 1940 Agreement applies only to return flows derived from decreed water rights from Colorado River sources with appropriation dates before May 1, 1940 (the date Denver entered into the agreement); Denver may therefore use return flows derived from sources that were appropriated or acquired after that date. City & Cty. of Denver v. Consol. Ditches Co. of Dist. No. 2 (Consolidated Ditches) , 807 P.2d 23, 38 (Colo. 1991). The question in this appeal is whether the 1940 Agreement prohibits Denver from using return flows from water imported from the Blue River system under exchange and substitution operations that use water stored in the Williams Fork Reservoir under a 1935 priority as a substitute supply.
¶3 This issue arose out of Denver's application in Case No. 04CW121 to adjudicate and quantify reusable lawn irrigation return flows (LIRFs) for use as a substitute supply in exchanges and augmentation plans. In its application, Denver sought confirmation that it could include among its sources of LIRFs the return flows from water imported through the Roberts Tunnel under Blue River exchange operations using the Williams Fork Reservoir as a substitute supply. Consolidated Ditches objected to Denver's inclusion of these return flows, arguing that their reuse is prohibited under the 1940 Agreement.
¶4 The water court bifurcated the issues involving the applicability of the 1940 Agreement into this separate case, No. 12CW05. Denver filed a C.R.C.P. 56(h) motion for determination of a question of law, and Consolidated Ditches filed a competing C.R.C.P. 56(c) motion for summary judgment, both raising essentially the same question: whether the 1940 Agreement prevents Denver from using return flows from water imported through the Roberts Tunnel under Blue River exchange and substitution operations using Williams Fork Reservoir water as a substitute supply.
¶5 In a written order, the water court resolved these competing motions in Denver's favor, ruling that Denver's Blue River system water, which was decreed in 1955 with an appropriation date of June 24, 1946, is a source of water that was not owned, appropriated, or acquired by Denver prior to May 1, 1940, and therefore is not subject to the 1940 Agreement. The court reasoned that Blue River system water is imported through the Roberts Tunnel under a 1946 priority date, whether it is imported after diversion in priority, or after out-of-priority diversions enabled by Denver's exchange operations using water released from Williams Fork Reservoir as a substitute supply. The water court thus held that Denver may reuse or successively use imported water attributed to the Blue River system. The water court later entered its findings of fact, conclusions of law, judgment, and decree, which incorporated its earlier order on the parties' competing C.R.C.P. 56 motions. Consolidated Ditches and other opposers appealed.
¶6 Consolidated Ditches contends that the 1940 Agreement applies to prevent Denver from reusing or successively using water imported through the Roberts Tunnel under Blue River exchange and substitution operations. It argues that under the so-called "character of exchange rule," the water diverted by exchange takes on the "character" of the substitute supply—here, the water stored in the Williams Fork Reservoir under a 1935 priority. Thus, it contends, the return flows from the water imported through the Roberts Tunnel are derived from a source with an appropriation date before May 1, 1940. Denver responds that the water court correctly concluded that the 1940 Agreement does not apply to prohibit Denver from reusing or successively using water imported under the Blue River exchange operations because those operations were decreed in 1955 and are administered under a 1946 priority. In other words, the return flows are derived from a source that was acquired by Denver after May 1, 1940.
¶7 We agree with Denver. At the time it entered the 1940 Agreement, Denver could not import water through the Roberts Tunnel by exchange (or otherwise). Denver's ability to divert water from the Blue River system by exchange or substitution using Williams Fork...
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