City of Florence v. Board of Waterworks of Pueblo

• Decision Date: 11 June 1990
• Docket Number: No. 88SA117,88SA117
• Citation: 793 P.2d 148
• Parties: The CITY of FLORENCE, a Colorado city; and the City of Canon City, a Colorado city, Objectors-Appellants, v. The BOARD OF WATERWORKS OF PUEBLO, Colorado, Applicant-Appellee,
• Court: Colorado Supreme Court

Page 148

793 P.2d 148

The CITY of FLORENCE, a Colorado city; and the City of

Canon City, a Colorado city, Objectors-Appellants, v. The BOARD OF WATERWORKS OF PUEBLO, Colorado, Applicant-Appellee,

No. 88SA117.

Supreme Court of Colorado,

En Banc.

June 11, 1990.

Krassa, Lindholm, Kumli & Madsen, Robert F.T. Krassa, Boulder, for City of Florence.

Law Firm of John A. McDermott, Roger M. Breyfogle and Gary E. Wint, Canon City, for City of Canon City.

Carlson, Hammond & Paddock, John U. Carlson, M. Wray Witten, Denver, and Petersen & Fonda, and William F. Mattoon, Pueblo, for Bd. of Waterworks of Pueblo, Colo.

Justice ROVIRA delivered the opinion of the Court.

The Cities of Florence and Canon City (cities) appeal that portion of the judgment and decree issued by the water court holding that the retained jurisdiction provision of section 37-92-304(6), 15 C.R.S. (1989), was inapplicable because Pueblo's exchange plan did not involve a change of water right or a plan for augmentation. Under the facts of this case, we believe that the water court correctly interpreted the statute, and, accordingly, affirm the judgment and decree.

I

In the proceedings below Pueblo sought absolute and conditional decrees for appropriations of existing and proposed rights to exchange return flows from transmountain sources so as to use those return flows from foreign water imported to the Arkansas River Basin from the Colorado River Basin.

Pueblo has various water rights which include certain native waters of the Arkansas River and waters imported from the Colorado River basin. ¹ Pueblo delivers this transmountain or "foreign" water to the headwaters of the Arkansas River, where it is either stored for later use, or sent down the Arkansas River for immediate use in the city's municipal system.

Return flow from the initial use of this foreign water is returned to the Arkansas River system at various wastewater treatment plants in the Pueblo area. In 1977, Pueblo began a program of exchange, with senior water users who divert downstream from the Pueblo system, which involves releasing return flow attributable to foreign water into the Arkansas River in the Pueblo area, and storing an equivalent amount of native Arkansas river basin water in the upstream reservoirs. Currently, Pueblo is exchanging approximately 3.46 c.f.s. of water.

The water court made comprehensive findings of fact, which provide the basis for its judgment and decree. The water court considered the interests of downstream users and concluded that:

Evidence of water quality measurements demonstrates that the return flows to be exchanged are of a quality and continuity to meet the requirements of use to which senior appropriations downstream of the outfall of the Pueblo Waste Water Treatment Plant have normally been put, in compliance with C.R.S. 37-80-120(3).

The decree requires the State Engineer to continue to "make such determinations as to the quality, quantity and continuity of the substitute supply as C.R.S. 37-80-120(3) may require in order to protect the existing uses of senior appropriations."

The water court also addressed the concerns of Florence and Canon City, which are located on the part of the Arkansas River where the exchanges will occur. It found that "the exchanges of direct flows proposed by Pueblo will be made against the native flows of water of the Arkansas and will have the direct effect of reducing the flow of the river on the reach where [the cities] are situated." It recognized that this reduced flow could result in increased treatment costs to the cities and accordingly imposed certain restrictions upon Pueblo's plan. It required that:

[T]he exchange be operated in such a way as not to reduce the flow of the river at the Fremont ² outfall below a flow rate of 190 c.f.s. This will be sufficient to protect the Fremont Q7-10 ³ flows and avoid adverse effect upon the quality of water at the Florence water treatment plant.

The upstream effects of Pueblo's plan were also addressed by the water court. The decree limits the amount of water which may be diverted to upstream reservoirs and provides that the "rate at which water is released from reservoirs for exchange shall be subject to control by the division engineer." The decree also provides that Pueblo "shall not exchange water upstream so as to prevent any intervening water right senior to the priority of the exchange being made from diverting the amount of water to which it would have legally been entitled in the absence of this exchange...." ⁴

The amount of water to be exchanged is determined, subject to the approval of the division engineer, through the use of involved accounting procedures. ⁵ The water court found that:

[T]he evidence has shown that this form and method of accounting is adequate to provide the information to the Division Engineer necessary to protect the rights of other water users.... If any need for modification does develop, the Division Engineer shall require such change as a condition of allowing the exchange.

Finally, the water court held that "[i]t has been established with reasonable certainty that Pueblo can and will execute the proposed exchanges and apply the water so controlled to beneficial use, reuse and successive uses to extinction without causing injury to other water users." Accordingly, it granted Pueblo an absolute decree for 3.46 c.f.s. for existing exchanges and conditionally decreed additional proposed exchanges for 76.54 c.f.s. ⁶

The cities moved for amendment of judgment and decree, asserting that because the decree dealt with a change of water right or a plan for augmentation, the water court must retain jurisdiction pursuant to section 37-92-304(6), 15 C.R.S. (1989). The water court denied this motion, finding that " § 37-92-304(6), 15 C.R.S. (1989) is not applicable to this case because this case does not involve a plan for augmentation or change of water right."

The water court's conclusion, regarding the applicability of the retained jurisdiction provisions contained in section 37-92-304(6), 15 C.R.S. (1989), is the only aspect of its judgment and decree which has been appealed. The water court's findings of fact, which are supported by competent evidence and not challenged in this appeal, are binding on this court. See, e.g., Orr v. City & County of Denver, 194 Colo. 125, 572 P.2d 805 (1977). Therefore, our consideration of this appeal involves the application of the Colorado statutory scheme to the water court's findings of fact.

II

A

The cities argue that section 37-92-304(6), 15 C.R.S. (1989), is applicable to this case because Pueblo's exchange program involves a plan for augmentation. Section 37-92-304(6) provides that:

Any decision of the water judge as specified in subsection (5) of this section dealing with a change of water right or a plan for augmentation shall include the condition that the approval of such change or plan shall be subject to reconsideration by the water judge on the question of injury to the vested rights of others for such period after the entry of such decision as is necessary or desirable to preclude or remedy any such injury.

The cities contend that Pueblo's plan comes within both the intent and the express definitional provisions of a plan for augmentation. They note that Pueblo is currently exchanging only 5% of the water covered by the decree and will probably not fully implement its plan until the year 2030. The cities argue the river will be injured, in ways which are currently unknown, when the exchange is fully implemented. They conclude that section 37-92-304(6) requires that jurisdiction be retained when plans for augmentation are involved in order to prevent injury.

Pueblo concedes that some water exchange projects are part of a plan for augmentation. It contends, however, that the exchange involved here does not involve a plan for augmentation. We agree.

A plan for augmentation is defined as:

[A] detailed program to increase the supply of water available for beneficial use in a division or portion thereof by the development of new or alternate means or points of diversion, by a pooling of water resources, by water exchange projects, by providing substitute supplies of water, by the development of new sources of water, or by any other appropriate means....

§ 37-92-103(9), 15 C.R.S. (1989).

In interpreting a statute, whenever possible, each word should be given effect and each provision construed in harmony with the overall statutory scheme. In section 37-92-302(1)(a), 15 C.R.S. (1989), the legislature enumerated the various matters which may be heard by the water court under the resume-notice statute, providing that:

Any person who desires a determination of a water right or a conditional water right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation, quadrennial finding of reasonable diligence, approval of a proposed or existing exchange of water under section 37-80-120 or 37-83-104, or approval to use water outside the state pursuant to section 37-81-101 shall file with the water clerk in quadruplicate a verified application setting forth facts supporting the ruling sought, a copy of which shall be sent by the water clerk to the state engineer and the division engineer....

(Emphasis added.)

We note that the "approval of a proposed or existing exchange of water under section 37-80-120 or 37-83-104" is listed separately from the approval of a plan for augmentation. If an exchange of water were interpreted as not being a distinct claim, then the separate listing of this claim would be superfluous and redundant.

Similarly, the legislature created an exception to the general priority rules applicable to existing exchanges. Section 37-92-305(10), 15 C.R.S. (1989),...