Colorado Water Conserv. V. City of Central, 04SA145.
| Citation | 125 P.3d 424 |
| Decision Date | 28 November 2005 |
| Docket Number | No. 04SA145.,04SA145. |
| Parties | COLORADO WATER CONSERVATION BOARD, Objector/Appellant/Cross-Appellee. v. CITY OF CENTRAL, Applicant/Appellee/Cross-Appellant, and City and County of Denver, acting by and through its Board of Water Commissioners; City of Arvada; City of Black Hawk; City of Thornton; City of Westminster; City of Northglenn; Board of County Commissioners of Gilpin County; Lookout Mountain Water District; Missouri Lakes Recreation and Improvement Association, Inc.; Coors Brewing Company; Wannamaker Ditch Company; Consolidated Mutual Water Company; Agricultural Ditch and Reservoir Company and Golden Canal and Reservoir Company; Farmers Reservoir and Irrigation Company; and the State Engineer and Division Engineer for Water Division No. 1, Objectors/Appellees/Cross-Appellees. |
| Court | Supreme Court of Colorado |
John W. Suthers, Attorney General, John J. Cyran, Assistant Attorney General, Water Rights Unit, Natural Resources and Environment Section, Denver, for the Colorado Water Conservation Board.
Law Office of Stephen T. Williamson, Stephen T. Williamson, Matthew Machado, Louisville, for the City of Central.
John W. Suthers, Attorney General, Alexandra L. Davis, Assistant Attorney General, Water Rights Unit, Natural Resources and Environment Section, Denver, for the State and Division Engineers for Water Division 1.
Casey S. Funk, Patricia L. Wells, Michael L. Walker, Denver, for the City & County of Denver, acting by and through its Board of Water Commissioners.
Trout Unlimited, Andrew Peternell, Boulder, for Amicus Curiae Trout Unlimited.
Porzak, Browning & Bushong LLP, Glenn E. Porzak, Kevin J. Kinnear, Boulder, for Amici Curiae the City of Golden, the Upper Eagle Regional Water Authority, the Eagle River Water & Sanitation District, Wildcat Ranch Association, and the Eagle Park Reservoir Company.
Friedlob Sanderson Paulson & Tourtillott, LLC, Brian M. Nazarenus, Carolyn F. Burr, William H. Caile, Denver, for Amicus Curiae Public Service Company of Colorado, d/b/a/ Xcel Energy Corp.
Trout, Witwer & Freeman, P.C., Douglas M. Sinor, Lisa M. Thompson, Denver, for Amicus Curiae the Northern Colorado Water Conservancy District.
City of Boulder, Ariel Calonne, City Attorney, Sue Ellen Harrison, Assistant City Attorney, Boulder, for Amicus Curiae City of Boulder.
Gilbert Y. Marchand, Jr., P.C., Gilbert Y. Marchand, Jr., Boulder, for Amicus Curiae Centennial Water & Sanitation District.
Burns, Figa & Will, P.C., Lee E. Miller, Stephen H. Leonhardt, David M. Pittinos, Englewood, for Amici Curiae Southeastern Colorado Water Conservancy District.
Colorado River Water Conservation District, Peter C. Fleming, Glenwood Springs, for Amicus Curiae Colorado River Water Conservation District.
Balcomb & Green, P.C., David C. Hallford, Christopher L. Geiger, Glenwood Springs, for Amicus Curiae Basalt Water Conservancy District.
Leavenworth & Karp, P.C., Loyal E. Leavenworth, Glenwood Springs, for Amici Curiae Mid Valley Metropolitan District and Town of New Castle.
Hill, Kinney & Wood, LLC, Tom Kinney, Carbondale, for Amicus Curiae Town of Basalt.
Olszewski & Massih, P.C., Edward B. Olszewski, Glenwood Springs, for Amicus Curiae West Divide Water Conservancy District.
Lind, Lawrence & Ottenhoff LLP, Kim R. Lawrence, Kelly J. Custer, Greeley, for Amicus Curiae Central Colorado Water Conservancy District.
Law Office of Stephen T. Williamson, Stephen T. Williamson, Matthew Machado, Louisville, for Amicus Curiae the Arapahoe County Water and Wastewater Authority.
In this water rights dispute, we consider whether, pursuant to section 37-92-305, C.R.S. (2005), a plan for augmentation must include terms and conditions to protect an instream flow right against injury caused by out-of-priority diversions, including diversions made from points associated with senior water rights.
Applicant-Appellee, the City of Central ("Central"), filed an application with the District Court, Water Division No. 1, for a change of water rights, approval of a plan for augmentation, and an adjudication of an appropriative right of substitution and exchange. Central sought an August 1, 1992 priority date1 for its exchange, located on the North Clear Creek Basin. To protect its 1987 North Clear Creek instream flow water right from injury under Central's plan for augmentation and exchange, Objector-Appellant, the Colorado Water Conservation Board (the "Board"), filed a Statement of Opposition with the water court seeking protective terms and conditions. The parties subsequently filed cross motions for Determinations of Law under C.R.C.P. 56(h) to determine whether the Board could impose terms and conditions to protect its instream flow right from injury under Central's augmentation plan. The water court concluded the Board could not impose terms and conditions on Central's plan for augmentation to prevent injury to its instream flow right. It also assigned Central's exchange a priority date of December 31, 1992, the date on which Central filed its application. The Board appeals from the water court's Amended Order, which held that an applicant for an augmentation plan is not obligated to protect all existing vested water users from reduced streamflow. Central cross-appeals the water court's assignment of a December 31, 1992 priority date to its exchange.
We reverse the water court's determination of law that a plan for augmentation covering depletions from out-of-priority diversions is not required to provide replacement water above the reach of a junior instream flow right. We affirm the water court's award of a December 31, 1992 priority date to Central's appropriative right of exchange on the North Clear Creek Basin.
Central owns a number of water rights that divert water from the North Clear Creek Basin, a tributary of the Clear Creek Basin. Central's existing decreed water rights include: Miners Gulch Ditch, Pecks Gulch, Tascher Ranch Line, Toimby Ranch Feeder, Wilson Ranch Feeder, the Hole-in-the-Ground Reservoir, Central City Water Reservoir, James Peak Reservoir, and Echo Lake Reservoir.
To meet its future water demands, Central sought to upgrade its raw water system. Central's plan was two-fold: (1) upgrade its raw water system facilities; and (2) obtain four new water rights. The facilities upgrade involved enlargement of a diversion structure, construction of a new diversion structure, and enlargement of a reservoir.
Central filed four applications with the Division 1 Water Court ("water court") to adjudicate new water rights, a change of use of water rights, exchanges, and an augmentation plan necessary to supply raw water to Central's customers: (1) Case No. 91CW125, a December 1991 application seeking conditional direct flow and storage water rights from North Clear Creek and several of its tributaries; (2) Case No. 92CW168, a December 1992 application for a change of use of nine shares of the Farmers High Line Canal, a mutual ditch company; change of use of its four inches of Wannamaker Ditch Company water rights; approval of a plan for augmentation; and adjudication of appropriative rights of substitution and exchange; (3) Case No. 94CW063, an application for conditional direct flow and storage water rights from Fall River; and (4) Case No. 96CW1032, an application for direct flow and storage rights from two springs near Chase Gulch Reservoir. Central subsequently amended each of these applications.
The Board appeals the Decree and Amended Order in Case No. 92CW168, which involves a change of water rights, a plan for augmentation, and an exchange. Central filed an application for a change of use of its 9.0 shares in the Farmers High Line Canal and 4.0 inches decreed to the Wannamaker Ditch Company. These two water rights are located near Golden, downstream from Miners and Pecks Gulch. The water rights are to be changed from irrigation use to municipal use within the present and future service area of Central.
The application and the subsequent amendments to the application seek to exchange these changed use rights from the Farmers High Line Canal augmentation station and Wannamaker Ditch augmentation station to Central's various points of upstream diversion, including: (1) the existing Central City Pipeline intakes at Miners, Pecks, and Broomfield Gulches, (2) the proposed North Clear Creek Pumping Pipeline, (3) the proposed Fall River Pumping Pipeline, (4) Chase Gulch Spring Nos. 1 and 2, and (5) various reservoirs including Dorothy Lee Placer Reservoir, Chase Gulch Reservoir and enlargement, and Hole-in-the-Ground Reservoir. The application requests an exchange at a maximum rate of 4.1 cubic feet per second (c.f.s.) with an appropriation date of August 1, 1992. The exchange reach extends from the two augmentation stations as the downstream terminus to the points of diversion and storage as the upstream terminus.
The application and subsequent amendments to the application in Case No. 92CW168 also requested approval of a plan for augmentation. Under this augmentation plan, Central would be allowed to divert water at times when its existing junior water rights and those claims filed in 91CW125, 94CW063, or 96CW1032 are out of priority and diversions would otherwise be curtailed. Three wells owned by the Gilpin County School District, two wells owned by the Gilpin County Justice Center, as well as four facilities owned by Albert Frei & Sons are also included as water rights to be augmented in the plan for augmentation. The Farmers High Line Canal and Wannamaker Ditch water rights and reusable effluent from the Blackhawk-Central City Wastewater Treatment Plants would be used to replace out-of-priority depletions caused by these diversions.
In sum, the exchange to points of diversion from the Farmers High Line Canal and Wannamaker Augmentation Stations and Black Hawk-Central City Sanitation District Wastewater Treatment Plant...
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