Concerning Application for Water Rights of Turkey Canon Ranch Ltd. Liability Co., 2
| Citation | 937 P.2d 739 |
| Decision Date | 28 April 1997 |
| Docket Number | No. 96SA74,A,No. 2,2,96SA74 |
| Parties | 21 Colorado Journal 607 CONCERNING the APPLICATION FOR WATER RIGHTS OF TURKEY CANON RANCH LIMITED LIABILITY COMPANY, As Amended By the First and Second Amendments to Application in El Paso County. Ethel SHIROLA, Matt Shirola and Karen Shirola, Larry Lasha and Dorothy Lasha, Richard Guy and Pamela Guy, Wendy Drew and David Anderson, Greg Dickey and Tami Dickey, Evelyn Ellis, Tony Heslop and Tuesday Heslop, Will King and Jeanne King, Hans Liebrich and Hilde Liebrich, Peter Cook and Rhonda Svoboda, Joe Macaluso and Pat Macaluso, Mike Landry and Linda Landry, Jim Dickey and Sydney Dickey, Larry Adams and Karen Adams, and Paul Darrah and Edie Darrah, Appellants, v. TURKEY CANON RANCH LIMITED LIABILITY COMPANY; and Steven J. Witte, Division Engineer, Water Divisionppellees. |
| Court | Supreme Court of Colorado |
MacDougall Law Office, M.E. MacDougall, Julianne M. Woldridge, Henry D. Worley, David I. Liberman, Colorado Springs, for Appellants.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Jennifer L. Gimbel, Deputy Attorney General, Lee E. Miller, First Assistant Attorney General, Steven O. Simms, Assistant Attorney General, Natural Resources Section, Denver, for Appellee State Engineer and Division Engineer, Water Division No. 2.
Felt, Houghton & Monson, LLC, James G. Felt, Steven T. Monson, James W. Culichia, Colorado Springs, for Appellee Turkey Canon Ranch Limited Liability Company.
Duncan, Ostrander & Dingess, P.C., John M. Dingess, Lynn B. Obernyer, Denver, for Amicus Curiae City of Aurora, Colorado, Acting By and Through its Utility Enterprise.
Grant, Bernard, Lyons & Gaddis, Jeffrey J. Kahn, Steven P. Jeffers, Longmont, for Amicus Curiae Park County and Upper South Platte Water Conservancy District.
Baker & Hostetler, Kenneth J. Burke, L. Andrew Cooper, Denver, for Amicus Curiae Park County Sportsmen's Ranch.
Law Offices of Alison Maynard Paul Upsons Alison Maynard Denver, for Amicus Curiae Park County Water Preservation Coalition.
Turkey Canon Ranch Limited Liability Company (Turkey Canon) seeks to develop a subdivision on 323 acres of land in El Paso County. In order to provide water for the subdivision, Turkey Canon filed a water application with the District Court, Water Division 2 (water court) in February 1994, seeking conditional underground water rights for two wells accompanied by a plan for augmentation to replace surface water depletions occasioned by the pumping of the two wells. The owners of certain small capacity domestic water wells as defined in section 37-92-602, 15 C.R.S. (1990 & 1996 Supp.) (hereinafter 602 wells or exempt wells), in the vicinity filed statements of opposition asserting that the proposed Turkey Canon wells would diminish the water supply available for their wells. 1 The water court held that the owners of unadjudicated exempt wells were not entitled to argue that their water rights would be injured by the Turkey Canon wells, because the exempt wells did not constitute vested water rights within the meaning of section 37-92-305(3), 15 C.R.S. (1990). The water court ultimately granted Turkey Canon's application for conditional water rights and approved its plan for augmentation. Certain objectors 2 (objectors) now appeal. 3
We view the unbroken precedent of our cases to hold that water rights vest upon appropriation, not upon adjudication. Adjudication of water rights does not vest those rights, but rather establishes a priority date that can be enforced against other users. Owners of exempt wells may apply for adjudication of their 602 wells through the water courts, but they need not. See § 37-92-602(4), 15 C.R.S. (1990). If the owner of an exempt well does apply for such an adjudication, the original priority date of the well is to be awarded regardless of the date of application. See id.
We now confirm that an exempt well owner does have a vested water right; however, the priority of such right is not enforceable until the exempt well owner files an application for adjudication. Once the exempt well owner files, he or she has a statutorily guaranteed expectation of the original priority date of the well. Therefore, the right, which has already vested due to appropriation, becomes legally enforceable upon the filing of an application for adjudication.
We conclude that owners of exempt wells may assert injury to their water rights in water court once they have filed for adjudication of those rights. Actual entry of the decree is not a condition precedent, because any uncertainty in the award of a priority date is statutorily resolved. We further hold that in reviewing permit applications for non-exempt wells, the state engineer must take into account injury to all existing wells, exempt or non-exempt; however, in the context of this augmentation proceeding, findings by the state engineer are not a condition precedent to a water court ruling. Because the objectors were not permitted to assert injury to their exempt wells, we reverse in part and remand for further proceedings consistent with this opinion.
Turkey Canon applied for the approval of conditional underground water 4 rights along with a plan for augmentation.
The underground water rights relate to two wells 5 that Turkey Canon intends to drill into the fractured Manitou Limestone Formation (Manitou). The Manitou is a water bearing, sedimentary formation underlying portions of Turkey Canon's property, steeply to gently dipping to the east across the property and overlaid in most areas by the Fountain Formation (Fountain). The Manitou consists of fractured limestone that is approximately 50 to 100 feet thick. Due to fractures, the Manitou is recharged by precipitation falling on the Pikes Peak Granitic Complex (Granitic Complex). The Granitic Complex, which is an outcropping of fractured igneous rock on the surface to the west of the Turkey Canon property, is hydrologically connected to the Manitou. Either one, or if necessary, both wells, will supply water for a central water system to serve all subdivision lots.
While both wells are physically located within the Red Creek drainage, the impact of the pumping of water from the wells will deplete surface water from both the Turkey Creek drainage and the Red Creek drainage by intercepting water that would otherwise go into the streams. Both drainages are tributary to the Arkansas River. Turkey Creek, Red Creek, and the Arkansas River system are all overappropriated. Certain portions of the Turkey Canon property lie in the Red Creek drainage, and the remainder of the property is located in the Turkey Creek drainage. The residents of each subdivision lot will use water from the central system, and the return flow will go back to the respective stream systems through individual septic tank leach field systems.
The plan for augmentation is intended to replace depletions to both drainages caused by the use of the two wells. Under Turkey Canon's plan for augmentation, Turkey Canon will replace depletions to Turkey Creek with water from the subdivision septic system return flow and from additional pumping from the wells with discharge directly into Turkey Creek.
The depletions to the Red Creek drainage and the Arkansas River will be replaced by the direct augmentation of the Arkansas River. Turkey Canon's use of water within the Red Creek drainage will deplete certain portions of Red Creek. However, Turkey Canon will not directly augment Red Creek because the water court found that there are no surface water rights diverting on the affected stream reaches of Red Creek. The augmentation to the Arkansas River, where the injury will occur, will be accomplished through the dedication of surface water rights embodied in three or more shares of Twin Lakes Reservoir and Canal Company stock owned by Turkey Canon. A portion of each share of stock is available for augmentation within the Arkansas River Basin. Additionally, Turkey Canon will curtail its diversions, limit the subdivision's occupancy, or provide additional augmentation water to the extent the division engineer deems necessary to avoid injury to senior water users.
Subsequent to filing its application with the water court, in July 1995, Turkey Canon filed applications for non-exempt well permits pursuant to section 37-90-137, 15 C.R.S. (1990 & 1996 Supp.), with the state engineer. At that time, Turkey Canon had already drilled one well as a monitoring and observation hole. However, the second well had not yet been drilled as of the time of filing for a well permit; Turkey Canon had only surveyed the site for the second well. In August 1995, the state engineer denied both applications, finding in each application, in pertinent part, that:
8. Turkey Creek, Red Creek, and the Arkansas River System are overappropriated. At some or all times of the year, the water supplies for said stream systems are insufficient to satisfy all of the decreed water rights senior to an appropriation by the applicant.
9. The proposed diversion from the subject well would cause depletion to Turkey Creek, Red Creek, and the Arkansas River System at times when those streams are overappropriated.
....
11. A proposed augmentation plan has been submitted to the Division 2 Water Court (Case No. 94CW06), however, the plan has not been approved by the Division 2 Water Court.
Based on the above, the State Engineer is unable to find that unappropriated water is available for withdrawal by the proposed well[s] and that the vested water rights of other appropriators will not be materially injured. The application[s] are therefore denied.
Various parties, including the state engineer, the division engineer, and a group of forty landowners who own and use exempt wells, objected to the...
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