CTY. COMM'RS v. CRYSTAL CREEK HOMEOWNERS'

Decision Date20 November 2000
Docket NumberNo. 98SA327.,98SA327.
Citation14 P.3d 325
PartiesThe BOARD OF the COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, and Union Park Water Authority, Applicants-Appellants/Cross-Appellees, v. CRYSTAL CREEK HOMEOWNERS' ASSOCIATION; Milton Graves, Charles Hubbard, and Nancy Williams, Trustees, Objectors-Appellees/Cross-Appellants, and Colorado River Water Conservation District; Upper Gunnison River Water Conservancy District; United States of America; Henry J. Berryhill, Jr.; Board of County Commissioners of Gunnison County; Town of Crested Butte; City of Delta; City of Montrose; City of Grand Junction; City of Gunnison; Tri-State Generation and Transmission Association, Inc.; Colorado Wildlife Federation; Crested Butte Water and Sanitation District; East River at Almont Property Owners Association; Gunnison Angling Society; Gunnison County Electric Association; National Wildlife Federation; High Country Citizens' Alliance; Rainbow Services, Inc.; Western Colorado Congress; Mr. and Mrs. Charles Reeder; Virgil and Lee Spann Ranches, Inc.; State Engineer; Three Rivers Resort, Inc.; Uncompahgre Valley Water Users Association; Joseph P. Vader; Raymond R. Van Tuyl; Charles Richard Collard; Thomas E. Collard and Taylor Park Pool Association, Objectors-Appellees, and Kenneth Knox, Division Engineer, Water Division 4, Appellee pursuant to C.A.R. 1(e).
CourtColorado Supreme Court

Vranesh and Raisch, LLP, Paul J. Zilis, John R. Henderson, Boulder, CO, Attorneys for Applicants-Appellants/Cross-Appellees.

Petros & White, LLC, Charles B. White, Denver, CO, Attorneys for Objectors-Appellees/Cross-Appellants.

David C. Hallford, General Counsel, Jill C.H. McConaughy, Associate Counsel, Glenwood Springs, CO, Attorneys for Objector-Appellee, Colorado River Water Conservation District.

Bratton & McClow, LLC, L. Richard Bratton, John H. McClow, Gunnison, CO, Attorneys for Objector-Appellee Upper Gunnison River Water Conservancy District.

Department of Justice, Lois J. Schiffer, Assistant Attorney General, James C. Kilbourne, Attorney, Andrew C. Mergen, Attorney, Hank Meshorer, Special Litigation Counsel, Environment & Natural Resources Division, Washington, DC, Attorneys for Objector-Appellee United States of America.

Gunnison County Attorney, David Baumgarten, Gunnison, CO, Attorney for Objector-Appellee Board of County Commissioners of Gunnison County.

Moses, Wittemyer, Harrison & Woodruff, P.C., Timothy J. Beaton, Boulder, CO, Attorneys for Objector-Appellee City of Gunnison.

Bruce C. Driver, Boulder, CO, Attorney for Objector-Appellee Colorado Wildlife Federation, High Country Citizens' Alliance, and Rainbow Services, Inc.

Woodrow & Roushar, Victor T. Roushar, Montrose, CO, Attorneys for Objector-Appellee Uncompahgre Valley Water Users.

Office of the State Attorney General, Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Felicity Hannay, Deputy Attorney General, Joseph C. Smith, Jr., Deputy Attorney General, Lee E. Miller, First Assistant Attorney General, Steven O. Sims, First Assistant Attorney General, Susan J. Schneider, Assistant Attorney General, Natural Resources Section, Denver, CO, Attorneys for the Division Engineer for Water Division 4.

Holly I. Holder, P.C., Holly I. Holder, Priscilla S. Fulmer, Denver, CO, Attorneys for Amicus Curiae Rangeview Metropolitan District.

Krassa, Madsen & Miller, LLC, Robert F.T. Krassa, Boulder, CO, Attorneys for Amicus Curiae Parker Water and Sanitation District.

Michael A. Lucas, County Attorney, M. Cole Emmons, Assistant County Attorney, Merrill, Anderson, King & Harris, LLC, Paul G. Anderson, Special Water Rights Counsel, Colorado Springs, CO, Attorneys for Amicus Curiae Board of County, Commissioners of the County of El Paso, CO.

Friedlob, Sanderson, Raskin, Paulson & Tourtillott, LLC, William B. Tourtillott, Matthew G. Paulson, Petrock & Fendel, PC, Frederick A. Fendel, III, Denver, CO, Attorneys for Amicus Curiae for the East Cherry Creek, Valley Water & Sanitation District.

Carlson, Hammond & Paddock, L.L.C., William A. Paddock, Denver, CO, Attorneys for Amicus Curiae for Rio Grande Water Users Association.

Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Denver, CO, Attorneys for Amicus Curiae Rio Grande Water Conservation District.

Moses, Wittemyer, Harrison and Woodruff, P.C., David L. Harrison, Boulder, CO, Attorneys for Amicus Curiae Conejos Water Conservancy District.

No appearance by or on behalf of: Henry J. Berryhill, Jr.; Town of Crested Butte; City of Delta; City of Montrose; City of Grand Junction; Tri-State Generation and Transmission Association, Inc.; Crested Butte Water and Sanitation District; East River at Almont Property Owners Association; Gunnison Angling Society; Gunnison County Electric Association; National Wildlife Federation; Western Colorado Congress; Mr. and Mrs. Charles Reeder; Virgil and Lee Spann Ranches, Inc.; Three Rivers Resort, Inc.; Joseph P. Vader; Raymond R. Van Tuyl; Charles Richard Collard; Thomas E. Collard and Taylor Park Pool Association. Justice KOURLIS delivered the Opinion of the Court.

The Board of County Commissioners of the County of Arapahoe appeals the judgment of the District Court, Water Division No. 4 (the water court) denying and dismissing with prejudice Arapahoe County's applications for decrees for conditional water rights for the Union Park Reservoir Project (the Project) — a large water storage project west of the Continental Divide in the Upper Gunnison River Basin.

Arapahoe County and various amici (Arapahoe) argue that the Gunnison River Basin above the Aspinall Unit contains ample water resources for its own appropriation to provide for the transbasin diversion of water across the continental divide for ultimate use on Colorado's Front Range. The water court concluded that there was insufficient water available in the Basin for Arapahoe's proposed diversions. Because the water court properly honored the operation of Colorado decrees adjudicating water to the United States for the Aspinall Unit when computing available water in the Gunnison River Basin, we affirm.

Specifically, we hold that the United States has an absolute decree for the Aspinall Unit water rights and has historically put the full decree to beneficial use. Hence, the Decree represents a senior water right for 1,224,460 acre-feet, subject to certain conditions. First, the United States has agreed to subordinate1 60,000 acre-feet of water to junior in-basin water users. Second, the United States has agreed to release water from the Aspinall Unit as necessary to allow Colorado to meet its Colorado River Compact (Compact) delivery obligation at Lee Ferry, near the northern border of Arizona. Lastly, the United States has agreed to make 240,000 acre-feet of the Aspinall Unit decreed water available for contractual use by future Colorado water users.

Once the Aspinall Unit is taken into account, the Gunnison River Basin does not contain enough unappropriated water for the Project. Therefore, Arapahoe does not satisfy the "can and will" requirement of a conditional decree.

Additionally, we determine that our holding in the appeal renders the cross-appeal raised by Crystal Creek Homeowners' Association and certain other Appellees (Opposers)2 moot.

Accordingly, we affirm the judgment of the water court.

I. INTRODUCTION

In 1984, Natural Energy Resources Co. (NECO) obtained a conditional decree for the Union Park Reservoir Project for 325,000 acre-feet. See Case No. 82CW340. In Case No. 86CW226, NECO sought to increase the conditional water rights for the Project. If constructed as planned on Lottis Creek, a tributary of the Taylor River, the Union Park Reservoir described in Case No. 86CW226 would have a capacity of 900,000 acre-feet. The district court concluded that NECO sought a speculative appropriation, and dismissed most of the conditional application seeking the increase. See § 37-92-103(3)(a), 10 C.R.S. (2000).

Arapahoe acquired the rights to the Project from NECO. Arapahoe then filed an application in Case No. 88CW178, again seeking increased conditional water rights for the Union Park Reservoir. The application listed municipal, domestic, commercial and industrial, recreational, fish and wildlife propagation, reservoir evaporation replacement, and hydroelectric power generation as its beneficial uses.3 The application differed little from that filed by NECO except for the name of the applicant. It explained that Lottis Creek, the Taylor Park Reservoir Pumping Plant, the Willow Creek Collection System, and the Bertha Gulch Tunnel would supply the reservoir. On November 30, 1990, Arapahoe filed an amendment to its application, adding requests for conditional water rights at alternate points of diversion.4

Arapahoe plans to store water in the reservoir and divert it for transbasin use in Arapahoe County or in other areas that contract with Arapahoe County for water. The removal of such a large quantity of water from its natural basin alarmed a number of people within the Gunnison River Basin, many of whom either had water rights senior to those of Arapahoe or contemplated future uses on the Western Slope.5

The proposed Union Park Reservoir is located on Lottis Creek, a tributary of the Taylor River. The Taylor River and the East River join to form the Gunnison River near the City of Gunnison. The Union Park Reservoir would lie upstream from the Aspinall Unit. The Aspinall Unit is located on the Gunnison River, upstream from the Black Canyon and downstream from the City of Gunnison. Three dams make up the Aspinall Unit. Blue Mesa Reservoir, the largest of the three, lies the furthest upstream, the next highest reservoir is Morrow Point Reservoir, and finally, Crystal Reservoir lies closest to the Black Canyon.

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