CWCB v. Upper Gunnison River Water Conservancy Dist., No. 04SA44.
| Decision Date | 14 March 2005 |
| Docket Number | No. 04SA44. |
| Citation | 109 P.3d 585 |
| Parties | Opposers-Appellants: COLORADO WATER CONSERVATION BOARD; and State Engineer and Division Engineer for Water Division No. 4, v. Applicant-Appellee: UPPER GUNNISON RIVER WATER CONSERVANCY DISTRICT, Opposers-Appellees: Virgil and Lee Spann Ranches; Robert and Geraldine Howard; the City of Gunnison; Uncompahgre Valley Water Users Association; Colorado River Water Conservation District; Trout Unlimited; Gerald E. Bullock; Thomas C. Kelley; Brenda M. Kelley; Roy B. Winslow Helen Winslow; Paula J. Lehr; William F. Chambliss; Linda Chambliss; Kenneth R. Bergan; Mary T. Bergan; Ben Peterson; Jill Peterson; Karl R. Peterson; Ruth S. Peterson; Nancy Ruehle; Raymond L. Ruehle; Arthur I. Means; Toni M. Bullock; Linda M. Goldman; Mike Peterson; Carl Long; Ruth Marie Long; J. Craig Bryant; and Lu Ann Bryant. |
| Court | Colorado Supreme Court |
John W. Suthers Attorney General, Susan J. Schneider, Assistant Attorney General, Lori J. Coulter, Assistant Attorney General, Patrick E. Kowaleski, First Assistant Attorney General Water Rights Unit, Natural Resources and Environment Section, Denver, for Opposers-Appellants, Colorado Water Conservation Board; and State Engineer and Division Engineer for Water Division No. 4.
Alperstein & Covell PC, Cynthia F. Covell, Gilbert Y. Marchand, Andrea L. Benson, Denver, for Applicant-Appellee, Upper Gunnison River Water Conservancy District.
Moses, Wittemyer, Harrision and Woodruff, P.C., Timothy J. Beaton, Gabriel D. Carter, Boulder, for Opposer-Appellee the City of Gunnison.
Peter C. Fleming, Jill C.H. McConaughy, Kirstin E. McMillan-Gillespie, Glenwood Springs, for Opposer-Appellee Colorado River Water Conservation District.
Andrew Peternell, Boulder, for Opposer-Appellee Trout Unlimited. Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Jennifer H. Hunt, Denver, for Amicus Curiae the Rio Grande Water Conservation District and Southwestern Water Conservation District.
Maynes, Bradford, Shipps & Sheftel, Frank E. (Sam) Maynes, John Barlow Spear, Durango, for Amicus Curiae Southwestern Water Conservation District.
Patricia L. Wells, Michael L. Walker, Casey S. Funk, Denver, for Amicus Curiae the City and County of Denver Acting by through its Board of Water Commissioners.
Burns, Figa & Will P.C., Lee Miller, Englewood, for Amicus Curiae Southeastern Colorado Water Conservancy District and the Colorado Farm Bureau.
Weiss & Van Scoyk LLP, Robert G. Weiss, Steamboat Springs, for Amicus Curiae Upper Yampa Water Conservancy District, the Town of Oak Creek, and the Town of Yampa.
Duncan Ostrander & Dingess, P.C., John M. Dingess, Denver, for Amicus Curiae the City of Aurora, Colorado acting by and through its Utility Enterprises.
Porzak Browning & Bushong, LLP, Glenn E. Porzak, P. Fritz Holleman, Boulder, for Amicus Curiae for the City of Steamboat Springs, the City of Golden, the Town of Vail, the Town of Breckenridge, Vail Resorts, Inc, the Eagle River Water & Sanitation District, the Upper Eagle Regional Water Authority, and the Colorado White Water Association.
Holland & Hart, LLP, Anne J. Castle, Christopher L. Thorne, Denver, for Amicus Curiae the City of Pueblo and the Town of Minturn.
Sullivan Green Seavy, LLC, Barbara Green, Boulder, Taylor C. Hawes, Silverthorne, for Amicus Curiae Northwest Colorado Council of Governments.
John M. Ely, Aspen, for Amicus Curiae Pitkin County.
David Baumgarten, Thomas A. Dill, Gunnison, for Amicus Curiae Gunnison County.
Anthony J. DiCola, Hot Sulphur Springs, for Amicus Curiae Grand County.
No appearance by or on behalf of: Virgil and Lee Spann Ranches; Robert and Geraldine Howard; Uncompahgre Valley Water Users Association; Gerald E. Bullock; Thomas C. Kelley; Brenda M. Kelley; Roy B. Winslow; Helen Winslow; Paula J. Lehr; William F. Chambliss; Linda Chambliss; Kenneth R. Bergan; Mary T. Bergan; Ben Peterson; Jill Peterson; Karl R. Peterson; Ruth S. Peterson; Nancy Ruehle; Raymond L. Ruehle; Arthur I. Means; Toni M. Bullock; Linda M. Goldman; Mike Peterson; Carl Long; Ruth Marie Long; J. Craig Bryant; and Lu Ann Bryant.
Appellants the Colorado Water Conservation Board (CWCB or "the Board") and the State and Division No. 4 Engineers appeal the water court's order and decree granting a recreational in-channel diversion (RICD) conditional water right to Applicant Upper Gunnison River Water Conservancy District. We reverse.
Upon review, we hold that both the CWCB and the water court erred. In Senate Bill 01-216 (SB 216 or "the bill"), Ch. 305, 2001 Colo. Sess. Laws 1187 (codified at §§ 37-92-102(5), (6), 37-92-103(4), (7), (10.3), 37-92-305(13)-(16), C.R.S. (2004)), the General Assembly established a procedure for the adjudication of instream diversions by local government entities for recreational uses. The CWCB was granted initial, limited fact-finding authority on enumerated factors as applied strictly to an applicant's claimed stream flow and intended recreation experience. By considering stream flow amounts and recreation experiences other than those intended by Applicant, the CWCB exceeded this authority.
SB 216 charged the water court, in contrast, with adjudication of a RICD application, requiring it to consider five statutory factors — compact impairment, stream reach appropriateness, access availability, instream flow rights injury, and maximum utilization — and treat the CWCB's factual findings on these same factors presumptively. Should any party produce evidence contrary to the CWCB's findings, the presumption is rebutted, and the water court must weigh the evidence before it under a preponderance of the evidence standard.
In addition, the water court must determine whether a RICD application is limited to the minimum stream flow necessary for an objectively reasonable recreation experience in and on the water because any appropriation in excess of the minimum stream flow for a reasonable recreation experience in and on the water does not put water to beneficial use. Since it did not consider whether Applicant's intended in-channel recreational diversion was in fact a RICD as defined by SB 216, the water court erred when it awarded Applicant a decree in the claimed stream flow amounts.
This case concerns the first RICD decreed as a conditional water right under SB 216, which the General Assembly enacted in 2001. Applicant is constructing a whitewater course along the Gunnison River near the town of Gunnison. The course has been designed to be "conducive to many types of whitewater boating for a variety of different skill levels," as Applicant hopes to draw both locals and tourists, host competitions, enhance Western State College's outdoor recreation program, and strengthen the region's overall economy. Seeking to acquire decreed water rights for the course's stream flow requirements, Applicant filed an application for a RICD in March 2002.
In its RICD filing, Applicant claimed variable, daytime stream flows ranging from 270 to 1500 cubic feet per second (cfs).1 These variable flows totaled approximately 157,000 acre feet annually — over 41 percent of the Gunnison River's available stream flow. Applicant claimed the highest flows only during the last two weeks of June and the first two weeks of July, when water supplies were ample. The course was designed with diversion structures incorporating both low flow and high flow channels in order to maximize use of the whitewater course by all skill levels throughout the recreational boating season, even as stream flows decreased. Applicant claimed no water for the months October through April.
The CWCB reviewed Applicant's claimed RICD, accepting both oral and written comments from Applicant and other interested parties. Following deliberations, the CWCB issued written findings and recommendations to the water court. The CWCB did not evaluate the application strictly as submitted by Applicant, but rather found that "the RICD stream flow will create whitewater features sufficient to attract experienced whitewater kayakers and therefore will be for the minimum stream flow necessary to provide a reasonable recreation experience in and on the water if those stream flow amounts are as follows: 250 cfs during May through September, and 0 cfs during the rest of the year."
Applicant then proceeded to the water court for adjudication. After hearing testimony and reviewing the CWCB's findings and conditional recommendation, the water court issued a decree awarding a RICD in the higher flow amounts Applicant claimed and not the 250 cfs recommended by the CWCB. In doing so, the water court acknowledged that Applicant's was "the first application to be addressed under" SB 216. Therefore, the water court began its analysis by examining the language of the statute, leading it to conclude that it was to treat the CWCB's findings of fact as a rebuttable presumption. The water court then addressed what it determined to be the "primary issue" — "whether Applicant has overcome the rebuttable presumption that 250 cfs for the entire rafting season is the appropriate quantity of water for its proposed whitewater park recreational use." As the water court explained, "once [the] CWCB concluded that 250 cfs for the entire rafting season was appropriate, Applicant had the burden of going forward to demonstrate why any greater amount is appropriate." "Based on the totality of the evidence presented," the water court concluded "that Applicant ha[d] met its burden of proof to overcome the rebuttable presumption."
Upon concluding that Applicant was entitled to more than 250 cfs, the water court then faced another issue — whether the CWCB had made any findings regarding stream flow amounts above 250 cfs that it should treat as presumptively valid. The water court noted that the "CWCB does not find that the amounts applied for either do or do not comport with the [statutory] factors," and it "does not find...
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