Danielson v. Castle Meadows, Inc.
| Citation | 791 P.2d 1106 |
| Decision Date | 23 April 1990 |
| Docket Number | No. 89SA64,O,No. 1,1,89SA64 |
| Parties | Jeris A. DANIELSON, State Engineer, and Alan D. Berryman, Division Engineer for Water Divisionbjector-Appellant, v. CASTLE MEADOWS, INC., Applicant-Appellee, and Mission Viejo Company, Highlands Ranch Development Corporation, and Centennial Water and Sanitation District, Objectors-Appellees. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard Forman, Sol. Gen., and Bradley W. Cameron, Asst. Atty. Gen., Denver, for objector-appellant.
McKenna, Conner & Cuneo, Holly I. Holder and Kim J. Seter, Denver, for applicant-appellee.
Moses, Wittemyer, Harrison and Woodruff, P.C., Charles N. Woodruff, Veronica A. Sperling and Steven P. Jeffers, Boulder, for objectors-appellees.
This is an appeal from the order of the water court for Water Division No. 1 that approved, subject to several provisions for retained jurisdiction, the plan for augmentation of not nontributary Denver aquifer ground water 1 proposed by applicant-appellee Castle Meadows, Inc. 2 Castle Meadows had previously obtained, for use as a municipal water supply, a decree for a water right to not nontributary Denver aquifer ground water that was not within a designated ground water basin. See § 37-90-137(4), 15 C.R.S. (1989 Supp.). The augmentation plan provides for replacement of four percent of the amount of water withdrawn on an annual basis to the affected streams throughout the period that ground water is actually pumped. The objector-appellants, the state engineer and the division engineer for Water Division No. 1 (), appeal the decree of the water court approving the plan for augmentation. On appeal, the state engineer contends that: (1) the water court erred by failing to impose terms and conditions to remedy injury to senior water right holders caused by depletions that occur after withdrawals cease, (2) the water court erred by failing to require replacement of depletions to West Plum Creek, and (3) the water court improperly imposed the burden of proof on the objectors to the plan for augmentation. We agree that the plan for augmentation must replace injurious depletions that result from the pumping of not nontributary ground water from the Denver aquifer and that occur after withdrawal has ceased. We do not agree with the state engineer's other contentions. Accordingly, we reverse in part, affirm in part, and remand with directions.
Lincoln Savings and Loan Association, Castle Meadows' predecessor in interest, applied for water rights to Denver aquifer ground water in 1984. The Denver aquifer ground water, together with ground water from the other Denver Basin aquifers, 3 was intended to be used as a water supply for a planned community development consisting of residential, recreational, municipal, commercial and industrial uses. The land area for the development totals over 4,000 acres and is located in the East Plum Creek and West Plum Creek drainage systems. The streams, East and West Plum Creeks, are tributaries of the South Platte River. The application for water rights sought a decree for 2,990 acre-feet per year of nontributary ground water underlying approximately 3,900 acres of land. The state engineer determined that the water sought in the application was not nontributary and the application was amended to reflect that determination. On April 29, 1987, the water court entered a decree that awarded Castle Meadows' predecessor in interest a not nontributary Denver aquifer ground water right in the amount of 2,990 acre-feet per year. The decree approved well sites that were greater than one mile from any point of contact between the aquifer and a surface stream and its alluvium. In addition, the decree conditioned use of the water right upon approval of a plan for augmentation calling for the replacement to the affected streams of four percent of the not nontributary ground water withdrawn on an annual basis.
In 1986, Castle Meadows' predecessor in interest filed an application for approval of a plan for augmentation to offset depletions that would be caused by the withdrawal of the not nontributary Denver aquifer ground water. The plan called for the return to East Plum Creek of four percent of the water withdrawn from the Denver aquifer. The sources of the water to be used for augmentation purposes were return flows and waste water from the development and direct discharge from the wellhead of not nontributary and nontributary ground water to East Plum Creek. The state engineer objected to the plan on the grounds that the plan failed to address the injury to vested water rights that would occur after withdrawal from the Denver aquifer ceased and that the plan did not provide for replacement of water to West Plum Creek.
The plan for augmentation was approved by the water court on December 29, 1989. The water court found that the plan's provisions, as approved, for replacement of depletions to East Plum Creek were sufficient to prevent injury to vested water rights. With respect to postpumping augmentation, the water court held that it had authority pursuant to section 37-90-137(9)(c), to require replacement of postpumping depletions, but that the requirement of such augmentation was discretionary. Over the objections of the state engineer, the court refused to require postpumping augmentation.
The water court also found that the development was partly within the West Plum Creek watershed and that there was "some connection" between the Denver aquifer and West Plum Creek. However, the water court did not find that depletions to West Plum Creek would occur and that the depletions would result in injury to water rights within the West Plum Creek watershed. The water court retained jurisdiction to determine if withdrawal of the not nontributary Denver aquifer water would cause injury to water rights in the West Plum Creek watershed and, if so, to determine if the return flows from the development to West Plum Creek would offset depletions to that stream. The decree provides that any party invoking the court's retained jurisdiction has the burden of going forward to establish a prima facie case of injury. After a prima facie case of injury is shown, pursuant to the decree the applicant has the burden of proof to establish lack of injury to other appropriators.
The state engineer's primary objection to Castle Meadows' plan for augmentation is the failure of the plan to replace depletions to the surface streams caused by the withdrawal of not nontributary Denver aquifer ground water after withdrawal has ceased. Wells completed in the Denver Basin aquifers are statutorily presumed to have a life of one hundred years. Section 37-90-137(4)(b)(I), 15 C.R.S. (1989 Supp.). Section 37-90-137(4)(b)(II) provides that "the amount of such ground water [described in section 37-90-137(4)(a) ] available for withdrawal shall be that quantity of water, exclusive of artificial recharge, underlying the land owned by the applicant or underlying land owned by another" who has consented or who can be deemed to have consented to the applicant's withdrawal. Under section 37-90-137(4), the amount of water available for withdrawal by Castle Meadows from the Denver aquifer is limited to that set forth in the 1987 decree and, at some point, Castle Meadows must cease withdrawing pursuant to that decree.
Plans for augmentation of wells completed in the Denver aquifer that withdraw not nontributary ground water are controlled by the statutory criteria set forth in section 37-90-137(9)(c), which provides:
As to wells which will be completed in the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers and will withdraw ground water which is not nontributary ground water, as defined in section 37-90-103(10.5), judicial approval of plans for augmentation shall be required prior to the use of such ground water. As to such wells completed in the Dawson aquifer, decrees approving such plans for augmentation shall provide for the replacement of actual stream depletion to the extent necessary to prevent any injurious effect, based upon actual aquifer conditions in existence at the time of such decree. As to such wells completed in the Denver, Arapahoe, or Laramie-Fox Hills aquifers more than one mile from any point of contact between any natural stream including its alluvium on which water rights would be injuriously affected by any stream depletion, and any such aquifer, such decrees shall provide for the replacement to the affected stream system or systems of a total amount of water equal to four percent of the amount of water withdrawn on an annual basis. As to such wells completed in such aquifers at points closer than one mile to any such contact, the amount of such replacement shall be determined using the assumption that the hydrostatic pressure level in each such aquifer has been lowered at least to the top of that aquifer throughout that aquifer. Such decrees may also require the continuation of replacement after withdrawal ceases if necessary to compensate for injurious stream depletions caused by prior withdrawals from such wells and shall meet all other statutory criteria for such plans.
(Emphasis added.) Section 37-90-137(9)(c) creates three separate classes of ground water with distinct standards for plans for augmentation for each class. 4
The critical language, for the purposes of this opinion, is the last sentence of the subsection. The state engineer maintains that the last sentence requires a plan for augmentation of not nontributary Denver aquifer ground water to compensate for depletions caused after withdrawal has ceased. In support of this conclusion, the state engineer argues that the subsection is ambiguous in two respects: (1) it is not clear from the...
To continue reading
Request your trial
-
Cooley v. Big Horn Harvestore Systems, Inc.
...effect to the language and intent of the General Assembly and seek to harmonize apparently contrasting provisions. Danielson v. Castle Meadows, Inc., 791 P.2d 1106 (Colo.1990); City of Ouray v. Olin, 761 P.2d 784 (Colo.1988). The Code itself provides some guidance in resolving the issue her......
-
Carruthers v. Carrier Access Corp..
...3. We recognize that “may” can be interpreted as mandatory, depending on the context in which it is used. See Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1113 (Colo.1990); Stewart Software Co., LLC v. Kopcho, ––– P.3d ––––, –––– – –––– (Colo.App.2010). Mr. Carruthers does not urge suc......
-
Dunlap v. Colorado Springs Cablevision, Inc.
...give effect to the intent of the General Assembly." Kern v. Gebhardt, 746 P.2d 1340, 1344 (Colo.1987); accord Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1111 (Colo.1990); Engelbrecht v. Hartford Accident & Indem. Co., 680 P.2d 231, 233 (Colo.1984). The construction adopted by the cou......
-
May Dept. Stores Co. v. State ex rel. Woodard
...be consistent with the intent of the statute. Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo.1991); Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1111 (Colo.1990). This court has held that "[t]he legislature's use of the disjunctive 'or' demarcates different categories." Bloom......
-
Consistency in Statutory Interpretation
...v. Hickman, 988 P.2d 628, 645 (Colo. 1999). 12. Leonard v. McMorris, 63 P.3d 323, 327 (Colo. 2003); Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1112 (Colo. 1990). 13. Gilmore, supra note 10. 14. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1153 (Colo.App. 1998). 15. Sigala v.......
-
Priority: the most misunderstood stick in the bundle.
...A Western Slope Perspective on the First Thirty Years, 3 U. DENV. WATER L. REV. 39, 45-47 (1999). (88) Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1112 (Colo. 1990); David F. Jankowski et al., The 1969 Act's Contributions to Local Governmental Water Suppliers, 3 U. DENV. WATER L. REV.......
-
Out-of-priority Water Use: Adding Flexibility to the Water Appropriation System
...of establishing the absence of injurious results from the proposed change or augmentation plan."); Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1115 (Colo. 1990) ("Finally, the water court did not err by requiring a party who invokes the court' retained jurisdiction to make a prima fac......
-
The Volley of Canons
...supra, note 8. 10. CRS § 18-1-901(3)(e) (1973). (Emphasis added.) 11. CRS § 2-4-214 (Supp. 1996). 12. Danielson v. Castle Meadows, Inc., 791 P.2d 1106, n.6 (Colo. 1990). 13. People in the Interest of M.W., 796 P.2d 66 (Colo.App. 1990), cert. denied. DO YOU HAVE QUESTIONS ABOUT LEGAL WRITING......