IN RE APPLICATION FOR WATER RIGHTS

• Citation: 986 P.2d 262
• Decision Date: 13 September 1999
• Docket Number: No. 98SA208.,98SA208.
• Parties: In the Matter of the Application for WATER RIGHTS OF PARK COUNTY SPORTSMEN'S RANCH LLP, in Park County, Park County Sportsmen's Ranch LLP, Appellant, v. Frida BARGAS as Trustee of the Frieda Wahl Trust, Ruth Bartle, Jim Campbell, Indian Mountain Corp., James T. Benes, James T. Benes, Jr. and Cassandra L. Benes Trust, Tarryall Land and Cattle LLC, Centennial Water and Sanitation District, Bob Burch, Central Colorado Cattlemen's Association, City and County of Denver, City of Englewood, City of Thornton, H.D. and Mary Catherine Coleman, James E. Copanos, County of Park, Upper South Platte Water Conservancy District, Kim Magness and Gary Magness as Personal Representatives of the Estate of Bob Magness, Darrell Johns, John Johns, David Johns, Joseph G. and Joyce C. Minke, Park County Water Preservation Coalition, Carol Hack, Larry Dirks, Cynthia and Wilbur Van Wagenen, Elkhorn Ranch Homeowner's Association, Colorado Wildlife Commission and Division of Wildlife, Union Pacific Resources Company, and the United States of America, Appellees, and, State Engineer Harold D. Simpson, and Division Engineer Richard L. Stenzel, Appellees pursuant to C.A.R. 1(e).
• Court: Colorado Supreme Court

986 P.2d 262

In the Matter of the Application for WATER RIGHTS OF PARK COUNTY SPORTSMEN'S RANCH LLP, in Park County,

Park County Sportsmen's Ranch LLP, Appellant, v. Frida BARGAS as Trustee of the Frieda Wahl Trust, Ruth Bartle, Jim Campbell, Indian Mountain Corp., James T. Benes, James T. Benes, Jr. and Cassandra L. Benes Trust, Tarryall Land and Cattle LLC, Centennial Water and Sanitation District, Bob Burch, Central Colorado Cattlemen's Association, City and County of Denver, City of Englewood, City of Thornton, H.D. and Mary Catherine Coleman, James E. Copanos, County of Park, Upper South Platte Water Conservancy District, Kim Magness and Gary Magness as Personal Representatives of the Estate of Bob Magness, Darrell Johns, John Johns, David Johns, Joseph G. and Joyce C. Minke, Park County Water Preservation Coalition, Carol Hack, Larry Dirks, Cynthia and Wilbur Van Wagenen, Elkhorn Ranch Homeowner's Association, Colorado Wildlife Commission and Division of Wildlife, Union Pacific Resources Company, and the United States of America, Appellees, and,

State Engineer Harold D. Simpson, and Division Engineer Richard L. Stenzel, Appellees pursuant to C.A.R. 1(e).

No. 98SA208.

Supreme Court of Colorado, En Banc.

September 13, 1999.

As Modified on Denial of Rehearing October 4, 1999.

Bennington Johnson & Reeve, a Professional Corporation, Kenneth J. Burke, Denver, Colorado, Attorneys for Appellant.

Bernard, Lyons & Gaddis, a Professional Corporation, Jeffrey J. Kahn, Steven P. Jeffers, Longmont, Colorado, Attorneys for Park County and Upper South Platte Water Conservancy District.

Fairfield and Woods, P.C., Stephen H. Leonhardt, Ilona L. Dotterrer, Denver, Colorado, Attorneys for the Frieda Wahl Trust.

Felt, Houghton & Monson, LLC, James G. Felt, James W. Culichia, Colorado Springs, Colorado, Attorneys for Park County Water Preservation, Carol Hack, Larry Dirks, Cynthia and Wilber Van Wagenen and Elkhorn Ranch.

Vranesh and Raisch, LLC, Michael D. Shimmin, Boulder, Colorado, Attorneys for H.D. and Mary Catherine Coleman. United State Department of Interior, Rocky Mountain Region, John R. Kunz, Special Assistant U.S. Attorney, Lakewood, Colorado, Attorneys for the United States of America.

Holly I. Holder, P.C., Holly I. Holder, Diana A. Cachey, Priscilla S. Fulmer, Denver, Colorado, Attorneys for Jim Campbell and Indian Mountain Corp.

Moses, Wittemyer, Harrison and Woodruff, P.C., David L. Harrison, Veronica A. Sperling, Gilbert Y. Marchand, Jr., Boulder, Colorado, Attorneys for Centennial Water, James T. Benes,James T. Benes, Jr. and Cassandra L. Benes Trust,and Tarryall Land and Cattle.

Office of the City Attorney, Evan D. Ela, Thornton, Colorado, Attorneys for the City of Thornton.

Friedlob Sanderson Raskin Paulson & Tourtillott, LLC, Brian M. Nazarenus, Carolyn F. Burr, Denver, Colorado, Attorneys for Union Pacific Resources Company.

Office of the State Attorney General, Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Joseph C. Smith, Jr., Deputy Attorney General, Lee E. Miller, First Assistant Attorney General, Edward R. Kowalski, Assistant Attorney General, Natural Resources Section, Denver, Colorado, Attorneys for State Engineer and the Division Engineer for Water Division 1.

Justice KOURLIS delivered the Opinion of the Court.

This case requires us to determine whether certain provisions of the Colorado Ground Water Management Act (CGWMA), see §§ 37-90-101 to 143, 10 C.R.S. (1998), apply to the Laramie-Fox Hills aquifer located outside of the Denver Basin in South Park, Colorado. The provisions in question, contained in subsections (10.5) and (10.7) of section 37-90-103, operate to allow certain water that would otherwise be deemed to be tributary water subject only to appropriative use to be withdrawn as ground water under section 37-90-137 of the CGWMA. After examining legislative history to resolve ambiguities in the statute, we conclude that subsections (10.5) and (10.7) apply only in the Denver Basin, and not to the South Park ground water at issue in this case.

I.

Appellant Park County Sportsmen's Ranch LLP (PCSR) is the agent in fact of the City of Aurora, which owns 2,307 acres of land in South Park, Colorado overlying an estimated 44,986 acre feet of ground water. The water is contained in a formation of the Laramie-Fox Hills aquifer. In 1992, PCSR received three well permits allowing it to withdraw an average annual total of 450 acre feet of ground water. However PCSR never constructed the wells, and its permits expired on June 30, 1997.

Before the expiration of the permits, on January 29, 1996, PCSR applied to the Division I Water Court for a decree to confirm PCSR's continued right to withdraw ground water in accordance with the terms of the three permits. The Appellees filed in opposition to the PCSR's application, and the water court set the matter for trial.

As contemplated in section 37-92-302(2), 10 C.R.S. (1998), on June 4, 1996, the Office of the State Engineer (State Engineer) then filed with the water court the first in a series of three determinations of fact concerning PCSR's decree application. Relying on its 1992 well permit studies, the State Engineer found that PCSR's ground waters were "nontributary" to any surface waters. Several Appellees subsequently requested that the State Engineer reevaluate this finding based on new information concerning the extent of contact between the aquifer and alluvial surface waters underlying Tarryall Creek.

After conducting additional investigations, the State Engineer issued a second amended determination of fact on August 7, 1997. It found that, because there was stream-aquifer contact along 3,500 feet of Tarryall Creek: (1) the ground water underlying that portion of PCSR's lands was "not nontributary" as defined by subsection (10.7), because withdrawals would, within 100 years, deplete the flow of Tarryall Creek at an annual rate of greater than one-tenth of one percent of the annual rate of withdrawal, but that (2) the ground water underlying the remainder of PCSR's lands was "nontributary" as defined by subsection (10.5), because withdrawal of that water would not deplete the Creek by one-tenth of one percent of withdrawals within 100 years.

Several Appellees then filed a motion pursuant to C.R.C.P. 56(h), requesting that the water court determine as a matter of law whether subsection (10.7) and certain provisions in subsection (10.5) were applicable to ground water in the Laramie-Fox Hills aquifer in South Park. After considering extensive briefs by the parties, filings by the State Engineer, and legislative history, the water court ruled that the relevant provisions in subsections (10.5) and (10.7) were ambiguous as to whether their references to the "Denver, Dawson, Arapahoe, and Laramie-Fox Hills aquifers" applied to those aquifers outside the Denver Basin. However, the court concluded that legislative history resolved this ambiguity by demonstrating that the General Assembly intended to refer to the four aquifers only at their locations in the Denver Basin, not to other formations of these aquifers outside the Denver Basin. Noting that all parties conceded that the water in question was tributary absent the contested provisions of subsection (10.5) and (10.7), the water court further ruled that "all out-of-priority pumping would require replacement or augmentation for 100% of out-of-priority withdrawals."¹

Because pursuant to the water court's ruling, PCSR could no longer prevail on its claim to ground water rights under the CGWMA, PCSR then moved for entry of a final judgment concerning the water court's interpretation of sections 37-90-103(10.5) and (10.7). The water court issued such a judgment on April 6, 1998, finding that there was no nontributary ground water under PSCR's lands and this appeal followed.²

PCSR now contends that the water court's holding that subsections (10.5) and (10.7) do not apply to PCSR's ground water was erroneous based on the clear and express language of those subsections. In addition, PCSR contends that even if the water court was correct and PCSR's ground water is tributary, the water court erred by holding that PCSR must augment or replace 100% of its out-of-priority diversions.³

II.

In Colorado, ground water that is hydrologically connected to a surface stream is generally considered "tributary" and is subject to the constitutional doctrine of prior appropriation.⁴ Priority for purposes of administration among respective users is a function of the "appropriation date" — or the date that the appropriator first formed the intent to divert the water to beneficial use and began overt work toward that end⁵ — and the adjudication date.⁶ In contrast, ground water that is either not hydrologically connected or is minimally connected to any surface stream is considered "nontributary"⁷ and does not fall within the doctrine of prior appropriation, but rather is subject to administration and allocation as the General Assembly sees fit.⁸

In Senate Bill 5, ch. 285, 1985 Colo. Sess. Laws 1160 (codified as amended in scattered sections of Title 37, 10 C.R.S. (1998)), the General Assembly adopted a statutory system for administering and allocating nontributary ground water that affords owners of lands overlying aquifers the right to withdraw ground water at a rate designed to provide the aquifer with at least a 100 year life expectancy. This system is fundamentally different from the prior appropriation doctrine applicable to tributary waters. Whereas the usufructuary right to surface water is based upon a diversion of a specific quantity of water to a beneficial use with prior diversions prevailing over latter ones,⁹ the right to withdraw nontributary ground water is based by operation of statute upon overlying land ownership with no diversion requirement and with available quantity determined by a 100 year...