May, Matter of, 86SA129
| Decision Date | 09 May 1988 |
| Docket Number | No. 86SA129,86SA129 |
| Parties | In the Matter of the Water Rights of John M. MAY, Frances M. May, and Rock Creek Canyon Corporation in Rock Creek and Rock Creek Alluvium in El Paso County. John M. MAY, Frances May, and Rock Creek Canyon Corporation, Appellants/Cross-Appellees, v. UNITED STATES of America, Rock Creek Park Association, and Division Engineer, Appellees, and Rock Creek Mesa Water District, Appellee/Cross-Appellant. |
| Court | Colorado Supreme Court |
Davis, Graham & Stubbs, Clyde O. Martz, Gail L. Wurtzler, Denver, for appellants/cross-appellees.
F. Henry Habicht II, Asst. Atty. Gen., Robert L. Klarquist, Dept. of Justice, Washington, D.C., Robert N. Miller, U.S. Atty., John R. Hill, Dept. of Justice, Land & Natural Resources Div., Denver, for appellee U.S. of America.
Sherman & Howard, Gary L. Greer, G. Sonny Cave, Denver, for appellee Rock Creek Park Assn.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Wendy C. Weiss, First Asst. Atty. Gen., Denver, for appellee State Div. Engineer.
Fischer, Brown, Huddleson & Gunn, P.C., Ward H. Fischer, Stephen J. Jouard, Fort Collins, Evans and Briggs, Paul V. Evans, G. Scott Briggs, Colorado Springs, for appellee/cross-appellant Rock Creek Mesa Water Dist.
Appellants John and Frances May and Rock Creek Canyon Corporation applied in Water Division No. 2 for a conditional decree for storage of 462 acre-feet of water in a basin hydraulically separate from Rock Creek, the source of supply, and, in conjunction with a proposed change in use of water rights and plan of augmentation, a determination under section 37-92-305, 15 C.R.S. (1973 & 1984 Supp.), that proposed alterations in the use of water in the separate basin would not impair vested rights in Rock Creek. Appellants proposed to use the water as (1) a domestic supply for a new subdivision on the May property; (2) a domestic supply of 75 acre-feet under a continuing contract for water service to the Rock Creek Mesa Water District (Mesa); and (3) a reserve of 50 acre-feet in storage for domestic and campground uses on the May property. Statements of opposition were filed by the United States and Rock Creek Park Association claiming that the proposed storage and use of water in the separate basin would alter the rate, timing, and quantity of diversions from Rock Creek. Mesa filed an objection asserting that the continuing water service contract provided for more water than the annual 75 acre-feet obligation that appellants recognized in their application.
In a pretrial order dated October 11, 1985, the District Court for Water Division Number 2 determined that the contract between the Mays and Mesa unambiguously obligated the Mays to provide only 75 acre-feet of water annually. After trial, the court issued an order determining historic diversions and the amount of water available under the Mays' water rights decrees and denying appellants' application for a change in use and a plan of augmentation since the proposed change in use would injure vested rights of other appropriators. Following the order, appellants proposed terms and conditions under section 37-92-305 to avoid injury to other appropriators. The trial court rejected the proposals finding that they were insufficient to prevent injury to other users. We affirm.
The Mays own and operate a campground and recreational park in El Paso County, Colorado, west of the Fort Carson Military Reservation. The property consists of campgrounds, a museum and curio shop, a rally field, and five reservoirs used for fishing and swimming. They own the following water rights for commercial, recreational, piscatorial, municipal, irrigation, and domestic uses: (1) water rights decree to May well 1 for 1.9 cubic-feet-per-second (cfs); (2) water rights decree to May well 2 for 2.5 cfs; (3) water rights decree to May well 3 for 2.2 cfs; (4) water rights decree to the steer well for .103 cfs and for .033 cfs only for domestic uses; and (5) water storage rights decrees totalling 67.647 acre-feet for the five reservoirs (includes conditional decrees for storage of 33.513 acre-feet). The May wells tap an alluvial formation that is hydraulically and hydrologically connected to the flow of Rock Creek, a naturally occurring stream. To irrigate 20 acres of land, the Mays also own six percent of the waters decreed to the Gale ditch. The headgate of the ditch is located on Rock Creek downstream of the steer well and upstream of the other decreed rights.
After a flood impaired the production of well 1 in 1970, the Mays applied for and received a permit to drill a replacement well with a maximum pumping rate of 850 gallons-per-minute (gpm) for domestic, livestock, commercial, industrial, irrigation, and recreational purposes. The permit was subject to the terms of the decree for well 1. In October 1980, the Mays drilled two replacement wells, wells 1A and 1B, to obtain the decreed withdrawal rate for well 1. On November 4, 1982, they filed statements of beneficial use for each well, claiming a 240-gpm pumping rate on well 1A and a 270-gpm pumping rate on well 1B. On the same day, they filed an affidavit, certifying that well 1 was plugged and abandoned. On October 11, 1984, they applied for a permit to drill a new well, well 1X, as an alternate and supplemental point of diversion under the decree for well 1. The application requested a maximum pumping rate of 620 gpm to withdraw 400 acre-feet each year. The State Engineer never acted on the application.
The Mays diverted and distributed water for use through three systems--the general ranch system, the May ditch, and the Rock Creek Mesa system. The general ranch system furnishes water for the campgrounds, the museum and curio shop, and several residences for domestic purposes. The system is supplied primarily by wells 1A and 1B. The May ditch is supplied principally by wells 2 and 3 and at times by the Gale ditch and wells 1A and 1B. The May ditch flows through four of the May reservoirs for piscatorial purposes and provides water for irrigation and recreation. The Rock Creek Mesa system is largely supplied by a pipeline from well 3 and provides water to the Rock Creek Mesa Water District pursuant to a delivery contract. Waters diverted by the Mays are used in the Rock Creek basin and in an adjacent unnamed basin. The two basins are hydraulically separated by a subsurface barrier of shale, and return flows from diversions into the unnamed basin do not return to Rock Creek.
On August 7, 1984, Rock Creek Canyon Corporation purchased from the Mays approximately 200 acres of land in the Rock Creek and unnamed basins, all the decreed water rights of the Mays except for the rights decreed for well 1, and a right to purchase an undetermined amount of water under the well 1 decree. Appellants planned to use the water as (1) a domestic supply for a new subdivision on the May property; (2) a domestic supply of 75 acre-feet to satisfy contractual commitments to Mesa; and (3) a reserve of 50 acre-feet in storage for domestic and campground uses on the May property. To effectuate their plans, appellants filed an application on December 21, 1984, in Water Division Number 2 seeking: (1) absolute decrees for enlargements of May reservoirs 1 and 4; (2) a conditional decree for a new 462 acre-foot reservoir in the unnamed basin; (3) confirmation of a replacement well and an alternate and supplemental point of diversion for the May well 1 decree; and (4) a determination by the water court that appellants are not required to provide augmentation water because no vested water right will be injured by the proposal.
Statements of opposition to the application were filed by Rock Creek Mesa Water District, the United States, the City of Colorado Springs, and Rock Creek Park Association on its own behalf and for numerous other appropriators from Rock Creek. Prior to trial, Colorado Springs withdrew its statement of opposition. In their statements, the United States and Rock Creek Park Association claimed that the proposed storage and use of water in the unnamed basin would alter the rate, timing, and quantity of diversions from Rock Creek. Mesa's objection asserted that its contract with the Mays entitled it to more water than the annual 75 acre-feet obligation that appellants recognized in their application.
Prior to trial, appellants filed a motion in limine for interpretation of their contract with Mesa. In a pre-trial order, the parties stipulated that the sole agreements between the Mays and Mesa were a water sales contract dated August 19, 1964, an addendum to the water sales contract dated October 25, 1976, and a first revision to the addendum dated June 2, 1982. By order dated October 11, 1985, the court determined as a matter of law that the agreements obligated the Mays to provide 75 acre-feet of water annually to Mesa and 12 million gallons of storage capacity.
The trial commenced in the District Court in and for Water Division No. 2 (water court) on November 5, 1985, and concluded on November 7, 1985. Based on the Mays' power consumption records for 1959, 1960, 1981, 1982, and 1983, and on the sustained yields of wells 1A and 1B, the water court determined the maximum possible historic use for well 1 to be 178 acre-feet. The court estimated the maximum historic use for well 2 to be 145 acre-feet and for well 3 to be 155 acre-feet based on the maximum yield of each well. 1
With respect to the amount of water rights available to meet project demands, the court stated:
The total historic annual use proved by the Applicants is less than 178 acre-feet for Well No. 1 (Well No. 1A and 1B), 145 acre-feet for Well No. 2, and 155 acre-feet for Well No. 3. Those amounts, together with a 6% contribution from the Gale Ditch diversions [12.66 acre-feet],...
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