Pueblo West Metropolitan Dist. v. Southeastern Colorado Water Conservancy Dist., 82SA225
| Decision Date | 22 October 1984 |
| Docket Number | No. 82SA225,82SA225 |
| Citation | 689 P.2d 594 |
| Parties | PUEBLO WEST METROPOLITAN DISTRICT, City of Florence, and St. Charles Mesa Water Association, Appellants, v. SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, Appellee. |
| Court | Colorado Supreme Court |
Robert F.T. Krassa, P.C., Robert F.T. Krassa, Pueblo, for appellants.
Fairfield & Woods, Charles J. Beise, Howard Holme, Kevin B. Pratt, Denver, for appellee.
The protestants, Pueblo West Metropolitan District, City of Florence, and St. Charles Mesa Water Association ("protestants"), appeal 1 orders of summary judgment entered against them by the Division No. 2 water court on their protest to the entry of partially absolute decrees for storage of water in Pueblo Reservoir and Turquoise Lake. We affirm the judgment.
For many years the Arkansas River and its tributaries constituted the principal source of water for the Arkansas River Valley in southeastern Colorado. In order to supplement this flow of water the United States Congress in 1962 authorized the Fryingpan-Arkansas Project (Project), a major transmountain water diversion project. The Project functions by diverting water from the Colorado River Basin on Colorado's western slope, across the Continental Divide and into the Arkansas River Valley on Colorado's eastern slope. Water is diverted through the Boustead Tunnel, which crosses the Divide, into Lake Fork Creek, an Arkansas River tributary, and thence into Turquoise Lake, where it is stored until released downstream through a series of pipes and conduits into the Arkansas River and ultimately into Pueblo Reservoir. Southeastern, which administers the Project and is responsible for payment to the United States of the Project's reimbursable costs, holds several decrees for Project water. A brief summary of these decrees will help clarify the facts and issues before us.
Southeastern obtained its first decree for Project water in 1959 in Garfield County (hereafter, the "western slope decree"). 2 This decree was for diversion of western slope water through the Boustead Tunnel to Sugar Loaf Reservoir (now Turquoise Lake) and ultimately to Pueblo Reservoir, and provided, in relevant part, as follows:
The Fryingpan-Arkansas Divide Tunnel conveys waters from the West side of the Continental Divide to the East side of the Continental Divide, and has a capacity of 900 cubic feet of water per second of time where the waters are discharged into the watershed of the Arkansas River. The headgates of the collection system[s] and the collection systems themselves represent claims aggregating 4,010 cubic feet of water per second of time, but the limitation on the diversion is the capacity of the Fryingpan-Arkansas Divide Tunnel of 900 cubic feet of water per second of time.
Waters diverted by said tunnel will be conveyed to and stored in Sugar Loaf Reservoir [now Turquoise Lake] and thence to Twin Lakes Reservoir, both thereof being in Lake County, and said reservoirs are existing reservoirs which will be enlarged. Thereafter, said waters will be conveyed by power canals and conduits to power generating facilities at various points along the Arkansas River terminating in the Pueblo Reservoir in Pueblo County.
In 1962 and 1969, Southeastern obtained conditional storage decrees for Pueblo Reservoir and Turquoise Lake respectively (hereafter, the "conditional storage decrees"). These decrees were issued by the district courts of Pueblo and Chaffee counties, both of which are on the eastern slope of the Continental Divide. 3 The two decrees each contain provisions regarding their respective sources of water. The 1962 decree for Pueblo Reservoir provides that its source of water is "the Arkansas River and drainage tributary thereto above the dam which creates the [Pueblo] Reservoir." Similarly, the 1969 decree for Turquoise Lake provides that its source of water is "Lake Fork of the Arkansas River and drainage tributary thereto above the dam which creates the [Turquoise Lake] Reservoir." Both conditional storage decrees also contain "exchange provisions" which, again, are very similar. The exchange provision in the 1962 conditional storage decree for Pueblo Reservoir states:
In addition to the priority hereinabove described, there is hereby decreed to the Pueblo Reservoir the right under priority of February 10, 1939, to take and store the waters of the Arkansas River so located as to be physically controllable by said Pueblo Reservoir in substitution for waters from the Colorado River tributaries decreed for storage in said Pueblo Reservoir and introduced into said Arkansas River.
Similarly, the 1969 decree for conditional storage rights for Turquoise Lake states:
In addition to the priority hereinabove described, there is hereby decreed to [Turquoise Lake] the right under priority of February 10, 1939, to take and store the waters from the Arkansas River so located as to be physically controllable by said [Turquoise Lake] in substitution for waters from the Colorado River tributaries and decreed for storage in said [Turquoise Lake] and introduced into said Arkansas River.
In 1976, Southeastern filed an application to make absolute, to the extent of beneficial use, the conditional storage decrees of 1962 and 1969. Southeastern's application incorporated an attached "summary of activities," which stated in part:
Initial storage in ... Turquoise Lake started April 15, 1968.... The maximum storage in the enlarged Turquoise Lake to date has been 104,927 acre-feet, which occurred on July 26, 1973....
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Boustead Tunnel ... was completed in October 1971 .... Total diversions have been 32,070 acre-feet in 1972, 36,580 acre-feet in 1973, 33,830 acre-feet in 1974 and 37,060 acre-feet in 1975.
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... Initial storage in [Pueblo] reservoir started January 9, 1974, and as of February 1, 1976, the total storage in the reservoir was 62,529 acre-feet .... Of the total storage of 62,529 acre-feet about 40,522 acre-feet was Project water and about 22,007 acre-feet was winter water ....
Southeastern alleged beneficial use to the extent of 62,529 acre feet in Pueblo Reservoir and 104,927 acre feet in Turquoise Lake. Pursuant to statutory procedure, 4 the water court included Southeastern's application in a resume, which was published in various newspapers of general circulation. The resume identified the conditional decrees by their names and case numbers and stated:
Applicant requests the entry of a final decree for the features hereinafter described ... to the extent the same have been used.
Pueblo Reservoir--62,529 acre-feet.
Turquoise Reservoir (Sugar Loaf)--104,927 acre-feet.
In support of the application, there was attached a summary of activities of the United States Bureau of Reclamation, together with a statement showing the amount of money expended pursuant to said conditional decrees. (Said documents consist of five pages and may be examined at the office of the Clerk for Water Division No. 2[.] )
Southeastern's application was subsequently granted on August 19, 1976. 5
In January 1980, Southeastern made application in the water court for Water Division No. 2 for a change of water right by adding three new beneficial uses--flood control, recreation, and wildlife conservation--to the uses originally set forth in the 1962 and 1969 conditional storage decrees for Pueblo Reservoir and Turquoise Lake. Southeastern's application was granted on October 23, 1980. 6
Finally, on August 27, 1980, Southeastern applied for additional partial absolute decrees for the conditional storage rights originally granted in 1962 and 1969, as modified by the 1980 change in water right decree. Southeastern's application referred to the 1962 and 1969 conditional storage decrees by name and case number. The application also named as sources of water for the requested absolute rights: "[w]ater diverted under the District's west-slope decrees"; "Sugar Loaf Reservoir [Turquoise Lake]--Lake Fork of Arkansas River"; and "Pueblo Reservoir--Arkansas River." Southeastern's request for additional partial absolute decrees, combined with the 1976 partial absolute decrees, totaled 104,025 acre feet for Pueblo Reservoir and 127,167 acre feet for Turquoise Lake. The protestants entered an appearance in this action but did not file a statement of opposition. In its ruling of June 26, 1981, the referee found that:
[n]o storage has occurred in Pueblo Reservoir under the Southeastern Colorado Water Conservancy District east slope conditional storage decrees, except for 5,645 acre-feet of flood storage, and that of the water stored, 68,617 acre-feet was water diverted under the Southeastern Colorado Water Conservancy District west slope decrees.
With respect to Turquoise Lake, the referee found that:
no storage has occurred in Turquoise Lake under the District's east slope conditional storage decrees, and that of the waters stored, 82,718 acre-feet was water diverted under the Southeastern Colorado Water Conservancy District's west slope decrees.
The water referee made absolute the Pueblo Reservoir decree to the extent of 41,496 acre feet beyond the 62,529 acre feet already absolutely decreed in 1976, for a total of 104,025 acre feet, which was the amount requested by Southeastern. The water referee's absolute decree for Pueblo Reservoir included 5,645 acre feet of flood storage. With regard to Turquoise Lake, the referee made absolute the conditional storage decree to the extent of 22,240 acre feet beyond the 104,927 acre feet absolutely decreed in 1976, for a total of 127,167 acre feet, again the amount requested by Southeastern.
Protestants on July 15, 1981, filed identical protests to the referee's rulings, arguing that the water court should deny Southeastern's application for partially absolute decrees. Protestants asserted that, with the exception of 5,645 acre feet of flood storage in Pueblo Reservoir, the only water stored by Southeastern in the...
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