Rio Grande Water v. Special Improvement Dist. No. 1
| Citation | 351 P.3d 1112,2015 CO 52 |
| Decision Date | 29 June 2015 |
| Docket Number | Supreme Court Case No. 13SA135 |
| Parties | Concerning the Office of the State Engineer's Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District and Concerning the Special Improvement District No. 1 of the Rio Grande Water Conservation District's Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District SAN ANTONIO, LOS PINOS AND CONEJOS RIVER ACEQUIA PRESERVATION ASSOCIATION; Save Our Senior Water Rights, LLC; Richard H. Ramstetter; and Costilla Ditch Company, Objectors–Appellants v. SPECIAL IMPROVEMENT DISTRICT NO. 1 OF THE RIO GRANDE WATER CONSERVATION DISTRICT, Applicant–Appellee and Dick Wolfe, P.E., State Engineer, Defendant–Appellee, and Rio Grande Water Conservation District ; Rio Grande Water Users Association ; Conejos Water Conservancy District ; Farming Technology Corporation; Mountain Coast Enterprises, LLC; Ernest Myers ; Freda Myers; Virginia Myers ; Warren Myers; Nevitt Farms; Sam Investments, Inc. ; Skyview Cooling Company, Inc.; Waijaya Colorado, LLC; Edward Harmon; Sherilyn R. Harmon; David Bradley; Perry Alsbaugh; Martin Shellabarger; Kelly Sowards; Richard L. Benton ; Jason L. Benton; Thomas C. Corzine; Clayton C. Corzine; Roy McConnel, Jr.; Fredrick V. Paulson; Fredrick L. Paulson, II; Norman W. Slade; Off Ranches, Inc. ; Cristi Lewis; Robert Atkins; Mario Bassi; Obbie Dickey; N.W. Ellithorpe; Kari King; Laurie Lovato; Timothy Lovato; Laurie McClung; Ed Nielson; Janis Slade; and C.R. Tomlin, Objectors–Appellees and Craig Cotten, Division Engineer, Water Division No. 3, Appellee Pursuant to C.A.R. 1(e). |
| Court | Supreme Court of Colorado |
Attorneys for Objectors–Appellants San Antonio, Los Pinos and Conejos River Acequia Preservation Association and Save Our Senior Water Rights, LLC: Buchanan and Sperling, P.C., Timothy R. Buchanan, Arvada, Colorado
Attorneys for Objector–Appellant Richard H. Ramstetter: S.W. Atencio and Associates, P.C., Stephane W. Atencio, Alamosa, Colorado
Attorneys for Objector–Appellant Costilla Ditch Company: Lester, Sigmond, Rooney & Schwiesow Erich Schwiesow Alamosa, Colorado
Attorneys for Objector–Appellant Costilla Ditch Company: Lester, Sigmond, Rooney & Schwiesow, Erich Schwiesow, Alamosa, Colorado
Attorneys for Applicant–Appellee Special Improvement District No. 1 of the Rio Grande Water Conservation District and for Objector–Appellee Rio Grande Water Conservation District: Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Peter J. Ampe, Andrew J. Rottman, Denver, Colorado
Attorneys for Defendant–Appellee State Engineer and Appellee Pursuant to C.A.R.
1(e) Division Engineer, Water Division No. 3: Cynthia H. Coffman, Attorney General, Preston V. Hartman, Assistant Attorney General, Mari Deminski, Assistant Attorney General, Denver, Colorado
Attorneys for Objector–Appellee Rio Grande Water Users Association: Carlson, Hammond & Paddock, L.L.C., William A. Paddock, Mary M. Hammond, Karl D. Ohlsen, Denver, Colorado
No appearance on behalf of: Conejos Water Conservancy District; Farming Technology Corporation; Mountain Coast Enterprises, LLC; Ernest Myers; Freda Myers; Virginia Myers; Warren Myers; Nevitt Farms; Sam Investments, Inc.; Skyview Cooling Company, Inc.; Waijaya Colorado, LLC; Edward Harmon; Sherilyn R. Harmon; David Bradley ; Perry Alsbaugh; Martin Shellabarger; Kelly Sowards; Richard L. Benton; Jason L. Benton; Thomas C. Corzine; Clayton C. Corzine; Roy McConnel, Jr.; Fredrick V. Paulson; Fredrick L. Paulson, II; Norman W. Slade; Off Ranches, Inc.; Cristi Lewis; Robert Atkins ; Mario Bassi; Obbie Dickey; N.W. Ellithorpe; Kari King; Laurie Lovato; Timothy Lovato; Laurie McClung; Ed Nielson; Janis Slade; and C.R. Tomlin.
En Banc
¶ 1 This is an appeal from two pretrial orders and the April 2013 judgement and decree of the District Court for Water Division No. 3 in Case Nos. 06CV64 and 07CW52. Collectively, the water court's rulings upheld the Special Improvement District No. 1 (“Subdistrict”) of the Rio Grande Water Conservation District's (“District”) and the State Engineer's approval of the 2012 Annual Replacement Plan (“ARP”) developed pursuant to the Subdistrict's decreed Plan of Water Management (“Amended Plan”). In San Antonio, Los Pinos & Conejos River Acequia Preservation Ass'n v. Special Improvement District No. 1 (“San Antonio ”), 270 P.3d 927, 931–32 (Colo.2011), this court affirmed the water court's May 2010 Decree that approved the Subdistrict's Amended Plan and imposed additional decree conditions on that Plan. The 2012 ARP under review here is the first ARP prepared pursuant to the Subdistrict's Amended Plan.
¶ 2 The Amended Plan represents the first attempt by water users in Colorado's San Luis Valley to regulate groundwater use to achieve sustainable aquifer levels and prevent injury to senior surface water rights. See San Antonio, 270 P.3d at 933–35, 941–44 (); see generally § 37–48–108, C.R.S. (2014) (); § 37–48–126, C.R.S. (2014) (); § 37–92–501, C.R.S. (2014) ().
¶ 3 Members of the Subdistrict are landowners within the District who rely on wells for all or part of their irrigation water supply for lands north of the Rio Grande River within the closed basin area of the San Luis Valley, in Water Division No. 3.1 As described in San Antonio, water levels in the unconfined aquifer within the Subdistrict have declined significantly due to increased groundwater consumption and sustained drought. 270 P.3d at 941. The overall objective of the Amended Plan is to provide a water management system of self-regulation within the Subdistrict (in lieu of state-imposed limits on the use of irrigation wells) using economic-based incentives to promote responsible management and use of irrigation water and ensure the protection of senior surface water rights. Id. Subdistrict members are required to contribute financially (through assessment of various fees tethered in part to a farm unit's net groundwater consumption) to fund Subdistrict operations that, among other activities, provide economic incentives to fallow or permanently retire lands to reduce irrigation water consumption. Id. at 941–42.
¶ 4 The Amended Plan requires the Subdistrict to prepare, and obtain the State Engineer's approval of, an ARP that prevents injury to senior water rights. Id. at 943–44. Each ARP must estimate anticipated stream depletions caused by groundwater pumping within the Subdistrict during the replacement plan year, including lagged depletions caused by prior-year pumping. Id. at 943. The ARP must then provide a procedure and timeline to deliver replacement water to any injured rights on the Rio Grande or Conejos Rivers or other stream, including delivery to Rio Grande Compact gauges to reduce any Compact curtailment. Id. at 943–44.
¶ 5 The water court retained jurisdiction under the 2010 Decree to ensure the Subdistrict operates the Amended Plan in conformity with the terms of the court's decree and to address any alleged injury in the operation of the Amended Plan. See id. at 935, 941, 944–45 (); see also § 37–92–501(4)(c) ().
¶ 6 Pursuant to this retained jurisdiction, the water court reviewed objections to the 2012 ARP in this case. Following several pretrial rulings and a two-day trial in October 2012, the water court ultimately upheld the State Engineer's and the Subdistrict's approval of the 2012 ARP in a detailed, forty-three-page order setting forth its findings of fact, conclusions of law, judgment, and decree.
¶ 7 Objectors San Antonio, Los Pinos and Conejos River Acequia Preservation Association, Save Our Senior Water Rights, LLC, Richard Ramstetter, and Costilla Ditch Company (“Objectors”) are senior surface water right holders on the Rio Grande River and its tributaries. They appeal from two of the water court's pretrial rulings as well as its judgment and decree upholding the 2012 ARP.
¶ 8 As set forth more fully below, we conclude that the 2012 ARP complied with the Amended Plan and 2010 Decree and protected against injury to senior surface water rights. Accordingly, we affirm the water court's August 2012 pretrial orders and its April 2013 judgment and decree upholding the Subdistrict's and the State Engineer's approval of the 2012 ARP.
¶ 9 The Subdistrict filed its 2012 ARP with the water court and submitted it to the State Engineer for review on April 13, 2012. The State Engineer determined that the 2012 ARP sufficiently identified sources, availability, and amounts of replacement water to remedy injurious depletions and approved the 2012 ARP on May 1, 2012.
¶ 10 Two aspects of the 2012 ARP are relevant to this appeal. First, the 2012 ARP identified 2500 acre-feet of Closed Basin Project production as a source of replacement water. The ARP noted that the projected production of the Closed Basin Project to be delivered to the Rio Grande during 2012 was 11,500 acre-feet of water and that the Rio Grande Water Users Association Board of Directors passed a motion to allocate, on a one-time basis, up to 2500 acre-feet of that water to replace injurious depletions under the 2012 ARP. Second, the 2012 ARP included a comprehensive list of Subdistrict wells but did not provide a separate list of augmentation plan wells or otherwise identify within its comprehensive list which wells were covered by augmentation plans; moreover, it included the pumping from augmentation plan wells for purposes...
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