Santa Maria Reservoir Co. v. Warner
| Decision Date | 20 April 2020 |
| Docket Number | Supreme Court Case No. 18SA244 |
| Parties | Concerning the Application for Water Rights of the Santa Maria Reservoir Company in the Rio Grande or its Tributaries. SANTA MARIA RESERVOIR COMPANY, Applicant-Appellee, v. Jim WARNER, Opposer-Appellant, and Colorado Division of Parks and Wildlife, Colorado Water Conservation Board, Conejos Water Conservancy District, Costilla Ditch Company, Rio Grande Water Conservation District, and Richard H. Ramstetter, Opposers-Appellees and Concerning Kevin Rein, State Engineer; and Craig W. Cotten, Division Engineer, Water Division 3, Appellees. |
| Court | Colorado Supreme Court |
Attorneys for Applicant-Appellee: Carlson, Hammond & Paddock, LLC, William A. Paddock, Mason H. Brown, Katrina B. Fiscella, Denver, Colorado
Attorneys for Opposer-Appellant: Confluence Water Law LLC, John J. Cyran, Denver, Colorado, Richard L. Arnett, Alamosa, Colorado
Attorneys for Opposer-Appellee Rio Grande Water Conservation District: Hill & Robbins, P.C., David W. Robbins, Peter J. Ampe, Matthew A. Montgomery, Denver, Colorado
Attorneys for Appellee Craig W. Cotten: Philip J. Weiser, Attorney General, Paul L. Benington, First Assistant Attorney General, Denver, Colorado
No appearance on behalf of Colorado Division of Parks and Wildlife, Colorado Water Conservation Board, Conejos Water Conservancy District, Costilla Ditch Company, Richard H. Ramstetter, or Kevin Rein.
En Banc
¶1 Singer-songwriter Joni Mitchell wrote in one of her hit songs that "you don't know what you've got ‘til it's gone." Joni Mitchell, Big Yellow Taxi (Siquomb Publ'g Corp. 1970). The sentiment is helpful in articulating our resolution of this appeal from the District Court of Water Division No. 3 (the "water court"). We conclude that Jim Warner was not injured by the water court's approval of the change-of-use application submitted by the Santa Maria Reservoir Company ("SMRC" or the "Company") with respect to the water it diverts from the Rio Grande into the Closed Basin. Because that water is imported water, SMRC is entitled to fully consume all of it. The water would not be in the Closed Basin, much less available for use by Warner and other water users in the Closed Basin, without its importation by SMRC. Thus, rather than cause an injury to Warner, the approval of SMRC's application simply revealed to him that his past use of return flows from SMRC's imported water in the Closed Basin was a benefit to which he had no enforceable right; Warner just didn't know what he had ‘til it was gone.
¶2 Warner presents a gumbo of claims in urging us to overturn the water court's approval of SMRC's application. First, he argues that the water court applied the wrong legal standard in determining that the water SMRC diverts from the Rio Grande into the Closed Basin is imported. Second, Warner contends that the water court's imported-water determination was based on its mistaken conclusion that the Rio Grande and the Closed Basin are "unconnected" stream systems. According to Warner, the two stream systems are hydraulically connected, and the water court's contrary finding ignores its own legal precedent and this court's caselaw. Finally, Warner posits that the water court's decree is inconsistent with the General Assembly's efforts to manage the surface and groundwater systems in the San Luis Valley (the "Valley"). More specifically, Warner challenges the water court's definition of imported water as overly broad and asserts that the decree issued effectively permits the removal of "thousands of acre-feet" of water from the Valley without regard for the impact of that removal upon individual water users and the long-term sustainability of water systems in the Valley.1
¶3 In order to place this appeal in context, we begin by visiting the central tenets of the prior appropriation doctrine and the principles governing water users' rights in imported water. We then transition to an overview of the history of the administration of water rights in the particular area at issue, Subdistrict No. 1 of Water Division No. 3 (the "Subdistrict"). An understanding of this background is important because it simultaneously sheds light on SMRC's motivation for seeking the contested change of use and informs our analysis of Warner's arguments. We next set forth this case's factual and procedural history, followed by the governing standard of review. We end by analyzing the merits of the claims raised by Warner. Because we conclude that the water court's factual findings have record support and that the water court correctly interpreted and applied Colorado law, we affirm its judgment.
¶4 Under Colorado law, use rights pertaining to water that's "native"2 to a public stream are governed by the doctrine of prior appropriation. City of Thornton v. Bijou Irrigation Co. , 926 P.2d 1, 65 (Colo. 1996). Pursuant to this doctrine, "[t]he first person to divert unappropriated water and to apply it to a beneficial use has a water right superior to subsequent appropriators from the same water resource." Navajo Dev. Co. v. Sanderson , 655 P.2d 1374, 1377 (Colo. 1982). Though subsequent users may appropriate water from the same source, those subsequent users (whose rights are "junior" to the prior appropriator's) may not appropriate water to the extent that it diminishes the amount needed by the previous water users ("senior" rights holders). See Colo. Const. art. 16, § 6 ; § 37-92-103(10) C.R.S. (2019); Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist. , 256 P.3d 645, 661 (Colo. 2011). Regardless of how senior one's water right may be, however, the prior appropriation doctrine only entitles water users to use as much water as they actually need—any surplus water remaining after an appropriator's initial use, e.g., return flows, must be allowed to return to the stream from which it came so that it is available for use by downstream water users. Pulaski Irrigating Ditch Co. v. City of Trinidad , 70 Colo. 565, 203 P. 681, 682 (1922). This requirement speaks to the concept, central to Colorado's prior appropriation doctrine, that water users must avoid causing injury to the rights of other users.3 See, e.g. , § 37-92-302(2)(a), C.R.S. (2019).
¶5 Notably, though, the concern about injury to downstream water users isn't present in the context of water that has been "imported" to a stream system or watershed.4 This is so because "the ability of downstream users to divert imported water exists entirely at the sufferance of the importer." Bijou , 926 P.2d at 72 ; see also id. at 71 (). Accordingly, "a different standard has evolved for water that is brought into a watershed or stream system from a source unconnected with the receiving system." Id. at 66.
¶6 This different standard traces back to a case from the early twentieth century, Ripley v. Park Center Land & Water Co. , 40 Colo. 129, 90 P. 75 (1907), which dealt with developed water added to a stream by the petitioner's own efforts. Id. at 76–77. In Ripley , the dispute centered on underground water that had been extracted as part of mining operations and diverted into a nearby stream where the petitioner sought an exclusive right to use it. Id. at 75. Prior appropriators on the stream objected, arguing that the water was subject to the same priority system for water native to the stream. Id. at 76.
We disagreed, concluding that "such water[ ] ... formed no part of [the stream's] natural flow[ ] and never would have come into the stream" in the first place "had it not been for the efforts of petitioner." Id. at 75. Therefore, we held that the petitioner had an exclusive right to use and collect the extracted water—one that existed separate and apart from the priority system in the stream. Id. at 76–77.
¶7 We applied this precept in Comrie v. Sweet , 75 Colo. 199, 225 P. 214 (1924) :
[O]ne who artificially develops or produces water and adds or turns the same into a natural stream, which water would not in due course otherwise have reached the stream on the surface or in the underlying sands, may acquire a right thereto superior to the adjudicated rights of earlier appropriators of the natural waters of the stream ....
Id. at 214. Twenty-seven years later, we reaffirmed the principle in Brighton Ditch Co. v. City of Englewood , 124 Colo. 366, 237 P.2d 116 (1951), this time in the context of water imported by transbasin diversion. There, the City of Englewood sought, among other things, to change its point of diversion in the South Platte River. Id. at 118. Downstream appropriators objected based on the expected decrease in transmountain water return flows from which they benefited. Id. at 118–19. But our court rejected their argument, explaining that "appropriators on a stream have no vested right to a continuance of importation of foreign water which another has brought to the watershed." Id. at 122. Because the water in question was not native to the stream, we found that the City of Englewood had no obligation to maintain the return flows for downstream appropriators. Id. Thus, " Brighton Ditch suggests an implicit recognition that an importer has a greater right to use the water for its own beneficial purposes than do appropriators of native water." Bijou , 926 P.2d at 66.
¶8 The imported water doctrine was subsequently codified by the General Assembly as part of the Water Right Determination and Administration Act of 1969. Id. at 66–67. Section 37-82-106(1), C.R.S. (2019), provides:
Whenever an appropriator has lawfully introduced foreign water into a stream system from an unconnected stream system, such appropriator may make a succession of uses of such water by exchange or otherwise to the extent that its volume can be distinguished from the volume of the...
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