Simpson v. Yale Investments, Inc., s. 93SA310
| Decision Date | 19 December 1994 |
| Docket Number | Nos. 93SA310,93SA311,s. 93SA310 |
| Citation | 886 P.2d 689 |
| Parties | Harold D. SIMPSON, State Engineer, and Alan D. Berryman, Division Engineer, Water Division 1, Opposers-Appellants, v. YALE INVESTMENTS, INC. (f/k/a Castle Meadows, Inc.), Applicant-Appellee, and City of Englewood, Sanford Homes, Castleton Center Water and Sanitation District, Bellemah Community Development, Atchison, Topeka and Santa Fe Railway Company, Mission Viejo Company, Highlands Ranch Development Corp., Castle Pines Metropolitan District, Castle Pines North Metropolitan District, C.P. Commercial Properties, Inc., and Parker Water and Sanitation District, Opposers-Appellees. Harold D. SIMPSON, State Engineer, and Alan D. Berryman, Division Engineer, Water Division 1, Opposers-Appellants, v. CASTLE PINES METROPOLITAN DISTRICT, Castle Pines Land Company, the Friedkin Companies, and Friedkin Investments, Inc., Applicants-Appellees, and City of Englewood, and Centennial Water and Sanitation District, Opposers-Appellees. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Patricia S. Bangert, Deputy Atty. Gen., Jennifer L. Gimbel, First Asst. Atty. Gen., Peter A. Fahmy, Asst. Atty. Gen., Natural Resources Section, Denver, for opposers-appellants State and Div. Engineers.
Holly I. Holder, P.C., Holly I. Holder, Priscilla S. Fulmer, Denver, for appellants-appellees Yale Investments, Inc. and Castle Pines Metropolitan Dist.
Petrock & Fendel, P.C., James J. Petrock, Frederick A. Fendel, III, Denver, for applicants-appellees Friedkin Companies and Friedkin Investments, Inc.
Krassa, Lindholm, Kumli & Madsen, Robert F.T. Krassa, Karl F. Kumli, III, Boulder, for opposer-appellee Parker Water and Sanitation Dist.
No appearance for applicant-appellee Castle Pines Land Co.
No appearance for opposers-appellees City of Englewood, Sanford Homes, Castleton Center Water and Sanitation Dist., Bellemah Community Development, Atchison, Topeka and Santa Fe Ry. Co., Mission Viejo Co., Highlands Ranch Development Corp., Castle Pines North Metropolitan Dist., C.P. Commercial Properties, Inc., and Centennial Water and Sanitation Dist.
In these consolidated cases, 1 the State Engineer and the Division Engineer for Water Division No. 1 (collectively, state engineer) appeal the judgment of the District Court for Water Division No. 1 finding that post-withdrawal depletions will be noninjurious in each case and therefore approving plans for augmentation proposed by the applicants. 2 Pursuant to our order of remand in State Engineer v. Castle Meadows, Inc., 856 P.2d 496 (Colo.1993) (Castle Meadows II ), the district court reconsidered whether the applicants' pumping of their decreed amounts of not nontributary water will cause post-withdrawal depletions to the surface stream system that will injure holders of water rights, without relying on evidence of additional water that will become available in the form of runoff as a result of increased development of the surrounding land areas in making the injury determinations. Upon remand, the parties agreed that no additional evidence was necessary to resolve the injury issue, and the water judge found and concluded: 3
[T]hat the preponderance of the evidence is that there will be no injurious depletions caused by the withdrawals in these cases, regardless of consideration of any increase in run-off from urbanization and that retained jurisdiction on the question of injury of post-pumping depletions from these not nontributary wells is not required.
Because we conclude that (1) the record supports the district court's findings that no injury will occur as a result of post-pumping depletions in these two cases, and (2) the district court did not rely on increased runoff from urbanization to reach its conclusions, we now affirm the district court's judgment approving the applicants' plans for augmentation.
Although a complete history of the facts as they were presented at each stage of these cases appears in our prior decisions, 4 it is useful to recount the proceedings leading up to this appeal. We do so by essentially reiterating the facts as they appear in those earlier decisions.
The first case that we consider arose when Yale Investments, Inc. (Yale Investments) 5 sought water rights to Denver Basin 6 ground water to provide service to The Meadows Development, a planned community located near Castle Rock, Colorado. The specific right now at issue is based on a decree that Yale Investments obtained in April of 1987, entitling it to make annual withdrawals of 2,990 acre-feet of "not nontributary" 7 ground water through its Denver aquifer wells. Pursuant to section 37-90-137(9)(c), 15 C.R.S. (1990), 8 the decree provided that as a condition to the right to use this ground water, Yale Investments was required to obtain judicial approval of a plan for augmentation ensuring the replacement of four percent of the amounts withdrawn annually.
Consequently, in October of 1986, Yale Investments filed an application in the district court seeking approval of a plan for augmentation satisfying the four percent replacement obligation. This plan included using direct discharges from the development's wastewater treatment plant, taking credit for return flows that result from irrigation of the overlying property, and using direct discharges of nontributary and not nontributary ground water from various wells. The district court determined that Yale Investments' plan was sufficient to meet its obligation under section 37-90-137(9)(c) to return to the natural stream system four percent of the amounts that are withdrawn annually. This plan for augmentation, however, extended only to those years in which water is actually pumped from the wells. Although the court found that Yale Investments' withdrawals will have "some continuing depletive effect on the tributary stream system after 100 years," 9 it did not require that water be replaced after cessation of withdrawals from the wells--the post-withdrawal period. The court therefore approved Yale Investments' plan for augmentation, and because such judicial approval satisfied the condition in the April 1987 decree, on December 29, 1988, entered a final judgment and decree entitling Yale Investments to withdraw 2,990 acre-feet of Denver aquifer ground water annually.
The state engineer appealed, contending that Yale Investments' plan for augmentation did not satisfy section 37-90-137(9)(c). We agreed with the state engineer's argument that the plan for augmentation mandated under section 37-90-137(9)(c) requires the compensation of depletions to a stream after ground water withdrawals cease. Castle Meadows I, 791 P.2d at 1113-14. Because the district court had found that post-withdrawal depletions would accrue to the stream but "did not find such depletions to be injurious" to other water rights, we remanded the case for the court to consider whether Yale Investments' pumping will cause such injury and, if so, to impose terms and conditions on its plan for augmentation to alleviate that injury. Id. at 1114.
On remand, the district court held an evidentiary hearing at which several experts testified as to the projected post-withdrawal stream depletions. Yale Investments' expert, Robert E. Brogden, predicted that after the end of 100 years of continuous pumping there will be a reduction of 27.2 acre-feet of water per year in the South Platte stream system. In contrast, the state engineer's expert testified that Yale Investments' withdrawals will result in post-withdrawal stream depletions of approximately 8 acre-feet of water per year. Brogden concluded that the amount of post-withdrawal depletions would be insignificant and noninjurious. 10
Based on the evidence presented at the hearing, the court again concluded that depletions will accrue to the stream after Yale Investments ceases its withdrawals. In its February 27, 1992, Supplemental Findings of Fact, Conclusions of Law, Judgment and Decree, the district court found that the preponderance of the evidence establishes that the total depletions "will not be less than 8.7 acre-feet [per year] nor more than 27.2 acre-feet [per year]." It determined, however, that the depletions will not be injurious. In reaching this conclusion, the district court considered the impact that increased development and urbanization of the surrounding land areas will have on the amounts of water available to the stream in the form of runoff, stating:
The pumping involved here is in connection with municipal-type development in the Castle Rock area. There will be additional impermeable pavement and roof area, different types of vegetation present, and other changes which will increase the returns to the surface stream. The preponderance of the evidence is that the additional returns to the stream caused by urbanization will be greater than the depletions due to pumping after 100 years.[ 11
After offsetting the increased runoff that is to result from the area's development against the amounts of post-withdrawal stream depletions expected to accrue to the stream by virtue of Yale Investments' pumping, the court concluded that the projected depletions will not be injurious and that Yale Investments' plan for augmentation satisfied section 37-90-137(9)(c). The court therefore reconfirmed its December 29, 1988, judgment as so supplemented.
In the second of these consolidated cases, Castle Pines Metropolitan District and Castle Pines Land Company (collectively, Castle Pines) 12 filed an application in December of 1985 for change of certain water rights that it held under existing decrees and for a decree adjudicating its right to withdraw all previously undecreed ground water from the Denver aquifer underlying 2,508 acres of land in the Castle Rock area. It sought use of this water for the primary purpose of...
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