Twin Lakes Reservoir & Canal Co. v. City of Aspen
| Decision Date | 13 December 1976 |
| Docket Number | No. 27028,27028 |
| Citation | 192 Colo. 209,557 P.2d 825 |
| Parties | TWIN LAKES RESERVOIR & CANAL COMPANY, Plaintiff-Appellant, v. CITY OF ASPEN et al., Defendants-Appellees. |
| Court | Colorado Supreme Court |
Holland & Hart, John Undem Carlson, James E. Boicourt, Denver, Lawrence L. Fenton, Ordway, for plaintiff-appellant.
Vranesh & Musick, John D. Musick, Jr., Boulder, Sandra Stuller, City Atty., City of Aspen, Richard E. Wood, County Atty., County of Pitkin, Fitzhugh Scott, III, Aspen, J. E. Devilbiss, Carbondale, for defendant-appellees.
This case is here on the denial of an application for a conditional water right by the Water Judge of Colorado's Water Division No. 5. Involved are proposed increases of conditional decrees for some of the component parts of the Independence Pass Transmountain Diversion System ('IPTDS'). The applicant and operator of the system is the appellant Twin Lakes Reservoir and Canal Company ('Twin Lakes'). We reverse.
Twin Lakes diverts water from streams constituting the headwaters of the Roaring Fork River (a tributary of the Colorado River) in Western Colorado through a turnel to the Arkansas River basin. This tunnel called Tunnel No. 1, is in the area of State Highway 82 near Independence Pass. The west portal or inlet of Tunnel No. 1 is at the Grizzly Reservoir. This reservoir was created by a dam across Lincoln Gulch, a short distance downstream from a point at which Grizzly Creek flows into the gulch. From the east portal of the tunnel water flows into Lake Creek and thence to Twin Lakes Reservoir. From Twin Lakes Reservoir it proceeds toward and to the Arkansas River and is used far down stream for irrigation of agricultural areas some distance east of Pueblo, Colorado. Twin Lakes has an absolute decree for 54,458 acre-feet once each year in Twin Lakes Reservoir.
When friction of the water against the tunnel lining lessens, the maximum flow of Tunnel No. 1 is expected to be 625 cubic feet of water per second of time (c.f.s.). By decree entered in 1936, Twin Lakes was awarded a decree for Tunnel No. 1 of 367 c.f.s. absolutely and 258 c.f.s. conditionally, with priority date of August 23, 1930. In 1944 137 c.f.s. of the conditionally decreed water was made absolute and, thus, Tunnel No. 1 then had a decree for 504 c.f.s. absolute and 121 c.f.s. conditional.
In early 1974 the adjudicating court 1 found that recently Twin Lakes had expended over a million and a half dollars in the continuing construction of its water gathering and transporation system, including the completion of all concrete lining in Tunnel No. 1. It awarded to Tunnel No. 1 as an absolute decree all but 15 c.f.s. of the water conditionally decreed thereto. Thus, there is now a decree to Tunnel No. 1 of 610 c.f.s. absolutely and 15 c.f.s. conditionally.
Twin Lakes' gathering system of water transported through Tunnel No. 1 is rather extensive and consists of three segments, the flow in each of which ends in Grizzly Reservoir: (1) streams (Lincoln Gulch and Grizzly Creek) naturally flowing into Grizzly Reservoir; (2) the New York Collection Canal; and (3) the Roaring Fork Component (taking the water directly from the Roaring Fork River and from its tributary, Lost Man Creek).
We have not noted in the record any water separately decreed to the tributaries of Grizzly Reservoir, and assume that priorities relating to this particular water are embraced within the decrees relating to Tunnel No. 1.
The New York Collection Canal and the Roaring Fork segment each have a number of component parts. The 1936 decree awarded conditional decrees to the water from each of these component parts. The conditional decrees as to the New York Collection Canal provided for 171 c.f.s. for the last component part of this segment, being the flowage directly to the Grizzly Reservoir. As to the Roaring Fork segment, the Roaring Fork River component was awarded 370 c.f.s., and the Lost Man Creek component 275 c.f.s. The total of these conditional decrees relating to the New York Collection Canal and the Roaring Fork River segment is 716 c.f.s., in addition to water naturally flowing into Grizzly Reservoir. These obviously exceed the ultimate limitation on the system of 610 c.f.s. absolute and 15 c.f.s. conditional awarded Tunnel No. 1. None of the conditional decrees to the component parts have been made absolute, and they remain conditional. Twin Lakes' purpose has been to take available conditionally decreed water from the component parts to achieve maximum carriage through Tunnel No. 1. It is apparent that throughout the history of this project, it has been the desire of Twin Lakes to take all the water it could possibly obtain through the collection system up to the maximum of 625 c.f.s.
Prior to the institution of the proceedings which culminated in the 1936 decree and on June 12, 1933, Twin Lakes entered into an agreement with the Roaring Fork Water Users' Association relating to the project to be constructed. This provided for 'the use of the waters of the Roaring Fork River, and its tributaries so that the waters might be used and appropriated to the greatest advantage by all parties interested therein . . ..' This agreement was introduced in evidence in the adjudication proceedings and the substance thereof was approved in the 1936 decree.
The testimony in the instant proceeding was that, 'the Company intended from the outset to take the full amount of water available there . . . (and) intended to take whatever the production was from day one.' This testimony was without conflict.
In 1944 the district court entered a decree declaring that Twin Lakes had exercised diligence in connection with its conditional decrees and it awarded an increase in the amount absolutely decreed to Tunnel No. 1. In this decree it was stated that Twin Lakes
'had continuously and diligently prosecuted the work necessary to complete the various units of its 'Independence Pass Transmountain Diversion System', and is still so engaged so as to enable it eventually to divert, appropriate and use for the beneficial purposes The entire quantity of water awarded to it by said decree, to-wit: 625 cubic feet of water per second of time.' (Emphasis added.)
The water judge in the instant matter stated that the
'purpose of the present Application is to assure (Twin Lakes) that it has a decreed right to all water which it can physically gather for diversion through its Tunnel No. 1 which, as stated above, has a decreed capacity of 625 c.f.s. and is not to be enlarged.'
Until recent years, Twin Lakes' board of directors and management believed that the conditional decrees awarded to each of the component parts at least equalled the maximum capacities to be gathered from each of those parts. In the early 1970's the board begin to question its belief and had some studies made. These developed that, in fact, more than 171 c.f.s. had at times flowed from the New York Collection Canal system to Grizzly Reservoir. As a result, on April 30, 1973 Twin Lakes filed its application for further conditional decrees for the component parts of the New York Collection Canal. Without going into detail as to these component parts, the application asked for a conditional decree to an additional 100 c.f.s., or an aggregate of 271 c.f.s., of water proceeding from the New York Collection Canal to Grizzly Reservoir.
The record indicates that any portion of the additional 100 c.f.s. would be needed only under rather exceptional circumstances, and then only for a period of a week or two. Such an exceptional circumstance would occur only during flood season when for some reason there would be a 'system failure' or an avalanche on one segment of the collection system or a 'diurnal fluctuation' (by which the witness meant an abnormal heating of certain slopes in the morning and others in the afternoon with resulting unusual snow melt). This application asked for a priority date of August 23, 1930 (the same as that specified in the 1936 decree) but at the hearing Twin Lakes asked that its priority date be changed to April 30, 1973, the date of filing of the application. Thus, no 'relation back' of the conditional priority was requested.
The water judge denied the application. In doing so he stated that he had concluded that Twin Lakes 'did not have the requisite bona fide intent to appropriate an additional 100 c.f.s. . . . on August 23, 1930 . . . or at any time thereafter down to and including the date on which this Application was filed.' He also made the following conclusion:
'Given the limited capacity of Tunnel No. 1 with no intention to enlarge it, the Applicant clearly can adjust the water supply from the three main components of its system by a Plan of Augmentation or the use of alternate points of diversion as provided by the Water Right Determination and Administration Act . . . The facilities will not accommodate any more water and, as pointed out above, the means are available for the Applicant to adjudicate its collection structures to accomplish this purpose.' Earlier in this ruling the water judge stated:
It has always been the Colorado law that, in order to initiate an appropriation of water, there must be a 'first step' consisting of (1) an intent to appropriate and (2) an open, physical...
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