Water Supply and Storage Co. v. Curtis
| Citation | 733 P.2d 680 |
| Decision Date | 09 March 1987 |
| Docket Number | No. 85SA84,85SA84 |
| Parties | WATER SUPPLY AND STORAGE COMPANY, Applicant-Appellant, v. Harvey W. CURTIS and Mark H. Curtis, Protestants-Appellees. |
| Court | Colorado Supreme Court |
Ward H. Fischer, William R. Fischer, Fort Collins, for applicant-appellant.
Harvey W. Curtis, Denver, for protestants-appellees.
W. Paul Eckman, Asst. City Atty., Fort Collins, for amicus curiae City of Fort Collins.
Water Supply and Storage Company (applicant) appeals from that portion of the judgment and decree issued by the water judge for Water Division 1 denying authorization to reuse or make successive uses of water in connection with the determination of a conditional water right for storage in Trap Lake II Reservoir in the Cache La Poudre River drainage in Larimer County. We affirm in part, reverse in part and remand for further proceedings.
The applicant filed an application for a determination of a water storage right for Trap Lake II, a proposed reservoir on the site of the presently existing Trap Lake, claiming 4700 acre feet for storage for agricultural, industrial, municipal, recreational, fisheries and other beneficial uses, and requesting a ruling "that the water may be used and reused and put to a succession of uses until totally consumed." The sources of the water were described as waters of Trap Creek, a tributary of the Cache La Poudre River, and waters of the Colorado River to be transported by the Grand Ditch across the continental divide and stored by exchange in the Trap Lake II Reservoir. 1 The water judge referred the matter to the water referee for a ruling.
The referee filed a written ruling that a conditional water right for 4700 acre feet with an appropriation date of June 16, 1982, should be decreed to Trap Lake II for agricultural, industrial, municipal, recreational and fisheries purposes. The referee's ruling recognized a right to fill and refill the reservoir and also specified that the "[a]pplicant may reuse or make successive uses of the water, so long as they maintain dominion and control." Mark H. Curtis and Harvey W. Curtis (protestants), who had previously entered their appearance, objected to the referee's ruling on several grounds and filed a protest setting forth those objections. Among the disputed questions to be resolved by the water judge, as listed in the protestants' trial data certificate, were whether the application was speculative and whether the applicant could "claim the right to reuse, successive use, and 100% consumptive use."
The case was tried to the water judge beginning on July 12, 1984. Thereafter, the water judge modified the referee's ruling in several respects and, as modified, made that ruling the judgment and decree of the court. The modifications consisted of a reduction of the quantity of storage from 4700 acre feet to 3800 acre feet (at the request of the applicant and based on proof at trial), the elimination of the right to refill, and the deletion of the provision that "[a]pplicant may reuse or make successive uses of the water, so long as they maintain dominion and control." The applicant moved for a new trial, challenging only the deletion of the provision allowing reuse or successive uses of the stored water. The water judge denied the motion, and the applicant brought this appeal.
A summary of the evidence with respect to the applicant's proposed reuse and successive use of the Trap Lake II waters will provide necessary background for consideration of the matter before us.
Evidence was presented at trial that the applicant is a mutual ditch company with 600 shares of stock outstanding, 19 or 20 of which are owned by the City of Fort Collins. The great majority of the remaining shares are owned by farmers, who use the water to irrigate about 51,000 acres of land in northern Colorado. The applicant has an extensive diversion and storage system with which it collects waters diverted from the drainages of the Cache La Poudre River and the upper Colorado River pursuant to decreed water rights. The Trap Lake II Reservoir is planned to provide high mountain storage for the system, both for Colorado River waters, to be stored by exchange, and for waters tributary to the Cache La Poudre River. Testimony was presented that the ability to reuse any water decreed to Trap Lake II is important to the financial feasibility of the reservoir.
The evidence with respect to plans for reuse and successive use was that Fort Collins has a number of options in mind and wishes to work with the applicant to develop a plan for further uses of the return flow. The options include: (1) first use by the city followed by redelivery to the applicant or to other irrigation companies; (2) use in an augmentation plan for wells to be drilled by the city; and (3) use by a proposed brewery for making beer, followed by use of the effluent for agricultural purposes. The director of public works for Fort Collins testified that no decision has been made as to which of the alternatives should be employed and that it would be premature to make such a decision. The applicant has no contracts with Fort Collins or anyone else concerning the reuse or successive use of water from Trap Lake II Reservoir.
No issue is before us concerning the conditional water storage right decree insofar as it relates to the first beneficial use of water to be diverted and stored. The evidence establishes, however, that such beneficial use will not fully consume the stored water. Therefore, return flow is to be expected, and it is the right to make use of this return flow that is at issue here.
In denying the right to reuse or make successive uses of stored water, the decree makes no distinction between waters to be obtained from sources tributary to the Cache La Poudre River and those waters of the Colorado River to be stored in Trap Lake II Reservoir by exchange. Different legal principles govern the right to reuse and make successive uses of water derived from these two sources. Therefore, we shall discuss separately the further uses of return flow from waters originating in each of those sources. We begin with waters to be obtained by diversion in priority from sources tributary to the Cache La Poudre River.
The applicant recognizes that with respect to tributary waters, we have held that the owner of a water right may not reuse or make successive uses of the return flow independent of the priority system. Pulaski Irrigating Ditch Co. v. City of Trinidad, 70 Colo. 565, 203 P. 681 (1922); see Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913) (). The applicant contends, however, that the basis for this principle is that after others have come to rely on return flows, the original appropriator should not be able to defeat that reliance by putting the return flows to use. Therefore, the applicant urges, if the waters are reused to extinction when first diverted, no reliance can arise and no expectation is defeated by permitting the original appropriator to reuse the water after it has first been employed for the decreed beneficial uses. As a result, the argument concludes, the original appropriator should be recognized to have the right to reuse and make successive uses of waters provided only that the further use be initiated immediately after the first beneficial use so that no expectations of others regarding return flow are permitted to arise.
The protestants argue that the right of reuse under these circumstances has never been recognized under our law. They contend that the applicant's plan is simply a form of speculation, permitting the applicant to reserve water for some undetermined future uses independent of the priority system on the river. We agree with the protestants, and therefore conclude that the water judge correctly denied the application for authorization to reuse and make successive uses of the tributary waters.
A water right is a right to use waters of the state by applying those waters to beneficial use. See § 37-92-103(3), (12), 15 C.R.S. (1973 & 1986 Supp.). Once the beneficial use upon which a water right is based has taken place, any unconsumed waters remain "[w]aters of the state," see § 37-92-103(13), 15 C.R.S. (1973), and are subject to "[a]ppropriation," see § 37-92-103(3), 15 C.R.S. (1986 Supp.).
The applicant does not base its asserted right to reuse and make successive uses of the return flow upon an appropriation of the return flow after initial use. Instead, the applicant argues that the right to reuse and make successive uses should be recognized as an incident of the conditional water right for storage in Trap Lake II Reservoir. The applicant contends that cases such as Pulaski and Comstock are based upon situations in which a return flow was permitted to occur for extended periods, and downstream appropriators came to rely upon that return flow. Although this was the factual situation present in Pulaski and Comstock, a more fundamental principle provides the foundation for those decisions. In each case, the return flow after use by the first appropriator became water tributary to natural streams and as such was subject to diversion and use under the appropriations and associated system of priorities existing on the streams. In Pulaski, as in the present case, the initial appropriator did not take those steps necessary to appropriate the return flow as part of its initial beneficial use. As a result, the return flow "became a part of the supply for the appropriations below the point of discharge." Pulaski, 70 Colo. at 567, 203 P. at 682. The governing principle is explicit in Pulaski:
It is elementary that the waters of the public streams of this state belong to the people, and that appropriators acquire only a right of use. It is also settled law that an appropriator is limited in his use of water to his...
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