Well Augmentation Subdistrict v. Aurora, No. 08SA224.
| Decision Date | 23 November 2009 |
| Docket Number | No. 08SA224. |
| Citation | 221 P.3d 399 |
| Parties | WELL AUGMENTATION SUBDISTRICT OF the CENTRAL COLORADO WATER CONSERVANCY DISTRICT and South Platte Well Users Association, Applicants-Appellants v. CITY OF AURORA; Bijou Irrigation Company; Bijou Irrigation District; City of Boulder; Centennial Water and Sanitation District; Pawnee Well Users Inc.; Cache La Poudre Water Users Association; Lower Latham Reservoir Company; New Cache La Poudre Irrigating Company; City of Black Hawk; City and County of Denver; Ducommun Business Trust; City of Sterling; East Cherry Creek Valley Water and Sanitation; Public Service Company of Colorado; City of Englewood; Fort Morgan Reservoir; Jackson Lake Reservoir; The Farmers Reservoir and Irrigation Company; United Water and Sanitation District; City of Greeley; Harmony Ditch Company; Irrigationists' Association; Lupton Ditch Co. & Lupton Meadows Ditch Co.; North Poudre Irrigation Company; Riverside Irrigation District; Riverside Reservoir & Land Company; South Adams County Water & Sanitation District; State & Division Engineers; The Henrylyn Irrigation District; City of Thornton; Westfarm LLC; City of Westminster; and Greeley Irrigation Company, Opposers-Appellees and James Hall, Division Engineer for Water Division No. 1. |
| Court | Colorado Supreme Court |
Lind Lawrence & Ottenhoff, LLP, P. Andrew Jones, David P. Jones, Kim R. Lawrence, Bradley C. Grasmick, Windsor, Colorado, Attorneys for Applicants-Appellants South Platte Well Users Association and Well Augmentation Subdistrict of the Central Colorado Water Conservancy District.
John W. Suthers, Attorney General, Paul L. Benington, Assistant Attorney General, Denver, Colorado, Attorneys for Opposer-Appellee James Hall, Division Engineer for Water Division 1, and Dick Wolfe, State Engineer.
Buchanan & Sperling, PC, John P. Justus, Veronica A. Sperling, Arvada, Colorado, Attorneys for Opposer-Appellee Centennial Water and Sanitation District, City of Boulder, Harmony Ditch Company, and Pawnee Well Users Inc.
Daniel J. Arnold, Michael L. Walker, Patricia L. Wells, Casey S. Funk, Mary B. Rastall, Denver, Colorado, Attorneys for Opposer-Appellee City and County of Denver.
Harvey W. Curtis & Associates, David L. Kueter, Sheela Stack, Englewood, Colorado, Attorneys Opposer-Appellee for City of Black Hawk.
Trout, Raley, Montaño, Witwer and Freeman, PC, Douglas M. Sinor, James Witwer, Denver, Colorado, Attorneys for Opposer-Appellee City of Greeley.
White & Jankowski, LLP, David F. Jankowski, Sarah A. Klahn, Alan E. Curtis, Denver, Colorado, Attorneys for Opposer-Appellee City of Sterling.
Dennis A. Hanson, Assistant City Attorney, Thornton, Colorado, Attorney for Opposer-Appellee City of Thornton.
Ryley Carlock & Applewhite, James M. Noble, Carolyn F. Burr, Denver, Colorado, Attorneys for Opposer-Appellee Public Service Company of Colorado, d/b/a Xcel Energy, Inc. and East Cherry Creek Valley Water and Sanitation District.
Alperstein & Covell, P.C., Cynthia F. Covell, Andrea L. Benson, Denver, Colorado, Attorneys for Opposer-Appellee Fort Morgan Reservoir and Irrigation Company and Jackson Lake Reservoir and Irrigation Company.
Moses Wittemyer Harrison & Woodruff PC, Richard J. Mehren, Boulder, Colorado, Attorneys for Opposer-Appellee South Adams County Water & Sanitation District.
Steven L. Janssen, Boulder, Colorado, Attorney for Opposer-Appellee The Henrylyn Irrigation District.
No appearance by or on behalf of: Bijou Irrigation Company; Bijou Irrigation District; Cache La Poudre Water Users Association; City of Aurora; City of Englewood; City of Westminster; Ducommun Business Trust; Greely Irrigation Company; Irrigationists' Association; Lower Latham reservoir Company; Lupton Ditch Company & Lupton Meadows Ditch Company; New Cache La Poudre Irrigation Company; North Poudre Irrigation Company; Riverside Irrigation District; Riverside Reservoir & Land Company; The Farmers Reservoir and Irrigation Company; United Water and Sanitation District; and Westfarm LLC.
In this appeal from the District Court for Water Division Number One ("water court") the Well Augmentation Subdistrict of the Central Colorado Water Conservancy District ("WAS") challenges certain terms and conditions imposed by the water court in its approval of WAS's proposed plan for augmentation. This case arises from seven applications filed in 2003 by twenty-two individual well owners and the South Platte Well Users Association. After it was formed in 2004, WAS became the primary applicant in the case. WAS represents 215 wells that withdraw water from the alluvium of the South Platte River in locations from Brighton to Fort Morgan.
The water court approved the plan for augmentation in May 2008, and imposed certain terms and conditions on the operation of the plan which WAS challenges on appeal. First, WAS argues the water court erred in requiring WAS to provide replacement water for depletions made prior to the filing of the augmentation plan application in 2003 that have a continuing injurious effect on surface water conditions. Second, WAS argues it was error for the water court to base replacement obligations for wells in the Box Elder Creek basin on conditions that would exist in the basin were it not for the historic pumping of wells in the area. Third, WAS urges this court to rule on whether the State and Division Engineers have the authority to administer a "well call" technique in their administration of the South Platte River basin. Finally, WAS argues the water court erred when it held that the proper standard of review to apply to decisions of the State Engineer approving substitute water supply plans is de novo.
We affirm the water court's requirement that WAS provide replacement water for pre-2003 depletions that have a continuing injurious effect on surface waters. We similarly affirm the water court's decision that replacement obligations in the Box Elder Creek basin must be determined based on surface water conditions that would exist absent pumping in the basin. Because the water court declined to grant WAS's request to include a "well call" provision in the decree, and WAS does not request that this court order the State Engineer to implement a "well call" system, an opinion on the "well call" issue would be advisory and we decline to address it. Finally, although the issue of the proper standard of review to apply to approval of substitute water supply plans is moot, we nonetheless address the merits of the issue under the exception to the mootness doctrine applicable to issues that are capable of repetition, yet evade review. We reverse the water court's conclusion that such appeals should be reviewed de novo, and hold that section 37-92-308(4) substitute water supply plan ("SWSP") appeals should properly be reviewed under the standard of review set forth in the Colorado Administrative Procedure Act. § 24-4-106, C.R.S. (2009).
This case arises from seven applications filed in 2003 by twenty-two individual well owners and the South Platte Well Users Association. The seven cases were consolidated and, after the Central Colorado Water Conservancy District formed WAS in 2004, WAS became the primary applicant in the case. The South Platte Well Users Association remained an applicant for the limited purpose of resolving issues related to substitute water supply plans issued in its favor; no individuals remain as applicants. Thirty-seven parties filed statements of opposition to the applications.
The WAS augmentation plan submitted to the water court sought to provide augmentation water to offset the out-of-priority depletions of 215 structures that divert groundwater from the South Platte River basin.1 Prior to filing the present consolidated application, many of the wells included in the WAS plan operated under annual substitute water supply plan approvals issued by the State Engineer in favor of Groundwater Appropriators of the South Platte ("GASP"). Groundwater Appropriators of the S. Platte River Basin v. City of Boulder, 73 P.3d 22, 26-77 (Colo.2003). In several cases, this court held that, without clear statutory authority from the General Assembly, the State Engineer lacked the authority to promulgate rules allowing out-of-priority diversions by alluvial wells. These rulings had the effect of requiring an adjudicated augmentation plan for every large capacity alluvial well in the state. See Simpson v. Bijou Irrigation Co., 69 P.3d 50, 63-67 (Colo. 2003); Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1153 (Colo.2002). After these rulings, GASP dissolved and GASP well owners petitioned the Central Colorado Water Conservancy District to establish WAS in order to seek a court-approved augmentation plan for the displaced GASP well owners and other alluvial well owners in Division One. The wells currently involved in WAS represent a subset of the former GASP wells.
A thirty-day trial on the consolidated cases was initially scheduled for 2006; however, it was not held until early 2007. From 2003-2005, WAS and its predecessors operated substitute water supply plans approved by the State Engineer pursuant to section 37-92-308(4), C.R.S. (2009). Several Opposers appealed the 2003 and 2004 SWSPs, and the water court consolidated the SWSP appeals with the augmentation plan application. The parties contested the proper standard of review for the water court to apply when reviewing the State Engineer's approval of the SWSPs. WAS and the State Engineer argued the standard was arbitrary and capricious under the state Administrative Procedure Act. The Opposers argued the proper standard was de novo. Prior to the originally-scheduled 2006 trial, the water court issued an order holding that the proper standard was de novo.
When the trial was re-scheduled for 2007, certain...
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