City of Thornton v. Clear Creek Water Users Alliance

859 P.2d 1348, 17 Brief Times Rptr. 1443, 1993 Colo. LEXIS 779, 1993 WL 376545
CourtSupreme Court of Colorado
DecidedSeptember 27, 1993
DocketNo. 92SA410
StatusPublished
Cited by5 cases

This text of 859 P.2d 1348 (City of Thornton v. Clear Creek Water Users Alliance) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Thornton v. Clear Creek Water Users Alliance, 859 P.2d 1348, 17 Brief Times Rptr. 1443, 1993 Colo. LEXIS 779, 1993 WL 376545 (Colo. 1993).

Opinion

Justice VOLLACK

delivered the Opinion of the Court.

The City of Thornton appeals from a water court ruling granting the Clear Creek Water Users Alliance’s application for alternate places of storage for a previously decreed conditional right to store 110,000 acre-feet of water. The Alliance received a decree in 1983 to store 110,000 acre-feet of water in a proposed reservoir, the Clear Creek Reservoir, located near the confluence of Clear Creek and North Clear Creek in upper Clear Creek Basin. The Alliance subsequently filed an application to change its conditional right by adding five additional proposed storage sites to its conditional right to store 110,000 acre-feet of water. The City of Thornton, among others, objected to the application. The water court entered a decree granting the Alliance’s application. The City of Thornton appealed, contending that permitting the Alliance to store water in the five alternate sites impermissibly injured its water rights. We affirm the ruling of the water court.

I.

In March 1980, several entities formed a non-profit corporation named the Clear Creek Water Users Alliance (the Alliance).1 The purpose of the Alliance was to “safeguard the water supply of the Clear Creek Basin.”

On December 15, 1981, Woodward-Clyde Consultants (Woodward-Clyde) submitted a report to the Alliance containing the re-suits of an investigation exploring possible reservoir sites in Clear Creek Basin. Woodward-Clyde stated that the objectives of its “investigation included: (1) estimating the streamflows in Clear Creek that would be available for storage under a 1981 priority at the proposed ‘Forks Reservoir’ site, and (2) assessing the water supply that could be developed by a reservoir at that site.” The report stated that the Forks Reservoir “would be formed by a dam constructed on Clear Creek upstream from Golden at a site a short distance downstream from the confluence of North Clear Creek with Clear Creek,” tributaries of the South Platte River.

The report noted that, at the Forks Reservoir site, “Clear Creek drains an area of about 350 square miles, or about 60 percent of the total drainage area of Clear Creek (about 580 square miles).” The Woodward-Clyde report additionally stated,

According to a 1968 filing in the Colorado State Engineer’s Office, the proposed Forks Reservoir could be constructed to a total capacity of about 400,-000 acre-feet. A reservoir of this capacity would inundate a portion of Interstate Highway 70, probably making it economically unfeasible. According to preliminary analyses ..., a reservoir at this site could impound up to 87,000 acre-feet without inundating the interstate highway. However, it would inundate portions of U.S. Highway 6 and State Highway 119 in the canyons of North Clear Creek and Clear Creek.

The report concluded that “construction of a reservoir in the Clear Creek basin would offer substantial opportunities to improve management of the limited water supplies in Clear Creek.” The report recommended that the Alliance apply for a water storage right on Clear Creek.

On December 31, 1981, the Alliance filed an application for a conditional right to [1350]*1350store 110,000 acre-feet of water in Clear Creek Reservoir, a proposed reservoir to be constructed near the confluence of Clear Creek and North Clear Creek. The City of Thornton, among others, objected to the Alliance’s application for a conditional right. On October 20, 1983, the water court entered a decree granting the Alliance a conditional right to store 110,000 acre-feet of water in the proposed Clear Creek Reservoir, which the decree stated as having a capacity to hold 110,000 acre-feet of water.2

The Alliance subsequently submitted a request for a feasibility study to the Colorado Water Resources and Power Development Authority (the Authority). In November 1987, the Authority issued a report of Phase I (the Phase I report) of the feasibility study for the Clear Creek project.3 The Phase I report stated that its primary objective was “to estimate the reservoir yields and associated preliminary costs for each alternative identified.”

The Phase I report stated that the Clear Creek basin

is bordered by the Continental Divide to the west and the confluence of Clear Creek and the South Platte River in Denver to the east. The mountainous upper basin supplies the major surface water runoff from annual snowmelt. The lower basin is a plains area where water is used by municipalities, industry, agriculture, and for recreation.

The Phase I report noted that the lower basin has a drainage area of approximately 177 square miles, and included Ralston Creek, Leyden Creek, Lena Gulch, Little Dry Creek, and Van Bibbler Creek. The Phase I report additionally noted,

There are no major on-stream reservoirs in the Clear Creek basin to regulate and control the stream flows. Most of the unappropriated native flows occur during the spring runoff season. Unless new reservoir capacity is provided to store water in the basin, these native flows cannot be fully utilized by the existing water users.

The Phase I report noted that the original Clear Creek Reservoir site had a storage capacity of 35,000 acre-feet. The Phase I report identified twelve alternate storage projects “to develop all or most of the potential firm yield from the storable native flows in the basin.” The Phase I report rejected the original Clear Creek storage site based upon the constraint posed by Interstate Highway 70, its high safe-yields costs, and the environmental impact of a dam at the confluence site, among other reasons.

The Phase I report stated that, “[i]f a large dam is constructed in Clear Creek Canyon, U.S. Highway 6 would have to be relocated or abandoned. The relocated highway would be up to 600 feet above the existing canyon floor and would require deep excavation cuts in the steep canyon walls, several tunnels, and several bridges.” The Phase I report concluded that, while several storage sites existed in Clear Creek Canyon to store 110,000 acre-feet of water, the unit cost for storage was high when the cost of relocating U.S. Highway 6 was considered.

On February 29, 1988, the Alliance filed an application for change of its conditional right to store 110,000 acre-feet of water in the proposed Clear Creek Reservoir originally decreed in case number 81CW418, in 1983.4 The application proposed the follow[1351]*1351ing four alternate places of storage for the conditional water right: (1) the Tunnel No. 1 Reservoir; (2) the Tunnel No. 3 Reservoir; (3) the Bald Mountain Reservoir; and (4) the Guy Gulch Reservoir. The Alliance alleged that the Tunnel No. 1 Reservoir had a total capacity of 110,000 acre-feet, that the Tunnel No. 3 Reservoir had a total capacity of 110,000 acre-feet, that the Bald Mountain Reservoir had a total capacity of 110,000 acre-feet, and that the Guy Gulch Reservoir had a total capacity of 35,000 acre-feet. All of the proposed reservoirs, with the exception of the Guy Gulch site, were located on Clear Creek downstream from the original site at the confluence of Clear Creek and North Clear Creek, and upstream from the City of Golden. The Alliance stated in its application that it was “not requesting to enlarge, expand or increase the quantity of the decreed conditional water right nor [was] it attempting to change the character, purpose or place of use.”

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859 P.2d 1348, 17 Brief Times Rptr. 1443, 1993 Colo. LEXIS 779, 1993 WL 376545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-thornton-v-clear-creek-water-users-alliance-colo-1993.