Concerning the Application for Water Rights of County of Boulder in Boulder County v. Boulder & Weld County Ditch Co.

2016 CO 17, 367 P.3d 1179, 2016 Colo. LEXIS 272, 2016 WL 1104364
CourtSupreme Court of Colorado
DecidedMarch 21, 2016
DocketSupreme Court Case No. 14SA348
StatusPublished
Cited by3 cases

This text of 2016 CO 17 (Concerning the Application for Water Rights of County of Boulder in Boulder County v. Boulder & Weld County Ditch Co.) 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.

Bluebook
Concerning the Application for Water Rights of County of Boulder in Boulder County v. Boulder & Weld County Ditch Co., 2016 CO 17, 367 P.3d 1179, 2016 Colo. LEXIS 272, 2016 WL 1104364 (Colo. 2016).

Opinions

JUSTICE HOOD

delivered the Opinion of the Court.

¶ 1 Boulder County is developing a property known as the Bailey Farm into a public open-space park which will feature several ponds formed when abandoned gravel pits filled with groundwater. Because two of the pits-turned-ponds exposed groundwater after January 1, 1981, the County must replace out-of-priority stream1 depletions caused by evaporation from those ponds. See § 87-90-137(ll)(a)-(b), C.R.S. (2015). To meet this obligation, the County filed an application for underground wáter rights, approval of a plan for augmentation, a change of water rights, ánd an appropriative right of substitution and exchange. The water court dismisséd the application without prejudice, and the County now appeals that judgment.

¶ 2 The components of the County’s application were interdependent, such that approval of the application as a whole hinged on approval of the plan for augmentation, which in turn hinged on approval of the change of water rights. The change of water lights involved the Martha M. Matthews Ditch water right (“MM water right”). The County sought to change the use of 50 inches of the MM. water right historically used to inigate the Bailey Farm (“Bailey Farm Inches”) from irrigation to augmentation. To ensure this change would not unlawfully expand the Bailey Farm Inches, the County conducted a parcel-specific historical consumptive use (“HCU”) analysis of that right.

¶ 3 The water court found this HCU analysis inadequate for several reasons and therefore concluded that the County failed to carry its burden of accurately demonstrating HCU. Because the County could not show an absence of injury to other water users without a reliable HCU analysis, the water- court denied the change of use of the Bailey Farm Inches. The water court then dismissed the County’s application without prejudice.

¶ 4 The pivotal consideration in this case is whether the County carried its burden of proving HCU. Like the water court, we conclude ⅝ did not. We therefore affirm the water court’s judgment on that basis.

I. Facts and Procedural History

¶ 5 The Martha M. Matthews Ditch (“MM Ditch”) was an approximately one-mile-long conduit situated south of and roughly parallel to Boulder Creek.1 The ditch took water from a headgate on a south-reaching branch of Boulder Creek and carried it in a northeasterly direction. The MM Ditch was completed sometime before June 1,1861; however, Martha Matthews did not own land near the ditch until 1871, when she purchased 160 acres in that area,

¶ 6 In 1881, Ms. Matthews petitioned the Boulder County District Court for the adjudication of water rights for the 'MM Ditch. After conducting a hearing to establish the water right, a referee entered findings that the MM Ditch was capable of carrying 4.6 cubic feet of water per second (“cfs”) and that the water would be used to irrigate 120 acres lying below the ditch. In 1882, the district court granted Ms. Matthews a decree authorizing diversion of 4.6 cfs from Boulder Creek for the irrigation of 120 acres, with' a priority daté of June 1, 1861. Neither the referee’s findings nor the decree identified the location of the 120 acres to be irrigated with the MM water right.

¶ 7 Although Ms. Matthews owned 160 acres near the MM Ditch when the 1882 decree entered, only 47 of those acres lay downslope of the ditch—i.e., between the ditch and Boulder Creek. The rest of her land was located either on the opposite side of Boulder Creek or above the elevation of the ditch. See Appendix. However, there [1183]*1183were approximately 240 additional irrigable acres lying under the MM Ditch that were not owned by Ms. Matthews.

T8 In 1908, Ms. Matthews contracted with Boulder and Weld County Ditch Company ("BW Ditech Co.")-a mutual ditch company that operates the Boulder and Weld County Ditch ("BW Ditch") and delivers the BW Ditch water right to its shareholders-to carry 2.5 efs of her water right through the BW Ditch 'to another downstream water user.2

T 9 In 1907, Ms. Matthews sued BW Ditch Co., alleging the company, was interfering with her right to divert the MM water right through the company's headgate. The original point of diversion for the MM Ditch had been destroyed by a flood in 1875, and, pursuant to an agreement with BW Ditch Co., the MM water right had been diverted through the BW Ditch headgate since that time.3 The court found in favor of Ms. Matthews and issued a decree authorizing her to change her point of diversion to the BW Ditch headgate and to carry her water a short distance through the BW Ditch to a point where the water would be transferred into the MM Ditch, The decree referred to this short stretch of BW Ditch as the "cutoff ditch.

T 10 Every year since 1907, the entize 4.6 cfs of the MM water right has been diverted at the BW Ditch headgate. At some point, however, the MM Ditch ceased being used, and the MM water right was instead diverted at headgates located farther down the BW Ditch, past the cutoff ditch portion., The MM Ditch is no longer visible on the ground.

111 Over time, the MM water right was divided and transferred to other owners in fractional interests described in inches rather than cfs. The parties agree that the 4.6 cfs MM water right amounts to 185 inches. Presently, the County owns 100 inches (the 50 Bailey Farm Inches, plus 50 inches associated with the Alexander Dawson Farm); the Sandlin Farm owns 50 inches; and the Anderson South Farm owns the remaining 35 inches. 4

~ 12 Through a series of transactions in the early 1990s, the 'County acquired the Bailey Farm and, with it, the Bailey Farm Inches and a half-share of the BW Ditch water right.5 The Bailey Farm is a 290-acre property that encompasses the location of the MM Ditch and much of the 160 acres of land originally owned by Ms. Matthews. The entirety 'of the Bailey Farm 'lHes north, and downslope, of the BW Ditch. See Appendix. After the MM. Ditch ceased being used, water used on the Bailey Farm was diverted from a headgate on the BW Ditch (the "Bailey Farm headgate"). Historical land uses on the Bailey Farm consisted of irrigated agriculture and, later, gravel mining.

T13 The County is developing the Bailey Farm into a public open-space park which will feature several" ponds formed when abandoned gravel pits filled with groundwater. Two of the pits-turned-ponds exposed groundwater after January 1, 1981, and the County therefore must obtain approval of a plan for augmentation to replace out-of-priority stream depletions caused 'by evaporation from those ponds. See § 87-90-137(11)(a)- ).

T14 In December 2010, the County filed an application in the District Court for Water Division No. 1 seeking to fulfill its replacement obligation.6 In addition to underground water Fights for the two ponds, the County sought approval of a plan for augmentation. to replace the evaporation deple-tions with the Bailey Farm Inches and, when needed, water leased from the City of Lafayette. To secure these replacement supplies, [1184]*1184the County sought to change the use of the Bailey Farm Inches from irrigation to augmentation and sought an appropriative right of substitution and exchange to use the leased water when the changed Bailey Farm Inches proved insufficient. BW Ditch Co.

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2016 CO 17, 367 P.3d 1179, 2016 Colo. LEXIS 272, 2016 WL 1104364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concerning-the-application-for-water-rights-of-county-of-boulder-in-boulder-colo-2016.