2025 CO 33
Concerning the Application for Water Rights of Town of Firestone.
Town of Firestone, Applicant-Appellant:
v.
BCL Colorado LP; City and County of Broomfield; City of Boulder; City of Englewood; City of Lafayette; City of Longmont; City of Westminster; Dream Weaver Holdings LLC; Godding Ditch Company; Last Chance Ditch Company; LG Everist, Inc.; Little Thompson Water District; New Coal Ridge Ditch Company; New Consolidated Lower Boulder Reservoir and Ditch Company; Public Service Company of Colorado; Rural Ditch Company; Shores On Plum Creek Metropolitan District No. 1; St. Vrain Left Hand Water Conservation District; St. Vrain Sanitation District; State Engineer and Water Division 1 Engineer; Town of Frederick; Varra Companies, Inc.; and Water Users Association of District No. 6. Opposers-Appellees:
No. 24SA109
Supreme Court of Colorado, En Banc
May 27, 2025
Appeal
from the District Court District Court, Water Division 1,
Case No. 19CW3236 Honorable Todd L. Taylor, Water Judge
Orders
Affirmed
2
Attorneys for Applicant-Appellant: Lawrence Custer Grasmick
Jones & Donovan LLP Bradley C. Grasmick Wesley S. Knoll
Richard LiPuma Jacklyn P. Gunn Johnstown, Colorado
Attorneys for Opposer-Appellee St. Vrain Sanitation District:
Lyons Gaddis, PC Matthew Machado Casey J. Weaver Louisville,
Colorado
Attorneys for Amicus Curiae Central Colorado Water
Conservancy District: Lawrence Custer Grasmick Jones &
Donovan LLP Bradley C. Grasmick David P. Jones Johnstown,
Colorado
Attorneys for Amicus Curiae East Cherry Creek Valley Water
and Sanitation District: Nazarenus Stack & Wombacher LLC
Brian M. Nazarenus Sheela S. Stack William D. Wombacher Stacy
L. Brownhill Greenwood Village, Colorado
3
No
appearance on behalf of: BCL Colorado LP; City and County of
Broomfield; City of Boulder; City of Englewood; City of
Lafayette; City of Longmont; City of Westminster; Dream
Weaver Holdings LLC; Godding Ditch Company; Last Chance Ditch
Company; LG Everist, Inc.; Little Thompson Water District;
New Coal Ridge Ditch Company; New Consolidated Lower Boulder
Reservoir and Ditch Company; Public Service Company of
Colorado; Rural Ditch Company; Shores On Plum Creek
Metropolitan District No. 1; St. Vrain Left Hand Water
Conservation District; State Engineer and Water Division 1
Engineer; Town of Frederick; Varra Companies, Inc.; and Water
Users Association of District No. 6.
Justice Berkenkotter delivered the Opinion of the Court, in
which Chief Justice Márquez, Justice Hood, Justice
Hart, and Justice Samour joined. Justice Gabriel, joined by
Justice Boatright, dissented.
OPINION
BERKENKOTTER, JUSTICE
4
¶1
The Town of Firestone ("Firestone") challenges an
order and decree of the District Court for Water Division 1
("the water court") that dismissed without
prejudice three of five claims for groundwater well fields
from Firestone's application for conditional groundwater
rights and its accompanying augmentation plan.
¶2
Firestone contends that the water court (1) misconstrued the
contours of the "reasonably accurate" standard we
previously articulated in City of Aurora ex rel. Util.
Enter. v. Colo. State Eng'r, 105 P.3d 595, 615
(Colo. 2005); (2) erred by declining to retain jurisdiction
so Firestone could demonstrate non-injury at a later date;
(3) erred by allowing the St. Vrain Sanitation District
("St. Vrain") to contest, contrary to a prior
conditional stipulation, whether Firestone had met its burden
of showing that the well fields would not cause injury; and
(4) clearly erred in some of its material findings of
fact.[1]
5
¶3
We conclude, consistent with our prior decisions, that a
water court must evaluate an application for conditional
groundwater rights and an accompanying augmentation plan on a
case-by-case basis to determine whether the proposed water
use would injure those with vested, senior water rights. If
an applicant fails to meet its burden of showing that the
proposed use would not cause injury, then a water court acts
within its authority by rejecting the augmentation plan and
dismissing the application for conditional groundwater rights
based on the particular facts before it.
¶4
We additionally conclude that the water court did not err in
deciding that firestone failed to meet its burden of showing
that its depletions in the well fields at issue would not
injure those with vested, senior water rights in St. Vrain
Creek. The water court also correctly declined to retain
jurisdiction over Firestone's application because
Firestone sought to delay its burden of demonstrating
non-injury until after its conditional groundwater rights had
been approved. And the water court likewise did not abuse its
discretion, under the specific circumstances in this case,
when it allowed an opposer to contest a conditional
stipulation to a
6
question of law from a court filing. Lastly, it did not err
by finding that Firestone's proposed well locations were
not sufficiently specific to allow the town to calculate
reasonably accurate estimates of lagged depletions.
¶5
We therefore affirm the water court's order partially
granting and partially denying St. Vrain's C.R.C.P.
41(b)(1) motion to dismiss (the "2023 order") and
its findings of fact, conclusions of law, and decree
regarding Firestone's application (the "2024
decree").
I.
Background
¶6
We begin with an overview of the legal requirements at play
to help contextualize the parties' dispute.
A.
Conditional Groundwater Rights and Augmentation
Plans
¶7
First, we review what a conditional water right is, how
seeking such a right for groundwater in an over-appropriated
basin requires an additional obligation called an
augmentation plan, and the complex water engineering
calculations that augmentation plans require to determine
whether the proposed use of a conditional water right will
result in injury to those with vested, senior water rights.
"A classic form of injury involves diminution of the
available water supply that a water rights holder would
otherwise enjoy at the time and place and in the amount of
demand for beneficial use under the holder's decreed
water right
7
operating in priority." Farmers Reservoir &
Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d 799,
807 (Colo. 2001).
¶8
A conditional water right is "a right to perfect a water
right with a certain priority upon the completion with
reasonable diligence of the appropriation upon which such
water right is to be based." § 37-92-103(6), C.R.S.
(2024). A conditional water right "preserves an
applicant's position in the priority system while the
applicant takes the necessary steps (such as obtaining
financing, complying with regulatory and access requirements,
and completing engineering, etc.) to put the appropriated
water to beneficial use." Vermillion Ranch Ltd.
P'ship v. Raftopoulos Bros., 2013 CO 41, ¶ 32,
307 P.3d 1056, 1064.
¶9
A conditional right to groundwater, where an applicant is
seeking to pump water from multiple tributary well fields
that have a hydrologic connection to a surface stream, is
more complicated than a conditional surface water right. To
establish such a conditional groundwater right in an
over-appropriated basin like the South Platte River basin
where this dispute arose, an applicant must also submit an
augmentation plan with sufficient detail to demonstrate
non-injury to those with vested, senior water rights. See
Buffalo Park Dev. Co. v. Mountain Mut. Reservoir Co.,
195 P.3d 674, 684 (Colo. 2008).
¶10
The General Assembly created augmentation plans "in
order to allow continuance of existing uses and to assure
maximum beneficial utilization of the
8
waters of this state." § 37-92-501.5, C.R.S.
(2024). "When unappropriated water is unavailable,
augmentation plans permit junior water right holders to
divert water out-of-priority while ensuring the protection of
senior water rights." Farmers Reservoir &
Irrigation Co., 33 P.3d at 806. Augmentation plans
"operate[] to replace depletions (often from well
pumping) with substitute water supply in an amount necessary
to prevent injury to other water rights," including
delayed depletions caused by well pumping. Centennial
Water & Sanitation Dist. v. City & Cnty. of
Broomfield, 256 P.3d 677, 684 (Colo. 2011).
¶11
A water court evaluates out-of-priority depletions for
non-injury based on many interrelated factors, including but
not limited to "the timing and location of depletions as
well as the availability of replacement water." City
of Aurora, 105 P.3d at 615. Depletions to the surface
stream happen because "withdrawal of tributary ground
water through a well results in either decreased aquifer
discharge to surface water or increased loss from surface
water." Luke W. Harris & Christopher J. Sanchez,
Considerations for Analyzing Colorado Ground Water: A
Technical Perspective, 15 U. Denv. Water L. Rev. 105,
117 (2011). These depletions are also referred to as
"lagged depletions" because there is a timing lag
between the well pumping and the subsequent effect on the
surface water stream. Id. Depending on local
conditions, lagged depletions can take anywhere from days to
years to fully impact local surface water. Id.
9
¶12
In order for water engineers to properly account for these
lagged depletions in an augmentation plan, they often rely on
computational models that use unit response functions
("URFs") to quantify the timing and amount of
depletions on a surface stream from nearby groundwater
pumping by a well.
¶13
If an applicant for a new conditional groundwater right fails
to meet their burden of showing non-injury, including by
submitting inaccurate or insufficient lagged depletion
calculations in their augmentation plan, then a water court
is obligated to dismiss the application. See Buffalo
Park, 195 P.3d at 685.
B.
Retained Jurisdiction
¶14
Because augmentation plans only permit out-of-priority
groundwater pumping subject to the condition that such
pumping does not injure those with vested, senior water
rights, the General Assembly also created a statutory
retained jurisdiction period that a water court must invoke
when a decree permitting an augmentation plan has been
entered to ensure continued compliance with the non-injury
requirement. See Upper Eagle Reg'l Water Auth. v.
Wolfe, 230 P.3d 1203, 1211-12 (Colo. 2010). This
statutory mechanism allows a water court to maintain
supervisory jurisdiction over a water matter to monitor
whether "vested water rights and conditionally decreed
water rights may not be sufficiently protected against injury
under provisions of the existing decree" in light of
"real life operational experience." Id. at
1215.
10
¶15
Section 37-92-304(6), C.R.S. (2024), provides that
"[a]ny decision of the water judge . . . dealing with .
. . a plan for augmentation . . . shall be subject to
reconsideration by the water judge on the question of injury
to the vested rights of others." We have previously held
that an initial non-injury determination is a condition
precedent that must be satisfied before the water
court may reconsider an additional or changed injury through
the mechanism of retained jurisdiction. In City of
Aurora, for instance, we held that "the purpose of
retained jurisdiction is to address injurious effects that
result from the operation of a decreed augmentation plan, and
may only be invoked by Opposers after a finding of
non-injury by a water court." 105 P.3d at 616 (emphasis
added).
¶16
We reiterated this reasoning in Buffalo Park, when
we held that the "[i]ntroduction of reliable evidence of
the quantity, time, and location of depletions and the legal
availability of replacement water is the responsibility of
the applicant and cannot be postponed to occur under retained
jurisdiction." 195 P.3d at 685. And we did so as well in
Upper Eagle, when we observed that section
37-92-304(6) "plainly demonstrates the General
Assembly's intent that the retained jurisdiction period
function to allow reconsideration of injury
determinations the water court previously
made." 230 P.3d at 1212 (emphases added).
¶17
With this background in mind, we now turn to the specifics of
this case.
11
II.
Facts and Procedural History
¶18
To get oriented, we begin by describing how the parties ended
up in water court. We then review the C.R.C.P. 41(b)(1)
motion that led the water court to ultimately (1) dismiss
without prejudice a portion of Firestone's application
for conditional groundwater rights and (2) revise its
accompanying augmentation plan accordingly.
¶19
Firestone is a statutory town of approximately 16,000 people
located in southwestern Weld County, Colorado. In response to
population growth within its boundaries—which it
expects to double by 2050—Firestone has embarked on a
public works project to expand its water portfolio, including
the construction of a new reverse osmosis water treatment
plant. All told, Firestone issued roughly $55 million worth
of water enterprise revenue bonds to finance the project. To
effectuate part of its planned water system expansion,
Firestone filed an application for water rights in the water
court in December 2019, which it amended in March 2020, that
sought to (1) change existing water rights; (2) appropriate
new conditional surface water and groundwater rights,
including storage rights; and (3) compensate for proposed
out-of-priority usage via rights of exchange and an
augmentation plan.
¶20
As part of its application, Firestone sought conditional
groundwater rights to, and augmentation of, five wells or
well fields, which it referred to as:
12
• the Mountain Shadows Well
• the FAST[2] Well Field
• the FAST North Well Field
• the Firestone Trail Well Field
• the St. Vrain Sanitation District Well Field
¶21
Because these proposed wells would withdraw water out of
priority and cause depletions to the nearby St. Vrain Creek,
Firestone was also required to file an augmentation plan to
prevent injury to those with vested, senior water rights.
¶22
Whether these wells satisfied the legal conditions necessary
to establish a conditional groundwater right was the subject
of a three-day trial in the water court. While twenty-four
potentially impacted water rights holders initially entered
appearances as opposers in the water case, all but one
entered stipulations with Firestone prior to trial. St.
Vrain, on whose land one of Firestone's proposed well
sites would be located, remained the sole active opposer when
the case went to trial.[3] St. Vrain is a wastewater service
provider that serves more than 15,000 residential and
business accounts in and around the Firestone area.
¶23
Firestone described the location of the five wells or well
fields as follows:
13
• The Mountain Shadows Well: in the N.W. 1/4 of the SE
1/4 of Section 1, Township 2 North, Range 68 West of the 6th
P.M., Weld County, Colorado.
• The FAST Well Field: in the SW 1/4 of the SW 1/4 of
Section 31, Township 3 North, Range 67 West of the 6th P.M.,
Weld County, Colorado.
• The FAST North Well Field: in the NE 1/4 of the SW 1/4
of Section 31, Township 3 North, Range 67 West of the 6th
P.M., Weld County, Colorado.
• The Firestone Trail Well Field: in the N.W. 1/4 of the
N.W. 1/4 of Section 5, Township 2 North, Range 67 West of the
6th P.M., Weld County, Colorado.
• The St. Vrain Sanitation District Well Field: in the
N.W. 1/4 of the SE 1/4 and the SW 1/4 of the NE 1/4 of
Section 31, Township 3 North, Range 67 West of the 6th P.M.,
Weld County, Colorado.
Notably,
these are all descriptions of quarter-quarter sections (i.e.,
forty-acre tracts) of land or, in the case of the St. Vrain
Sanitation District Well Field, two adjacent quarter-quarter
sections (i.e., an eighty-acre tract) of land.
¶24
During trial, Firestone presented evidence in its
case-in-chief regarding the location and function of the
wells or well fields for which it was seeking conditional
groundwater rights. It also offered evidence of the lagged
depletion calculations that it made in connection with its
augmentation plan.
¶25
Firestone did not provide specific well locations or
well-specific URFs for the FAST North Well Field, the
Firestone Trail Well Field, or the St. Vrain Sanitation
District Well Field (the "Subject Well Fields").
Instead, because the
14
exact number and location of wells were still being refined,
Firestone proposed invoking the water court's retained
jurisdiction to later provide more specific well locations
and updated URFs tied to the Subject Well Fields.
Firestone's plan to invoke the court's retained
jurisdiction in this manner was contained within paragraph 48
of its proposed decree ("Paragraph 48").
¶26
St. Vrain focused on this lack of geographic specificity when
it cross-examined several of Firestone's expert
witnesses, prompting concessions from those witnesses
regarding several key issues. Specifically, St. Vrain's
questioning elicited testimony that (1) the Subject Well
Fields' locations were less definite than some of the
testimony on direct examination had suggested, (2) this lack
of precision made its URF calculations less reliable, and (3)
Firestone planned to rely on the water court's retained
jurisdiction to provide more specific well locations and URFs
at a later date. After Firestone closed its case-in-chief,
the water court granted St. Vrain's request to continue
the trial to allow St. Vrain to file a written motion to
dismiss pursuant to C.R.C.P. 41(b)(1).
¶27
Shortly thereafter, St. Vrain filed its written motion to
dismiss, arguing that firestone had failed to meet its burden
of proof as to its conditional groundwater rights claims. St.
Vrain's objections boiled down to two main arguments: (1)
Firestone failed to provide reasonably accurate well
locations, making its URF calculations inherently inaccurate;
and (2) Firestone improperly sought to rely on
15
the water court's retained jurisdiction to try to prove
non-injury at a later date, after the conditional groundwater
rights and corresponding augmentation plan were decreed.
Firestone's plan to use the water court's retained
jurisdiction in this manner, St. Vrain argued, was legally
impermissible. Moreover, it would lower Firestone's
burden of proof with respect to its conditional groundwater
rights application by delaying the water court's
necessary non-injury finding until after a
conditional groundwater right was granted.
¶28
Firestone countered that St. Vrain was demanding it provide
"exact precision" in its proposed well locations,
which the town asserted is at odds with this court's
"reasonably accurate" standard articulated in
City of Aurora. In an over-appropriated watershed
like the South Platte River basin, Firestone argued, such a
strict requirement would effectively mean that no party could
receive a conditional groundwater right until the drilling of
a well was imminent or actually completed, making it
"virtually impossible for municipalities and other water
users to plan for growth" or to develop future water
resources to support that anticipated growth. In support of
its argument, Firestone noted that quarter-quarter section
descriptions were used by other, prior applicants and
approved in prior water court orders and, regardless, that it
had demonstrated sufficient replacement water supplies to
account for depletions above and beyond what its models
projected to be necessary.
16
¶29
In reply, St. Vrain noted that lagged depletions for
conditional groundwater rights are determined by the location
of a well, and not by a centroid of a quarter-quarter
section.[4] Pointing to the trial testimony, St. Vrain
emphasized that Firestone's experts conceded that they
didn't know if some of the wells would be drilled
vertically or horizontally and that even minor differences in
distance between proposed and actual well sites could result
in significantly altered depletion patterns. Because of this,
St. Vrain argued that Firestone's URFs did not meet the
"reasonably accurate" standard.
¶30
The water court ultimately entered the 2023 order partially
granting and partially denying St. Vrain's Rule 41(b)(1)
motion to dismiss. It denied the motion to dismiss as to the
FAST Well Field and the Mountain Shadows Well. However, it
concluded that the URFs for the Subject Well Fields, which
were calculated based on estimated,
potential well locations, were insufficient to
establish that Firestone's depletions would not injure
those with vested, senior water rights. The water court found
that Firestone's URFs for the three Subject Well Fields
did not accurately capture lagged depletions because the
calculations were not based on a complete picture of the
actual or planned location of the wells in the Subject Well
17
Fields. Without this information, the court concluded,
Firestone could not reliably determine the timing and amount
of those lagged depletions.
¶31
The water court further noted that the standard practice in
cases adjudicating augmentation plans is to calculate a URF
at a specific well location to reliably determine the timing
and amount of lagged depletions based on that well's
location. The water court described Firestone's use of
representative estimated locations for the three Subject Well
Fields as a "novel" approach that deviated from
this standard practice. The water court also expressed
concern that well construction decisions that had yet to be
made by Firestone—including whether the wells would be
vertical or horizontal, their distance from St. Vrain Creek,
and their location relative to gravel pits on the proposed
well field properties—would all impact the actual URFs.
Finally, the water court gave weight to Firestone's own
expert conceding that inaccurate URF calculations could
result in underestimated lagged depletions, which could
ultimately cause injury to those with vested, senior water
rights. Taken together, the water court ultimately found that
all these factors combined to make the URFs unreliable for
the contested Subject Well Fields. It therefore determined
that Firestone did not meet its burden to show non-injury.
¶32
The water court additionally reasoned that it would be
inappropriate to retain jurisdiction because it was unable to
reach the issue of non-injury—which,
18
it explained, is a requirement before a water court may
retain jurisdiction over an application. For these reasons,
it granted St. Vrain's motion to dismiss Firestone's
application for conditional groundwater rights for the
Subject Well Fields and the corresponding sections of
Firestone's proposed augmentation plan.
¶33
Following its 2023 order, the water court entered the 2024
decree that articulated its findings of fact and conclusions
of law. The 2024 decree indicates that the court dismissed
Firestone's claims for conditional groundwater rights for
the Subject Well Fields without prejudice pursuant to its
2023 order. It additionally removed those well fields from
the plan for augmentation.
¶34
Firestone appeals both the 2023 order and the 2024 decree.
Firestone now asks us to review the water court's
decisions, arguing that the water court (1) misconstrued the
contours of the "reasonably accurate" standard we
previously articulated in City of Aurora, (2) erred
by declining to retain jurisdiction so Firestone could
demonstrate non-injury at a later date, (3) erred by allowing
St. Vrain to contest the Subject Well Fields after
conditionally stipulating in a prior filing that those wells
were uncontested, and (4) clearly erred in some of its
material findings of fact.
III.
Application
¶35
We turn to the standard of review before applying the law to
the facts before us.
19
A.
Standard of Review
¶36
We have direct appellate review jurisdiction over water
adjudications pursuant to article VI, section 2(2) of the
Colorado Constitution; section 13-4-102(1)(d), C.R.S. (2024);
and C.A.R. 1(a)(2), 1(e), and 4(a).
¶37
We review a water court's conclusions of law de novo.
Franktown Citizens Coal. II, Inc. v. Indep. Water &
Sanitation Dist., 2025 CO 5M, ¶ 30, P.3d . In
contrast, "[w]e accept the water court's factual
findings on appeal unless they are so clearly erroneous as to
find no support in the record." Burlington Ditch
Reservoir & Land Co. v. Metro Wastewater Reclamation
Dist., 256 P.3d 645, 660 (Colo. 2011). "Where there
are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly
erroneous." Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985).
¶38
"Whether to give effect to or repudiate . . . a
stipulation rests with the sound discretion of the trial
court." Lake Meredith Reservoir Co. v. Amity Mut.
Irrigation Co., 698 P.2d 1340, 1346 (Colo. 1985). Thus,
an appellate court reviews a water court's decision to
disregard a stipulation for an abuse of discretion.
Id. A water court "does not abuse its
discretion unless its ruling is manifestly arbitrary,
unreasonable, or unfair." Front Range Res., LLC v.
Colo. Ground Water Comm'n, 2018 CO 25, ¶ 15,
415 P.3d 807, 810 (quoting Murray v. Just In Case Bus.
Lighthouse, LLC, 2016 CO 47M, ¶ 32, 374 P.3d 443,
453).
20
B.
Applications for Conditional Groundwater Rights Are Evaluated
on a Fact-Specific, Case-By-Case Basis
¶39
Firestone argues that the water court created a new
bright-line test for conditional groundwater rights that
requires an applicant to complete the construction of a well
before obtaining a conditional groundwater right. Its framing
of the issue stems in part from a line in the water
court's 2023 order that reads, "[b]ecause water
rights are decreed to structures and points of diversion, it
follows that the point of diversion for conditional
groundwater rights is a completed well—not the well
field where that well may be located." (Citation
omitted.)
¶40
But Firestone ignores the rest of the story. In the very next
line in its order, the water court explained: "As a
general proposition, the court accepts Firestone's
argument that an application for a conditional water right
can identify a proposed structure using a quarter-quarter
section legal description."
¶41
The water court elaborated, noting that this court "has
looked to both context and case-specific facts when
approaching the question [of] whether an applicant must
identify an exact location for a diversion structure to
obtain a conditional water right." Discussing our
reasoning in City & County of Denver ex rel. Board of
Water Commissioners v. Colorado River Water Conservation
District, 696 P.2d 730, 747 n.13 (Colo. 1985), it
observed that such determinations "must always be made
on an ad hoc basis, taking into account whether the
particular
21
facts of each case satisfy the purposes underlying the
requirements of the first step test [as to intent and overt
acts towards an appropriation]." (Alteration in the 2023
order.) The water court also analyzed our holding in City
of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 34
(Colo. 1996), in which we noted that "notice does not
require an applicant to determine the exact amount of water
to be diverted at a precisely located point of
diversion." Applying the logic behind those cases, as
well as City & County of Denver's
instruction that a water court must look to the particular
facts of a case when making a determination on a conditional
water right application, the water court concluded that
"a quarter-quarter description of the general location
of a structure may be acceptable in certain contexts, while
the exact location of the diversion may be required in other
contexts."
¶42
The water court then considered the cases that Firestone
cited in which quarter-quarter descriptions were deemed
sufficiently specific for a water court to make a finding of
non-injury. The court was unpersuaded. Two of the cases did
not involve conditional water rights and two involved
conditional storage rather than conditional groundwater
rights. In three of the four cases, structures or points of
diversion already existed, and the fourth concerned
evaporative losses from a storage pond. The water court found
them easily distinguishable.
¶43
Turning to the merits with respect to the Subject Well
Fields, the water court determined that "Firestone seeks
court-approval here of (1) an unspecified
22
number of diversions with (2) those points of diversion
located anywhere in a [forty]-acre parcel." It went on
to conclude that it was "not persuaded that Firestone
can properly obtain conditional groundwater rights for an
undeveloped [forty]-acre (or [eighty]-acre) parcel."
¶44
In reaching this conclusion, the water court explained that
conditional groundwater rights are different from conditional
surface water rights in that they must be accompanied by an
augmentation plan when their operation could injure those
with vested, senior water rights. City of Aurora,
105 P.3d at 617 (holding that "a conditional right to
pump water that would injure senior appropriators may only be
decreed in conjunction with an augmentation plan").
¶45
Ultimately, the water court found that it could not make the
necessary non-injury determination with respect to the
Subject Well Fields based on the evidence presented by
Firestone at trial. And because it could not conclusively
make a non-injury finding, it could not approve the relevant
portion of the augmentation plan. Without the augmentation
plan, it could not approve the conditional groundwater rights
for the Subject Well Fields, which is why the water court
dismissed those claims without prejudice. But in so doing,
the water court did not hold that an applicant must complete
the construction of a well before obtaining a conditional
groundwater right. Rather, the water court correctly
recognized that it must
23
evaluate the evidence before it on a case-by-case basis to
determine if the applicant met its burden to prove
non-injury.
¶46
Firestone next contends that a conditional groundwater right
does not need to be precisely described but must instead
merely put other water right owners on notice of the scope of
the withdrawal from the water source. See City of
Thornton, 926 P.2d at 24-25. Firestone asserts that the
water court held it to an impossible standard, one that
required it to precisely identify the future location of the
wells it planned to develop in the Subject Well Fields. This
proves, Firestone claims, that the water court adopted and
applied a "precisely accurate" standard rather than
the "reasonably accurate" standard articulated in
City of Aurora.
¶47
As we have explained, "in reviewing a proposed
augmentation plan, a water court must consider the amount and
timing of the applicant's depletions, the amount and
timing of available replacement water, and the existence of
injury to senior appropriators." City of
Aurora, 105 P.3d at 615. "Thus, before an applicant
can establish an absence of injury to satisfy its prima facie
case, it must first establish the timing and location of
depletions, as well as the availability of replacement water
to prevent injury from those depletions." Id.
(holding that a water court erred in determining the absence
of injury where it failed to consider the relationship
between the amount and timing of depletions and the amount
and timing of replacement water). "Whether an
augmentation plan will result in
24
material injury to senior appropriators is a factual
determination based on the evidence presented in a particular
case." Id.
¶48
Here, the water court correctly applied City of
Aurora and Buffalo Park in requiring Firestone
to demonstrate that its augmentation plan would replace all
out-of-priority depletions in the proper time, place, and
amount to prevent injury. By reaffirming this principle, we
do not create a new bright-line rule; rather, we affirm the
water court's judgment that each non-injury evaluation
performed when considering an augmentation plan that
accompanies a conditional groundwater right application must
be evaluated on a fact-specific, case-by-case basis. That is
precisely what the water court did here.
C.
The Water Court Did Not Err by Refusing to Retain
Jurisdiction Prior to Making a Finding of Non-Injury
¶49
During trial, Firestone acknowledged some degree of
uncertainty in its planning for the Subject Well Fields. This
is why it urged the water court to adopt an augmentation plan
that would authorize Firestone to later add specific well
locations to the plan and then update the actual URF
calculations for each of the Subject Well Fields. That is,
Firestone proposed to use the water court's retained
jurisdiction as a means to allow it to more specifically and
accurately calculate injury down the road. Firestone's
proposed decree included this plan in Paragraph 48 as a
workaround to address this uncertainty.
25
1.
Paragraph 48
¶50
Paragraph 48 of Firestone's proposed decree provided, in
relevant part, that its URFs "may be updated as needed
if the URFs of the Augmented Wells change (once completed) or
if additional Augmented Wells are included in the
augmentation plan decreed herein." It further outlined a
process by which it would notify all objectors of the
proposed change, give them sixty-three days to comment or
object, and seek approval from the Division Engineer.
¶51
In its 2023 order, the water court rejected this proposal as
an impermissible use of retained jurisdiction. As a result,
it subsequently struck the bulk of Paragraph 48 from the 2024
decree. Firestone contends that the water court's
decision was in error because Firestone's proposed
"test period" for the operation of its conditional
groundwater rights within the augmentation plan would
necessarily be subject to review and possible refinement when
the town later applied to make those conditional groundwater
rights absolute. We disagree.
2.
An Applicant Must Show Non-Injury When It Applies for a
Conditional Groundwater Right
¶52
As we explained in Buffalo Park, the
"[i]ntroduction of reliable evidence of the quantity,
time, and location of depletions and the legal availability
of replacement water is the responsibility of the applicant
and cannot be postponed to occur under retained
jurisdiction." 195 P.3d at 685 (citing City of
Aurora, 105 P.3d at 616-17). Indeed, our case law is
clear that an applicant must meet its
26
burden at the time that it applies for a conditional
groundwater right. But Firestone did not meet this
burden. Consequently, Paragraph 48 would improperly allow it
to postpone its burden to demonstrate the time and amount of
depletions until after the entry of the decree.
See City of Aurora, 105 P.3d at 616. Instead,
"the purpose of retained jurisdiction is to
reconsider injury once an augmentation plan is
operating, not to prove depletions or prove injury for the
first time." Id. (emphasis added). Here, it
would have been improper for the water court to exercise
retained jurisdiction in the manner Firestone proposed since
it was unable to make a threshold finding of non-injury.
¶53
Because retained jurisdiction is proper only after an initial
showing of non-injury is made, the water court did not err
when it declined to approve Paragraph 48, which would have
allowed Firestone to improperly delay meeting its burden to
prove non-injury as to the three Subject Well Fields.
D.
The Water Court Did Not Abuse Its Discretion by Allowing St.
Vrain to Contest Non-Injury Following a Conditional Rule 11
Stipulation
¶54
Pursuant to Rule 11(b)(6)(B) of the water court rules,
counsel for the parties submitted a joint statement of
disputed issues to the court prior to trial. See
Rule 11(b)(6)(B), Uniform Local Rules for All State Water
Court Divisions. The statement also included a list of
undisputed issues. That list provided, among other things,
that "[t]he proposed URF depletion patterns for the FAST
Well Field,
27
Firestone Trail Well Field, and FAST North Well Field are
adequate to prevent injury." The joint statement also
provided that:
The inclusion of issues or opinions on this list is not
intended to constitute a waiver of any objection that the
parties may have to the admission of evidence or expert
opinion testimony, including, without limitation, relevance
objections and qualifications of the experts. All such
objections are reserved for trial. The statements of issues
that are anticipated to be the subject of expert testimony at
trial are based upon the parties' current understanding
of the case and the information presented to date.
¶55
St. Vrain later indicated in its trial brief that it intended
to raise issues as to all five wells—including the well
fields that were initially listed as undisputed in the
parties' joint statement—and to challenge Paragraph
48 and Firestone's plan to rely on the exercise of the
court's retained jurisdiction to update its well
locations and URFs.
¶56
Firestone objected, asserting that St. Vrain's
backtracking would result in Firestone being unprepared to
address issues it considered resolved based on the joint
statement. Firestone argued that allowing parties to
disregard partial settlements made under Rule 11(b)(6) would
run afoul of the goals and intent of the water court rules.
¶57
Later, during a discussion of preliminary matters before the
first day of trial, St. Vrain argued that it was not
backtracking on the joint statement because the summary of
disputed issues was conditional. It specifically pointed to
the language that "[t]he statements of issues that are
anticipated to be the subject of
28
expert testimony at trial are based upon the parties'
current understanding of the case and the information
presented to date."
¶58
St. Vrain additionally noted that it identified the
specificity of the well fields and the usage of Paragraph 48
as contested in its statement of opposition, in its expert
disclosures, and in the parties' proposed trial
management order.
¶59
The water court indicated that it would "hold both
parties to the undisputed matters of fact and expert opinion
in the [Trial Management Order]," and that, "to the
extent that issues are raised that contradict the undisputed
matters of fact, I'm likely not going to allow a party to
contradict those at this point." However, the water
court deferred ruling on the matter while noting that
"[t]o the extent that these matters are outside the
undisputed matters of fact or there's a relevance issue,
it seems to me that St. Vrain has the right to raise that
issue." The water court ultimately allowed St. Vrain to
challenge Firestone's witnesses on cross-examination
regarding Firestone's well locations and the town's
URF depletion patterns for all five well fields over
Firestone's objections.
¶60
Firestone asserts that the court erred by disregarding the
parties' stipulation and allowing St. Vrain to
"change its mind." We are not persuaded.
¶61
We review a trial court's decision to disregard a
stipulation for an abuse of discretion. Lake Meredith
Reservoir Co., 698 P.2d at 1346. It is within a
water court's discretion to give effect to or repudiate a
stipulation. Id.
29
¶62
So, did the water court abuse its discretion when it allowed
St. Vrain to contest the sufficiency of Firestone's
non-injury analysis for its well fields at trial?
¶63
Based on the record before us, we conclude that the water
court did not abuse its discretion. To be sure, stipulations
under Rule 11 play an important role in water law cases. But
here, the water court reasonably determined that the joint
statement of disputed issues contained a clause that reserved
to any party—including St. Vrain—the right to
change its mind.
¶64
Moreover, St. Vrain made clear in its statement of
opposition, expert disclosures, and the proposed trial
management order that it intended to challenge
Firestone's evidence regarding the URFs for all five
wells and well fields as to the issue of non-injury. St.
Vrain was the only party that did not enter into a settlement
with Firestone; instead, it proceeded to trial because of its
concerns with the exact issues that are before us today.
¶65
Lastly, and most importantly, parties may not stipulate a
question of law. Bar 70 Enters., Inc. v. Tosco
Corp., 703 P.2d 1297, 1306 (Colo. 1985) ("A
stipulation cannot be used to bind a court in the
determination of questions of law or mixed questions of law
and fact."). The injury inquiry in an augmentation plan
is a question of law. Buffalo Park, 195 P.3d at 690.
Because the water court had a duty to determine the issue of
non-injury in this case, if it was not persuaded by the
30
evidentiary record before it, then it was not obligated to
accept the terms of the parties' initial stipulation as
true.
¶66
For these reasons, we hold that the water court did not abuse
its discretion when it allowed St. Vrain to contest the issue
of non-injury at trial.
E.
The Water Court's Findings of Fact Were Not Clearly
Erroneous
¶67
During a bench trial, a trial judge assumes the role of both
an impartial judge and an impartial finder of fact.
People v. Hall, 2021 CO 71M, ¶ 20, 496 P.3d
804, 810. "[J]udges sitting as finders of fact in bench
trials have the additional duty to assess the evidence and
discover the truth, just as a jury would." Id.
at ¶ 23, 496 P.3d at 811. A trial court serving as
fact-finder "may believe some or all or none of the
evidence because, as the factfinder, the trial court's
job is to discern the truth, even if the truth does not
cleanly align with either party's version of the
events." Id. at ¶ 25, 496 P.3d at 811.
"We accept the water court's factual findings on
appeal unless they are so clearly erroneous as to find no
support in the record." Burlington Ditch, 256
P.3d at 660.
¶68
Because Firestone argues that the water court's 2023
order and 2024 decree were clearly erroneous, we examine the
evidence offered at trial to determine if the water
court's rulings had support in the record. The below
material captures some—but by no means all—of the
evidence St. Vrain elicited. From this evidence, we conclude
that the water court's rulings had sufficient support in
the record.
31
1.
Relevant Trial Testimony
¶69
Witness David Brian Lindsay is a civil engineering consultant
for Firestone whose work focuses on water infrastructure,
design construction, and operations. He previously worked as
the town's engineer for twenty-four years. He testified
on direct that there was some uncertainty regarding the well
locations:
Mr. Knoll: And why did you pick to describe them as
"wellfields"?
Mr. Lindsay: So again, this was one of the lessons that we
learned. It was—we were fortunate that the case had
not—the original application had been submitted because
a lot of this information was really being developed, I mean,
literally as—as you guys were getting ready to submit
this application . . . . . . . .
. . . [T]hat's why we started to identify these as
fields, because we didn't know exactly what kind of a
well configuration we would want to put on it. And even if it
was going to be vertical wells, it would probably have to be
multiple wells to be able to get the capacity out that we
wanted.
32
Mr.
Lindsay went on to explain that the pumping rates and output
of the well fields were an "assumption" based on
data from other well sites, and not necessarily from
site-specific test wells.
¶70
On cross-examination, St. Vrain's attorney asked Mr.
Lindsay if Firestone knew how many wells it would construct
on the FAST North Well Field:
Mr. Machado: [H]ow many wells would be constructed on that
property, Mr. Lindsay?
Mr. Lindsay: I don't know. We didn't go to the next
stage of evaluation and design on that field.
¶71
Mr. Machado also asked Mr. Lindsay about the location of
wells on the Firestone Trail Well Field during his
cross-examination:
Mr. Machado: Do you know how many well—how many wells
the Town plans to construct on that—
Mr. Lindsay: No. Again—
Mr. Machado: —wellfield?
Mr. Lindsay: —we have not gone to that level of design
yet.
¶72
And, regarding the location of any wells on St. Vrain's
property, Mr. Lindsay testified that, while he believed the
most probable outcome was that Firestone would construct a
horizontal well approximately 250 feet from St. Vrain Creek,
he acknowledged that there was uncertainty as to the final
plan.
33
Mr. Knoll: So the planned development of [the St. Vrain
Sanitation District Well Field] would be a horizontal well
parallel to the river channel?
Mr. Lindsay: We don't know that for a fact. It would be
in that corridor. It could be a vertical well. It could be a
series of vertical wells. It could be a horizontal well. It
could be a combination of those. . . . .
. . . The expectation was, candidly, that, yes, it would be a
horizontal well, but we didn't—we wouldn't know
that for sure until we were able to get in and do that final
testing.
¶73
Later, during St. Vrain's cross-examination of Andrew
Case, an engineer and project manager who assisted Firestone
in developing its water planning project, Mr. Case
acknowledged that URFs can vary within a single
quarter-quarter section.
¶74
At the conclusion of Mr. Case's testimony, the water
court asked him a number of questions regarding the accuracy
of the URF depletion patterns and how the Paragraph 48
mechanism would function if Firestone later determined,
34
upon siting the groundwater wells, that the URFs needed to be
modified to more accurately capture the correct lagged
depletion patterns.[5]
The Court: Does it matter how many wells are drilled in a
particular quarter section—quarter-quarter section;
does that affect the analysis of the lagged depletions?
Mr. Case: It would affect how we locate the centroid. . . .
The Court: I guess my question is, does it affect the rate of
depletion? Do three wells or four wells cause the same rate
of depletion as one well? Or does the fact that there are now
multiple wells in a quarter-quarter section either speed up
or slow down the depletions?
Mr. Case: So whether or not they're interfering with one
other?
The Court: Right.
Mr. Case: I mean, physically, that can happen, and . . .
that, I think, would be true for—for any of these
wellfields.
35
Again, I think [another expert] could probably testify to
whether or not the Glover method[6] accounts for that. I'm
not sure.
The Court: All right. And what's your understanding of
the proposed decree; how does it account for that variation,
if it does at all?
Mr. Case: The proposed decree would rely upon the URFs . . .
or if—subject to that Paragraph 48, if they're
further refined.
And the total well pumping from that wellfield would be used
to calculate the depletion by that URF.
¶75
Jacob Paul Bauer, a hydrogeologist who was retained by
Firestone, testified that moving a well closer or further
from the river even a short distance can make a difference in
the URF calculation. He explained on cross-examination that
moving a well site 150 feet could result in a nine-fold
increase in the amount of calculated depletions accruing to
the stream for one day. Local conditions matter
36
too, such as whether an unlined gravel pit is present at the
site. These are inputs that can cause changes to the URF
calculation. "[W]hat I've learned is that it's
hard to go strictly on intuition on those things, that you
can be surprised by the math of the Glover equation and how
the boundaries are incorporated, and it depends very
specifically on what site you're talking about," Mr.
Bauer said.
¶76
Mr. Bauer also stated during cross-examination, when
questioned about prior applications that involved wells with
lagged depletions, that the well locations in those cases
were described more precisely either by Universal Transverse
Mercator coordinates or distances from section lines. Upon
further questioning, Mr. Bauer replied that he had never been
involved in an application that contained a mechanism like
Paragraph 48 "[b]ecause the cases that we just talked
about, the structures exist or they have a defined location
that's more—more known than it is known in this
case."
¶77
Firestone even acknowledged in its briefing to this court
that "there is some validity to the concern that a URF
may not be representative of the ultimate demand on the water
supply if the final location of the diversion at the time a
groundwater right is made absolute is significantly different
than what was modeled." However, Firestone's
proposed remedy to this issue is the use of retained
jurisdiction. As we discussed above, the use of retained
jurisdiction when a water court cannot first determine
non-injury is not supported by the law.
37
2.
The Trial Record Supports the Water Court's Evidentiary
Findings
¶78
As noted, a trial court serving as fact-finder may believe
some or all or none of the evidence because, as the
fact-finder, the trial court's job is to discern the
truth, even if the truth does not cleanly align with either
party's version of the events. Hall, ¶ 25,
496 P.3d at 811. We disturb those findings of fact only if
they have no support in the record. Burlington
Ditch, 256 P.3d at 660.
¶79
The testimony by Firestone's expert witnesses as to the
uncertainty regarding the locations of the wells within the
Subject Well Fields—and the resulting uncertainty about
Firestone's ability to accurately calculate lagged
depletions for those well fields—supports the water
court's ultimate conclusion that Firestone failed to meet
its burden of demonstrating non-injury as to those well
fields. Notably, Firestone's experts conceded that, if
the URFs are incorrect, then the accounting would at times
underestimate lagged depletions, resulting in insufficient
replacement of the lagged depletions, which in turn would
injure those with vested, senior water rights.
¶80
While the evidence at trial on the issue of non-injury was
disputed, to be sure, we cannot say on this record that there
was no evidence to support the water court's findings.
Far from being clearly erroneous, the water court had a solid
evidentiary foundation for its order partially granting St.
Vrain's motion to dismiss.
38
IV.
Conclusion
¶81
For the foregoing reasons, we affirm the water court's
2023 order and 2024 decree.
JUSTICE GABRIEL, joined by JUSTICE BOATRIGHT, dissented.
39
JUSTICE GABRIEL, joined by JUSTICE BOATRIGHT, dissenting.
¶82
The majority affirms the water court's judgment,
concluding, among other things, that the water court's
evidentiary findings (presumably including its findings that
the Town of Firestone did not know the locations, number, or
types of wells it proposed to build) were sufficiently
supported by the record. Maj. op. ¶¶ 68-80.
Because, in my view, many of the water court's findings
were unsupported by the record, and because I believe that
the water court applied an overly strict interpretation of
the reasonable accuracy standard that applies to augmentation
plan applications, I would reverse the water court's
judgment and remand for further findings. Accordingly, I
respectfully dissent.
I.
Facts and Procedural History
¶83
The majority sufficiently sets forth the underlying facts,
and I need not repeat that factual recitation here.
Accordingly, I note only the facts necessary to my analysis.
¶84
The water court here rejected Firestone's conditional
water rights application, concluding that (1) the approval of
such an application required that Firestone also obtain
approval of an augmentation plan, which obligated Firestone
to establish a prima facie case that its proposed depletions
would be non-injurious; and (2) Firestone had not met this
initial burden. In support of this ruling, the water court
first found that Firestone had not provided specific location
40
information for any proposed well in the FAST North,
Firestone Trail, and St. Vrain Sanitation District Well
Fields and further did not specify how many wells would be
completed in those fields or whether the wells would be
vertical or horizontal. Next, the water court observed that
the depletion factor, or unit response function
("URF"), for a well "must be based on its
exact location" and must account for the distance from
any relevant hydrological conditions in the area. Because
Firestone could not specify the "exact locations"
of any wells that it might complete in the FAST North,
Firestone Trail, and St. Vrain Sanitation District Well
Fields, the court concluded that Firestone had not carried
its initial burden of showing that its proposed augmentation
plan would prevent injury to senior appropriators. The court
thus denied without prejudice Firestone's application as
to those three well fields.
II.
Analysis
¶85
I begin by discussing the applicable law. I then apply the
law to the facts before us.
A.
Applicable Law
¶86
We must accept the water court's factual findings unless
they are so clearly erroneous as to have no support in the
record, but we review de novo the court's conclusions of
law. Dill v. Yamasaki Ring, LLC, 2019 CO 14, ¶
23, 435 P.3d 1067, 1074.
41
¶87
A conditional water right is "a right to perfect a water
right with a certain priority upon the completion with
reasonable diligence of the appropriation upon which such
water right is to be based." § 37-92-103(6), C.R.S.
(2024). An applicant may not obtain a conditional right to
divert water that would injure senior appropriators, however,
except in conjunction with an augmentation plan assuring
sufficient available water to exercise that right. Fox v.
Div. Eng'r for Water Div. 5, 810 P.2d 644,
645 (Colo. 1991).
¶88
An augmentation plan applicant bears the initial burden of
producing sufficient evidence to establish a prima facie case
that its proposed depletions will not cause injury to
existing water rights. City of Aurora ex rel. Util.
Enter. v. Colo. State Eng'r, 105 P.3d 595,
614 (Colo. 2005). If the applicant satisfies this burden,
then the burden shifts to opposers to present evidence of
injury. Id. If opposers present such evidence, then
the applicant has the ultimate burden of showing, by a
preponderance of the evidence, an absence of injurious
effect. Id. at 614-15.
¶89
Section 37-92-305(8)(a), C.R.S. (2024), delineates factors
that a referee or water judge must consider when reviewing a
proposed augmentation plan. That statute provides, in
pertinent part:
[T]he referee or the water judge shall consider the
depletions from an applicant's use or proposed use of
water, in quantity and in time, the amount and timing of
augmentation water that would be provided by the applicant,
and the existence, if any, of injury to any owner of or
persons entitled to use water under a vested water right or a
decreed conditional water right.
42
Id.
¶90
Under this standard, the applicant must present
"reliable evidence of the quantity, time, and location
of depletions and the legal availability of replacement
water." Buffalo Park Dev. Co. v. Mountain Mut.
Reservoir Co., 195 P.3d 674, 685 (Colo. 2008). This
evidence must be sufficient to permit the water court to make
a "reasonably accurate" determination. City of
Aurora, 105 P.3d at 616-17.
¶91
As the foregoing makes clear, the water court must consider
depletions from an applicant's use or proposed use of
water in both quantity and time to determine whether injury
will result, and not as an end in itself. Upper Eagle
Reg'l Water Auth. v. Simpson, 167 P.3d 729,
735 (Colo. 2007). The statute thus requires an
"integrated inquiry" into whether the proposed
augmentation plan, if approved, would cause injury to vested
rights, and only if operation of the plan would do so does
the statute require the water court to deny the application.
Id. As a result, consideration of the use or
proposed use of water in both quantity and time is not an
"independent query that can defeat the proposed
augmentation plan," but rather this assessment serves as
an aid in making the injury determination. Id.
¶92
Augmentation adjudications necessarily require predictions of
future injury, and thus, they involve "an inherent
amount of uncertainty." Id. at 736.
Accordingly, we have previously recognized that
"uncertainties are not fatal to a plan for
augmentation." Id. Rather, as discussed above,
the applicant must
43
present evidence to permit only a "reasonably
accurate" determination. City of Aurora, 105
P.3d at 616-17.
B.
Application
¶93
In light of the foregoing legal principles, I believe that
the water court below erred in two ways. First, in my view,
the court's factual findings that Firestone did not know
where its proposed wells would be located, how many wells it
would construct, or what kind they would be were, in large
part, unsupported by the record and, to that extent, were
clearly erroneous. Second, I believe that the water court
proceeded to assess its foregoing findings based on an overly
strict reading of the applicable legal standard. I address
these issues in turn.
1.
Clearly Erroneous Factual Findings
¶94
With respect to its factual findings, as noted above, the
water court found that Firestone had not shown the locations,
number, or types of its proposed wells. The record, however,
largely does not support this determination.
¶95
Specifically, Firestone presented approximate proposed well
locations for each of the well fields not yet developed,
namely, the FAST North Well Field, the Firestone Trail Well
Field, and the St. Vrain Sanitation District Well Field. In
particular, through its civil engineering consultant, David
Lindsay, Firestone introduced into evidence a map marked as
Exhibit 50, which is reproduced below.
44
(Image
Omitted)
¶96
This map contained a number of stars that Lindsay testified
represented the approximate locations where Firestone
intended to place wells (the "Varra Well Field"
denoted on the map is another name for the FAST North Well
Field). Another of Firestone's experts, Jacob Bauer, then
explained that he calculated the URF for each of these well
locations.
¶97
Firestone further specified the distance from the St. Vrain
Creek for each of its proposed well fields, further
demonstrating the location of its proposed wells.
Specifically, Lindsay testified that Firestone proposed to
develop the FAST North
45
Well Field at a point approximately 100 feet from the Creek,
and he explained why the conditions in that area allow for
such close proximity to the Creek. Lindsay further testified
that Firestone proposed to develop the Firestone Trail Well
Field approximately 4,101 feet from the Creek on a small
parcel of land already owned by Firestone, and Lindsay
described the rationale for developing a well field on
Firestone's own property. And Lindsay testified that
Firestone intended to develop the St. Vrain Sanitation
District Well Field approximately 250 feet from the Creek.
Specifically, he explained that, subject to final testing,
Firestone expected to construct one horizontal well that
would run parallel to the Creek at this distance and would
stretch from 500 to 1,500 feet in length. Accordingly,
contrary to the water court's finding that Firestone
provided no specific locations for its proposed wells,
Firestone introduced detailed evidence showing the wells'
proposed locations.
¶98
Similarly, notwithstanding the water court's finding to
the contrary, Firestone also presented evidence of the types
of wells that it intended to build in each well field. In
particular, Lindsay testified that constraints in the areas
of the FAST North and Firestone Trail Well Fields would
almost certainly mandate the construction of only vertical
wells in those well fields. In addition, as described above,
Firestone expected to build a horizontal well in the St.
Vrain Sanitation District Well Field. In explaining
Firestone's proposed plans, Lindsay candidly
46
acknowledged that conditions could ultimately show that
Firestone might instead have to construct vertical wells in
this well field, but Lindsay noted that, regardless of type,
the well or wells would be located a similar distance from
the Creek.
¶99
Lastly, regarding the number of wells, Lindsay testified that
Firestone intended to develop one well in the St. Vrain
Sanitation District Well Field. He acknowledged, however,
that Firestone had not yet determined how many vertical wells
it would ultimately develop in the FAST North and Firestone
Trail Well Fields.
¶100
In light of the foregoing, although the water court's
finding that Firestone did not yet know how many wells it
intended to develop in the FAST North and Firestone Trail
Well Fields had record support, the court's findings that
Firestone did not know the locations of its proposed wells,
the types of wells to be constructed, or the number of wells
to be constructed in the St. Vrain Sanitation District Well
Field were contrary to the record and, thus, were clearly
erroneous.
¶101
In reaching this conclusion, I am not persuaded otherwise by
the majority's conclusion that some evidence in the
record supported the water court's findings. Maj. op.
¶¶ 68-80. Although the majority points to testimony
from Firestone's experts indicating some uncertainty, as
noted above, such uncertainty is inherent in an augmentation
adjudication and is not fatal to a proposed augmentation
plan. Upper Eagle, 167 P.3d at 736. Nor does a lack
of certainty alter the fact that
47
Firestone introduced evidence showing the proposed locations
of its wells, the proposed types of wells, and, as to the St.
Vrain Sanitation District Well Field, the proposed number of
wells.
¶102
For this reason alone, I do not believe that the water
court's judgment can stand. But, in my view, this is not
the sole reason that the judgment below should be reversed.
2.
Errors of Law
¶103
Compounding what I believe to be the clearly erroneous
factual findings described above, I believe the water court
assessed its factual determinations under an overly strict
reading of the governing legal principles. Specifically, the
court repeatedly said that it needed to know the "exact
locations" of the wells before determining whether
Firestone had established a prima facie case of non-injury.
The law, however, does not require this level of precision.
¶104
As discussed above, in City of Aurora, 105 P.3d at
616-17, we explained that an augmentation plan applicant need
only present sufficient evidence to allow the water court to
make a "reasonably accurate" determination. Such a
requirement recognizes the inherent uncertainties of
augmentation plan applications. See Upper Eagle, 167
P.3d at 736.
¶105
Accordingly, the water court's requirement that Firestone
establish the "exact locations" of its proposed
wells was inconsistent with both the standard
48
that we set forth in City of Aurora, 105 P.3d at
616-17, and the uncertainty that our opinion in Upper
Eagle, 167 P.3d at 736, recognized inheres in
augmentation plan applications.
¶106
In addition, as we observed in Upper Eagle, 167 P.3d
at 735, the determination of the time, amount, and location
of depletions does not occur in a vacuum or act as "an
independent query that can defeat the proposed augmentation
plan." Rather, the water court must perform an
"integrated inquiry" into whether the plan would
cause injury to vested rights, and only if the plan would
cause such injury does the statute require the water court to
deny the application. Id. Here, the water
court's apparent requirement of near-certainty was
contrary to the requirement of an integrated inquiry into
injury and instead echoed the kind of determination of the
time, amount, and location of depletions for its own sake
that we rejected in Upper Eagle, 167 P.3d at 735.
¶107
I am not persuaded otherwise by the water court's view
that, on the facts of this case, it needed to know the
"exact locations" of the proposed wells in order to
reach the question of injury.
¶108
Another of Firestone's experts, Andrew Case, testified
that a well located 250 feet from the St. Vrain Creek would
"essentially have the same URF" over the entire
quarter-quarter, or forty-acre, section. And here, as noted
above, the evidence showed that (1) Firestone sought to
construct the St. Vrain Sanitation
49
District Well Field 250 feet from the Creek and (2) even if
it had to construct vertical wells instead of the proposed
horizontal well in that well field, the wells would still be
located approximately 250 feet from the Creek. Thus, any
variation in the exact locations of those proposed wells (or
even in the type of wells to be constructed) would have had
no material impact on the URFs that the water court required
to make an injury determination.
¶109
Case further explained that, in the well fields in which
Firestone planned to construct multiple wells, it could
configure them in such a way as to minimize their
interference with each other and thus any change in the rate
of depletion caused by a change in the number of wells.
(Although the majority emphasizes Case's testimony that
the wells could interfere with one another, it omits from its
quotation of his testimony his explanation that Firestone
could space the wells to minimize this interference. Maj. op.
¶ 74.)
¶110
In my view, the foregoing evidence established that the
limited uncertainty involved in Firestone's application
did not preclude an assessment of injury. Nor did it provide
any reason to depart from the well-established standard of
reasonable accuracy that we set forth in City of
Aurora, 105 P.3d at 616-17.
¶111
Accordingly, I believe that the water court applied an
incorrect and overly strict legal standard in determining
whether Firestone had established a prima
50
facie case of non-injury to support its proposed augmentation
plan, and for this reason as well, I do not believe that its
judgment can stand.
III.
Conclusion
¶112
Because I believe that the water court's judgment
dismissing Firestone's application for conditional water
rights as to the FAST North, Firestone Trail, and St. Vrain
Sanitation District Well Fields was based, in large part, on
clearly erroneous factual determinations and on an overly
strict reading of the applicable legal standard, I would
reverse the water court's judgment and remand this case
to allow the court to apply the appropriate legal standard to
the facts properly established in the record.
¶113
In light of the foregoing, I need not reach the other issues
that Firestone raises in this appeal.
¶114
For these reasons, I respectfully dissent.
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Notes:
[1] Specifically, Firestone presented the
following four issues on appeal:
1. Whether an applicant must complete the construction
of a well prior to obtaining a conditional groundwater
right.
2. Whether the water court erroneously refused to
retain jurisdiction over the augmentation plan to further
evaluate determinations of non-injury after operation of the
augmentation plan.
3. Whether the water court erroneously allowed an
opposer to contest issues at trial after stipulating in
writing that those issues were undisputed.
4. Whether certain material findings of fact were
clearly erroneous.
[2] FAST stands for Firestone Alluvial
Supply and Treatment, an acronym that Firestone uses within
the context of its water supply planning.
[3] "Any person or organization may
maintain a statement of opposition for the purpose of holding
the applicant for a conditional water right to a standard of
strict proof." Buffalo Park, 195 P.3d at
686.
[4] During trial, Firestone witness Andrew
Case defined a centroid as "one point that can be
considered representative of a larger area."
[5] "[A] court presiding over a bench
trial may ask questions it 'deem[s] necessary to clearly
bring out the facts so that the important functions of its
office as trier of fact can be fairly and justly
performed.'" Hall, ¶ 23, 496 P.3d at
811 (alteration in original) (quoting People v.
Casias, 603 P.2d 969, 970 (Colo.App. 1979)).
[6] The Glover equation is a mathematical
formula that provides an estimate of the amount, location,
and timing of stream depletions after accounting for various
factors including soil transmissivity, aquifer thickness, and
distance from the well to the stream. See Harris
& Sanchez, supra, at 128; see also
Leonard Rice & Michael D. White, Engineering Aspects
of Water Law 127 (1991).
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