Concerning the Application for Water Rights of Town of Firestone. 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: Town of Firestone, Applicant-Appellant:

2025 CO 33, 569 P.3d 89

• Court: Supreme Court of Colorado
• Decided: May 27, 2025
• Docket: 24SA109
• Status: Published

Opinion

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.

---------

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).