Meridian Service Metropolitan District v. Ground Water Commission

2015 CO 64, 361 P.3d 392, 2015 Colo. LEXIS 1076, 2015 WL 7176268
CourtSupreme Court of Colorado
DecidedNovember 16, 2015
DocketSupreme Court Case No. 14SA302
StatusPublished
Cited by12 cases

This text of 2015 CO 64 (Meridian Service Metropolitan District v. Ground Water Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meridian Service Metropolitan District v. Ground Water Commission, 2015 CO 64, 361 P.3d 392, 2015 Colo. LEXIS 1076, 2015 WL 7176268 (Colo. 2015).

Opinion

JUSTICE GABRIEL,

delivered the Opinion of the Court.

1 In this case, plaintiff-appellant Meridian Service Metropolitan District (Meridian) [394]*394appeals the district court's order finding that Meridian sought to appropriate designated ground water that was subject to the jurisdiction of the Colorado Ground Water Commission (the Commission). Meridian principally asks us to decide whether storm runoff may be classified as "designated ground water" subject to administration and adjudication by the Commission, or whether such water is in or tributary to a natural stream, vesting jurisdiction in the local water court pursuant to the Water Right Determination and Administration Act of 1969, §§ 37-92-101 to -602, C.R.S. (2015) (the 1969 Act). We conclude that because this case presented a question as to whether the water at issue met the statutory definition of "designated ground water," the Commission had jurisdiction to make the initial determination of the issue presented. We further conclude that the Commission, and the district court on de novo review, correctly found that a portion of the water at issue met the statutory definition of "designated ground water" and was therefore subject to administration by the Commission.

12 Meridian also challenges the district court's order on claim preclusion, issue preclusion, stare decisis, and public policy grounds, and it asserts that the Colorado Groundwater Management Act, §§ 37-90-101 to -148, C.R.S. (2015) (the Management Act), is unconstitutional. We conclude that these arguments are not supported by the record or applicable law.

T3 Accordingly, we affirm.

I. Facts and Procedural History

T4 Throughout 1967 and into 1968, the Commission held hearings in the matter of the determination of a designated ground water basin in the Upper Black Squirrel Creek Basin (the Basin). Objectors raised numerous challenges to the proposed designation, including that the ground water in the proposed basin did not meet the statutory definition of "designated ground water."

T5 On May 1, 1968, the Commission entered its findings of fact, conclusions of law, and final order (the 1968 Order). As pertinent here, the Commission found that although "at some remote prehistoric time the channel of Black Squirrel Creek continued southerly to the Arkansas River," during past geologic ages, wind and alluvial deposits had created a dam on the lower part of the channel, and this dam had created "a sizeable underground reservoir" in the upper and lower reaches of the stream. As a result, "virtually all" of the water in the basin was underground water, and water flowed on the surface only "during and immediately following" periods of heavy rainfall from summer storms. Because this water was "in an area not adjacent to a continuously flowing natural stream," the Commission concluded that the water met the statutory definition of "designated ground water" and that the Basin therefore qualified as a designated ground water basin.

1 6 In 2011, Meridian filed an application in the District Court for Water Division No. 2 (the water court) for surface water rights in an "[uJnnamed tributary to the Upper Black Squirrel Creek." Specifically, it claimed conditional rights to divert five cubic feet per second at four locations and to store 169 acre-feet of this water.

T7 Several opposers challenged the water court's jurisdiction over the matter. They claimed that the water that Meridian sought to appropriate, which they characterized as "storm run-off water that is a direct source of recharge" for the Basin, was designated ground water subject to administration by the Commission, rather than by the water court. The water court found that the oppo-sers had "raised a valid issue" as to whether Meridian sought to appropriate water within the Basin that the Commission was required to allocate and administer. The court thus stayed its proceedings until the necessary proceedings before the Commission had been completed.

8 Meridian then initiated proceedings before the Commission, which referred the matter to a hearing officer. Relying on expert testimony, the hearing officer found, as pertinent here, that (1) the Basin was over-appropriated, and the Commission would not issue permits for new uses of designated ground water absent an approved plan to replace the depletions from the new uses; (2) [395]*395"surface runoff from precipitation events quickly infiltrates into the alluvial sediments and does not flow on the surface for more than a few hours, except in rare, large, flood events ..."; (8) experts for both sides testified or provided evidence that Meridian's proposed development would increase surface runoff due to the creation of impermeable surfaces; (4) but for Meridian's proposed development, falling rain would either evaporate, be consumed by plants, or recharge the aquifer; (5) several reports had concluded that on a basin-wide average, approximately four percent of falling precipitation percolates far enough to recharge the aquifer; and (6) precipitation falling in the Basin would not reach a tributary stream.

19 Based on these findings, the hearing officer concluded that "the portion [of the falling precipitation] that can be determined to be recharge (not evaporated or consumed by water loving plants) is 'designated ground water."

T10 The Commission subsequently affirmed the hearing officer's initial decision, and pursuant to section 37-90-115, C.R.S. (2015), Meridian appealed to the district court. After conducting a de novo review, the court agreed with the Commission, finding that (1) "[all precipitation that falls in the UBS Ground Water Basin is water that would contribute to recharge of the aquifer and not existing surface streams"; (2) Meridian's construction of impermeable surfaces had the practical effect of "building a giant concrete 'catch pond above the aquifer"; and (3) "(there [was] nothing 'natural' about that process or the results" but rather "[the 'streams' are only 'streams' because they are man-made." Accordingly, the court concluded that a portion of the water claimed by Meridian historically would contribute to the water supply of the Basin through precipitation and was therefore designated ground water over which the Commission had jurisdiction.

T 11 Meridian now appeals.

II. Analysis

{12 Meridian raises four issues in this appeal: (1) the Commission lacked subject matter jurisdiction over this case; (2) the water at issue was surface water, not designated ground water; (8) the doctrines of claim preclusion, issue preclusion, and stare decisis barred the classification of the water at issue as designated ground water; and (4) public policy compels a result in Meridian's favor. We review the legal issues presented de novo, but we will not disturb the district court's factual findings unless they have no support in the record. McKenna v. Witte, 2015 CO 23, ¶ 12, 346 P.3d 35, 40.

T 13 We address and reject each of Meridian's arguments in turn.

A. Jurisdiction

114 Meridian argues that the 1969 Act vests the water courts with exclusive jurisdiction over "water matters," including applications for conditional rights like Meridian's. According to Meridian, the "correlative principle" is that the Commission has no subject matter jurisdiction over "surface water," even though it may be in a designated basin. We are not persuaded.

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Bluebook (online)
2015 CO 64, 361 P.3d 392, 2015 Colo. LEXIS 1076, 2015 WL 7176268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meridian-service-metropolitan-district-v-ground-water-commission-colo-2015.