Pueblo West Metropolitan District v. Southeastern Colorado Water Conservancy District

689 P.2d 594, 1984 Colo. LEXIS 635
CourtSupreme Court of Colorado
DecidedOctober 22, 1984
DocketNo. 82SA225
StatusPublished
Cited by25 cases

This text of 689 P.2d 594 (Pueblo West Metropolitan District v. Southeastern Colorado Water Conservancy District) 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
Pueblo West Metropolitan District v. Southeastern Colorado Water Conservancy District, 689 P.2d 594, 1984 Colo. LEXIS 635 (Colo. 1984).

Opinion

QUINN, Justice.

The protestants, Pueblo West Metropolitan District, City of Florence, and St. Charles Mesa Water Association (“protestants”), appeal1 orders of summary judgment entered against them by the Division No. 2 water court on their protest to the entry of partially absolute decrees for storage of water in Pueblo Reservoir and Turquoise Lake. We affirm the judgment.

I.

For many years the Arkansas River and its tributaries constituted the principal source of water for the Arkansas River Valley in southeastern Colorado. In order to supplement this flow of water the United States Congress in 1962 authorized the Fryingpan-Arkansas Project (Project), a major transmountain water diversion project. The Project functions by diverting water from the Colorado River Basin on Colorado’s western slope, across the Continental Divide, and into the Arkansas River Valley on Colorado’s eastern slope. Water is diverted through the Boustead Tunnel, which crosses the Divide, into Lake Fork Creek, an Arkansas River tributary, and thence into Turquoise Lake, where it is stored until released downstream through a series of pipes and conduits into the Arkansas River and ultimately into Pueblo Reservoir. Southeastern, which administers the Project and is responsible for payment to the United States of the Project’s reimbursable costs, holds several decrees for Project water. A brief summary of these decrees will help clarify the facts and issues before us.

Southeastern obtained its first decree for Project water in 1959 in Garfield County (hereafter, the “western slope decree”).2 This decree was for diversion of western slope water through the Boustead Tunnel to Sugar Loaf Reservoir (now Turquoise Lake) and ultimately to Pueblo Reservoir, and provided, in relevant part, as follows:

The Fryingpan-Arkansas Divide Tunnel conveys waters from the West side of the Continental Divide to the East side of the Continental Divide, and has a capacity of 900 cubic feet of water per second of time where the waters are discharged into the watershed of the Arkansas River. The headgates of the collection system[s] and the collection systems themselves represent claims aggregating 4,010 cubic feet of water per second of time, but the limitation on the diversion is the capacity of the Fryingpan-Arkan-sas Divide Tunnel of 900 cubic feet of water per second of time.
Waters diverted by said tunnel will be conveyed to and stored in Sugar Loaf Reservoir [now Turquoise Lake] and thence to Twin Lakes Reservoir, both thereof being in Lake County, and said reservoirs are existing reservoirs which will be enlarged. Thereafter, said waters will be conveyed by power canals and conduits to power generating facilities at various points along the Arkansas [597]*597River terminating in the Pueblo Reservoir in Pueblo County.

In 1962 and 1969, Southeastern obtained conditional storage decrees for Pueblo Reservoir and Turquoise Lake respectively (hereafter, the “conditional storage decrees”). These decrees were issued by the district courts of Pueblo and Chaffee counties, both of which are on the eastern slope of the Continental Divide.3 The two decrees each contain provisions regarding their respective sources of water. The 1962 decree for Pueblo Reservoir provides that its source of water is “the Arkansas River and drainage tributary thereto above the dam which creates the [Pueblo] Reservoir.” Similarly, the 1969 decree for Turquoise Lake provides that its source of water is “Lake Pork of the Arkansas River and drainage tributary thereto above the dam which creates the [Turquoise Lake] Reservoir.” Both conditional storage decrees also contain “exchange provisions” which, again, are very similar. The exchange provision in the 1962 conditional storage decree for Pueblo Reservoir states:

In addition to the priority hereinabove described, there is hereby decreed to the Pueblo Reservoir the right under priority of February 10, 1939, to take and store the waters of the Arkansas River so located as to be physically controllable by said Pueblo Reservoir in substitution for waters from the Colorado River tributaries decreed for storage in said Pueblo Reservoir and introduced into said Arkansas River.

Similarly, the 1969 decree for conditional storage rights for Turquoise Lake states:

In addition to the priority hereinabove described, there is hereby decreed to [Turquoise Lake] the right under priority of February 10, 1939, to take and store the waters from the Arkansas River so located as to be physically controllable by said [Turquoise Lake] in substitution for waters from the Colorado River tributaries and decreed for storage in said [Turquoise Lake] and introduced into said Arkansas River.

In 1976, Southeastern filed an application to make absolute, to the extent of beneficial use, the conditional storage decrees of 1962 and 1969. Southeastern’s application incorporated an attached “summary of activities,” which stated in part:

Initial storage in ... Turquoise Lake started April 15, 1968_ The maximum storage in the enlarged Turquoise Lake to date has been 104,927 acre-feet, which occurred on July 26, 1973....
* * * * * *
Boustead Tunnel ... was completed in October 1971 .... Total diversions have been 32,070 acre-feet in 1972, 36,580 acre-feet in 1973, 33,830 acre-feet in 1974 and 37,060 acre-feet in 1975.
* * He * * #
... Initial storage in [Pueblo] reservoir started January 9, 1974, and as of February 1, 1976, the total storage in the reservoir was 62,529 acre-feet- Of the total storage of 62,529 acre-feet about 40,522 acre-feet was Project water and about 22,007 acre-feet was winter water ....

Southeastern alleged beneficial use to the extent of 62,529 acre feet in Pueblo Reservoir and 104,927 acre feet in Turquoise Lake. Pursuant to statutory procedure,4 the water court included Southeastern’s application in a resume, which was published in various newspapers of general circulation. The resume identified the conditional decrees by their names and case numbers and stated:

Applicant requests the entry of a final decree for the features hereinafter described ... to the extent the same have been used.
Pueblo Reservoir — 62,529 acre-feet.
[598]*598Turquoise Reservoir (Sugar Loaf) — 104,-927 acre-feet.
In support of the application, there was attached a summary of activities of the United States Bureau of Reclamation, together with a statement showing the amount of money expended pursuant to said conditional decrees. (Said documents consist of five pages and may be examined at the office of the Clerk for Water Division No. 2[.])

Southeastern’s application was subsequently granted on August 19, 1976.5

In January 1980, Southeastern made application in the water court for Water Division No. 2 for a change of water right by adding three new beneficial uses — flood control, recreation, and wildlife conservation — to the uses originally set forth in the 1962 and 1969 conditional storage decrees for Pueblo Reservoir and Turquoise Lake. Southeastern’s application was granted on October 23, 1980.6

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People ex rel. S.N. v. S.N.
2014 CO 64 (Supreme Court of Colorado, 2014)
Upper Yampa Water Conservancy District v. Wolfe
255 P.3d 1108 (Supreme Court of Colorado, 2011)
Vance v. Wolfe
205 P.3d 1165 (Supreme Court of Colorado, 2009)
Water Rights of Columbine Associates v. Columbine Associates
993 P.2d 483 (Supreme Court of Colorado, 2000)
City of Thornton v. Bijou Irrigation Co.
926 P.2d 1 (Supreme Court of Colorado, 1996)
People Ex Rel. Simpson v. Highland Irrigation Co.
917 P.2d 1242 (Supreme Court of Colorado, 1996)
Kirkpatrick v. Colorado Farm Bureau Mutual Insurance Co.
839 P.2d 514 (Colorado Court of Appeals, 1992)
Moldovan v. State
829 P.2d 481 (Colorado Court of Appeals, 1992)
Board of County Commissioners v. Collard
827 P.2d 546 (Supreme Court of Colorado, 1992)
ENT Federal Credit Union v. Chrysler First Financial Services Corp.
826 P.2d 430 (Colorado Court of Appeals, 1992)
Galleria Towers, Inc. v. Crump Warren & Sommer, Inc.
831 P.2d 908 (Colorado Court of Appeals, 1991)
Ruscitti v. Sackheim
817 P.2d 1046 (Colorado Court of Appeals, 1991)
Churchey v. Adolph Coors Co.
759 P.2d 1336 (Supreme Court of Colorado, 1988)
United States v. Bell
724 P.2d 631 (Supreme Court of Colorado, 1986)
Urban v. Beloit Corp.
711 P.2d 685 (Supreme Court of Colorado, 1985)
Danielson v. Jones
698 P.2d 240 (Supreme Court of Colorado, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
689 P.2d 594, 1984 Colo. LEXIS 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pueblo-west-metropolitan-district-v-southeastern-colorado-water-colo-1984.