Southeastern Colorado Water Conservancy District v. City of Florence

688 P.2d 715, 1984 Colo. LEXIS 614
CourtSupreme Court of Colorado
DecidedSeptember 10, 1984
DocketNo. 83SA30
StatusPublished
Cited by18 cases

This text of 688 P.2d 715 (Southeastern Colorado Water Conservancy District v. City of Florence) 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
Southeastern Colorado Water Conservancy District v. City of Florence, 688 P.2d 715, 1984 Colo. LEXIS 614 (Colo. 1984).

Opinion

DUBOFSKY, Justice.

The Southeastern Colorado Water Conservancy District (the objector) appeals a ruling of the district court for Water Division No. 2 (the water court) which decreed to the City of Florence, the Town of Coal Creek and the Town of Williamsburg (the applicants) a conditional right to divert 100 cubic feet per second (e.f.s.) of surface water from the Arkansas River. The objector contends that the water court erred in decreeing the conditional right absent a finding that water can and will be diverted from the already over-appropriated Arkansas River. We agree and reverse the water court’s ruling.

The applicants, having concluded that a right to divert 100 e.f.s. of water from the Arkansas River was necessary to serve their anticipated population growth, obtained financing and began construction of facilities designed to divert surface water from the Arkansas. On August 29, 1980, the applicants filed with the water court an application for determination of a conditional water right. The water court referred the application to Water Referee Clyde B. Young, Jr. After the objector filed a timely statement of opposition on October 29, 1980, the referee referred this case back to the water court on November 7, 1980.

At trial, the objector presented expert testimony that a facility capable of diverting 100 e.f.s. of water is unnecessary to fulfill the applicants’ needs, that such a facility is beyond the financial resources of the applicants, and that the applicants’ current design is capable of diverting only 4.7 e.f.s. of water.1 The applicants countered that a large decree was necessary because a 1980 right would seldom be in priority2 and argued that technological and economic changes might make a 100 e.f.s. diversion feasible.

The Arkansas River is severely over-appropriated, and expert witnesses testified that water might be available under the right applied for approximately once every 25 years. The objector attempted to introduce more specific evidence relating to the unavailability of unappropriated water on the Arkansas River and argued that a conditional right could not be decreed in the absence of an augmentation plan adequate to prevent injury to senior appropriators. The water court held that the availability of unappropriated water is irrelevant to the granting of a conditional decree and refused to hear evidence on the issue. The court stated that there would be no injury to senior rights, since the conditional right does not authorize out-of-priority diversions unless those diversions occur under an approved plan for augmentation.

The water court ruled that the applicants had demonstrated intent and taken action sufficient for initiation of the conditional right, stating that whether eventually to construct facilities to accommodate the entire right was a political and economic decision for the applicants, not the water court. The water court held that the availability of water under the right could not be assured and that due to “changing climatic conditions, changes in rainfall, economic conditions, technological improvements, changes in abandonment of water rights, and many other factors,” it was not possible to determine whether any water or how much water would be available for the right in the future. In a decree dated November 8, 1982, the water court issued a decree to the applicants for a conditional right with an appropriation date of August [717]*71726, 1980. The objector appealed to this court.3

I.

The objector contends that the water court erred in determining that the conditional decree would result in no injury to senior appropriators. The argument is without merit. As the water court noted, senior rights are not injured by junior diversions as long as those diversions occur in priority. 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.” Section 37-92-103(6), 15 C.R.S. (1973). A “water right” is “a right to use in accordance with its priority a certain portion of the waters of the state by reason of the appropriation of the same.” Section 37-92-103(12), 15 C.R.S. (1973) (emphasis added). See State v. Southwestern Colorado Water Conservation District, 671 P.2d 1294 (Colo. 1983), cert. denied, — U.S. -, 104 S.Ct. 1929, 80 L.Ed.2d 474 (1984). The conditional decree at issue does not authorize out-of-priority diversions which would injure senior appropriators.4 The administration of the applicants’ right to avoid such injury is the responsibility of the state engineer and the division engineer. Sections 37-92-501 to -503, 15 .C.R.S. (1973 & 1983 Supp.).

II.

The objector argues that section 37-92-305(9)(b), 15 C.R.S. (1983 Supp.) prohibits issuance of the conditional decree. Under section 37 — 92—305(9)(b):

No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time.

The objector asserts that this language prohibits the issuance of a decree for a conditional right unless it is found that there is or will be water available for diversion and that the applicants will divert that water.5 In response, the applicants argue that they should not be burdened with the expense of proving the existence of available water before receiving a conditional decree. Noting that the availability of water depends upon unpredictable factors such as climate, economics and technology, the applicants contend that courts should rely on due diligence requirements to eliminate conditional water rights when appropriation of the water is infeasible.6 The applicants cite Colorado River Water Conservation District v. Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (1979) for the proposition that applicants for conditional decrees need not show the availability of unappropriated water, since water may become available later. Vidler, however, was decided before the General Assembly adopted section 37 — 92—305(9)(b).

[718]*718The plain language of section 37-92-305(9)(b) precludes the “wait and see” approach suggested by the applicants. That section requires proof that water will be diverted and that the project will be completed with diligence before issuance of a decree for a conditional right.7 Here, the applicants’ assertion that conditions on the river may change, or that there might be meteorological changes which will increase the availability of water, is insufficient to meet the requirements of section 37-92-305(9)(b). Likewise, the water court’s statement that it is the applicants’ decision whether eventually to expand their facilities to divert the entire 100 c.f.s. of water under the right does not suffice as a finding under section 37-92-305(9)(b) that the water will be diverted.

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

Related

Concerning the Application for Water Rights of Tidd: Frees v. Tidd
2015 CO 39 (Supreme Court of Colorado, 2015)
Concerning the Application for Water Rights v. Raftopoulos Bros.
2013 CO 41 (Supreme Court of Colorado, 2013)
Buffalo Park Development Co. v. Mountain Mutual Reservoir Co.
195 P.3d 674 (Supreme Court of Colorado, 2008)
Mount Emmons Mining Co. v. Town of Crested Butte
40 P.3d 1255 (Supreme Court of Colorado, 2002)
Williams v. Midway Ranches Property Owners Ass'n
938 P.2d 515 (Supreme Court of Colorado, 1997)
Aspen Wilderness Workshop, Inc. v. Hines Highlands Ltd. Partnership
929 P.2d 718 (Supreme Court of Colorado, 1996)
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)
Board of County Commissioners of Arapahoe v. United States
891 P.2d 952 (Supreme Court of Colorado, 1995)
Public Service Co. of Colorado v. Board of Water Works of Pueblo
831 P.2d 470 (Supreme Court of Colorado, 1992)
City of Thornton ex rel. Utilities Board v. City of Fort Collins
830 P.2d 915 (Supreme Court of Colorado, 1992)
Fox v. Division Engineer for Water Division 5
810 P.2d 644 (Supreme Court of Colorado, 1991)
FWS Land & Cattle Co. v. State, Division of Wildlife
795 P.2d 837 (Supreme Court of Colorado, 1990)
May v. United States
756 P.2d 362 (Supreme Court of Colorado, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
688 P.2d 715, 1984 Colo. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southeastern-colorado-water-conservancy-district-v-city-of-florence-colo-1984.