State Engineer v. Castle Meadows, Inc.

856 P.2d 496, 17 Brief Times Rptr. 1154, 1993 Colo. LEXIS 597, 1993 WL 255205
CourtSupreme Court of Colorado
DecidedJuly 12, 1993
Docket92SA163, 92SA164
StatusPublished
Cited by72 cases

This text of 856 P.2d 496 (State Engineer v. Castle Meadows, Inc.) 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
State Engineer v. Castle Meadows, Inc., 856 P.2d 496, 17 Brief Times Rptr. 1154, 1993 Colo. LEXIS 597, 1993 WL 255205 (Colo. 1993).

Opinions

JUSTICE LOHR

delivered the Opinion of the Court.

In these consolidated cases,1 the State Engineer and the Division Engineer for Water Division No. 1 (collectively, state engineer) appeal those portions of judgments of the District Court for Water Division No. 1 approving plans for augmentation proposed by the applicants in each case.2 In Case Number 92SA163 the district court held an evidentiary hearing pursuant to our order of remand in Danielson v. Castle Meadows, Inc., 791 P.2d 1106 (1990) (Castle Meadows I), to determine whether the pumping of not nontributary groundwater from the Denver aquifer by Castle Meadows, Inc. will result in post-withdrawal depletions in the South Platte River system that will injure others who hold water rights. In Case Number 92SA164 the district court held a trial pursuant to an application filed on behalf of Castle Pines Metropolitan District, Castle Pines Land Company, the Friedkin Companies, and Friedkin Investments, Inc. in which the parties sought a decree entitling them to withdraw Denver aquifer groundwater and approving an augmentation plan in the event that this water was determined to be not nontributary. Because both cases raised the issue of whether other water rights will be injured by post-withdrawal stream depletions that will result from the applicants’ pumping of Denver aquifer groundwater, the district court entered a single Memorandum of Decision and Order in which it determined that no such injury will result and then entered judgments in each case approving the applicants’ proposed plans for augmentation. Because we conclude that the district court erred when it considered evidence of additional water that will become available in the form of runoff as a result of increased development of the surrounding land areas in making its determinations, we reverse its judgments in part and remand the cases to that court to reconsider under the principles we now set forth whether the applicants’ pumping of their decreed amounts of water will cause post-withdrawal depletions to the surface stream system that will injure holders of water rights.

I

A

The first case that we consider arose when Castle Meadows, Inc. (Castle Meadows)3 sought water rights to Denver Ba[499]*499sin4 ground water to provide service to The Meadows Development, a planned community located near Castle Rock, Colorado. The specific right now at issue is based on a decree that Castle Meadows obtained in April of 1987, entitling it to make annual withdrawals of 2,990 acre-feet of ground water through its Denver aquifer wells. The decree established that this water is “not nontributary”5 ground water and that the overlying property is located more than one mile from any point of contact between the Denver aquifer and any natural stream. Thus, pursuant to section 37-90-137(9)(c), 15 C.R.S. (1990),6 the decree provided that as a condition to the right to use this ground water Castle Meadows was required to obtain judicial approval of a plan for augmentation ensuring the replacement of four percent of the amounts withdrawn annually.

Consequently, in October of 1986, Castle Meadows filed an application in the district court seeking approval of such a plan. It proposed several means of satisfying the four percent replacement obligation, including use of direct discharges from the development’s wastewater treatment plant, taking credit for return flows that result from irrigation of the overlying property, and use of direct discharges of nontributary and not nontributary ground water from various wells. The district court determined that Castle Meadows’ plan was sufficient to meet its obligation under section 37-90-137(9)(c) to return to the natural stream system four percent of the amounts that are withdrawn annually. This augmentation plan, however, extended only to those years that water is actually pumped from the wells. Although the court found that Castle Meadows’ withdrawals will have “some continuing depletive effect on the tributary stream system after 100 years,”7 it did not require that water be [500]*500replaced after withdrawals from the wells cease — the post-withdrawal period. The court therefore approved Castle Meadows’ plan for augmentation, and because its approval satisfied the condition in the April 1987 decree, on December 29,1988, entered a final judgment and decree entitling Castle Meadows to withdraw 2,990 acre-feet of Denver aquifer groundwater annually.

The state- engineer appealed that judgment, contending that Castle Meadows’ plan for augmentation did not satisfy section 37-90-137(9)(c). Arguing that the last sentence of that statute, see supra note 6, requires that compensation be made for depletions accruing to a stream after ground water withdrawals cease, the state engineer asserted that Castle Meadows’ failure to provide for such post-pumping replacements rendered its plan for augmentation inadequate. We agreed with the state engineer and therefore held in Castle Meadows I that

once a determination is made that injurious depletions to vested water rights, caused by withdrawal of not nontribu-tary ground water from the Dawson, Denver, Arapahoe and Laramie-Fox Hills aquifers, occur after pumping ceases, section 37-90-137(9)(c) mandates that a plan for augmentation replace such depletions.

791 P.2d at 1113-14. Because the district court had found that post-withdrawal de-pletions would accrue to the stream but “did not find such depletions to be injurious” to other water rights, we remanded the case for the court to consider whether Castle Meadows’ pumping will cause such injury and, if so, to impose terms and conditions on its plan for augmentation to alleviate that injury. Id. at 1114.8

On remand, the district court held an evidentiary hearing in which several experts testified as to the projected post-withdrawal stream depletions. Based on the evidence presented at the hearing the court again concluded that depletions will accrue to the stream after Castle Meadows ceases its withdrawals. As set forth in its ruling, contained in its February 27, 1992, Supplemental Findings of Fact, Conclusions of Law, Judgment and Decree, the court found that the preponderance of the evidence is that the total depletions “will not be less that 8.7 acre-feet [per year] nor more that 27.2 acre-feet [per year].”9 It determined, however, that the depletions will not be injurious. In reaching this conclusion, the court considered the impact that increased development and urbanization of the surrounding land areas will have on the amounts of water available to the stream in the form of runoff. It stated that

[t]he pumping involved here is in connection with municipal-type development in the Castle Rock area. There will be additional impermeable pavement and roof area, different types of vegetation present, and other changes which will increase the returns to the surface stream. The preponderance of the evidence is that the additional returns to the stream caused by urbanization will be greater than the depletions due to pumping after 100 years.[10]

[501]

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Bluebook (online)
856 P.2d 496, 17 Brief Times Rptr. 1154, 1993 Colo. LEXIS 597, 1993 WL 255205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-engineer-v-castle-meadows-inc-colo-1993.