Upper Eagle Regional Water Authority v. Simpson

167 P.3d 729, 2007 WL 2581697
CourtSupreme Court of Colorado
DecidedSeptember 10, 2007
DocketNo. 06SA303
StatusPublished
Cited by9 cases

This text of 167 P.3d 729 (Upper Eagle Regional Water Authority v. Simpson) 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
Upper Eagle Regional Water Authority v. Simpson, 167 P.3d 729, 2007 WL 2581697 (Colo. 2007).

Opinion

Chief Justice MULLARKEY

delivered the opinion of the Court.

This case involves an application for augmentation and exchange filed by the Upper Eagle Regional Water Authority ("the Authority"). The proposed plan allows the Authority 10.8 acre-feet of out-of-priority deple-[731]*731tions from its three main diversion points on the Eagle River, and in exchange, the Authority is responsible for releasing augmentation water from Wolford and/or Ruedi Reservoirs. Relying on a table of estimated depletion rates based on a projected mix of uses in the Authority's service area, the Authority calculated its replacement obligations and argued that no injury would inhere to vested water rights by operation of its proposed plan. The Colorado Water Conservation Board ("CWCB") objected, arguing that the Authority was required to show the actual mix of uses and the actual rates of depletion for irrigation and in-house use before its plan could be approved. The water court ruled that the Authority had met its burden of showing an absence of injurious effect should the plan be enacted, and as a corollary, that the CWCB had failed to come forward with evidence calling such a determination into question. We affirm, reasoning that the water court properly concluded that the Authority demonstrated the plan would cause no injury, but we rule that claim preclusion would not have barred reconsideration of the depletion table had the question of injury been resolved differently.

I. Facts and Procedural History

The Upper Eagle Regional Water Authority encompasses six member entities, including the Town of Avon, and the Metropolitan Districts of Eagle-Vail, Edwards, Arrowhead, Berry Creek and Beaver Creek. The Authority diverts over 5,000 acre-feet of water per year to service roughly 25,000 eus-tomers in the second largest water system on Colorado's western slope. Taken as a whole, the existing level of development within the Authority's service area is in excess of 70% of total projected build-out, while some of the individual service areas are at or near 100% build-out.

Prior to the Authority's formation in 1984, all the Authority's member entities, save for Beaver Creek, had adjudicated augmentation plans 1 (collectively the "Original Decrees"), and Beaver Creek had adjudicated a change of water right.2 The Original Decrees projected future development, water demands and water consumption-including the mix of uses between in-house use and outdoor irrigation-for five of the respective member entities, although Beaver Creek's change of water right decree contained no such projections. The Original Decrees were based on projected irrigation depletion rates varying from 50-75% and in-building depletion rates of 5-9%, assuming 100% build-out.

Based on the depletion projections in the Original Decrees and related engineering reports, the Authority's engineer, Thomas Wil-liamsen, developed in 1992-93 a table of monthly depletion rates with a column for each member entity. Williamsen originally developed the table in consultation with Or-lyn Bell, who was then the Division Engineer for Water Division No. 5. The table is used to calculate the projected depletion from out-of-priority diversions within each of the Authority's service areas in any given month. For the winter months (November through April), each entry reflects depletion from in-house use only-figures that are generally agreed upon by both parties. For the irrigation season (May through October), however, each entry incorporates the in-house depletion caleulation for the specific entity, combined with the decreed projected depletions for outdoor irrigation use.3 The table reflects the predicted mix, upon reaching full build-out, between in-house use and outdoor irrigation as projected more than twenty years ago in the Original Decrees. 4

[732]*732The Authority previously relied on the depletion table in Case Nos. 98CW205 and 98CW270-both applications for plans for augmentation in which the CWCB was a party. In Case No. 98CW205, the Authority cireulated an April 1999 engineering report indicating the Authority intended to calculate its augmentation obligation according to the depletion table. The CWCB did not question or challenge the accuracy of the depletion table. Six months later, the CWCB stipulated out of the case but remained a party and continued to receive all pleadings. The Authority subsequently entered into a stipulation with the remaining objector, the Public Service Company of Colorado ("PSCo"), which holds the senior, dominant calling right in the Upper Colorado River Basin. After review of the Original Decrees and their underlying engineering reports, PSCo's water resource engineer, Gary Thompson, determined that the depletion table accurately summarized the Original Decrees and therefore represented a reasonable basis to calculate the Authority's out-of-priority diversions. Accordingly, PSCo insisted on incorporation of the table into the final decree in that case in order to protect its water rights. The CWCB did not protest the decree or appeal its entry.

Later, in Case No. 98CW270, the Authority, among others, adjudicated a plan for augmentation involving 500 acre-feet of replacement water from Homestake Reservoir. The August 1999 engineering report presented to the CWCB in support of the application explained that the Authority intended to account for its augmentation obligations by using the depletion table. Nevertheless, the CWCB did not challenge the Authority's use of the table, protest the referee's ruling, or appeal entry of the decree in that case.

The case at bar arose several years ago when the Village at Avon was annexed into the Town of Avon, which brought the Village at Avon into the Authority's service area. Prior to annexation, the Village at Avon was serviced by the Traer Creek Metropolitan District. Upon annexation, per the Authority's policy, the Traer Creek Metropolitan District dedicated to the Authority water rights sufficient to meet the development's estimated annual potable water demands, along with an additional 20%; it is this conveyance from Traer Creek Metropolitan District to the Authority, which totals about 10.8 acre-feet, that is at issue before us.

Seeking to incorporate this dedication into a general plan for augmentation so that the water might be used throughout its entire service area, the Authority filed an application for augmentation and exchange. The proposed plan would allow the Authority 10.8 acre-feet of out-of-priority depletions from the Eagle River 5 if augmented by replacement water released from Wolford and/or Ruedi Reservoirs The Authority proposed to calculate its replacement obligations based on the table.

Statements of opposition were timely filed by the CWCB, the cities of Aurora and Colorado Springs through the Homestake Project, and the Colorado River Water Conservation District, but the River District and the Homestake Project later stipulated to a proposed decree. State and Division Engineers also moved to intervene, but their intervention was denied as untimely. The CWCB, however, continued to oppose the Authority's application in order to protect instream flow rights on the Eagle River, submitting a series of expert witness reports that identified various issues in the proposed decree, which was, in turn, revised twice in order to address the CWCB's concerns. Chief among [733]

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Bluebook (online)
167 P.3d 729, 2007 WL 2581697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upper-eagle-regional-water-authority-v-simpson-colo-2007.