Upper Eagle Regional Water Authority v. Wolfe

230 P.3d 1203, 2010 Colo. LEXIS 385, 2010 WL 2026268
CourtSupreme Court of Colorado
DecidedMay 24, 2010
DocketNos. 09SA168, 09SA169
StatusPublished
Cited by10 cases

This text of 230 P.3d 1203 (Upper Eagle Regional Water Authority v. Wolfe) 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. Wolfe, 230 P.3d 1203, 2010 Colo. LEXIS 385, 2010 WL 2026268 (Colo. 2010).

Opinion

Justice HOBBS

delivered the Opinion of the Court.

In these two consolidated appeals from the District Court for Water Division No. 5 (“the water court”), we review the water court’s judgments of dismissal and accompanying questions involving the water court’s construction and implementation of the augmentation plan retained jurisdiction provision, section 37-92-304(6), C.R.S. (2009), of the Water Right Determination and Administration Act of 1969 (“the 1969 Act”).1

In both cases, the State and Division Engineers (“the Engineers”) and the Colorado Water Conservation Board (“the CWCB”) sought to invoke the retained jurisdiction provision of two augmentation plan decrees. The Upper Eagle Regional Water Authority (“Authority”) holds these augmentation decrees for the benefit of six member entities, including the Town of Avon, and the Metropolitan Districts of Eagle-Vail, Edwards, Arrowhead, Berry Creek, and Beaver Creek, in order to make out-of-priority diversions for municipal-type uses of Eagle River surface water and tributary groundwater throughout each water year from November through October.

In calculating depletions of Eagle River water for purposes of the two augmentation plans, the Authority employs a depletion table setting forth monthly average depletion rates for the six entities for each month of the year. In their verified petitions and accompanying affidavits invoking the water court’s retained jurisdiction, the Engineers and the CWCB allege that the Authority’s accounting method — in light of actual operating experience of diversion, consumptive use, return flows, and the amount and timing of each of these components — underestimates the actual depletions these out-of-priority diversions have caused to Eagle River water, resulting in inadequate release of replacement water amounts needed for the protection of the vested water rights of others. The Engineers and the CWCB also allege an occurrence of injury to an instream flow water right.

The Engineers and the CWCB requested that the water court (1) hold evidentiary hearings to receive and consider actual water use data reflecting operation of the out-of-priority uses and depletions covered by the augmentation plans from the dates the water court entered the augmentation decrees and (2) impose appropriate terms and conditions requiring the Authority to account for its actual out-of-priority depletions and its corresponding replacement water obligations to protect vested water rights and decreed conditional water rights. The water court entered judgments dismissing both petitions.

The Authority argues, as a matter of law, that water court retained jurisdiction under section 37-92-304(6) can be invoked to remedy only actual injury to a decreed water right. The Engineers and the CWCB counter that the plain language of section 37-92-304(6) directs the water court’s use of retained jurisdiction “as is necessary or desirable to preclude or remedy any such injury,” and the water court should extend the period [1207]*1207of retained jurisdiction for such time as “the nonoccurrence of injury shall not have been conclusively established.” We agree with the Engineers and the CWCB.

We hold that the water court erred in dismissing the petitions of the Engineers and the CWCB in both of these cases. The petitions allege sufficient facts which, if proved, meet the petitioners’ burden of going forward to show that injury has occurred or is likely to occur, based on operational experience involving the out-of-priority diversions and depletions covered by the augmentation plans. Reviewing the petitions, the water court should have conducted additional proceedings in both of these cases.

On remand, the Engineers and the CWCB have the burden of going forward with sufficient evidence that injury has occurred or is likely to occur because the existing decree provisions are inadequate to preclude or remedy injury. If the Engineers and the CWCB provide such evidence, the Authority must demonstrate non-injury and the adequacy of existing decree provisions to preclude and remedy injury to other water rights. The water court should then make findings of fact, conclusions of law, and decree revisions, as appropriate, for the purpose of precluding and remedying injury to vested water rights and decreed conditional water rights.

If the water court finds that not enough operational experience exists to permit it to consider the question of injury or to conclusively establish non-injury, it should extend the period of retained jurisdiction by an additional specified period pursuant to section 37-92-304(6).

Accordingly, we reverse the water court judgments and remand for further proceedings consistent with this opinion.

I.

The Authority consists of 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 serve approximately 25,000 customers in the second largest water system on Colorado’s western slope.

Prior to the Authority’s formation, each of the Authority’s member entities except Beaver Creek adjudicated augmentation plans, and Beaver Creek adjudicated a change of water right (collectively, “the Original Decrees”).2 Except for the Beaver Creek decree, the Original Decrees projected future development, water demands, and consumption, including the mix of uses between in-house use and irrigation. The Original Decrees assumed 100% build-out and projected irrigation depletion rates varying from 50 to 75% and in-building depletion rates from 5 to 9%. Beaver Creek’s change of water right decree contained no such projections.

In 1992-93, the Authority’s engineer, Thomas Williamsen, developed a table of monthly depletion rates (“the depletion table”) based on the depletion projections in the Original Decrees and related engineering reports.3 With a column for each member entity and a row for each month, the Authority uses the table to calculate the projected depletions from out-of-priority diversions within each of the Authority’s service areas for each month of the year1. The depletion table calculations represent the ratio of de-pletions compared to diversions for each entity for each month. For the winter months (November through April), each entry reflects depletions from in-house use only. For [1208]*1208the irrigation season (May through October), each entry incorporates the in-house depletion calculation for the specific entity, combined with the projected depletions for irrigation uses. The depletion table reflects the predicted mix between in-house use and irrigation upon reaching full build-out, as projected more than twenty-five years ago in the Original Decrees. Because the depletion table was developed in the early 1990s, none of the pre-1984 Original Decrees approved or required the use of the depletion table. Nonetheless, the Authority has used the depletion table to account for all of its out-of-priority depletions in its six service areas since 1995.

The Authority applied for augmentation plans covering out-of-priority depletions in Case Nos. 98CW205 and 98CW270. On August 1, 2000, the water court approved an augmentation plan in Case No. 98CW205, identifying Eagle Park Reservoir as a supplemental replacement source of water for up to 383 acre-feet covering out-of-priority Authority depletions to the Eagle River.

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Bluebook (online)
230 P.3d 1203, 2010 Colo. LEXIS 385, 2010 WL 2026268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upper-eagle-regional-water-authority-v-wolfe-colo-2010.