Zigan Sand & Gravel, Inc. v. Cache La Poudre Water Users Ass'n

758 P.2d 175, 12 Brief Times Rptr. 804, 1988 Colo. LEXIS 98, 1988 WL 50198
CourtSupreme Court of Colorado
DecidedMay 23, 1988
Docket86SA213
StatusPublished
Cited by16 cases

This text of 758 P.2d 175 (Zigan Sand & Gravel, Inc. v. Cache La Poudre Water Users Ass'n) 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
Zigan Sand & Gravel, Inc. v. Cache La Poudre Water Users Ass'n, 758 P.2d 175, 12 Brief Times Rptr. 804, 1988 Colo. LEXIS 98, 1988 WL 50198 (Colo. 1988).

Opinion

LOHR, Justice.

This is an appeal from a judgment of the District Court for Water Division No. 1 denying the application of Zigan Sand and Gravel, Inc. (Zigan) for approval of a plan for augmentation. Zigan proposed to mine sand and gravel from its land near the South Platte River in Adams County. The operation would result in two open pits that would extend below the water table and intercept ground water. The ponds so created would continue in existence after completion of mining and would have a total surface area of approximately 69 acres. The court disapproved the plan for augmentation because it contained no provision for replacement of the water that would be lost by evaporation from the surface of the ponds after completion of the mining activities. Zigan appealed, and certain parties who had objected to Zigan’s plan for augmentation cross-appealed the court’s holding that Zigan had no obligation to replace water lost through evaporation during the mining operations and prior to commencement of the reclamation process. We affirm the district court’s denial of Zigan’s application for approval of the plan for augmentation, but reverse the court’s determination that augmentation is not required for evaporation that will occur before reclamation has begun.

I.

Zigan is engaged in the business of mining and processing sand and gravel. In 1980 it applied to the Mined Land Reclamation Board for a permit to mine sand and gravel from a site in Adams County pursuant to the procedure prescribed by the Colorado Mined Land Reclamation Act, sections 34-32-101 to -126, 14 C.R.S. (1984 & 1987 Supp.) (Mined Land Reclamation Act). In 1982 it filed a second application relating to an adjacent site. The proposed mining operations involve excavation of sand and gravel from two open pits extending below the water table in the alluvium of the South Platte River. Each application included a reclamation plan as required by the Mined Land Reclamation Act, 1 § 34-32-112(l)(b), (3), 14 C.R.S. (1984), and each plan proposed the creation of a pond and revegetation of the disturbed area to reclaim the mined land. In its applications, Zigan stated that the proposed future land use was “Homesites and open area” with respect to pit no. 1 and “Home sites & wildlife habitat” with respect to pit no. 2. Zigan obtained the required permits and commenced mining operations.

In 1982, after mining operations had begun, the division engineer issued a cease and desist order, and the state and division engineers sought an injunction against Zi-gan in District Court for Water Division No. 1 to prohibit diversions of water that would cause injury to senior water users. See § 37-92-502, 15 C.R.S. (1973). An injunction was issued, and rather than appeal, Zigan elected to seek approval of a plan for augmentation.

Zigan also elected to apply to the state engineer for well permits for the two gravel pits. 2 See § 37-90-137, 15 C.R.S. (1973). 3 The state engineer denied each of these applications by separate orders dated November 29, 1982, and June 21, 1983. In' doing so, the state engineer specifically *178 found that the water that would be diverted is hydraulically connected to the South Platte River, the South Platte River is over-appropriated at some or all times of the year, the proposed diversions would cause depletion to the river at times when the river is over-appropriated, and diversion at such times would cause material injury to the vested water rights of others. As a result, the state engineer specifically stated in each order of denial that he was “unable to find that there is unappropriated water available for withdrawal by the proposed well and that the vested water rights of others will not be materially injured.” See § 37-90-137.

Shortly before the denial of the first well permit, Zigan filed its application for approval of a plan for augmentation in the District Court for Water Division No. 1. As subsequently amended, the application sought to augment pit no. 1 and pit no. 2 with water to be supplied by exercise of specified water rights to replace the losses caused by hauling away moisture in the sand and gravel mined from the pits and the losses caused by use of water for dust suppression. The plan made no provision for replacement of evaporative losses from the surface of the ponds to be created by the mining activity. A number of objectors filed statements of opposition to the proposed plan for augmentation. 4 The principal objection advanced by those in opposition to the plan was the absence of provisions for the replacement of water to be lost due to evaporation from the surface of the ponds.

The parties were able to agree on an extensive stipulation of facts, which was attached to the pretrial order. The parties agreed that Zigan is mining sand and gravel from two pits (pits nos. 1 and 2) on lands owned by its president, Theodore Zigan, and located in the alluvium of the South Platte River in Adams County. The pits extend below the surface of the underground water. 5 Upon completion of the mining operations, approximately 69 acres of water surface will be exposed to the atmosphere. Evaporation from this water surface will average 2.58 acre feet of water per acre each year, resulting in the annual evaporation of 178 acre feet of water. This evaporation will deplete the flow of the South Platte River. Absent the mining of the sand and gravel, none of this evaporation would occur.

The mining of the sand and gravel also results in some water being transported off the property when the wet sand and gravel is removed. This water does not return to any natural stream in Colorado. Over the course of mining operations, the parties estimate that 141.6 acre feet of water will be lost in this manner, and the annual loss will average 23.29 acre feet. Zigan stipulated that this water must be replaced in a plan for augmentation.

The stipulation further provided that a water supply pit had been dug by Zigan near its mining operations and was being used to provide water for dust suppression and sand and gravel washing. Another such pit had been dug earlier to obtain water for these same beneficial uses, but this pit had been backfilled, eliminating further evaporation. The water obtained from each of these two supply pits is ground water tributary to the South Platte River. The parties have stipulated that such supply pits are wells, and that the evaporation losses from the use of water from these wells must be replaced under a plan for augmentation. The pit presently in use will be backfilled when the mining operations cease, and thenceforth no water will be lost to evaporation through that pit. Zigan stipulated that water is used for dust control purposes from May 1 to November *179 1 of each year. This water is totally consumed, and the consumptive use is approximately 5.5 acre feet per year. After the mining of sand and gravel is completed, no further water will be used for dust control purposes.

The stipulation also stated that the evaporation of water from pits nos. 1 and 2 and the supply pits will deplete the flow of the South Platte River.

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Bluebook (online)
758 P.2d 175, 12 Brief Times Rptr. 804, 1988 Colo. LEXIS 98, 1988 WL 50198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zigan-sand-gravel-inc-v-cache-la-poudre-water-users-assn-colo-1988.