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In re Concerning the Application for Water Rights of Widefield Water & Sanitation Dist.

Supreme Court of Colorado, En Banc

December 22, 2014

Concerning the Application for Water Rights of Widefield Water and Sanitation District and the City of Fountain in Custer County. Widefield Water and Sanitation District and City of Fountain, Applicants-Appellants:
v.
Steven J. Witte, in his official capacity as Division Engineer for Water Division 2; Dick Wolfe, in his official capacity as State Engineer; Pueblo West Metropolitan District; Round Mountain Water and Sanitation District; Custer County Investments, LLC; Ute Springs Ranch, LLC; Southeastern Colorado Water Conservancy District; Peter Lopresti; Catherine Lopresti; Board of Water Works of Pueblo, Colorado; Wet Mountain Valley Water Association; John W. Brandenburg; Radonna B. Brandenburg; John W. Brandenburg Living Trust; Radonna B. Brandenburg Living Trust; Charles E. Schneider; Lee Roy Family Trust; D & V Koch Ranch, LLC; Mike Smith; City of Aurora; Board of County Commissioners of Custer County, Colorado; and Penrose Water District, Opposers-Appellees:

Page 1119

Appeal from District Court, Pueblo County District Court, Water Division 2, Case No. 08CW47. Honorable Larry C. Schwartz, Water Judge.

SYLLABUS

In this water case, the supreme court determines whether, when a decree delineates specific acreage to be irrigated, an applicant seeking to change the decreed right may conduct a historical consumptive use analysis on acreage beyond that lawfully associated with the relevant water right. The supreme court holds that this is impermissible and that an applicant may only conduct such an analysis on acreage lawfully irrigated in accordance with the expressly decreed appropriation. Accordingly, the supreme court affirms the judgment of the water court and remands the case to that court for proceedings consistent with this opinion.

Attorneys for Applicant-Appellant Widefield Water and Sanitation District: White & Jankowski, LLP, Sarah A. Klahn, Denver, Colorado.

Attorneys for Applicant-Appellant City of Fountain: Alperstein & Covell, P.C., Cynthia F. Covell, Andrea L. Benson, Denver, Colorado.

Attorneys for Opposers-Appellees Steven J. Witte and Dick Wolfe: John W. Suthers, Attorney General, Paul L. Benington, First Assistant Attorney General, Thomas N. George, Assistant Attorney General, Denver, Colorado.

Attorneys for Opposers-Appellees Pueblo West Metropolitan District and Round Mountain Water and Sanitation District: Krassa & Miller, LLC, Robert F. T. Krassa, Robin A. Byers, Boulder, Colorado.

Attorneys for Amicus Curiae Blue River Valley Ranch Lakes Association: Carlson, Hammond & Paddock, LLC, Mary Mead Hammond, Mason H. Brown, Denver, Colorado.

Attorneys for Amicus Curiae The Cache La Poudre Water Users Association: Fischer, Brown, Bartlett & Gunn, P.C., Donald E. Frick, Daniel K. Brown, Sara J.L. Irby, Fort Collins, Colorado.

Attorneys for Amicus Curiae The City of Northglenn: Fischer, Brown, Bartlett & Gunn, P.C., Donald E. Frick, Daniel K. Brown, Sara J.L. Irby, Fort Collins, Colorado.

No appearance on behalf of: Custer County Investments, LLC; Ute Springs Ranch, LLC; Southeastern Colorado Water Conservancy District; Peter Lopresti; Catherine Lopresti; Board of Water Works of Pueblo, Colorado; Wet Mountain Valley Water Association; John W. Brandenburg; Radonna B. Brandenburg; John W. Brandenburg Living Trust; Radonna B. Brandenburg Living Trust; Charles E. Schneider; Lee Roy Family Trust; D & V Koch Ranch, LLC; Mike Smith; City of Aurora; Board of County Commissioners of Custer County, Colorado; and Penrose Water District.

OPINION

Page 1120

RICE, CHIEF JUSTICE.

[¶1] In this interlocutory appeal from the water court, the applicants seek to change the use of an absolute water right. The relevant decree for that right expressly identifies the precise acres to be irrigated. To ensure that their proposed change would not result in an unlawful expansion of use, the applicants conducted a historical consumptive use (" HCU" ) analysis to determine the amount of water previously used in accordance with the decreed right. But they performed this analysis on acreage not contemplated by the original appropriation, nor by any subsequent decree. The water court rejected this analysis as improper. We therefore must determine whether, when a decree delineates specific acreage to be irrigated, an applicant seeking to change the decreed right may conduct an HCU analysis on acreage beyond that lawfully associated with the relevant water right.

[¶2] We hold that this is impermissible and that an applicant may only conduct an HCU analysis on acreage lawfully irrigated in accordance with the expressly decreed appropriation. Accordingly, we affirm the judgment of the water court and remand the case to that court for proceedings consistent with this opinion.

I. Facts and Procedural History

[¶3] The Subject Water Rights at issue here involve three ditches--termed the " Bell Ditches" --that divert water onto a parcel of land called the H20 Ranch (" the ...


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