Concerning the Application for Water Rights of Charles W. Tidd and Barbara T. Tidd, Plaintiffs-Appellants: David L. Frees, George A. Frees, Delmer E. Frees, and Shirley A. Frees,
Charles W. Tidd and Barbara T. Tidd, and Appellee Pursuant to C.A.R. 1(e): Craig Cotton, Division Engineer, Applicants-Appellees:
Appeal from District Court. Alamosa County District Court, Water Division 3, Case No. 10CW31. Honorable Pattie P. Swift, Water Judge.
The supreme court upholds the water court's judgment entering a conditional water right decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1 in Saguache County, Water Division No. 3. Charles and Barbara Tidd properly obtained a judicial declaration of no material injury to ditch and water right interests owned by the Frees in connection with a ditch easement located on the Tidds' property. The supreme court upholds the water court's finding that water is available for the non-consumptive conditional appropriation under the terms of the Water Right Determination and Administration Act of 1969, and the conditions included in the water court's judgment and decree are sufficient to protect against injury to senior adjudicated water rights and the Frees' ditch rights.
For Plaintiffs-Appellants: Lester, Sigmond, Rooney & Schwiesow, Erich Schwiesow, Alamosa, Colorado.
For Applicants-Appellees: Clay and Dodson, P.C., Aaron R. Clay Delta, Colorado.
For Amicus Curiae Rio Grande Water Users Association: Carlson, Hammond & Paddock, LLC, William A. Paddock, Mary Mead Hammond, Denver, Colorado.
No appearance by or on behalf of Craig Cotton, Division Engineer.
JUSTICE HOBBS delivered the Opinion of the Court. JUSTICE MÁRQUEZ dissents, and JUSTICE COATS joins in the dissent.
[¶1] This water case involving neighboring property owners in Saguache County presents an issue of first impression: May the land owner whose property is burdened by an easement across his or her property for a water ditch obtain a junior conditional water right at the headgate of that ditch for non-consumptive hydropower use of water that the neighbor is diverting from the stream under a senior water right for irrigation use through that headgate?
[¶2] Applying the no material injury, water availability, and maximum beneficial use principles of Colorado water law, in conjunction with our decision in Roaring Fork Club, L.P. v. St. Jude's Co., 36 P.3d 1229 (Colo. 2001), regarding dominant and servient interests in property burdened by a water ditch, the District Court for Water Division No. 3 issued a declaratory judgment and a conditional water right decree in the amount of 0.41 cubic feet per second (" cfs" ) with a 2010 priority for hydropower use to Charles and Barbara Tidd (the " Tidds" ) for diversion from Garner Creek in Saguache County at the headgate of Garner Creek Ditch No. 1.
[¶3] The Plaintiffs--Appellants, David L. Frees, George A. Frees, Delmer E. Frees, and Shirley A. Frees (the " Frees" ), assert that the water court lacked authority to decree this water right over their objection. They base this objection upon their ownership of a water right with an 1890 priority that diverts up to 6.4 cfs of water from Garner Creek at the headgate of Garner Creek Ditch No. 1 for irrigation use on the Frees' property.
[¶4] The Frees own an easement across the Tidds' property for delivery of the water diverted under their 1890 water right to the Frees' land. The Frees contend that Colorado water law prevents any other person from appropriating the " same physical water as the Opposers have already appropriated through Garner Creek Ditch No. 1," despite the fact that all parties concede that the decree issued by the water court contains sufficient conditions preventing injury to the Frees' water and ditch rights. The Tidds reply that they are not appropriating the Frees' 1890 water right; instead they " will use their own separate junior water right with a 2010 priority, using Garner Creek as its source and Garner Creek Ditch No. 1 . . . as the physical delivery to their hydropower plant." The Tidds acknowledge that, at times, they will use the same " physical water after it is diverted from the natural stream into the Ditch" and they will " use a portion of the same physical Ditch, in common with Opposers." They also point out that, at other times when the Frees are not diverting and there is sufficient water in Garner Creek for exercise of their 2010 hydropower right, the Tidds' water right will operate independently of the Frees' diversion. Section 37-86-105, C.R.S. (2014), provides that no parcel of land shall be subjected to the burden of two or more water ditches through that property when one ditch will suffice.
[¶5] The water court found that water is available for the Tidds' non-consumptive hydropower use, and the Frees cannot exclude them from that use because the Frees do not own the physical water they divert from Garner Creek. Instead they " only own the right to use that water for irrigation purposes." The water court applied our St. Jude's precedent to enter a declaratory judgment and decree resolving differences between these dominant and servient land owner interests. It found that the Tidds
have the right to use and make necessary alterations to the Garner Creek Ditch No. 1 to allow them to divert water from it for hydropower purposes so long as such use and alteration does not interfere with the quantity, quality, or timing of the water to be delivered to the Opposers under their prior water rights.
[¶6] The water court's decree contains detailed conditions applicable to the construction, operation, and maintenance of the hydropower facility and the measurement of flows through that facility and the ditch necessary to prevent injury to the Frees' water and ditch rights. The decree states: " This decree is for non-consumptive use. Therefore, Applicants must cease use of the project if the measurements set forth above demonstrate that any water is consumed, or Applicants must augment any and all depletions through the delivery of replacement water." In this appeal, the Frees contest only the authority of the water court to enter a decree allowing the Tidds to run a portion of the Garner Creek water diverted at the Garner Creek Ditch No. 1 headgate through the Tidds' hydropower facility.
[¶7] We defer to the water court's findings of fact and uphold its conclusions of law. Under the circumstances of this case, we hold that the water court did not err in issuing a conditional decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1.
[¶8] The Tidds own approximately eighty acres of land in Saguache County, located in the San Luis Valley of central-southern Colorado and rich in agricultural history. The Frees own an easement for Garner Creek Ditch No. 1, which runs across the northern end of the Tidds' property. The Frees use the ditch to convey their 6.4 cfs irrigation water right with a priority date of 1890. Except during occasional high water conditions, this water right diverts the entire flow of Garner Creek from the Garner Creek Ditch No. 1 headgate during the irrigation season.
[¶9] On November 15, 2010, the Tidds filed an application seeking a 0.41 cfs conditional
water right for non-consumptive hydropower use. On January 24, 2011, the Frees filed a Statement of Opposition to the proposed conditional water right. Initially, the Tidds listed the point of diversion for the hydropower right as Garner Creek Ditch No. 1, but they amended their application on June 10, 2011, to identify Garner Creek as the source of the appropriation, with the point of diversion as the headgate for the Garner Creek Ditch No. 1. To effectuate their conditional use, the Tidds will have to construct additional infrastructure in order to pipe 0.41 cfs of water from the ditch a maximum distance of 1,222 feet downhill and pass it through a flywheel connected to an alternator on the Tidds' property to generate a maximum of 3.48 kW of electricity. The entire 0.41 cfs will be returned via a discharge pipe to the ditch before the place of use of the Frees' water right.
[¶10] During the pendency of their application, the Tidds filed a motion seeking a declaratory judgment on a question of law pursuant to C.R.C.P. 57. Specifically, the Tidds asked the water court to decide " [w]hether, and under what conditions, Applicants have a right to use a ditch on their property for hydropower purposes, despite the objection of the ditch owners." In its order, the water court characterized the question as " whether there is water available for the Applicants to appropriate at the Garner Creek Ditch No. 1 head-gate." After observing that the amended application identifies a point of diversion on Garner Creek and noting Colorado's public policy in favor of maximizing the use of a limited water supply while protecting decreed water rights, the water court found and determined that water is available at the Garner Creek Ditch No. 1 headgate for appropriation by the Tidds for their non-consumptive hydropower use. The parties subsequently crafted terms and conditions for the decree to ensure that the Tidds' 2010 appropriation will not injure the Frees' water right. On June 16, 2014, the water court entered the decree in this case, Case No. 10CW31, adopting the Findings and Ruling of the Referee, and granting the Tidds a conditional water right in the amount of 0.41 cfs from Garner Creek with the point of diversion at the Garner Creek Ditch No. 1 headgate, for non-consumptive hydropower use with a priority date of November 14, 2010. This appeal followed.
[¶11] We defer to the water court's findings of fact and uphold its conclusions of law. Under the circumstances of this case, we hold that the water court did not err in issuing a conditional decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted ...