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In re Water Rights as applied for by Meridian Service Metropolitan District

Supreme Court of Colorado, En Banc

November 16, 2015

In the Matter of Water Rights as applied for by Meridian Service Metropolitan District,
v.
Ground Water Commission, a/k/a Colorado Ground Water Commission; Dick Wolfe in his capacity as the Colorado State Engineer and as ex officio Executive Director of the Ground Water Commission; Steven J. Witte in his capacity as Engineer for Water Division 2; Upper Black Squirrel Creek Ground Water Management District; Edna Farmer; Dan Farmer; Jerry Farmer; Joe Farmer, Jr.; Teresa Farmer; Farmer Pipeline Company, LLC; Cherokee Metropolitan District; Paint Brush Hills Metropolitan District; Woodmen Hills Metropolitan District; Wayne E. Booker; Frances Booker; and Staff of the Ground Water Commission, Defendants--Appellees: Meridian Service Metropolitan District, Plaintiff--Appellant:

Appeal from the District Court, El Paso County District Court Case No. 13CV31263. Honorable Larry Edward Schwartz, Judge. Ground Water Commission, Case No. 12GW10.

SYLLABUS

In this case, Meridian Service Metropolitan District principally asks us to decide whether storm runoff may be classified as " designated ground water" subject to administration and adjudication by the Colorado Ground Water Commission, or whether such water is in or tributary to a natural stream, vesting jurisdiction in the local water court pursuant to the Water Right Determination and Administration Act of 1969, § § 37-92-101 to -602, C.R.S. (2015). Meridian also makes claim preclusion and public policy arguments and asserts that the Colorado Groundwater Management Act, § § 37-90-101 to -143, C.R.S. (2015), is unconstitutional.

The supreme court concludes that because this case presented a question as to whether the water at issue met the statutory definition of " designated ground water," the Commission had jurisdiction to make the initial determination of the issue presented. The court further concludes that the Commission, and the district court on de novo review, correctly found that a portion of the water at issue met the statutory definition of " designated ground water" and was therefore subject to administration by the Commission.

The supreme court concludes that Meridian's remaining arguments are not supported by the record or applicable law.

The district court's order is therefore affirmed.

Attorneys for Plaintiff--Appellant: W.B. Schroeder Law Office, LLC, Wayne B. Schroeder, Boulder, Colorado.

Attorneys for Defendant--Appellee Ground Water Commission: Cynthia H. Coffman, Attorney General, Susan Schneider, First Assistant Attorney General, Derek L. Turner, Assistant Attorney General, Patrick E. Kowaleski, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Defendant--Appellee Upper Black Squirrel Creek Ground Water Management District: Trout, Raley, Montaño, Witwer & Freeman, P.C., Lisa M. Thompson, Douglas M. Sinor, April H. Killcreas, Denver, Colorado.

Attorneys for Defendants--Appellees Edna Farmer; Dan Farmer; Jerry Farmer; Joe Farmer, Jr.; Teresa Farmer; and the Farmer Pipeline Company, LLC: MacDougall & Woldridge, P.C., Julianne Woldridge, Colorado Springs, Colorado.

No appearance by or on behalf of: Dick Wolfe in his capacity as the Colorado State Engineer and as ex officio Executive Director of the Ground Water Commission; Steven J. Witte in his capacity as Engineer for Water Division 2; Cherokee Metropolitan District; Paint Brush Hills Metropolitan District; Woodmen Hills Metropolitan District; Wayne E. Booker; and Frances Booker.

OPINION

Page 393

GABRIEL, JUSTICE.

[¶1] In this case, plaintiff--appellant Meridian Service Metropolitan District (Meridian)

Page 394

appeals the district court's order finding that Meridian sought to appropriate designated ground water that was subject to the jurisdiction of the Colorado Ground Water Commission (the Commission). Meridian principally asks us to decide whether storm runoff may be classified as " designated ground water" subject to administration and adjudication by the Commission, or whether such water is in or tributary to a natural stream, vesting jurisdiction in the local water court pursuant to the Water Right Determination and Administration Act of 1969, § § 37-92-101 to -602, C.R.S. (2015) (the 1969 Act). We conclude that because this case presented a question as to whether the water at issue met the statutory definition of " designated ground water," the Commission had jurisdiction to make the initial determination of the issue presented. We further conclude that the Commission, and the district court on de novo review, correctly found that a portion of the water at issue met the statutory definition of " designated ground water" and was therefore subject to administration by the Commission.

[¶2] Meridian also challenges the district court's order on claim preclusion, issue preclusion, stare decisis, and public policy grounds, and it asserts that the Colorado Groundwater Management Act, § § 37-90-101 to -143, C.R.S. (2015) (the Management Act), is unconstitutional. We conclude that these arguments are not supported by the record or applicable law.

[¶3] Accordingly, we affirm.

I. Facts and Procedural History

[¶4] Throughout 1967 and into 1968, the Commission held hearings in the matter of the determination of a designated ground water basin in the Upper Black Squirrel Creek Basin (the Basin). Objectors raised numerous challenges to the proposed designation, including that the ground water in the proposed basin did not meet the statutory definition of " designated ground water."

[¶5] On May 1, 1968, the Commission entered its findings of fact, conclusions of law, and final order (the 1968 Order). As pertinent here, the Commission found that although " at some remote prehistoric time the channel of Black Squirrel Creek continued southerly to the Arkansas River," during past geologic ages, wind and alluvial deposits had created a dam on the lower part of the channel, and this dam had created " a sizeable underground reservoir" in the upper and lower reaches of the stream. As a result, " virtually all" of the water in the basin was underground water, and water flowed on the surface only " during and immediately following" periods of heavy rainfall from summer storms. Because this water was " in an area not adjacent to a continuously flowing natural stream," the Commission concluded that the water met the statutory definition of " designated ground water" and that the Basin therefore qualified as a designated ground water basin.

[¶6] In 2011, Meridian filed an application in the District Court for Water Division No. 2 (the water court) for surface water rights in an " [u]nnamed tributary to the Upper Black Squirrel Creek." Specifically, it claimed conditional rights to divert five cubic feet per second at four locations and to store 169 acre-feet of this water.

[¶7] Several opposers challenged the water court's jurisdiction over the matter. They claimed that the water that Meridian sought to appropriate, which they characterized as " storm run-off water that is a direct source of recharge" for the Basin, was designated ground water subject to administration by the Commission, rather than by the water court. The water court found that the opposers had " raised a valid issue" as to whether Meridian sought to appropriate water within the Basin that the Commission was required to allocate and administer. The court thus stayed its proceedings until the necessary proceedings before the Commission had been completed.

[¶8] Meridian then initiated proceedings before the Commission, which referred the matter to a hearing officer. Relying on expert testimony, the hearing officer found, as pertinent here, that (1) the Basin was over-appropriated, and the Commission would not issue permits for new uses of designated ground water absent an approved plan to replace the depletions from the new uses; (2)

Page 395

" surface runoff from precipitation events quickly infiltrates into the alluvial sediments and does not flow on the surface for more than a few hours, except in rare, large, flood events . . . " ; (3) experts for both sides testified or provided evidence that Meridian's proposed development would increase surface runoff due to the creation of impermeable surfaces; (4) but for Meridian's proposed development, falling rain would either evaporate, be consumed by plants, or recharge the aquifer; (5) several reports had concluded that on a basin-wide average, approximately four percent of falling precipitation percolates far enough to recharge the aquifer; and (6) precipitation falling in the Basin would not reach a tributary stream.

[¶9] Based on these findings, the hearing officer concluded that " the portion [of the falling precipitation] that can be determined to be recharge (not evaporated or consumed by water loving plants) ...


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