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In re Application for Water Rights of Upper Eagle Reg'l Water Authority

Supreme Court of Colorado, En Banc

May 31, 2016

Concerning the Application for Water Rights of the Upper Eagle Regional Water Authority in the Eagle River in Eagle County, Colorado.
v.
Dick Wolfe, State Engineer, and Alan Martellaro, Division 5 Engineer, Opposers-Appellees Upper Eagle Regional Water Authority, Applicant-Appellant

          Appeal from the District Court, Garfield County District Court, Water Division 5, Case No. 04CW236. Honorable James Boyd, Water Judge.

          SYLLABUS

         The Upper Eagle Regional Water Authority filed an application to make absolute 0.47 cubic feet per second of its Eagle River Diversion Point No. 2 conditional water right. The State and Division Engineers opposed the application, asserting that the Upper Eagle Regional Water Authority could not make its Eagle River Diversion Point No. 2 water right absolute when it owned another, more senior conditional water right, decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The Colorado Supreme Court holds that where there is no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights is entitled to select which of its different, in-priority conditional water rights it wishes to first divert and make absolute.

         Attorneys for Applicant-Appellant: Porzak Browning & Bushong LLP, Glenn E. Porzak, Kevin J. Kinnear, Boulder, Colorado.

         Attorneys for Opposers-Appellees: Cynthia H. Coffman, Attorney General, Paul L. Benington, First Assistant Attorney General, Jeffrey N. Candrian, Assistant Attorney General, Derek L. Turner, Assistant Attorney General, Denver, Colorado.

          OPINION

         EID, JUSTICE.

          [¶1] On July 4, 2004, the Upper Eagle Regional Water Authority (the " Authority" ) diverted 0.716 cubic feet per second (" cfs" ) of water at the Edwards Drinking Water Facility on the Eagle River and delivered that water to the Cordillera area for beneficial use. On that date, there was a " free river," meaning that there was no call on the Colorado or Eagle Rivers. Of the 0.716 cfs diverted and delivered to Cordillera, the Authority allocated 0.47 cfs to its Eagle River Diversion Point No. 2 conditional water right (the " Junior Eagle River Right" ) and filed an application to make this amount absolute. The State and Division Engineers (the " Engineers" ) opposed the application, asserting that the Authority could not make its Junior Eagle River Right absolute when it owned another, more senior conditional water right, the SCR Diversion Point No. 1 water right (the " Senior Lake Creek Right" ), decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The Engineers took the position that, if two conditional water rights with different priorities are equally available, diversions should be attributed to the senior right until it is exhausted, and only then attributed to the junior right. The water court agreed with the Engineers, and held that the July 4, 2004, diversion must be allocated first to the Senior Lake Creek Right.

          [¶2] The Authority now appeals, and we reverse. We hold that where there is no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights is entitled to select which of its different, in-priority conditional water rights it wishes to first divert and make absolute. However, the portfolio owner must live with its choice. Since it has chosen to make a portion of the Junior Eagle River Right absolute, the Authority may not now divert and use the Senior Lake Creek Right unless it demonstrates that it needs that water right in addition to the Junior Eagle River Right.

         I.

          [¶3] The Authority serves the Cordillera area through a water service agreement, effective as of March 25, 2004, between the Authority, the Edwards Metropolitan District, and the Cordillera Metropolitan District, as successor to the Squaw Creek Metropolitan District. Pursuant to the agreement, the Cordillera Metropolitan District conveyed certain water rights and facilities to the Authority. The Authority uses these water rights and facilities to provide water services to the Cordillera area.

          [¶4] Among the water rights conveyed to the Authority were the two conditional water rights at issue here: the Senior Lake Creek Right, with a priority year of 1989, and the Junior Eagle River Right, with a priority year of 1991. Both water rights are decreed for uses including the claimed beneficial uses of irrigation, domestic, commercial, and fire protection, and both may be alternately diverted at the Edwards Drinking Water Facility. In addition to their different priorities, however, these two water rights differ in their sources and their inclusion in augmentation plan decrees. The source of the Senior Lake Creek Right is West Lake Creek, and the diversion of the Senior Lake Creek Right at the alternate points of diversion on the Eagle River at Metcalf Headgate and Raw Water Booster Pump Headgate is limited to the amounts of water physically available in priority at the original point of diversion on West Lake Creek. The source of the Junior Eagle River Right, in contrast, is the Eagle River, and the Junior Eagle River Right is not limited to the flow on West Lake Creek at any of its points of diversion. Additionally, the Junior Eagle River Right is included in eight augmentation plan decrees, while the Senior Lake Creek Right is included in only six.

          [¶5] On July 4, 2004, the Authority diverted 0.716 cfs of water at the Edwards Drinking Water Facility on the Eagle River during free river conditions and delivered that water to the Cordillera area for beneficial use. Of the 0.716 cfs diverted and delivered to Cordillera, the Authority allocated 0.47 cfs to the Junior Eagle River Right. On December 29, 2004, the Authority filed an Application for a Finding of Reasonable Diligence and to Make Water Right Absolute (" Application" ). The Application sought confirmation that the Authority had made absolute 0.47 cfs of the Junior Eagle River Right, for irrigation, domestic, commercial, and fire protection purposes, by diverting this amount of water at the Edwards Drinking Water Facility during free river conditions. The Engineers opposed the Application, asserting that the Authority must exhaust its senior rights before making absolute its junior conditional right.

          [¶6] The Engineers initially took the position that absent notice of intent to forgo its senior water rights and justification for the same, the Authority's diversions must be attributed to senior rights before junior ones, according to the policy of " seniors first." Thus, under the " seniors first" policy, the Authority's diversions must be attributed (1) first to its senior absolute water rights; (2) then to its senior conditional right; and (3) finally to its junior conditional right. Subsequently, however, the parties stipulated that the Authority's absolute water rights would be used only for augmentation purposes, and so were not available for direct use on July 4, 2004. The only issue on appeal is thus whether the Authority may select a junior direct-flow conditional water right to first make absolute when it has available a more senior conditional water right decreed for diversion at the same structure, for the same claimed beneficial uses at the same location.

          [¶7] On February 28, 2007, the Engineers filed a motion for partial summary judgment, and the Authority filed its own motion for summary judgment the same day. On December 4, 2008, the water court granted the Engineers' motion in part ...


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