Concerning Application for Water Rights of Well Augmentation Subdistrict of Central Colorado Water Conservancy District And South Platte Well Users Association

          Appeal from the District Court Weld County District Court, Water Division 1, Case No. 03CW99 Honorable James F. Hartmann, Water Judge

          Attorneys for Opposer-Appellant: Buchanan Sperling & Holleman PC Veronica A. Sperling Paul F. Holleman Boulder, Colorado

          Attorney for Applicants-Appellees: Lawrence Jones Custer Grasmick LLP David P. Jones Johnstown, Colorado

          Attorneys for Opposer-Appellee State Engineer and Division Engineer and Appellee Pursuant to C.A.R. 1(e) David Nettles, Division Engineer, Water Division 1: Philip J. Weiser, Attorney General Paul L. Benington, First Assistant Attorney General Denver, Colorado

          Attorneys for Amicus Curiae City of Colorado Springs: City of Colorado Springs Attorney's Office Michael Gustafson Colorado Springs, Colorado Hill & Robbins, P.C. David W. Robbins Matthew A. Montgomery Denver, Colorado

          No appearance by or on behalf of Bijou Irrigation Company; Bijou Irrigation District; Cache La Poudre Water Users Association; City of Aurora; City of Black Hawk; City of Boulder; City and County of Denver acting by and through its Board of Water Commissioners; City of Englewood; City of Greeley acting by and through its Water and Sewer Board; City of Sterling; City of Thornton; City of Westminster; Ducommun Business Trust; East Cherry Creek Valley Water and Sanitation District; Farmers Reservoir and Irrigation Company; Fort Morgan Reservoir and Irrigation Company; Harmony Ditch Company; Henrylyn Irrigation District; Irrigationists' Association, Water District 1; Jackson Lake Reservoir and Irrigation Company; Lower Latham Reservoir Company; Lupton Bottom Ditch Company; Lupton Meadows Ditch Company; New Cache La Poudre Irrigating Company; Cache La Poudre Reservoir Company; North Poudre Irrigation Company; Pawnee Well Users, Inc.; Public Service Company of Colorado; Riverside Irrigation District; Riverside Reservoir and Land Company; South Adams County Water and Sanitation District; United Water and Sanitation District; or Westfarm, LLC.

          OPINION

          COATS CHIEF JUSTICE

          ¶1 Centennial appealed from an order of the water court dismissing its objection to the Well Augmentation Subdistrict's proposal to use additional sources of replacement water for its previously decreed augmentation plan. Centennial had asserted that WAS failed to comply with the notice requirements of the decree itself and that this failure amounted to a per se injury, for which it was entitled to relief without any further showing of operational effect. The water court heard Centennial's motion objecting to WAS's proposed addition of new sources of replacement water and, without requiring WAS to present evidence, found that Centennial failed to establish prima facie facts of WAS's inability to deliver augmentation water in quantity or time to prevent injury to other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the water court dismissed Centennial's objection.

         ¶2 Because exercise of the water court's retained jurisdiction was statutorily limited to preventing or curing injury to other water users, and because the evidence presented by Centennial failed to establish that WAS would be unable, under the conditions imposed by the Engineer for approval of the additional sources of replacement water, to deliver augmentation water sufficient to prevent injury to other water users, the water court's dismissal of Centennial's objection is affirmed.

         I.

         ¶3 In 2003, the Well Augmentation Subdistrict of the Central Water Conservancy District and South Platte Well Users Association applied for approval of a plan for augmentation to replace out-of-priority well depletions to the South Platte River, and Centennial Water and Sanitation District, the appellant before this court, was one of the opposers to that application. In 2008, the water court for Division 1 entered a decree approving WAS's augmentation plan, subject to the conditions specified in the decree. In 2015, WAS proposed to add certain sources of replacement water, as expressly permitted by the initial decree, by giving written Notice of Use of Water Rights for Augmentation to the water court, the Division Engineer, and all the objectors.

         ¶4 Centennial filed an objection to the addition of one particular category of replacement water in WAS's proposal, designated "Category 2" water, but that objection was dismissed on the ground that the decree permitted a challenge in the water court to a proposed additional or alternative source of replacement water only after that additional source had been approved by the Division Engineer, and only then by invoking the statutorily retained jurisdiction of the water court. After entertaining the objections of Centennial, the Engineer approved the use of WAS's proposed Category 2 water, subject to six specified conditions. Centennial again filed an objection, this time invoking the retained jurisdiction of the water court in reliance on the provisions of paragraph 45.2 of the decree and asserting that WAS's Notice of Use failed to fully comply with the requirements of paragraph 13.1 of the decree by failing to specify the available amount, location of delivery, and method of accounting for the use of its Category 2 water.

         ¶5 Over the objection of the Engineer, the court permitted Centennial to proceed under the court's retained jurisdiction, despite there not yet having been any operational experience with the additional sources, as approved by the Engineer; and after also granting Centennial's request for an evidentiary hearing on its motion objecting to the additional sources of replacement water, the court ordered discovery and expert disclosures, and ultimately heard the motion. At the hearing, Centennial presented testimony, based on the report of its expert, to the effect that the notice provided by WAS failed to comply with paragraph 13.1, and therefore should be denied, and that if the Category 2 replacement water were permitted without requiring a separate notice complying with paragraph 13.1, additional terms and conditions would be required, to include a requirement that all available paragraph 13.1 information be provided to Centennial at least thirty days in advance of projection and use of any new Category 2 recharge accretions. At the close of Centennial's evidence, the water court made findings and concluded that Centennial had failed to factually establish that any injury would occur if the Category 2 sources of water were added to the augmentation plan under the conditions approved for administration by the Engineer, and it dismissed Centennial's objection.

         ¶6 In its ruling, the water court articulated more specifically its understanding of the controlling statutes, rules of procedure, and provisions of the decree, and how those authorities dictated its conclusion. With regard to its dismissal at that stage of the proceedings, the court found that C.R.C.P. 41 applied to this type of retained jurisdiction proceeding, and that in a proceeding to add a source of replacement water which the applicant had a legal right to use, Centennial, as the objector to the proposal, bore an initial burden of establishing prima facie facts proving that injury would occur under the conditions imposed by the Engineer. In light of Centennial's failure to even attempt to prove facts indicating that WAS would be unable to deliver augmentation water in quantity and time to prevent injury to other water users under those ...