Concerning the Application for Water Rights of Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association,
v.
Centennial Water and Sanitation District, Opposer-Appellant Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association, Applicants-Appellees and 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; State Engineer and Division Engineer; United Water and Sanitation District; and Westfarm, LLC, Opposers-Appellees and concerning David Nettles, Division Engineer, Water Division 1. Appellee Pursuant to C.A.R. 1(e)
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 ...