Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Concerning Application for Water Rights of the City and County of Denver

Supreme Court of Colorado, En Banc

July 1, 2019

Concerning the Application for Water Rights of the City and County of Denver, acting by and through its Board of Water Commissioners in Douglas, Jefferson, Arapahoe, Denver, Broomfield, Weld, Adams, and Park Counties. The City and County of Denver, acting by and through its Board of Water Commissioners, Applicant-Appellee, Consolidated Ditches of Water District No. 2; Parker Water and Sanitation District; Central Colorado Water Conservancy District; City of Aurora; and Farmers Reservoir and Irrigation Company, and Opposers-Appellees, and Bijou Irrigation Company and Bijou Irrigation Ditch, Centennial Water and Sanitation District, City and County of Broomfield, City of Brighton, City of Commerce City, City of Louisville, City of Thornton, City of Westminster, Coors Brewing Company, East Cherry Creek Valley Water and Sanitation District, Fairmount Cemetery Company, Farmers High Line Canal, Fulton Irrigation Ditch Company, Henrylyn Irrigation District, New Brantner Extension Ditch, Northern Colorado Water Conservancy District, Platte Valley Irrigation Company, Public Service Company of Colorado, South Adams County Water and Sanitation District, South Suburban Park and Recreation District, Denver County Club, Upper Cherry Creek Water Association, and United Water and Sanitation District, and Concerning Opposers- Appellees Corey DeAngelis, Division Engineer, Water Division No. 1, and Kevin Rein, State Engineer Appellee Pursuant to C.A. R. 1(e)

          Appeal from the District Court Weld County District Court, Water Division 1, Case No. 12CW5 Honorable James F. Hartmann, Water Judge

          Attorneys for Applicant-Appellee City and County of Denver: Patricia L. Wells Daniel J. Arnold Casey S. Funk Denver, Colorado

          Attorneys for Opposer-Appellant Consolidated Ditches of Water District No. 2: Hoskin Farina & Kampf, P.C. William A. Hillhouse II Eliza F. Hillhouse John P. Justus Grand Junction, Colorado Law Office of Brice Steele, P.C. Brice Steele Brighton, Colorado

          Attorneys for Opposer-Appellant Parker Water and Sanitation District: Krassa & Miller, LLC Robert F. T. Krassa Boulder, Colorado

          Attorneys for Opposer-Appellant Central Colorado Water Conservancy District: Lawrence Jones Custer Grasmick, LLP Kim R. Lawrence David P. Jones Wesley S. Knoll Johnstown, Colorado

          Attorneys for Opposer-Appellant City of Aurora: Hamre, Rodriguez, Ostrander & Dingess, P.C. John M. Dingess Peter C. Johnson Denver, Colorado

          Attorneys for Opposer-Appellant Farmers Reservoir and Irrigation Company: Fairfield and Woods, P.C. Joseph B. Dischinger Beth Ann J. Parsons Beth Van Vurst Dean C. Hirt, III Denver, Colorado

          Attorneys for Opposer-Appellee Northern Colorado Water Conservancy District: Trout Raley Bennett W. Raley Douglas M. Sinor William Davis Wert Denver, Colorado

          Attorneys for Appellees Pursuant to C.A.R. 1(e) Corey DeAngelis, Division Engineer, Water Division No. 1; and Kevin Rein, State Engineer: Philip J. Weiser, Attorney General Paul L. Benington, First Assistant Attorney General Denver, Colorado

          Attorneys for Amicus Curiae Board of County Commissioners of Summit County, Colorado: Petros & White, LLC Charles B. White David S. Hayes Denver, Colorado

          Attorneys for Amicus Curiae The Colorado River Water Conservation District: Peter C. Fleming Jason V. Turner Glenwood Springs, Colorado

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

          Attorneys for Amici Curiae Eagle River Water & Sanitation District and Upper Eagle Regional Water Authority: Porzak Browning & Bushong LLP Glenn E. Porzak Boulder, Colorado

          Attorneys for Amici Curiae Grand Valley Water Users Association, Orchard Mesa Irrigation District, and Ute Water Conservancy District: Williams Turner & Holmes, P.C. Kirsten M. Kurath Grand Junction, Colorado

          Attorneys for Amicus Curiae Middle Park Water Conservancy District: Cazier & McGowan Stanley W. Cazier Granby, Colorado

          Attorneys for Amicus Curiae Palisade Irrigation District: Dufford, Waldeck, Milburn & Krohn, LLP Nathan A. Keever Grand Junction, Colorado No appearance on behalf of: Bijou Irrigation Company and Bijou Irrigation Ditch, Centennial Water and Sanitation District, City and County of Broomfield, City of Brighton, City of Commerce City, City of Louisville, City of Thornton, City of Westminster, Coors Brewing Company, East Cherry Creek Valley Water and Sanitation District, Fairmount Cemetery Company, Farmers High Line Canal, Fulton Irrigation Ditch Company, Henrylyn Irrigation District, New Brantner Extension Ditch, Platte Valley Irrigation Company, Public Service Company of Colorado, South Adams County Water and Sanitation District, South Suburban Park and Recreation District, Denver County Club, Upper Cherry Creek Water Association, and United Water and Sanitation District.

          OPINION

          MÁRQUEZ JUSTICE

          ¶1 This appeal from the water court in Water Division 1 represents the latest chapter in litigation over a 1940 water use agreement (1940 Agreement) between the City and County of Denver, acting by and through its Board of Water Commissioners (Denver) and the ditch company members of Consolidated Ditches of Water District No. 2 (Consolidated Ditches).[1] The purpose of the 1940 Agreement was to resolve the parties' disputes regarding seepage and evaporation losses from three of Denver's streambed reservoirs located on the South Platte River. Under the 1940 Agreement, in lieu of making releases from the streambed reservoirs to replace seepage and evaporation losses, Denver agreed not to reuse or successively use[2] return flows from water imported from the western slope and used in Denver's municipal water system.

         ¶2 Earlier litigation in Case No. 81CW405 established that this reuse prohibition in the 1940 Agreement applies only to return flows derived from decreed water rights from Colorado River sources with appropriation dates before May 1, 1940 (the date Denver entered into the agreement); Denver may therefore use return flows derived from sources that were appropriated or acquired after that date. City & Cty. of Denver v. Consol. Ditches Co. of Dist. No. 2 (Consolidated Ditches), 807 P.2d 23, 38 (Colo. 1991). The question in this appeal is whether the 1940 Agreement prohibits Denver from using return flows from water imported from the Blue River system under exchange and substitution operations that use water stored in the Williams Fork Reservoir under a 1935 priority as a substitute supply.

         ¶3 This issue arose out of Denver's application in Case No. 04CW121 to adjudicate and quantify reusable lawn irrigation return flows (LIRFs) for use as a substitute supply in exchanges and augmentation plans. In its application, Denver sought confirmation that it could include among its sources of LIRFs the return flows from water imported through the Roberts Tunnel under Blue River exchange operations using the Williams Fork Reservoir as a substitute supply. Consolidated Ditches objected to Denver's inclusion of these return flows, arguing that their reuse is prohibited under the 1940 Agreement.

         ¶4 The water court bifurcated the issues involving the applicability of the 1940 Agreement into this separate case, No. 12CW05. Denver filed a C.R.C.P. 56(h) motion for determination of a question of law, and Consolidated Ditches filed a competing C.R.C.P. 56(c) motion for summary judgment, both raising essentially the same question: whether the 1940 Agreement prevents Denver from using return flows from water imported through the Roberts Tunnel under Blue River exchange and substitution operations using Williams Fork Reservoir water as a substitute supply.

         ¶5 In a written order, the water court resolved these competing motions in Denver's favor, ruling that Denver's Blue River system water, which was decreed in 1955 with an appropriation date of June 24, 1946, is a source of water that was not owned, appropriated, or acquired by Denver prior to May 1, 1940, and therefore is not subject to the 1940 Agreement. The court reasoned that Blue River system water is imported through the Roberts Tunnel under a 1946 priority date, whether it is imported after diversion in priority, or after out-of-priority diversions enabled by Denver's exchange operations using water released from Williams Fork Reservoir as a substitute supply. The water court thus held that Denver may reuse or successively use imported water attributed to the Blue River system. The water court later entered its findings of fact, conclusions of law, judgment, and decree, which incorporated its earlier order on the parties' competing C.R.C.P. 56 motions. Consolidated Ditches and other opposers appealed.

         ¶6 Consolidated Ditches contends that the 1940 Agreement applies to prevent Denver from reusing or successively using water imported through the Roberts Tunnel under Blue River exchange and substitution operations. It argues that under the so-called "character of exchange rule," the water diverted by exchange takes on the "character" of the substitute supply- here, the water stored in the Williams Fork Reservoir under a 1935 priority. Thus, it contends, the return flows from the water imported through the Roberts Tunnel are derived from a source with an appropriation date before May 1, 1940. Denver responds that the water court correctly concluded that the 1940 Agreement does not apply to prohibit Denver from reusing or successively using water imported under the Blue River exchange operations because those operations were decreed in 1955 and are administered under a 1946 priority. In other words, the return flows are derived from a source that was acquired by Denver after May 1, 1940.

         ¶7 We agree with Denver. At the time it entered the 1940 Agreement, Denver could not import water through the Roberts Tunnel by exchange (or otherwise). Denver's ability to divert water from the Blue River system by exchange or substitution using Williams Fork Reservoir water as a source of substitute supply was adjudicated in 1955, and the exchange is administered under a June 24, 1946 priority, consistent with the appropriation date of Denver's rights in the Blue River system. Thus, for purposes of the 1940 Agreement, we hold that the water imported through the Roberts Tunnel under Blue River exchange and substitution operations is a source acquired by Denver after May 1, 1940. Accordingly, the return flows from those operations are not subject to the 1940 Agreement and Denver may reuse or successively use those return flows.

         ¶8 We disagree with Consolidated Ditches that the so-called "character of exchange rule" requires a different result here. The character of exchange concept has emerged as an unofficial, permissive practice recognized by the State Engineer, but it does not appear in statute, nor have we expressly applied it in case law or defined its scope. We therefore decline to adopt a mandatory character of exchange "rule" that applies rigidly to all exchange operations. Whatever its scope or applicability in other circumstances, the character of exchange principle is unnecessary here to ensure that the purpose of the 1940 Agreement is fulfilled or to avoid injury to Consolidated Ditches. It is undisputed that current importations of water through the Moffat Tunnel under pre-1940 priorities more than fully offset the streambed reservoir seepage and evaporation losses that prompted the 1940 Agreement. If anything, application of the character of exchange principle to bar Denver's reuse of water imported through the Roberts Tunnel by exchange or substitution would only enlarge the existing windfall in Consolidated Ditches' favor.

         ¶9 Accordingly, we affirm the judgment and decree of the water court.

         I. Background

         ¶10 Given the complexity of the factual and legal background in this case, it is necessary to set both out in detail to understand the issues before us. First, we describe the relevant aspects of Denver's transmountain water systems at issue. We then discuss the background and content of the 1940 Agreement. Finally, we review our two prior decisions interpreting the agreement, City & County of Denver v. Fulton Irrigating Ditch Co., 506 P.2d 144 (Colo. 1972), and Consolidated Ditches, 807 P.2d 23.

         A. Denver's Transmountain Water Systems

         ¶11 Denver's extensive and complex water supply system includes rights to several sources of water tributary to the Colorado River originating on the western slope of the Continental Divide. Denver also owns and operates collection systems, reservoirs, and tunnels to import water from these Colorado River basin sources for use on the eastern slope. The transmountain system components relevant to this dispute are the Fraser and Williams Fork systems, the Williams Fork Reservoir, and the Blue River system. The following map (Water Collection System Map) provides an overview of these systems.

         (Image Omitted)

         1. Fraser and Williams Fork Systems (Moffat Tunnel Collection System) and the Williams Fork Reservoir

         ¶12 The Fraser River and the Williams Fork River are tributaries of the Colorado River on the western slope of the Continental Divide. Denver has rights to divert water from these rivers through the Fraser River and Williams Fork Diversion Projects, which were decreed in 1937 by the Grand County District Court in Civil Action No. 657 with an appropriation date of July 4, 1921.

         ¶13 Water diverted from both the Fraser and Williams Fork River collection systems is imported through the Moffat Tunnel. The Fraser River Diversion Project diverts water from the Fraser River and its tributaries and since 1936, has delivered that water through the Moffat Tunnel to the eastern slope for storage and use.[3] The Williams Fork River Diversion Project includes the Gumlick Tunnel and the Vasquez Tunnel. The Gumlick Tunnel is used to import water diverted from the headwaters of the Williams Fork River and its tributaries. Starting in 1940, and before the completion of the Vasquez Tunnel in approximately 1958, the Gumlick Tunnel water was delivered to Clear Creek (a tributary of the South Platte River) for subsequent exchange. Since approximately 1958, the water imported through the Gumlick Tunnel has been conveyed through the Vasquez Tunnel to the Fraser River Diversion Project, where it is subsequently conveyed through the Moffat Tunnel to the eastern slope.

          ¶14 Additionally, Denver stores water in the Williams Fork Reservoir, an on-channel reservoir that impounds water on the Williams Fork River above its confluence with the Colorado River. The Williams Fork Reservoir was also decreed in 1937 in Civil Action No. 657, but with an appropriation date of November 10, 1935. The Williams Fork Reservoir lies downstream from the Williams Fork River collection system; Denver therefore cannot physically deliver water from that reservoir directly to the eastern slope.[4] Instead, when a senior call is in effect, Denver releases the water stored in the Williams Fork Reservoir as replacement water in exchange and substitution operations to allow Denver to continue to divert and store water out of priority at its Fraser River and Williams Fork River collection systems, or, as relevant here, at its Blue River collection system. Per the 1940 Agreement and the Amended Ruling and Order in Case No. 81CW405 following this court's decision in Consolidated Ditches, Denver does not reuse return flows from water imported through the Moffat Tunnel under its 1921 Fraser River and Williams Fork River Diversion Projects, including water diverted from these two projects using Williams Fork Reservoir water as a replacement source.

         (Image Omitted)

         2. Blue River System (Roberts Tunnel Collection System)

         ¶15 Water rights in the Blue River have been the subject of substantial litigation in both state and federal court, resulting in a 1955 federal decree, followed by a suite of supplementary and amendatory orders, judgments, and decrees. Because Blue River exchange and substitution operations are part of this complex history, we both describe the Blue River system and briefly review the relevant decrees establishing the June 24, 1946 priority date for administration of these operations.

         a. Blue River Diversion Project

         ¶16 Like the Williams Fork and Fraser Rivers, the Blue River is also a tributary of the Colorado River on the western slope. The Blue River Diversion Project consists of Dillon Reservoir and the Roberts Tunnel. Dillon Reservoir is an on-channel reservoir that impounds water on the Blue River and several tributaries above the Blue River's confluence with the Colorado River. The Blue River Diversion Project collects water at the confluence of the Snake River, Blue River, and Ten Mile Creek. This water can be stored in Dillon Reservoir for later transport through the Roberts Tunnel, or it can be placed directly in the Roberts Tunnel and conveyed to the North Fork of the South Platte River on the eastern slope. Denver began importing water through the Roberts Tunnel in 1964.

         ¶17 Denver also releases water stored in the Williams Fork Reservoir to make replacements under Blue River system exchange and substitution operations. The Blue River exchange allows Denver to continue to operate the Blue River Diversion Project when its 1946 priorities would otherwise be curtailed by senior downstream calls by releasing water stored in the Williams Fork Reservoir to satisfy downstream senior water rights on the Colorado River. The Blue River substitution is similar to the exchange in that it involves the release of water stored in the Williams Fork Reservoir, albeit at the direction of the U.S. Secretary of the Interior and in substitution for the amount of water that Denver would otherwise owe to Green Mountain Reservoir[5] to complete the annual fill of that reservoir under its more senior (1935) priority. Under this arrangement, Denver releases water from the Williams Fork Reservoir for beneficiaries of Green Mountain Reservoir in substitution for releases that otherwise would be made from Green Mountain Reservoir but for interference by Denver's Blue River Diversion Project.

         ¶18 Denver has always reused the return flows from water that it imports through the Roberts Tunnel under its 1946 priorities, including water diverted by exchange or substitution using Williams Fork Reservoir water as a substitute supply. From 1989[6] to 2015, Denver imported an average of 5, 482 acre-feet per year of water attributable to Blue River exchange and substitution operations, with greater amounts in dry years. Annual return flows from this imported water averaged 2, 505 acre-feet during that period.

         (Image Omitted)

         b. Blue ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.