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A blog that focuses on legal developments affecting the water community in Colorado and other western states.  We also post news about water rights, water quality, and natural resources.  If you have a suggestion for a post, please contact us.

  

Colorado Supreme Court issues opinion in Gallegos II

Posted July 27, 2017

Gallegos sought to de-designate a portion of the Upper Crow Creek Designated Ground Water Basin (Basin) and redraw the Basin boundaries to exclude 25 wells, with the hope that the State Engineer would be able to curtail these junior groundwater rights in favor of Gallegos’ senior surface water rights on Crow Creek.  Gallegos Family Properties, LLC v. Colo. Groundwater Comm’n, 2017 CO 73 (June 19, 2017).

In 1983, after surface use and pumping increased in Colorado and Wyoming, water users “turned from increasingly unreliable surface rights to pumping from the aquifers underlying Crow Creek.”  Id. at 7.  In response, a group that included Gallegos’ predecessor in interest petitioned the Colorado Groundwater Commission (Commission) to designate the Basin.  Id.  In 1987, the Commission designated the Basin, and no party appealed.  Id. at 8.

In 1999, Gallegos purchased the water rights and leased them out “until 2002, when the tenant farmer’s alfalfa crop failed because insufficient surface flows precluded irrigation.”  Id.  “Gallegos petitioned the State Engineer to curtail the Well Owners’ pumping, claiming [injury].”  Id.  “[T]he State Engineer denied the request for lack of jurisdiction over designated groundwater basins,” and Gallegos ultimately appealed to the Colorado Supreme Court.  Id. at 8-9 For a detailed history of this litigation see: Gallegos v. Colo. Ground Water Comm’n (“Gallegos I”), 147 P.3d 20 (Colo. 2006).  The Colorado Supreme Court remanded the case to determine whether Gallegos could present new evidence to the Commission establishing connectivity and injury.  Id. at 9.

On remand, the hearing officer determined that Gallegos had failed to meet its burden of producing new evidence and therefore denied its petition.  Id. at 10.  Gallegos appealed the hearing officer’s determination, but the groundwater court affirmed the conclusion that Gallegos had failed to present new evidence or to prove injury.  Id. at 12.  The court also awarded costs to the Well Owners.  Id. at 13. Gallegos appealed to the Colorado Supreme Court.  Id.

On appeal, the Colorado Supreme Court declined to assess whether Gallegos suffered injury, focusing only on whether Gallegos proved by evidence not before the 1987 Commission that the factual data justified de-designating a portion of the Basin.  Id. at 13-14.  The Court concluded that Gallegos failed to meet this burden and that the “groundwater court did not abuse its discretion” in awarding costs to Well Owners. Id. at 14.

Regarding connectivity, the parties did “not dispute that groundwater in the Basin is connected to the surface water that would feed the Larson rights.”  Id. at 17.  Rather, the dispute hinged on “whether Gallegos proved by new evidence not before the 1987 Commission that future conditions and factual data justify de-designating a portion of the Basin because the Basin waters are connected to the waters that feed Gallegos’s surface water rights.”  Id.  Gallegos submitted written evidence and expert testimony alleging that the alluvium is connected to the surface flows of Crow Creek; however, the Colorado Supreme Court determined such showings to be inadequate, “because they do not consist of evidence of conditions newly discovered or occurring after the original basin designation date sufficient to justify the modification of a basin boundary.”  Id. at 21.  The Court noted that “Gallegos has merely shown that the groundwater and Crow Creek were connected when the Basin was designated and are still connected today,” but such evidence “does not constitute a showing of either a condition arising since 1987 or a condition newly discovered since 1987,” as required by the statute.  Id.  Accordingly, the Court held that claim preclusion applied because connectivity could have been litigated in the designation proceedings.  Id. at 22.

Moreover, the Colorado Supreme Court held that the designated groundwater court did not abuse its discretion in awarding costs to Well Owners.  Id. at 24.  The Court noted “that Gallegos failed to raise a timely objection to the designated groundwater court’s decision to award costs.”  Id.  The Court concluded that Well Owners were the prevailing parties, and that they were necessary parties to the litigation, despite not being named as defendants by Gallegos in the initial complaint.  Id. at 27.  The Court further concluded that Well Owners’ costs were reasonable and necessary for the litigation.  Id.  Thus, the Court upheld the groundwater court’s award of costs.  Id. at 28.

This case reaffirms the strict requirements to justify de-designation of a groundwater basin.  In order to support such de-designation, a party must establish through new evidence that water conditions have changed since the original designation and that the change has caused injury.  Parties should be prepared to present to the court new evidence of changed conditions since the designation in order to prevail.


Colorado Supreme Court reaffirms that water rights are limited to the terms of their decrees

Posted June 29, 2017

The Colorado Supreme Court recently interpreted a decree entered pursuant to Colorado’s simple change statute in the context of a trespass claim.  Select Energy Servs., LLC v. K-LOW, LLC, No. 16SA166, 2017 CO 43 (Colo. May 15, 2017).  The Court considered whether the simple change decree approving a new point of diversion at a pump eliminated any continuing right to divert water from an old ditch.  The Court reviewed the plain language of the decree and found that it only granted a right to divert water from the new downstream pump, not the old ditch, and thus K-LOW did not have the authority to assert a trespass claim regarding the ditch.

Background

The dispute involved two water decrees entered a century apart: (1) a 1914 decree establishing a right to divert water from the South Platte River through the Sterling Drain and Seepage Ditch; and (2) a 2014 decree relocating the point of diversion for that right from a headgate on the South Platte River to a pump farther downstream.

Faith Tabernacle Church (Faith) obtained the 1914 right and applied in 2014 to move the diversion point downstream from the original headgate and the terminus of the ditch, to a pump on Faith’s property.  The water court approved the application and entered the 2014 decree, memorializing the change in the right’s surface diversion point from the headgate to the downriver pump.

After changing the point of diversion, “Faith quit-claimed to K-LOW whatever property interest and rights it may have retained in the ditch itself.”  ¶ 8.  K-LOW then asserted that Select Energy Services (Select) had trespassed on K-LOW’s ditch easement by placing a pipeline across the ditch.  Select declined to remove the pipeline, and K-LOW filed a trespass claim in Weld County District Court.  The parties agreed that the validity of K-LOW’s trespass claim depended on whether the 2014 decree allowed continued diversions through the Sterling Drain and Seepage Ditch in addition to the newly approved pump.  “At the parties’ joint request, the court dismissed that action, and Select filed a new suit in the water court for Water Division No. 1 seeking a declaratory judgment as to whether the 2014 decree extinguished the right to divert water from the ditch.”  ¶ 9.  Select then moved for partial summary judgment, and the water court concluded that “because the 2014 decree moved the [water] right’s only diversion point to the pump on the South Platte, there remained no independent right to divert seepage, waste waters, or accretions elsewhere.”  ¶ 10.  K-LOW appealed that decision.

Colorado Supreme Court’s Decision

The Court considered the plain language of the simple change decree and noted that it identified a single point of diversion—the pump on the South Platte River—and thus did not recognize a continuing right to divert water from the ditch.  The Court reasoned that a water right is limited to what appears on the face of the decree.

The Court concluded that “[b]ecause, by its plain language, the decree defining the water right allows its holder to divert water only at a pump downriver from the disputed ditch, and that language is not susceptible to any other reasonable interpretation, we conclude the decree does not include a right to divert water from the ditch at issue.”  ¶ 21.  The Court declined to consider extrinsic evidence to clarify the 2014 decree’s meaning.  Given this reasoning, the Court affirmed the judgment of the water court, and K-LOW’s trespass claim failed.

This case reaffirms that water rights are limited to the terms of their decrees.  In making a simple change of a water right to a new point of diversion, if an applicant’s decree does not describe a continuing right to divert through the original point, then diversions will be limited to only the new point of diversion in the future.


$8 million grant approved to restore Colorado River

Posted February 14, 2017

 On December 21, 2016, the U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS) announced that it agreed to provide $7.75 million in funds to the Colorado River Headwaters Project (the “Project”).  The Project is designed to create a bypass channel around Windy Gap Reservoir to reconnect the Colorado River and maximize restoration work being done by the Irrigators of Land in Vicinity of Kremmling (ILVK).  The Project is part of Grand County’s and its partners’ efforts to restore river systems impacted by trans-mountain diversions of water out of Grand County to Colorado’s Front Range.

The Project had its beginnings as part of the Windy Gap Bypass Funding Agreement between the Municipal Subdistrict of the Northern Colorado Water Conservancy District and several West Slope entities.  This grant application was the final push for funding led by Trout Unlimited, a fishery conservation group, and was joined by many other partners representing an array of interests, including agriculture, local government, water service, state agencies, and landowners.

The Project intends to use the funds to: construct a “bypass channel” around Windy Gap Reservoir to reconnect the Colorado River as a free-flowing river allowing fish passage and reestablishing the stone fly and sculpin populations; improve irrigation systems of the ILVK; and improve water quality and fish habitat downstream of the bypass.  Once the Colorado River is connected, the Project will directly benefit over 30 miles of the Colorado River and 4,500 acres of irrigated lands.

Currently, over 60 percent of the upper Colorado River’s native flows is diverted under the continental divide via trans-mountain diversions for use in the Front Range and northern Colorado.  This causes low flows which have undermined irrigation systems and the health of the Colorado River.  The low flows also result in higher temperatures and sediment buildup, which degrades aquatic habitat.

The Project will install innovative stream structures designed to maintain adequate water levels for irrigation and to improve fish habitat.  This will be the first project in the country to implement these engineering designs on such a large scale.

The Windy Gap Reservoir bypass and the improvements downstream near Kremmling, Colorado are pieces of a larger, regional effort by Grand County and its partners to restore the upper Colorado River. Other efforts include agreements such as the Windy Gap Firming Project Intergovernmental Agreement between the Municipal Subdistrict, Northern Colorado Water Conservancy District and Board of County Commissioners of Grand County, Colorado River Water Conservation District, Middle Park Water Conservancy District, and Northwest Colorado Council of Governments, and the Colorado River Cooperative Agreement, between Denver Water and western slope entities, which contain  significant river protections and a long-term monitoring and management process called “Learning by Doing” that requires stakeholders to work together to ensure the health of the Colorado River long-term.

This type of cooperative planning is what the Final Colorado Water Plan had in mind, and which may enable it to succeed.


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