Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation District
256 P.3d 645
| Colo. | 2011Background
- FRICO, Burlington, Henrylyn, United, and ECCV pursued changes of water rights on the South Platte River to support ECCV's municipal project using Burlington 1885 and FRICO 1908–1909 rights, including an augmentation plan not appealed here.
- Water court reduced Burlington 1885 direct flow from 350 cfs to 200 cfs for use above Barr Lake and limited its storage releases to lands under Hudson and Burlington Extension available in 1909; study periods used were 1885–1909 for direct flow and 1927–2004 for storage.
- Court disallowed credit for Barr Lake toe drains seepage, Beebe Canal seepage gains, and Metro Pumps diversions as credited historical use; Beebe Canal deemed a net gain ditch but not decreed for historical consumptive use.
- New structures—Metro Pumps and Globeville Project—were treated as undecreed points of diversion or change in point of diversion, with conditions imposed to prevent injury to other rights.
- The court reassessed historical consumptive use on a system-wide basis, held the one-fill rule applies to Barr Lake storage, and concluded the Metro Pumps and Globeville Project require protective conditions; prior decrees FRICO 54658 and Thornton 87CW107 do not bar system-wide re-quantification.
- The final decree affirmed by the Colorado Supreme Court imposes appropriate limits to prevent unlawful enlargement and injury to junior rights while recognizing changes related to the ECCV project.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1885 Burlington direct flow right is limited to 200 cfs above Barr Lake and the storage right to 5,456 AF annually | FRICO/Burlington argued broader rights should apply. | The water court properly limited use to historical lands and periods. | Yes; upheld 200 cfs direct flow and 5,456 AF storage limits. |
| Whether seepage toe drains and Beebe Canal seepage can be counted toward historical consumptive use | toe drains and seepage contribute to consumptive use credit. | toe drains were not decreed and Beebe gains are not creditable to historical use. | Toe drains excluded; Beebe Canal seepage gains excluded from historical use credits. |
| Whether Metro Pumps and Globeville Project constitute undecreed points of diversion and may be credited | These structures supplied historical use and should be credited. | They are undecreed points and may not be credited without decree; Globeville requires terms to prevent injury. | No credit for Metro Pumps; Globeville treated as undecreed point with protective conditions. |
| Whether prior decrees in FRICO 54658 and Thornton 87CW107 preclude system-wide historical use analysis | Earlier decrees should deny system-wide reconsideration. | Res judicata and issue preclusion do not bar system-wide analysis when issues were not fully litigated previously. | Not precluded; system-wide analysis allowable. |
| Whether the decree properly applies the one-fill rule and avoids unlawful enlargement | One-fill rule should not limit beneficial use historically. | One-fill rule supports preventing enlargement and injury. | One-fill rule applied; protects against enlargement and injury. |
Key Cases Cited
- Jones Ditch Co. v. Smith, 147 P.3d 12 (Colo. 2007) (historic use determined by actual beneficial use; not all decreed flow equals use)
- Westminster v. Church, 445 P.2d 52 (Colo. 1968) (reservoirs may be filled as available each year under storage decrees; cautions against enlargement)
- Windsor Reservoir & Canal Co. v. Lake Supply Ditch Co., 98 P. 729 (Colo. 1908) (reservoirs permit one filling per year; limits to prevent enlargement)
- Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217 (Colo. 1988) (preclusion analysis when prior decree did not determine historical use)
- Trail's End Ranch, LLC v. Colorado Div. of Water Resources, 91 P.3d 1058 (Colo. 2004) (no injury standard; change must not injure vested rights)
- Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46 (Colo. 1999) (change decrees require quantification to prevent waste/speculation)
- Ready Mixed Concrete Co. v. Farmers Reservoir & Irrigation Co., 115 P.3d 638 (Colo. 2005) (seepage and return flows are not independently decreed rights)
- Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001) (anti-speculation doctrine and historical use)
- Bradley v. City of Golden, 975 P.2d 189 (Colo. 1999) (no enlargement and injury principles in change)