Concerning the Application for Water Rights for Cherokee Metropolitan District in El Paso County: Upper Black Squirrel Creek Ground Water Management District v. Cherokee Metropolitan District
2015 CO 47
Colo.2015Background
- UBS sought declaratory judgment interpreting a 1999 stipulation with Cherokee governing export of UBS-designated groundwater and the recharge obligation for wastewater returns; paragraph 5 requires Cherokee to deliver wastewater back to the UBS Basin for recharge.
- Cherokee/Meridian sought to replace exported water credits in a Ground Water Commission replacement plan; UBS argued the stipulation bars reuse or credits, while the Commission determines replacement requirements.
- Water court found the stipulation was silent on relinquishing any rights and did not preclude Cherokee from seeking replacement credits in the Commission process; it also held Meridian as a nonparty could not be bound but awarded UBS costs
- Meridian cross-appealed the water court’s award of costs and fees, arguing the awards were improper given jurisdictional disputes
- This Court affirmed the water court’s interpretation of the stipulation and the costs/fees ruling, while Part of Justice Hobbs concurred in part and dissented in part, emphasizing Meridian’s lack of party status to the 1999 stipulation
- The Ground Water Commission retains authority to evaluate Cherokee/Meridian replacement plans for compliance with replacement obligations and to prevent material injury to other water rights
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation of the 1999 stipulation recharge provision | UBS argues recharge limits Cherokee’s rights and impairs replacement credits. | Cherokee argues stipulation is silent on credits and Commission decides merits. | Stipulation silent on relinquishing rights; recharge obligation exists but does not preclude replacement credits. |
| Effect of the stipulation on Meridian’s interests and costs | UBS contends Meridian not bound but should bear costs for frivolous defenses. | Meridian argues lack of jurisdiction to impose costs/fees. | Water court lacked abuse; Meridian’s defenses were frivolous; costs affirmed. |
| Whether recharge requirement precludes replacement credit | Cherokee could claim replacement credits against new appropriations. | Recharge is a recharge-only obligation; replacement credits are separate merits before the Commission. | Recharge does not by itself authorize replacement credits; merits remain with Commission. |
Key Cases Cited
- Cherokee Metro. Dist. v. Meridian Serv. Metro. Dist., 247 P.3d 567 (Colo. 2011) (interpretation of the 1999 stipulation and continuing jurisdiction)
- Cherokee Metro. Dist. v. Upper Black Squirrel Designated Ground Water Mgmt. Dist., 266 P.3d 401 (Colo. 2011) (vacated and remanded water court ruling; emphasis on stipulation interpretation)
- Cherokee Metro. Dist. v. Simpson, 148 P.3d 142 (Colo. 2006) (earlier adjudication of 1999 stipulation context)
- City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996) (foreign water return flow considerations governing reuse vs. return)
- City & Cnty. of Denver v. Fulton Irrigating Ditch Co., 506 P.2d 144 (Colo. 1972) (re-use and successive use of water; foreign water concepts)
- Goss v. Black Squirrel Creek Ground Water Mgmt. Dist., 993 P.2d 1177 (Colo. 2011) (designated groundwater management and return flow considerations)