2014 CO 81
Colo.2014Background
- The Bell Ditches (three ditches) were decreed in 1896 to irrigate specific acreage on the H20 Ranch (350 "Original Acres").
- A 1977 conditional change decree (Conquistador) found the ditches historically irrigated 462 acres ("Enlarged Acres") but was conditional and never became effective; the 1996 decree vacated the 1977 decree and restored rights to historic irrigation use prior to 1977.
- Applicants (Widefield Water & Sanitation District and City of Fountain) acquired portions of the Bell Ditch rights and filed to change the use from irrigation to municipal.
- Applicants performed an HCU (historical consumptive use) analysis based on the 462 Enlarged Acres; State and Division Engineers moved to restrict HCU to the 350 Original Acres specified in the 1896 decree.
- The water court held Applicants must limit HCU to acreage lawfully associated with the decreed appropriation (the Original Acres); Applicants appealed interlocutorily.
Issues
| Issue | Applicant's Argument | Engineers' Argument | Held |
|---|---|---|---|
| May an applicant base HCU on acreage beyond that specified in the controlling decree? | Applicants: HCU may be performed on the Enlarged Acres to determine quantitative historic use before foreclosing the analysis. | Engineers: HCU must be limited to acreage lawfully associated with the decreed appropriation (Original Acres). | Held: HCU is limited to acreage expressly authorized by the controlling decree (Original Acres); acreage not lawfully associated cannot be used in HCU. |
| Does issue preclusion bar relitigation based on the vacated 1977 decree or the 1996 decree? | Applicants: Prior decrees (1977 and 1996) conclusively determined HCU on Enlarged Acres; water court was precluded from revisiting. | Engineers: 1977 decree never took effect; 1996 decree merely vacated 1977 and did not compute HCU; no preclusion. | Held: Issue preclusion does not apply; the 1977 decree was vacated and the 1996 decree did not establish HCU findings. |
| Can pre-1969 expanded irrigation of additional acres be treated as lawful historic use? | Applicants: Expanded irrigation predating the 1969 Act supports inclusion of Enlarged Acres in HCU. | Engineers: Pre-1969 expansion does not authorize enlargement absent decree; prior expansions have been held unlawful. | Held: Pre-1969 expansion does not validate enlargement; HCU limited to decreed acres. |
| Does Jones Ditch control whether subsequent expanded irrigation can be counted in HCU? | Applicants: Attempt to distinguish on procedural posture (HCU not yet completed here). | Engineers: Jones Ditch bars counting irrigation beyond originally decreed acreage regardless of procedural posture. | Held: Jones Ditch applies; HCU must be confined to acres in original decree. |
Key Cases Cited
- Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645 (Colo. 2011) (HCU measures water lawfully used; change proceedings scrutinize alterations to decreed rights)
- Ready Mixed Concrete Co. v. Farmers Reservoir & Irrigation Co., 115 P.3d 638 (Colo. 2005) (decrees construed from the entire instrument)
- Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46 (Colo. 1999) (change limited to water actually used beneficially pursuant to decree)
- In re Water Rights of Cent. Colo. Water Conservancy Dist. (Jones Ditch), 147 P.3d 9 (Colo. 2006) (water right decreed for irrigation cannot be enlarged beyond acreage for which the appropriation was made)
- V Bar Ranch LLC v. Cotten, 233 P.3d 1200 (Colo. 2010) (water appropriated for one parcel cannot be applied to new lands absent a decree)
- Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189 (Colo. 1999) (prior proceedings have preclusive effect only if HCU was calculated and relied upon in entering the earlier decree)