Concerning the Office of the State Engineer's Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District, and Concerning the Special Improvement District No. 1 of the Rio Grande Water Conservation District's Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District: San Antonio, Los Pinos, and Conejos River Acequia Preservation Association v. Special Improvement District No. 1
2015 CO 52
Colo.2015Background
- The Rio Grande Water Conservation District’s Subdistrict No. 1 adopted an Amended Plan of Water Management to limit groundwater pumping in Colorado’s San Luis Valley and prevent injury to senior surface-water rights; the water court retained jurisdiction to ensure the plan’s operation complied with its 2010 decree.
- The 2012 Annual Replacement Plan (ARP) was the first ARP prepared under the Amended Plan; it estimated annual depletions and proposed sources and timing for replacement water for the plan year.
- The 2012 ARP identified up to 2,500 acre-feet of Closed Basin Project water as a replacement source and included a comprehensive well list that did not separately identify wells subject to judicially decreed augmentation plans.
- Senior surface-water right holders (Objectors) challenged the ARP, arguing (1) the court must reconsider issues already decided, (2) the ARP could not take effect before all objections were resolved so State Engineer must curtail pumping, (3) Closed Basin Project water is unsuitable as replacement, and (4) inclusion/treatment of augmentation-plan wells and omission of a separate augmentation-well list violated the Amended Plan.
- The water court conducted a trial, upheld the State Engineer’s approval of the 2012 ARP, found Closed Basin Project water suitable, held the inclusion of augmentation-plan wells acceptable under the plan’s facts, and applied substantial-compliance to the omitted augmentation-well list while ordering future compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the water court could be required to revisit Amended Plan methods already adjudicated | Objectors: retained jurisdiction requires hearing all ARP challenges, even on issues previously decided | Supporters/State: law of the case bars re-litigation of issues decided by decree and affirmed on appeal | Court: law of the case prevents reexamining methodologies affirmed in San Antonio; dismissal proper |
| Whether operation of the ARP must be stayed (and pumping curtailed) until all objections resolved | Objectors: ARP is an extension of Amended Plan; under Bijou, proposed rules can’t take effect until protests resolved, so State Engineer must curtail pumping | Defendants: ARP is operational tool (not rulemaking); section 37‑92‑501(4)(c) reviews operation, not creation; staying ARPs would frustrate plan operation | Court: ARP need not be stayed; Bijou not applicable; denial of curtailment affirmed |
| Whether Closed Basin Project water is an adequate/suitable replacement source | Objectors: project water is tributary/salvaged groundwater presumed to injure senior rights and must be administered in priority system | Defendants: Closed Basin Decree treats produced water as developed/collected water delivered to the Rio Grande; use can both meet Compact obligations and replace depletions | Court: Closed Basin Project water is suitable and decreed for purposes that include replacement and Compact compliance; inclusion affirmed |
| Whether inclusion/treatment of augmentation-plan wells and failure to list them invalidated the ARP | Objectors: ARP improperly counted augmentation-plan wells as Subdistrict pumping, allowed excess pumping, and violated the ARP listing requirement | Defendants: ARP charged only for unaugmented pumping, did not alter augmentation decrees; omission of separate list was a minor, inadvertent error and later remedied | Court: inclusion of unaugmented portions was permissible; ARP slightly overstated depletions (overcompensating seniors); omission was technical—substantial compliance applies; ARP valid |
Key Cases Cited
- San Antonio, Los Pinos & Conejos River Acequia Pres. Ass'n v. Special Improvement Dist. No. 1, 270 P.3d 927 (Colo. 2011) (affirmed adequacy of Amended Plan and set law of the case)
- Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003) (procedural rule that proposed water rules/regulations may not take effect before protests are resolved)
- Southeastern Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 529 P.2d 1321 (Colo. 1974) (discusses administration of salvaged/developed groundwater within priority system)
- Closed Basin Landowners Ass'n v. Rio Grande Water Conservation Dist., 734 P.2d 627 (Colo. 1987) (rejects collateral attacks on Closed Basin Decree and addresses nature of project water)
- Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645 (Colo. 2011) (standard of review for water court factual findings)