249 P.3d 794
Colo.2011Background
- Upper Yampa District seeks a conditional water right (50 cfs, reduced to 40 cfs) for Morrison Creek to Stagecoach Reservoir for multiple uses, including storage; direct flow vs storage issues arise; objections from Dequine Family and others; water court dismissed based on anti-speculation doctrine and lack of demonstrated need; District argues water could be used on direct flow by passing through Stagecoach Dam to increase reservoir firm yield; the record shows substantial existing rights and contracts exceeding Stagecoach capacity; a key contract with Tri-State involves 7,000 acre-feet not tied to a current plan; Court analyzes need, speculation, and planning requirements under Vidler, Bijou, Pagosa I/II; Court affirms dismissal for failure to prove need to satisfy anti-speculation doctrine; issues surrounding combining direct flow and storage rights were not resolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Need to prove non-speculative use for conditional right | District argues contracts show demand and need for water | Opponents say contracts alone are speculative without plan for use | Need not proven; contracts alone insufficient |
| Storage alone cannot establish beneficial use or need | District relies on storage commitments to meet future needs | Storage or future use must be tied to specific plan and need | Storage commitments not a beneficial use; need requires specific plan and intent to use water |
| Can direct flow and storage be decreed together without plan and need | District contends a combined decree is permissible with a sufficient need | Combination requires explicit plan and demonstrated need | Not resolved; regardless, no decree without demonstrated need and plan |
Key Cases Cited
- Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (Colo. 1979) (anti-speculation doctrine; prohibits speculative sales/ Transfers)
- Bijou Irrigation Co. v. Colorado River Water Conservation Dist., 926 P.2d 1 (Colo. 1996) (government planning exception; need substantiation based on future growth)
- Pagosa Area Water & Sanitation Dist. v. Trout Unlimited, 219 P.3d 774 (Colo. 2009) (need and planning requirements for conditional rights; Pagosa II)
- Pagosa Area Water & Sanitation Dist. v. Trout Unlimited, 170 P.3d 307 (Colo. 2007) (Pagosa I; planning period and population projections for governmental entities)
- Rocky Mountain Power Co. v. Colorado River Water Conservation Dist., 646 P.2d 383 (Colo. 1982) (need/commitment relationship to beneficial use)
- American Water Dev., Inc. v. City of Alamosa, 874 P.2d 352 (Colo. 1994) (need to show commitment to actual beneficial use when projecting for others)
- City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996) (anti-speculation; firm contracts require plan/intent for beneficial use)
- People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) (storage not itself a beneficial use; prohibition on speculative storage)