*1 496 requested jury, the
lesser crime before fully consider jury allows and Division instruction STATE ENGINEER charged and of of the crime Engineer the elements Division No. Water contends was the defendant 1, the offense Opposers-Appellants, 24, Rivera, 186 Colo. v. People involved.” v. 431, (1974). 29, Constitutional P.2d 434 MEADOWS, INC., CASTLE however, “preclude requirements, notice Applicant-Appellee, instruction at of such an the submission attorney by the request of the district and P.2d at 434. “It court.” Id. at say a City Homes; unfair to haphazard and Englewood; would be Cas Sanford prin- on the he must defend defendant that and tleton Center Water Sanitation charge which District; cipal charge any other and Ferris F. Hamilton Revocable Id. at Trust; Community Develop established.” the evidence Bellemah added). According- Atchison, (emphasis Topeka P.2d at 434 Company; ment may only be amended as Railway Company; ly, an information Mission Santa Fe “if no additional the verdict Highlands to form before Viejo Company; Ranch De charged and if sub- offense is Corporation; or different velopment Pines Castle are not of the defendant Metropol stantial Company; Castle Pines Land 7(e). District; prejudiced.” Crim.P. North Met Castle Pines itan District; ropolitan C.P. Commercial Rowe, prosecuting at- not the Only Inc.; Properties, and Parker Water and at the torney, could submit an instruction District, Opposers-Appel Sanitation passion theo- a heat of close of evidence on lees. seeking mitigate the level of ry, thereby originally prosecution The the offense. and Division STATE ENGINEER first-degree as- charged Rowe with Engineer No. for Water Division Thus, sault, the time felony. a class 3 1, Opposers-Appellants, put filed, Rowe was information was required to defend that he was notice prosecution felony. against a class DIS PINES METROPOLITAN CASTLE first-degree assault attempted to cast TRICT; Company; Land Pines felony, as a passion, a class 5
heat of Companies; and Friedkin the Friedkin assault, first-degree charge than different Inc., Investments, Applicants-Appel Rowe did not have charge against lees, defend, charge added with- and a notice to after the conclusion out Rowe’s consent dictate that trial. Rivera and Cooke City Englewood and Centennial is entitled to invoke only the defendant District, and Sanitation Water “mitigation” at passion of heat of benefit Opposers-Appellees. the close of trial. 92SA163, 92SA164. Nos. majority’s conclusion agree I with the in this case. trial is warranted that a new Colorado, Supreme Court of En Banc. say that LOHR I am authorized July 1993. KIRSHBAUM, join special in this JJ. only. the result
concurrence Rehearing Aug. Denied *2 Norton, Atty. Gen., Raymond
Gale A. T. Gen., Slaughter, Deputy Atty. Timo- Chief Gen., thy Tymkovich, M. Sol. Patricia S. Gen., Bangert, Deputy Atty. Jennifer L. Gimbel, Atty. Gen., Bradley First Asst. W. Cameron, Attys. A. Asst. Fahmy, and Peter Gen., Denver, for opposers-appellants. Dickson, P.C., Saunders, Snyder, Ross & Holder, Denver, Holly applicant-ap- I. pellee Metropolitan and Castle Pines Dist. Moses, Meadows, Wittemyer, and Wood- Inc. will post- Harrison result Woodruff, ruff, P.C., Charles N. Veronica in the withdrawal South Platte Boulder, Jeffers, Sperling P. injure A. and Steven River that will others who Co., opposers-appellees Viejo Mission rights. hold water In Case Number *3 Highlands Development Corp., and Ranch pur- 92SA164 the district court held a trial and Dist. Centennial Water Sanitation application suant to an filed on behalf of District, Metropolitan Castle Pines Castle Krassa, Lindholm, Madsen, Kumli & Company, Compa- Pines Land the Friedkin Krassa, Boulder, opposer- F.T. Robert nies, Investments, and Friedkin in Inc. appellee Parker and Dist. Water Sanitation sought parties entitling which the a decree appearance following oppo- for the No aquifer ground- them to withdraw Denver sers-appellees: City Englewood, Sanford approving augmentation plan water and Homes, Center and Castleton Water Sanita- in the event that this water was determined Dist., tion Ferris F. Hamilton Revocable nontributary. to be not Because both Trust, Community Development, Bellemah cases raised the issue whether other Atchison, Topeka Railway and Fe Santa injured by post-with- will be Co., Co., Castle Pines Land Castle Pines drawal stream that will result Dist., Metropolitan North Met- Castle Pines applicants’ pumping from the of Denver ropolitan Prop- Dist. and C.P. Commercial aquifer groundwater, the district court en- erties, Inc. single tered a Memorandum of Decision Greer, Howard, Gary & L. Den- Sherman and Order in which determined that no ver, applicant-appellee Pines Castle result then entered Land Co. judgments approving in each case appli- Fendel, P.C., Petrock & Frederick A. proposed plans augmentation. cants’ III, Fendel, Denver, applicants-appel- Because we conclude that the court district Companies Friedkin lees the and Friedkin erred when it considered evidence of addi- Investments, Inc. tional water that will become available the form of runoff as result of increased Opinion JUSTICE LOHR delivered the of development surrounding land areas the Court. determinations, making its we reverse cases,1 In these consolidated the State judgments part and remand the cases Engineer Engineer Division princi- to that court to reconsider under the (collectively, Division No. 1 state Water ples appli- we now set forth whether the engineer) appeal portions judg- those pumping cants’ of their decreed amounts of ments of the District Court for Water Divi- post-withdrawal depletions water will cause approving plans augmenta- sion No. to the surface stream in- that will proposed by in each jure rights. holders of water case.2 In Case the dis- Number 92SA163 evidentiary hearing pur-
trict court held an
I
suant to our order
remand Danielson
A
Meadows, Inc.,
ment not percent four during amounts to be withdrawn those B years pumped it actually ground water but cases, also amounts second these consolidated depleted after cessation of Metropolitan its with- Pines District and Cas- requirement, As drawals. latter Company (collectively, tle Pines Cas- Land engineer sought state a “dedication of a Pines)11 application filed an in Decem- tle quantity of water from an identified renew- change ber 1985 to certain water water supply able source sufficient re- existing held under decrees and place the maximum post-pumping annual adjudicating its a decree withdraw depletive effect” caused Castle Pines’ previously all undeereed withdrawals. 2,508 aquifer underlying from the Denver Rock acres of land in the Castle area.12 It 10,1991, July parties On went to trial sought primary use this water for the subject to resolve the issues of whether the *6 meeting of a purpose proposed of the needs groundwater nontributary was or not non- community development planned on the tributary, whether Castle Pines’ withdraw- Although property. request- Castle Pines in injurious post-withdraw- als would result ed a determination that the water it wished so, depletions, type al stream and if what nontributary ground to wa- withdraw was rights of water Castle Pines could use to 37-90-103(10.5), ter as in section it defined satisfy augmentation requirements the con- sought proposed approval and of a 37-90-137(9)(c). tained In the section provided for replace- single of Memorandum Decision and Order system to of percent ments the stream four the issued both Castle Meadows cases, of its annual in the the withdrawals event the Castle Pines district the court sought court should determine the water to be not Pines a found the water Castle nontributary. proposed right nontributary Castle Pines to to withdraw was not satisfy percent replacement groundwater. its four obli- It therefore held that sec- produced 37-90-137(9)(c) gation seepage required augmenta- with from tion an waters ponds plan providing reservoirs and located on or near the replace- stream overlying property, discharges percent from its direct ments the amount four plant a treatment and from The also wastewater annual withdrawals. court found 9,May Corpo- 11.On the refer to this Resolution Trust convenience we (RTC) collectively as Castle Pines. ration filed motion to intervene in the case proceedings co-applicant based on its asser- rights of, an tion that it had interest in the water initially ownership Pines claimed pursuant right underly- terms was appropriate, ground to the of a deed trust that or a to 2,656 ing process in the land trial then foreclosure. Fried- acres of but before reduced 2,508 Investments, Companies to acres and asserted to with- kin and Friedkin Inc. this groundwater Friedkin) based on that area. (collectively, draw later to succeeded RTC’s acquired an additional interest also interest July Company. Castle Pines Land In a paragraph, from As used in this term "state Engi- engineer" order the district court allowed Friedkin does not include the Division co-applicant. For to intervene in the action as a neer Water Division No. 1. ing impermea- areas of result in the surface become pumping would Pines’ that Castle reversal, ground As a deple- stream ble. second post-withdrawal maximum engineer a matter per year “up argues to and state that as of 15.9 acre-feet tions However, depletions injuri- these will it concluded law years.” after 400 or, in injuri- to other the alterna- would not be ous depletions that these tive, already court has ous, district stating: implicitly ruled that if urban cannot case is in involved pumping [T]he considered, will result. order of cer- the urbanization connection with compensate injurious to for the asserted Rock area. The in the Castle tain lands period, post-withdrawal effect is, evidence preponderance engineer require urges ap- state us to finds, increase in returns that the plicants provide guaranteeing to means by such stream caused the surface adequate prevent replacements in- substantially exceed urbanization jury they put decreed before can their wa- period. post-pumping in the ground ter to use. address each case, Thus, in Castle Meadows’ for reversal in turn. noninjury was based on finding of run- its the amounts increased offset of II off attributable projected post-with- against A the area Thereafter, depletions. drawal engineer challenges The state February the court issued its district in each case court’s determination Law, Fact, Findings of Conclusions post-withdrawal Decree, which included Judgment applicants’ pump that will result from the required Pines was not holding that Castle of their amounts of decreed with- augment the stream after the Denver will not satisfy and that would drawals cease rights. injure those hold other water who obligation by replacing per- four statutory Arguing pumping will have during the annual withdrawals cent of its peri effect in the years through in which water withdrawn od, the state contends Finding proposed Castle Pines’ the wells. applicants’ augmentation failure of the sufficient to meet plans adequate replacements to ensure requirement, the court confirmed Cas- *7 this pre prevent injury the streams to such right tle acre-feet Pines’ withdraw 753.7 judicial approval plans the cludes per year of from the Denver ground water 37-90-137(9)(c)requires. that section The aquifer underlying property. its engineer’s argument premised state on the district the assertion that when court C occur, it injury considered will im whether properly deple- stream engineer urges projected two offset the appeal, the state On First, by grounds engi- tions of water that for reversal. the state the amounts will overlying lands approval the court's become available as the are neer contests water case, developed areas plans argu- in each and increased surface are augmentation the impermeable. engineer ing adequate made The state ar plans do contain gues that ensuring for the re- the court’s consideration this terms and conditions plan post-withdrawal of a placement injurious factor contravenes the definition augmentation state as set forth section depletions. Specifically, the stream 37-92-103(9). agree the district court engineer asserts basing post- its conclusion erred when it considered this factor mak by erred ing applicants not be determination withdrawal stream will compensating need not means of replacement on the include depletions in post-withdrawal are stream depletions by increases runoff that plans augmentation. For that to accrue to the stream as the their anticipated 27, reason, 1992, February developed increas- we overlying lands are reverse augmentation Castle Meadows’ De judgments confirming plan. They disagree, confirming however, cember decree as to nature of the district per acre-feet Pines’ to 753.7 rulings present court’s and whether the year of Denver water and implicate statutory provision. cases the district court for remand cases to engineer state contends that when The reconsidering purpose the limited the district impact court considered the injury issues of to other that increased runoff attributable over- provisions aug included lying development land will have on the plans prevent any injur mentation amount of water available to the stream y.14 system, improperly compressed into a Right Under the Water Determination single inquiry independent questions of and Administration Act of sections inju- will result and whether -602, (1990 37-92-101 to C.R.S. & 1992 ry compensated for through Supp.), plan augmentation origi- was replacements. Arguing that the court ac- nally defined as tually adequacy aug- addressed the of an plan mentation and therefore exceeded the program supply a detailed to increase the purpose hearings, which of water for beneficial use in a was available portion division thereof devel- determine whether opment alternate of new or means or depletions would, themselves, injure oth- points diversion, by pooling of water er rights, the state asserts resources, by exchange projects, statutory the court undermined the by providing supplies of substitute wa- provision precluding urban runoff from ter, by of new sources serving augmentation. source by any appropriate of water or other disagree that the district means. ruling implicitly evaluates a 1, 148-21-3(12), Ch. sec. 1969 Colo. that its so consideration (now Sess.Laws codified as of the increases in urban runoff contra- 37-92-103(9)). amended at section In 37-92-103(9). contrast, vened section legislature amended that statute they appropriately assert the court adding that a considered this as a factor in deter- salvage does not include mining impact the net that the use of their phreato- waters the eradication of decreed amounts of will have on phytes, nor include does it the use system. Relying section 37-92- tributary water collected land 305(8), requires reviewing that in imp been which have made surfaces proposed augmentation plan and determin- thereby ermeable,[15] increasing the may what terms and conditions be nec- *8 adding to the existing but not essary prevent injury, judge to a water supply of water. tributary ap- must consider “the from an plicant’s water,” proposed use or use of 315, 1, 37-92-103(9), sec. Ch. 1975 Colo. § they contend court properly that as- 1397, (emphasis added). Sess.Laws 1397 sessed not the effects of their parties that dispute do not the statute impact water also the withdrawals but that precludes in its amended form use of run- use of this have on off water will the stream. that results from urbanization of supply Specifically, they land areas as a source of for liken runoff to a re- purposes opinion, Our focus on will 15. For whether result to of this we assume rights” rights" parties’ "water or of “water from the the terms holders de- use of “runoff’ and 37-90-137(9)(c), arguments rives from § which uses that “urban runoff” in briefs and their phrase determining purpose appeal of for the as well as from order of the district plan augmentation. a decree must contain court that these were meant to refer to a terms supra being capable See note of waters collected be- 504 a from to be offset these once diverted
turn flow16 that
system,
to
way
anticipated
stream makes its
back
increases in runoff with the re-
con-
reduces the
that the runoff
and assert
circumventing
applicants’
of
obli-
sult
use
the withdrawn
sumptive
of
compensate
gations to
holders of water
into account
must
taken
therefore
injuries
that
otherwise
would
in-
rights will be
assessing whether senior
give
to
effect
occur. So as
to the clear
jured.
La Poudre Water Users
See Cache
preclude
purpose of that amendment to
Meadows,
Colo.
191
v. Glacier View
Ass’n
serving
source
urban runoff
of
290,
(1976)
53, 56, 62,
288,
P.2d
294
550
we
augmentation,
hold
the district
(land
required only
provide
developers
to
court erred when it considered this factor
plan
replace
to
amounts
augmentation
therefore
its determinations
reverse
used; augmentation
consumptively
applicants’
will
withdrawals
not
compensated
diversions
not needed for
injury.
result
flows); Kelly
v. Southeast-
return
Ranch
Dist., 191
Conservancy
ern
Water
Colo.
It
principle
is a well settled
of statu
297,
69,
300,
65,
75,
304
550 P.2d
Colo.
a
tory
primary
construction that
ruling
(1976) (same). The
entered
final
objective
give
is to ascertain
effect to
appli-
supports
case
Castle Meadows’
purposes
for which
General Assem
rendering
cants’ characterization.
bly
particular provision.
a
enacted
Dun
decision the court stated:
Cablevision, Inc.,
lap
Springs
v. Colorado
recognizes
certain situ-
The court
1286,
(Colo.1992);
P.2d
829
1292
Matter of
ations, particularly in
with
connection[]
(Colo.
1236,
Royal,
Estate
826 P.2d
1238
by specific
augmentation,
stat-
plans
1992);
I,
505
37-92-102(l)(a),
legislature
In section
of maximizing the use of our waters must
yield
declared
sometimes
to that interest.
Similarly, although
integrate
up
we continue to
policy
it is the
of this state to
principle
hold the
use,
utilization,
appropriation,
maximum
administra-
recognized
we have
in our
underground
more recent
water
decisions
only
that not
goal
the use of surface water in
must
stream with
yield
protect
sometimes
rights,
way
such a
as to maximize the
vested
beneficial
but that it must also
implemented
be
use of all of the waters of this state.
so as
to ensure that water resources are utilized
principle
This statement accords with the
harmony
protection
with the
of other
many
previous
enunciated
of our
cases
valuable state resources. We made this
waters
our state are such a
Conservancy
clear in Southeastern Colo. Water
scarce and
resource
they
valuable
Farms, Inc.,
st.
Shelton
187
Di
ways
must be administered in
that effectu
181,
(1974),
Colo
507 a senior diverter at the time and loca- withdrawal stream at issue in and to the extent the senior would these cases will accrue to stream “on a by However, deprived year-round be his entitlement basis.” because of lawful applicant’s fluctuating diversion. unpredictable nature of runoff, may urban that water not be avail- added.) (Emphasis These considerations able at times that senior users are regardless of a court are relevant depletions. affected The district assessing injury whether it is evaluat court’s failure to timing consider this dis- augmentation plan. of an adequacy crepancy renders inadequate its conclusion Thus, considering neces whether it is applicants’ pumping of their de- sary compensate vested creed amounts of water from the aquifer rights impacts must injurious be will not after their withdraw- whether, light proposed evaluate of the requires als cease therefore its withdrawals, rights holders of other water determination of of injury absence and its respect from protected injury will be with approval applicants’ plans of the aug- they to the amount of water are entitled to mentation be reversed.18 location receive and the and time at they it. are to receive Weibert v. Rothe
Bros., Inc.,
310, 318-19,
Colo.
618 P.2d
200
Ill
(because
(1980)
aug
applying
be
mentation is to
evaluated
Having determined that the district
application
as an
same criterion
in reaching
court erred
its conclusion that
right,
change of water
trial court should
applicants’
will
withdrawals
not cause
replacement
have allowed evidence of
wa post-withdrawal
depletions injuri
ter, including
timing,
amount
rights,
ous to other water
we now address
available);
was to be made
Glacier View
engineer’s
the state
assertions that these
Colo,
Meadows, 191
at
those facts.
therefore
MULLARKEY, J.,
part
in
concurs
and
argument
the
engineer’s
second
part.
in
dissents
by
applicants’
the
depletions
caused
concurring
part
MULLARKEY
in
Justice
a
of
injurious as matter
withdrawals will be
dissenting
part:
in
involving
question
this is a
law. Because
by
dis-
determined
the
facts that must be
majority
appli-
I
that the
concur with the
court,
we remand these cases for
trict
using
from
urban run-
precluded
cants are
evidence, ex-
consider whether the
court to
plans
part
augmentation
as
of
to
off
their
urban runoff
of the amounts of
clusive
depletions of
compensate
post-pumping
develop-
to
from the area’s
projected
result
nontributary ground
from the
not
of
ment,
applicants’
use
shows that
agree
37-
aquifer.
Denver
I
that section
will result
their
amounts of water
decreed
92-103(9),
(1990),
plan
prohibits
a
C.R.S.
As
injury
in
after their withdrawals cease.
augmentation
including
from
“the use
I,
we stated
Castle
tributary
collected from land sur-
of
waters
court
finds
impermeable,
[i]f
[district]
which have
made
faces
been
injurious,
impose
it
to
shall
depletions
be
thereby
adding
runoff
not
to
increasing
but
aug-
on the
terms and conditions
existing supply of
water.”
injury
by
to alleviate
caused
mentation
part IIB
I
join
I do not
because
believe
depletions....
upon
If
remand the
[the]
we
not
to reach the issue of
do
need
deter-
court is unable make a
[district]
compared
timing
of
runoff
with
as to whether the
mination
The
appropriators.
senior
calls made
injurious,
jurisdic-
it
retain
shall
erred in
opinion holds that the water court
caused
tion on
issue
and that
is
admitting evidence of runoff
depletions for
a
498, 504, 506,
op.
dispositive.
Maj.
at
See
period
appropriate....
time
as
deems
question
timing
is not an
510. The
5H Jesse, (Colo. augmentation P.2d 502-03 used an plan. Thus, States I 1987). the timing believe discussion is fruitless. timing question A arises this case be- cases, however, In other applicant majority cause of what the as the describes attempting prove “fluctuating unpredictable nature” non-injury first quantify amount, must resulting precipitation. urban runoff from timing, and accruing location water to a Maj. op. primary at source by proof probable is more than included in the Mead- Then, applicant not. must show that plans ows and Castle Pines replace this water will applicant’s out- know, is rain water from and snow. As we of-priority draws from the stream. See precipitation infrequent is Colorado Maj. op. at 506-507. If the even nonexistent at times. This fact leads showing finds that such made, has been majority “timing to what the dis- calls and the water finding supported crepancy”. Maj. op. 507. Post-pumping evidence,2 we should affirm the rul- corresponding and the need I ing. must differ the majority here augmentation will occur one hundred or language part because the used in IIB years in applicants’ more the future.1 The objectors seems invite and water courts evidence does not correlate the times in the an impossibly demand exact standard of post-pumping era when rain will fall *15 proof non-injury. accrue to the South show Platte River basin with when the times senior water holders reasons, For these I do join part will make calls for South Platte River wa- IIB the majority opinion. Accordingly, finds, ter. majority precipitation water cannot be used to re-
place would otherwise in the
stream. But even if the man-
aged timing problem to solve the by, e.g.,
impounding the water to make it available demand, approval
plans still would be denied because the statutorily
water is runoff and cannot be Here, 1. Our first decision in case noted evidence neither Castle Pines nor Castle Meadows post-pumping depletions period of hundred for a of two Engineer’s arguments countered the State re- Meadows, years. Danielson garding timing issue. Inc., (Colo.1990). 791 P.2d