*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., 791 P.2d 1106 (1990) (Castle I), Meadows to determine The first case that we consider arose pumping nontributary Meadows, (Castle of not when Castle Inc. Mead- ows)3 groundwater aquifer by sought from the Denver to Denver Ba- separately Savings 1. cases were tried and These decided. 3.The action was instituted Lincoln purposes Association, We ordered them consolidated for briefing prede- and Loan Castle Meadows’ argument only. convenience, however, cessor in interest. For we will refer to Castle Meadows as the relevant jurisdiction have over these cases virtue party in this case. Const, VI, § of Colo. art and of 13-4- 102(1)(d), (1987), statutorily 6A C.R.S. On June Parker Water and Sanita- appeals’ jurisdiction excludes from the court of appeals (Parker) tion District filed a motion with the judgments from final of district courts seeking district court to intervene in the action adjudi involving priorities in cations.” See cases "[w]ater 1(a)(2). C.A.R. also provide ground seeking approval sin4 water to service to The plan. such a It Development, planned commu- proposed several means satisfying Rock, nity located near Castle Colorado. percent replacement four obligation, includ- specific right now at issue is based on ing use of discharges direct from the devel- a decree Castle Meadows obtained opment’s wastewater plant, treatment tak- 1987, entitling April of it to make annual ing credit for return flows that result from 2,990 withdrawals acre-feet of irrigation overlying property, and through its Denver wells. discharges use of direct of nontributary The decree established that this water is and not nontributary ground water from nontributary”5 ground “not various wells. The district court deter- overlying property is located more than mined that Castle Meadows’ was suffi- *4 any point one mile from of contact between obligation cient to meet its under section aquifer any the Denver natural stream. 37-90-137(9)(c) to return to the natural Thus, pursuant 37-90-137(9)(c), to section system percent stream four of the amounts (1990),6 provided the C.R.S. decree that are withdrawn annually. aug- This as a condition to the to use this however, plan, mentation extended ground water Castle Meadows was re- quired judicial years approval to obtain of a those that water is actually pumped augmentation ensuring replacement for the Although from the wells. the court found percent of four of the amounts withdrawn that Castle Meadows’ withdrawals will annually. “some continuing depletive have effect on the Consequently, stream October of after 100 Castle application Meadows filed an in the years,”7 require district it did not that water be appear or in the alternative to as nontributary amicus curiae. ter impose aug- that is do not Opposition requirement It also submitted a Statement of upon applicants con- mentation who testing proposed by the terms and conditions seek to withdraw such water. See §§ 37-90- opposers application. 137(1), (2), (4), (6); 37-92-305(11), to Castle Meadows’ 15 C.R.S. and, accepted (1990 The court Supp.). this statement on Au- & 1992 13, 1990, gust granted Parker leave to intervene proceedings. appeal, pertinent part, 37-90-137(9)(c) sup- On Parker In provides § 6. ported position in these response cases and filed a brief in to the state completed to wells [a]s which will be in the engineer concurring arguments pre- with the Dawson, Denver, Arapahoe, and Laramie-Fox applicants. sented Parker will therefore aquifers ground Hills and will withdraw wa- applicants. be included in our references to the groundwater, nontributary ter which is not 37-90-103(10.5), judicial defined in section composed The Denver Basin is of four differ- approval plans shall be Dawson, Denver, aquifers, Arapahoe, ent required prior ground to the use of such wa- ground and Laramie-Fox Hills. Withdrawals of completed ter.... As to such wells in the aquifers governed by water from these is 37- § Denver, Arapahoe, aqui- or Laramie-Fox Hills 90-137, (1990 Supp.). 15 C.R.S. & 1992 any point fers more than one mile from any including contact between natural stream “Nontributary groundwater” 5. is defined in its alluvium on which water injuriously would be (cid:127) 37-90-103(10.5), (1990), 15 C.R.S. to mean by any depletion, affected stream water, ground located any aquifer, outside the bound- pro- such decrees shall any designated ground aries of water basins replacement vide for to the affected 1, 1985, January in existence on the withdraw- system systems of a total amount of not, al of which will within one equal percent hundred to four of the amount of years, deplete the flow of a natural stream ... water withdrawn on an annual basis.... greater at an annual rate than may require one-tenth Such decrees also the continua- percent one of the annual rate of replacement withdrawal. tion of after withdrawal ceases if Although legislative there is no necessary definition of compensate nontributary groundwater,” phrase "not depletions by prior caused withdrawals from 37-90-137(9)(c), (1990), used §in 15 C.R.S. statutory such wells and shall meet all other statutory provision requires judicially ap- plans. criteria for such proved plans to be included in withdrawing determining decrees for from the four may Denver the amount of water that ground withdrawal, aquifers Basin water that does not meet be decreed for annual legislature’s nontributary. years definition of The life of 100 is assumed. § 37-90- governing 137(4)(b)(I), (6), (1990 statutes the withdrawal of Supp.). wa- 15 C.R.S. & 1992 and, so, impose if terms and condi- from the wells replaced after withdrawals augmentation to on its allevi- period. tions cease—the injury. Meadows’ at 1114.8 approved Castle ate that Id. therefore court ap- its augmentation, and because plan for remand, held an the district court On April condition proval satisfied hearing ex- evidentiary in which several 29,1988, decree, entered on December post- as to the perts testified entitling Cas- judgment and decree a final depletions. Based withdrawal 2,990 acre-feet to withdraw tle Meadows hearing presented evidence annually. aquifer groundwater Denver again concluded appealed judg- The state- after accrue to the stream ment, contending that Castle Meadows’ As set forth ceases its withdrawals. satisfy sec- augmentation did plan February ruling, contained in its 37-90-137(9)(c). last Arguing that the Fact, Supplemental Findings of Conclu- statute, supra note of that see sentence Law, Decree, Judgment sions compensation be made requires that preponderance court found that after accruing to a stream depletions “will evidence is that the total cease, the state ground water withdrawals [per year] that 8.7 acre-feet nor not be less Meadows’ engineer asserted that Castle *5 [per year].”9 It more that 27.2 acre-feet post-pumping provide for such failure to determined, however, depletions that plan augmen- for replacements rendered injurious. reaching In this con- will not be agreed with the inadequate. tation clusion, impact considered the the court engineer therefore held Castle state development and urbaniza- that increased I that surrounding land areas will tion of the injuri- is made that a determination once amounts of water to have on the available rights, depletions vested water ous to in the form of runoff. It stated the stream not nontribu- by withdrawal of caused that Dawson, tary ground from the Denver, Arapahoe and Laramie-Fox pumping involved here is connec [t]he pumping after ceas- aquifers, Hills occur municipal-type development in tion with 37-90-137(9)(c) es, section mandates Rock area. There will be addi Castle augmentation replace such plan for impermeable pavement and roof tional depletions. area, types vegetation pres different ent, in changes other which will Because the district 791 P.2d at 1113-14. stream. crease the returns to surface post-withdrawal de- had found that court preponderance of the evidence is accrue to the stream but pletions would returns to the stream that the additional depletions injuri- to not find such be “did greater by will be caused urbanization rights, we remanded to other water ous” pumping after depletions than the due to court to consider whether the case for the years.[10] cause such pumping will Castle Meadows’ 1990, predicted April expert Castle Meadows opinion 9. An an initial on 8.We issued depletions years pump- in which we concluded caused of continuous after the end of 100 rights by exercise of its Castle Meadows’ of 27.2 acre-feet there will be reduction nontributary ground water in the not to the Denver and therefore system. per year In in the South Platte stream injurious to water will be contrast, engineer’s expert testified that the state case the water remanded the post- result in Castle Meadows’ withdrawals will prevent impose conditions to terms and court depletions approximately stream withdrawal May injury. we modified this On year. per acre-feet form, leaving present for the trial opinion to its from the evidence court to determine represent The "returns to the surface stream" inju- post-withdrawal will be petition aqui- other than the Denver then filed a water from sources The state rious. here, rehearing asking our modifica- period us to review a matter of law that such issue for the of time fer wells at and to hold as following is that cessation under consideration peti- June will occur. On pumping from those wells. and stricken. tion was denied offsetting ground water, producing the increased runoff wells After and return irrigation from the area’s flows or near the land. is to result against the amounts of reviewing application, After Castle Pines’ expected to accrue 37-92-302(2), engineer13 see the state pump- Castle Meadows’ stream virtue ground found that the water was not non- ing, the court concluded that the judicial approval and that aof and that depletions will be required would be Castle Meadows’ before the water could used. In the 37-90-137(9)(c). The satisfied section engineer’s view, satisfy state in order to therefore reconfirmed its December requirements 37-90-137(9)(c), of section 1988, judgment as supplemented. so Castle Pines needed to replace- ensure the

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, 791 P.2d at 1111. due eradi- the increases flows to ute unclear, language If the a statute is we phreatophytes and creation of cation indicators, may rely including on several may surfaces not be impermeable land object legislature sought to 37-92-103(9), recognized. C.R.S. § enactment, obtain the circumstances apply statutory provisions do not These adopted, under which it was and the conse not a present case. This case is quences particular construction. Section not because it is -203(1)(a), (b), (e), (1980); 1B 2-4 C.R.S. sup- increase the program detailed Dist., Regional Transp. v. 800 Woodsmall use ply water available beneficial (Colo.1990). P.2d 67 We must also be in a [division]. Assembly mindful that when the General added.) (Emphasis adopts presumed legislation, cog it is to be dis- engage need in the semantic precedent judicial relating nizant of to the parties us to make tinction wish subject inquiry. People matter under ex these decline resolve cases therefore Thornton, City rel. Danielson v. 775 increases determine whether (Colo.1989); People n. 7 P.2d appli- in runoff that result from the Green, (Colo.1987). 734 P.2d Be surrounding land development of the cants’ presume legislation cause we also is actually areas is just intended to have and reasonable ef flow, whether, analogous a return fects, according we must construe statutes proposed their use of the an incident of ly and them as to apply so ensure such Regardless any characterization water. Woodsmall, 2-4-201(1)(c); results. adopt, that it would we we believe would 67; S.O., P.2d at P.2d Petition purpose contravene the of the 1975 amend- *9 37-92-103(9) (Colo.1990). to section to allow 258 ment impermeable of land sur- from their wells cause of faces. creation will contribute to urbanization of the area which in turn will increase the impermeable amount of terrain and will cause question is not return flow 16. The runoff pump- increased runoff will continue after that production applicants' Denver ing has ceased. wells, nor do contend argument is use of water it is. Their

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 529 P.2d 1321 where we utilization,” goal ate the of “maximum in persons held that could not obtain water cluding underground use of as much water rights free from priority system See, Ranch, possible. e.g., Kelly 191 clearing phreatophytes (water land of con Colo, 304; 74, 550 P.2d at Hall v. Kui suming plants), thereby making available 329, per, 181 Colo. 510 P.2d to the stream water that plants previ (1973); 320, People, Fellhauer v. 167 Colo. ously expressed consumed. We our con 336, 986, (1968). 447 P.2d At the same cern recognizing rights would time, however, always our eases have rec create an persons incentive for to eradicate ognized countervailing that the sometimes vegetation, thereby maximizing utilization protection interest rights of vested must of water to the detriment of other re See, given effect. e.g., Danielson v. sources, stating: AG., Inc., 363, Kerbs 646 P.2d 370-72 We are not unmindful that the statute (Colo.1982)(although ground water in des 37-92-102(1)(a) speaks policy [§ ] ignated subject is prior basins to a modified of maximum integrated beneficial and appropriation permit doctrine to the full use of surface and subsurface water. resource, pri economic But uplift efficacious use does not mean appropriators protected must be and a ing one natural resource to the detriment change place in the right of use of a water of another. The waters of Colorado be therefore be allowed when it does long people, to the but so does the land. in injury); Fundingsland result v. Col effect, There balancing must be a Comm’n, orado Ground Water Colo. the elements of water and land must be 487, 496-97, 835, (1970) 468 P.2d 839-40 in harmony used to the maximum feasi (denial of right appropriate ground ble use both. subject priority system water to the jus is being 191, tified when that mined from Id. at 529 P.2d at 1327. See also R.J.A., proposed basin so that the Inc. v. Water Users Ass’n Dish appropriation 6, 823, would result (Colo.1984) unreasonable No. 690 P.2d 828-29 rights). adopting harm to senior (affirming an application the denial of for a Right Water Determination developed and Adminis that entailed the al- tration Act of Assembly the General teration of natural land characteristics expressly recognized protect the need to manner potential that involved various det- soil, wildlife, those who hold vested water and rimental effects on and other required resources, preserved that such un stating policy that the system. der our current implemented See Ch. maximum utilization “must be 148-21-2(2)(a), -(b), sec. sensitivity 1969 with a to the effect on other 1200,1200-01 (now resources”); Colo.Sess.Laws codified Regulations, In re Rules and 37-92-102(2)(a), -(b)) (Colo.1984)(in at section (providing adoption 674 P.2d protection preservation for the regulations by engineer, of exist rules and the state rights). Consequently, goal vested the policy of maximum utilization “does not *10 protect sought endeavor to lature to when enacted require single-minded it a amendment, drop regardless from squeeze every of water this we hold that of [the implemented rather must be but whether the district court treated the ur- source]” significant fac- .proper regard for all “with the applicants’ runoff as an incident of ban tors, including environmental and economic determining purposes use for of whether concerns”). in injurious their result withdrawals will or whether considered legislature responded policy to these part applicants’ plans the the runoff as of it amended section 37-92- concerns when augmentation, for its consideration of this 103(9) phreato- prevent to the removal of of constituting plan aug- factor contravenes the intent section 37- phytes from a Colo., 90-137(9)(e), and mentation. therefore cannot stand. State of Giffen (Colo.1984) (recognizing P.2d by this 1975 amendment as stimulated B Farms). The that this same fact Shelton assumed, however, if Even we prevents runoff water col- amendment also not err in the district court did credit land surfaces that have been lected from in applicants the the increases with serving a impermeable made from as runoff to of accrue result only augmentation of can mean that source development, judgment the area’s must analogous legislature re- intended the indepen on an be reversed alternate persons removing of the incentive for sult Specifically, dent basis. supplies attempt to to increase water ruling ap characterized as an replacing natural land conditions with im- proval plan augmentation a a of or as permeable surfaces. do we find Not injury, determination of of absence purpose clear from the words of the failing erred to consider the rela itself, we it is statute but believe evident replacement tionship between the time wa the amendment is considered within when ter will needed the time judicial background legislative and will be available. Under section 37-92- from which it arose. 305(8), cases, present Turning to we ac- reviewing proposed plan aug- knowledge that the district court’s consid- considering mentation and terms and anticipat- of eration the increases water may necessary to conditions to to the ed accrue injury, the or avoid referee the water development applicants’ result of of judge shall consider the from may goal land serve the of maximiz- areas applicant’s proposed use or use ing beneficial uses of the and that water, time, quantity approved generally have we innovative timing wa- amount increasing means of of water. uses See Colo, ter provided appli- which would be 74-75, Ranch, Kelly at 550 P.2d existence, cant, any, and the if However, allowing any persons owner of or entitled runoff, thereby eliminating credit for this use water under a vested water obligation their under section 37-90- right. a decreed A conditional 137(9)(c) compensate holders of senior shall be sufficient injuries may re- otherwise permit the continuation of withdrawals, diversions clearly would sult their when curtailment would otherwise be re- purpose legislature's undermine the quired to meet senior call for of a a valid amendment to definition water, applicant to the extent that the augmentation contained section 37-92- 103(9).17 provide replacement give Because we must effect to shall water neces- countervailing legis- requirements that the meet the sary interests lawful 103(9) recognize prohibits 17. We that increased runoff will be an consideration runoff without urbanization, prod- regard underlying incidental effect of intent to the creation uct of purpose effort conducted with the impermeable surfaces. achieving result. 37-92-

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 550 P.2d at 294 depletions will be matter of (senior injured users not where di presents engineer law. The state two al “ displace version did not ‘from grounds urges ternative on which it us to ”) (emphasis place time and of their need’ injury find a matter of law will Farms, original) (quoting Shelton applicants’ result from the withdrawals. It 1326). at P.2d Colo. at also See argues first that the district court’s undis 37-92-502(2)(a)(existence section “mate puted subject determinations injury” rights triggering rial to senior nontributary, water is not taken duty engineer of a division to discontinue together findings with the factual particular “depends all fac diversions court, conclusively establish that vested tors which will determine in each ease the rights will injuriously be affected. amount of water such will discontinuance Second, the state contends that priorities make available to senior rulings contain im district court’s need”). of their place time and plicit injurious post- determination that cases, present In the the district court’s withdrawal occur if will pre- anticipated reliance on increased urban runoff cannot be rights vent to senior fails to account as an We are per considered offset. not possibility may argument for the that this runoff suaded either and therefore same be available at the times that vested remand the cases to district court rights may injured by again low surface flow consider whether holders of water Specifically, in the stream. Mead- injuriously by post- affected post- expert depletions. ows’ own testified that withdrawal diversions, ruling many Nor does the district court’s address above senior on remand whether holders of other water will be should there the court evaluate whether will be adequately protected in locations terms of the replacement in where differences is made they from which are entitled water. to divert available where it is needed and whether engineer suggests Because the state pletions the de- injury. these differences will cause points will accrue the stream at *12 cases, Although engi- has no determinations. state engineer cited The state none, following we presents arguments in which and we have discovered neer as injury contrary, persuade determined the existence they have do not us that law, do so and we decline to a matter in error and that the issue of we were injurious The present issue of cases. a injury can be resolved as matter of law. specific one for inherently is fact and effect engineer argues The state that the first factual always required which we have depletive applicants’ that the effect with- See, findings. e.g., Application In re will on the stream cannot be drawals have (Colo. P.2d Rights, 799 37-38 Water de considered minimis must be deemed 1990) change right (applicant a of water significant. Asserting legally then that the proposed proving bears burden already to the depletions will accrue over- although change injury; will not result system on appropriated South Platte River authority to courts exercise broad water year-around take a basis will therefore injury and to determine will result whether place at times senior are call- when rights, protect holders of vested water ing, engineer the state contends that findings to clari further are needed where necessarily depletions injurious will imposition of a decree fy basis matter of law. condition, find case remanded for such Colo, 318-19, Weibert, 618 ings); 200 at fails, however, argument This as (requiring at court to con P.2d 1373 water no appropriate legal there is basis on-which we could arrive “the stan sider facts significance determining a at a conclusion as to the of the adequacy dards” deple- under section 37- effect that plan 92-305,19 requires approval of such a have stream. which tions will on the The state injuriously if it will not affect vested us find would have that because rights); decreed water Hal conditional the water the seek to withdraw Granby lenbeck v. Ditch and Reservoir qualify “nontributary ground does not as 555, 572-74, Co., P.2d 37-90-103(10.5), 160 Colo. under sectipn water” (case (1966) court for remanded to trial definition the of that water will withdrawal asserted factual determination legally impact significant on the have injury specific will exist and whether however, argument, That rests on stream. protect against injury). can assumption legisla the erroneous a legal ture codified in that statute defini Furthermore, implicitly rejected the we 37-90-103(10.5) injury. de Section engineer’s matter argument that as a state nontributary groundwater ground fines the post-withdrawal depletions of law will designated ground water outside of certain injurious decided to the stream when we basins “the withdrawal which opinion origi- I. we Castle Meadows not, years, deplete within one hundred nally April issued in that case on of a ... flow natural stream at an annual adopted engineer’s position and the state greater percent rate than one-tenth of one projected depletions determined that of the annual rate of withdrawal.” Wheth caused Meadows’ exercise of Castle nontributary groundwater er is therefore is injurious. After will be Castle quantitative dependent upon effect in a challenged Meadows that conclusion upon has that well on a stream but rather petition rehearing, we modified our rate the annual withdrawal and a measure opinion require original the water relationship between that rate and injury” on “to make a determination of Moreover, resulting depletions. I, P.2d at remand. engineer incorrectly that the the state assumes Implicitly, recognized post-pumping nontributary ground stream the withdrawal of not question of whether will, by definition, deplete factual the stream involves will be injury determining is several criteria that are relevant in Our conclusion that existence inherently injury, specific part question supported 37- criteria are to an factual (8) applicant’s proposal. supra, forth See of that statute sets 506-507. 92-305. Subsection period by than ed post-pumping in the more evidence the loss would cause mate- percent amount one-tenth of injury one to the system, rial Gunnison River statutory defini withdrawn. Because overappropriat- we characterized as depletions only during the tion measures ed, applicant failed to offer 100-year pumping period, provides no any evidence that material to senior extent of indication of the would not result. Danielson *13 pumping once ceas will accrue to a stream therefore, recognizes, injury that material 37-90-103(10.5) Consequently, es. section rights to requires vested of others evaluating sig the is not a useful tool factual determinations on based the evi- deple nificance effect that stream presented particular dence in a case. We rights tions vested and does will have on are that approach convinced this is correct injurious not nature of a determine the unpersuaded injury and remain that can be withdrawal.20 as determined a matter of law in the eases further, argues engineer The state how now us. before ever, deple- post-pumping that the annual argument, In second the engi- state by tions as found the district court are urges neer us to find in the district court’s legally significant as a result of their size ruling implicit determination that deple the alone and that it follows that such depletions stream large part injuri- It will be injurious. tions are relies in Jones, upon rights ous to holders of senior if v. 698 P.2d 240 Danielson (Colo.1985), grant anticipated a wherein district court cannot be of a application ed an for determination engi- considered as an offset. The state withdrawing for a well tribu neer findings contends that the court’s that tary water in the Gunnison River injury will not were solely occur based part based conclusion that offset, on that a factor was improperly that that twenty per year additional acre-feet considered, IIA, supra see Part and that applicant sought to “an withdraw was when evaluated without this factor the that quantity infinites[i]mal of.water” analysis court’s shows that it found the adversely appropriators other could not be injurious. disagree. depletions by affected at 249. its withdrawal. See id. ruling Our review the district court’s decision, concluding that We reversed that any implicit does not reveal determination an increase in amount pumping that would result were it not for the legally insignificant” “cannot be considered that expected increases urban runoff are assuming and that erred in the court system. to accrue the stream In Castle injured. senior would not be Id. at I, recognized we that the court argu Contrary engineer’s to the state post-withdrawal ment, previously had found that however, did not rule that a loss we was, depletions per would occur but because twenty year acre-feet law, injurious rights. it determine matter of to senior did not whether Rather, injurious, present- we held that the State had would we remanded the case assumes, incorrectly, groundwater tributary depended The state also was length judicial developed legis that the of time it take the test before on the would water to adopted lature definition in 37-90- stream if it undisturbed section reach a were left but 103(10.5) tributary long to evaluate the nature of also on how it would take the stream to be groundwater pumping based on an was assessment affected water. That designed tributary effects that of water on a withdrawals had test was evaluate char- is, Lundvall, groundwater, Kuiper stream. whether it 187 Colo. acter of had a 1328, (1974), denied, significant 421 U.S. 529 P.2d cert. or de minimis connection to a sur- 2391, (1975), was 95 S.Ct. 44 L.Ed.2d 663 we face stream. Because it based on the taking stated that a centu of time it before “as to ... over amount would take withdraw- stream, stream, ry to reach the character is als the water would be felt upon impact de that the slow of such than minimis" and flow rather the extent have, groundwater nontributary. it We la rendered withdrawals would classification of nontributary, groundwater ter refined this test District 10 Water Users as even under this test, Barnett, judicial relationship Assoc. v. 198 Colo. 599 P.2d bears no to whether its (1979), injurious. determined would be withdrawal may finding applicants’ pump- evidence as basis of such for “consideration groundwa- ing of their decreed amounts of determination. necessary” make that from the will not result did ter Denver The district court at 1114. 791 P.2d deple- injurious de- that stream again found just that and find- For that reason we reverse its tions. but concluded pletions will occur they non-injury judg- the final ings well as evidence showed preponderance of the approv- it in each case doing, the ments that entered In so injurious. will not be applicants’ plans on the offset of urban court relied district However, confirming their to withdraw the finding. for its runoff as a basis Furthermore, ruling subject ground water. we nothing in there is as matter law that the pro- decline to hold suggest that considered whether injurious if will be other depletions will be jected stream *14 into and therefore remand these taken is not to be the urban runoff court determina- here, in to cases to the district for contrast The record account. injury of whether such will result Danielson, evidence of ab- tions contains other applicants’ the withdrawals and district court from injury. It is for the sence of proceedings by any on further necessitated relevant facts based to the determine and, the in- determinations and consistent with at in first those the evidence least by opinion. stance, injury of to the issue resolve to applicable legal standards applying reject the state

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 791 P.2d at 1114. a independent ground of decision because ruling could not favorable issue IV finding injury. my no result in a view, timing ad- erred issue should We conclude that district court considering expected part majority IIB of the is urban runoff dressed and Durkee, Twilley 72 Colo. to the result dictum. v. accrue (1922); land see also United overlying areas P.

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