Maria Reservoir Co. v. Warner

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ADVANCE SHEET HEADNOTE
April 20, 2020
2020 CO 27No. 18SA244, Santa Maria Reservoir Co. v. Warner—Application for Change of
Use of Water—Native Water—Imported Water—Hydraulic Divide.
The supreme court affirms the water court’s approval of the change-of-use
application submitted by the Santa Maria Reservoir Company (“SMRC”) with
respect to the water it diverts from the Rio Grande into the Closed Basin. Like the
water court, the supreme court concludes that the water SMRC diverts into the
Closed Basin is imported water because it does not naturally flow into the Closed
Basin and, once there, does not naturally return to the Rio Grande. In so doing,
the supreme court rejects the appellant’s contention that the water in question
cannot be imported water because the Rio Grande and the Closed Basin are
hydraulically connected. Instead, since the record establishes that a hydraulic
divide currently exists between the two stream systems, the supreme court finds
them to be unconnected.
Relying on longstanding precedent establishing that downstream users of
return flows from imported water do not have a vested right in the future
importation of such water, the supreme court rules that the appellant was not
injured by the water court’s approval of SMRC’s change-of-use application.
Contrary to the appellant’s contention, the court holds that SMRC is entitled to
fully consume all of the water it imports into the Closed Basin.
Further, the supreme court upholds the water court’s rulings recognizing
the historical irrigation use of SMRC’s water rights on lands served by the Monte
Vista and Rio Grande Canals and the historical irrigation practice of recharging
the unconfined aquifer of the Closed Basin with SMRC’s water rights.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 27Supreme Court Case No. 18SA244
Appeal from District Court
Alamosa County District Court, Water Division 3, Case No. 13CW3002
Honorable Pattie P. Swift, Water Judge
Concerning the Application for Water Rights of the Santa Maria Reservoir
Company in the Rio Grande or its Tributaries.
Applicant-Appellee:
Santa Maria Reservoir Company,
v.
Opposer-Appellant:
Jim Warner,
and
Opposers-Appellees:
Colorado Division of Parks and Wildlife, Colorado Water Conservation Board,
Conejos Water Conservancy District, Costilla Ditch Company, Rio Grande Water
Conservation District, and Richard H. Ramstetter,
and Concerning
Appellees:
Kevin Rein, State Engineer; and Craig W. Cotten, Division Engineer, Water
Division 3.
Judgment Affirmed
en banc
April 20, 2020
Attorneys for Applicant-Appellee:
Carlson, Hammond & Paddock, LLC
William A. Paddock
Mason H. Brown
Katrina B. Fiscella
Denver, Colorado
Attorneys for Opposer-Appellant:
Confluence Water Law LLC
John J. Cyran
Denver, Colorado
Richard L. Arnett
Alamosa, Colorado
Attorneys for Opposer-Appellee Rio Grande Water Conservation District:
Hill & Robbins, P.C.
David W. Robbins
Peter J. Ampe
Matthew A. Montgomery
Denver, Colorado
Attorneys for Appellee Craig W. Cotten:
Philip J. Weiser, Attorney General
Paul L. Benington, First Assistant Attorney General
Denver, Colorado
No appearance on behalf of Colorado Division of Parks and Wildlife, Colorado
Water Conservation Board, Conejos Water Conservancy District, Costilla Ditch
Company, Richard H. Ramstetter, or Kevin Rein.
JUSTICE SAMOUR delivered the Opinion of the Court.
2
¶1 Singer-songwriter Joni Mitchell wrote in one of her hit songs that “you don’t
know what you’ve got ‘til it’s gone.” Joni Mitchell, Big Yellow Taxi (Siquomb
Publ’g Corp. 1970). The sentiment is helpful in articulating our resolution of this
appeal from the District Court of Water Division No. 3 (the “water court”). We
conclude that Jim Warner was not injured by the water court’s approval of the
change-of-use application submitted by the Santa Maria Reservoir Company
(“SMRC” or the “Company”) with respect to the water it diverts from the Rio
Grande into the Closed Basin. Because that water is imported water, SMRC is
entitled to fully consume all of it. The water would not be in the Closed Basin,
much less available for use by Warner and other water users in the Closed Basin,
without its importation by SMRC. Thus, rather than cause an injury to Warner,
the approval of SMRC’s application simply revealed to him that his past use of
return flows from SMRC’s imported water in the Closed Basin was a benefit to
which he had no enforceable right; Warner just didn’t know what he had ‘til it was
gone.
¶2 Warner presents a gumbo of claims in urging us to overturn the water
court’s approval of SMRC’s application. First, he argues that the water court
applied the wrong legal standard in determining that the water SMRC diverts
from the Rio Grande into the Closed Basin is imported. Second, Warner contends
that the water court’s imported-water determination was based on its mistaken
3
conclusion that the Rio Grande and the Closed Basin are “unconnected” stream
systems. According to Warner, the two stream systems are hydraulically
connected, and the water court’s contrary finding ignores its own legal precedent
and this court’s caselaw. Finally, Warner posits that the water court’s decree is
inconsistent with the General Assembly’s efforts to manage the surface and
groundwater systems in the San Luis Valley (the “Valley”). More specifically,
Warner challenges the water court’s definition of imported water as overly broad
and asserts that the decree issued effectively permits the removal of “thousands of
acre-feet” of water from the Valley without regard for the impact of that removal
upon individual water users and the long-term sustainability of water systems in
the Valley.1
¶3 In order to place this appeal in context, we begin by visiting the central
tenets of the prior appropriation doctrine and the principles governing water
users’ rights in imported water. We then transition to an overview of the history
of the administration of water rights in the particular area at issue, Subdistrict
No. 1 of Water Division No. 3 (the “Subdistrict”). An understanding of this
1 Warner also requests that we review the water court’s alternative ruling that even
if the water in dispute is not imported into the Closed Basin, SMRC’s change of
use would not cause a legally cognizable injury to Warner’s water rights. Because
we conclude that the water under scrutiny is imported by SMRC into the Closed
Basin, we need not address this issue.
4
background is important because it simultaneously sheds light on SMRC’s
motivation for seeking the contested change of use and informs our analysis of
Warner’s arguments. We next set forth this case’s factual and procedural history,
followed by the governing standard of review. We end by analyzing the merits of
the claims raised by Warner. Because we conclude that the water court’s factual
findings have record support and that the water court correctly interpreted and
applied Colorado law, we affirm its judgment.
I. Relevant Legal Principles
¶4 Under Colorado law, use rights pertaining to water that’s “native”2 to a
public stream are governed by the doctrine of prior appropriation. City of
Thornton v. Bijou Irrigation Co., 926 P.2d 1, 65 (Colo. 1996). Pursuant to this
doctrine, “[t]he first person to divert unappropriated water and to apply it to a
beneficial use has a water right superior to subsequent appropriators from the
same water resource.” Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1377 (Colo.
1982). Though subsequent users may appropriate water from the same source,
those subsequent users (whose rights are “junior” to the prior appropriator’s) may
2 “Native” water refers to surface and underground water naturally occurring in
a watershed. See Native Waters, R. Waskom & M. Neibauer, Glossary of Water
Terminology, Colo. St. U. Extension (May 2012),
https://extension.colostate.edu/topic-areas/agriculture/glossary-of-water-
terminology-4-717/ [https://perma.cc/DP3A-RDTY].
5
not appropriate water to the extent that it diminishes the amount needed by the
previous water users (“senior” rights holders). See Colo. Const. art. 16, § 6;
§ 37-92-103(10) C.R.S. (2019); Burlington Ditch Reservoir & Land Co. v. Metro
Wastewater Reclamation Dist., 256 P.3d 645, 661 (Colo. 2011). Regardless of how
senior one’s water right may be, however, the prior appropriation doctrine only
entitles water users to use as much water as they actually need—any surplus water
remaining after an appropriator’s initial use, e.g., return flows, must be allowed to
return to the stream from which it came so that it is available for use by
downstream water users. Pulaski Irrigating Ditch Co. v. City of Trinidad, 203 P. 681,
682 (Colo. 1922). This requirement speaks to the concept, central to Colorado’s
prior appropriation doctrine, that water users must avoid causing injury to the
rights of other users.3 See, e.g., § 37-92-302(2)(a), C.R.S. (2019).
¶5 Notably, though, the concern about injury to downstream water users isn’t
present in the context of water that has been “imported” to a stream system or
watershed.4 This is so because “the ability of downstream users to divert imported
3We defined “injury” to a water right in Burlington Ditch, 256 P.3d at 661, as a
“diminution of the available water supply that a water right holder would
otherwise enjoy at the time and place and in the amount of demand for beneficial
use under the holder’s decreed water right operating in priority.”
4Over time, this court has come to treat “imported,” “foreign,” and “developed”
water similarly. See, e.g., Bijou, 926 P.2d at 66 (“‘[F]oreign water’ includes
nontributary groundwater introduced into a stream as well as water imported
6
water exists entirely at the sufferance of the importer.” Bijou, 926 P.2d at 72; see
also id. at 71 (“[D]ownstream users of return flows from foreign waters gain only
a right in the water that they actually divert and do not have a vested right in
future importation.”). Accordingly, “a different standard has evolved for water
that is brought into a watershed or stream system from a source unconnected with
the receiving system.” Id. at 66.
¶6 This different standard traces back to a case from the early twentieth
century, Ripley v. Park Center Land & Water Co., 90 P. 75 (Colo. 1907), which dealt
with developed water added to a stream by the petitioner’s own efforts. Id. at
76–77. In Ripley, the dispute centered on underground water that had been
extracted as part of mining operations and diverted into a nearby stream where
the petitioner sought an exclusive right to use it. Id. at 75. Prior appropriators on
the stream objected, arguing that the water was subject to the same priority system
for water native to the stream. Id. at 76. We disagreed, concluding that “such
water[] . . . formed no part of [the stream’s] natural flow[] and never would have
come into the stream” in the first place “had it not been for the efforts of
from an unconnected stream system.”); id. at 66 n.59 (referring to “water extracted
from an underground source unrelated to the natural flow of the stream” as
“developed water”); City & Cty. of Denver v. Fulton Irrigating Ditch Co., 506 P.2d
144, 147 (Colo. 1972) (“[W]e see no distinction between the rights of owners of
developed water from a mine and the rights of Denver as to its imported water.”).
7
petitioner.” Id. at 75. Therefore, we held that the petitioner had an exclusive right
to use and collect the extracted water—one that existed separate and apart from
the priority system in the stream. Id. at 76–77.
¶7 We applied this precept in Comrie v. Sweet, 225 P. 214 (Colo. 1924):
[O]ne who artificially develops or produces water and adds or turns
the same into a natural stream, which water would not in due course
otherwise have reached the stream on the surface or in the underlying
sands, may acquire a right thereto superior to the adjudicated rights
of earlier appropriators of the natural waters of the stream . . . .
Id. at 214. Twenty-seven years later, we reaffirmed the principle in Brighton Ditch
Co. v. City of Englewood, 237 P.2d 116 (Colo. 1951), this time in the context of water
imported by transbasin diversion. There, the City of Englewood sought, among
other things, to change its point of diversion in the South Platte River. Id. at 118.
Downstream appropriators objected based on the expected decrease in
transmountain water return flows from which they benefited. Id. at 118–19. But
our court rejected their argument, explaining that “appropriators on a stream have
no vested right to a continuance of importation of foreign water which another has
brought to the watershed.” Id. at 122. Because the water in question was not native
to the stream, we found that the City of Englewood had no obligation to maintain
the return flows for downstream appropriators. Id. Thus, “Brighton Ditch suggests
an implicit recognition that an importer has a greater right to use the water for its
8
own beneficial purposes than do appropriators of native water.” Bijou, 926 P.2d
at 66.
¶8 The imported water doctrine was subsequently codified by the General
Assembly as part of the Water Right Determination and Administration Act of
1969. Id. at 66–67. Section 37-82-106(1), C.R.S. (2019), provides:
Whenever an appropriator has lawfully introduced foreign water into
a stream system from an unconnected stream system, such
appropriator may make a succession of uses of such water by
exchange or otherwise to the extent that its volume can be
distinguished from the volume of the streams into which it is
introduced. Nothing in this section shall be construed to impair or
diminish any water right which has become vested.
¶9 Though the right to reuse imported water to exhaustion “existed
independently of the statute,” the passage of “[s]ection 106(1) expressly establishes
that the rules applicable to foreign water differ from the rules that govern the use
of native water.” Bijou, 926 P.2d at 67. Whereas appropriators of water native to
a stream generally may not reuse or make successive use of water after initial use,
“a plain reading of the [imported water] statute suggests that legal importation of
foreign water is the only prerequisite for future reuse and successive use of such
water.”5 Id. at 68–69. This makes sense for two reasons. First, but for the
5“Reuse” refers to a subsequent use of the imported water for the same purposes
as the original use; “successive use” refers to a subsequent use of the imported
water for a different purpose than the original use. See Fulton, 506 P.2d at 146–47.
9
importer’s efforts, the water would not be in the basin of use to begin with. See
City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148, 154 (Colo. 1990). Second,
allowing importers of foreign water to reuse and make successive use of that water
helps ensure they don’t divert more water from the basin of origin than is
necessary. See Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., 2016 CO 75,
¶ 48, 386 P.3d 452, 465 (“Importers of foreign water are accorded wide latitude as
to the use and disposal of the water in the basin of import in order to allow the
flexible and efficient use of foreign water and to minimize the amount of water
imported . . . .”); Fulton, 506 P.2d at 148 (“In order to minimize the amount of water
removed from [the basin of origin] . . . importers should, to the maximum extent
feasible, reuse and make successive uses of the foreign water.”).
¶10 Changes to imported water rights aren’t subject to the restrictions that
changes to native water rights are. In the context of native water, section
37-92-305(3), C.R.S. (2019), requires an applicant to show that the proposed change
won’t cause injury to other water users. But when a change-of-use application is
related to imported water, the “no-injury” requirement of section 37-92-305(3)
doesn’t apply because of the “common law rule that downstream users of return
flows from foreign waters . . . do not have a vested right in future importation.”
Bijou, 926 P.2d at 71. Therefore, imported water is “exempt from the restrictions
of section 37-92-305(3).” Id. at 73; see also Bd. of Waterworks of Pueblo, 793 P.2d at
10
154 (“Because these actions involve foreign water and are addressed by section
37-82-106 . . . the general change of water right criteria . . . are inapplicable.”).
¶11 The only injury legally possible from a change to imported water rights is if
the change increases the historical amount, rate, or length of time of diversion so
as to adversely affect junior priorities in the basin of origin. Robert V. Trout et al.,
Acquiring, Using, and Protecting Water in Colorado 147 (rev. ed. 2011). Thus, a water
court may impose terms and conditions to ensure that the amount of water
diverted from the basin of origin doesn’t change compared to historical practice.
Id.
¶12 With this recap of the pertinent law as a backdrop, we now turn to review
the history of the administration of water rights in the Subdistrict. This historical
background, in addition to being the linchpin to understanding the impetus for
SMRC’s change application, contextualizes Warner’s contentions.
II. Historical Background of the Subdistrict
¶13 As the water court observed, the Valley, which is located in south-central
Colorado, spans approximately ninety miles from north to south and fifty miles
from east to west. Findings of Fact, Conclusions of Law, Judgment and Decree,
Concerning the Application for Water Rights of the Santa Maria Reservoir Co., Case No.
13CW3002 (Dist. Ct. Water Div. 3 June 1, 2018) (2018 SMRC Decree), ¶ 46. It is
sandwiched between the Sangre De Cristo Range (to the east) and the San Juan
11
Mountains (to the west). Id. at ¶ 99. The Rio Grande enters the Valley on the west
side near Del Norte and continues in a southeasterly direction through Monte
Vista to Alamosa, where it takes a southerly course for nearly forty miles and,
passing through a break in the San Luis Hills, flows into New Mexico. Id. at ¶ 46.
In Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. 2008), we described the
unique water systems of the Valley as follows:
The Valley contains underground water in the form of a confined
aquifer and an unconfined aquifer. The unconfined aquifer lies above
the confined aquifer, and it is directly connected with surface streams
in some places. Below the unconfined aquifer lie “relatively
impermeable beds of clay and basalt,” which separate the unconfined
aquifer from the confined aquifer. The layers of clay and basalt do
not exist around the perimeter of the Valley, and so surface water
recharges the confined aquifer system at those edges.
Id. at 255 (citations omitted). The illustration below depicts a cross-section of
generic confined and unconfined aquifers:6
6 See Aquifer, Nat’l Geographic, https://www.nationalgeographic.org/media/
aquifer-illo/ [https://perma.cc/6KSU-JT9P].
12
¶14 There are multiple geographic regions within the Valley. One of those, the
Closed Basin, is of particular relevance here. Below is a map outlining the area of
the Closed Basin within the Valley (the Valley is depicted by the purple outline):7
7 See Jingyi Chen et al., Confined Aquifer Head Measurements and Storage
Properties in the San Luis Valley, Colorado, from Spaceborne InSAR Observations,
Water Res. Research (April 21, 2016) https://doi.org/10.1002/2015WR018466
[https://perma.cc/K5U2-X46C].
13
¶15 The Closed Basin is a watershed north of the Rio Grande that is separated
from the Rio Grande and its tributaries by both a topographic divide and a
hydraulic divide.8 2018 SMRC Decree, ¶ 50. As a result of the topographic divide,
surface streams entering the Closed Basin do not flow into the Rio Grande. Id. at
¶ 51. Instead, they flow toward the “sump,” which is the topographic low point
of the Closed Basin. Id. The hydraulic divide has the same effect: Groundwater in
the unconfined aquifer of the Closed Basin flows to the sump, not to the Rio
Grande. Id. Groundwater pumping occurs primarily in two regions of the Valley,
the Closed Basin and the Conejos and Alamosa River Valleys, and is critical to
support the thriving agricultural economy in the high-altitude desert-climate of
the area. Jingyi Chen et al., Confined Aquifer Head Measurements and Storage
Properties in the San Luis Valley, Colorado, from Spaceborne InSAR Observations, Water
Res. Research (April 21, 2016) https://doi.org/10.1002/2015WR018466
[https://perma.cc/K5U2-X46C].
¶16 Irrigation and recharge practices play an important role in the hydrology of
the Closed Basin and, notably, affect the location and status of the hydraulic
8 The “hydraulic divide” refers to a ridge in the groundwater table that lies north
of the Rio Grande and extends generally from northwest of Monte Vista to east of
Alamosa. It is approximately at the southern boundary of the Closed Basin. This
ridge prevents the natural movement of unconfined groundwater from the Closed
Basin into the Rio Grande. See Alamosa-La Jara Water Users Prot. Ass’n v. Gould,
674 P.2d 914, 943 (Colo. 1983).
14
divide. 2018 SMRC Decree, ¶¶ 70–79. As the water court explained, “large-scale
importation of water into the Closed Basin . . . created the hydraulic divide,” and
the hydraulic divide’s “location varies in response to climatic conditions and
irrigation practices.” Id. at ¶ 75. Historically, well-pumping within the Closed
Basin has had the effect of diminishing the hydraulic divide, which in turn has led
to injurious depletions to the Rio Grande. See Findings of Fact, Conclusions of Law
and Order, Concerning the Office of the State Engineer’s Approval of the Plan of Water
Mgmt. for Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.,
and In re Rio Grande Water Conservation Dist., Case Nos. 07CW52 and 06CV64 (Dist.
Ct. Water Div. 3 Feb. 18, 2009) (2009 Subdistrict Decree), ¶ 59. In addition,
well-pumping in the Closed Basin has depleted the surface streams and aquifers
in the Closed Basin—a system that has long been understood to be
overappropriated. See, e.g., Alamosa-La Jara Water Users Prot. Ass’n v. Gould,
674 P.2d 914, 918 (Colo. 1983) (“By 1900, the natural flow of all surface streams in
the [V]alley was over-appropriated.”). Though efforts have been undertaken for
years to offset these depletions, ultimately, it was “[t]he significant drought of the
early twenty-first century [that] increased the urgency for a sustainable water
supply solution” in the Closed Basin. San Antonio, Los Pinos & Conejos River
Acequia Pres. Ass’n v. Special Improvement Dist. No. 1 (San Antonio I), 270 P.3d 927,
933 (Colo. 2011).
15
¶17 In 2004, the General Assembly took up this issue and adopted Senate Bill
04-222 (“SB 04-222”), which requires the State Engineer to focus on the
sustainability of the Closed Basin’s aquifer system by regulating the confined and
unconfined aquifers so as to “maintain a sustainable water supply in each aquifer
system.” § 37-92-501(4)(a)(I), C.R.S. (2019). The passage of SB 04-222 also offered
water users in the Valley “the opportunity to work together to protect senior water
rights by collective actions” aimed at reducing “water use in general via the
formation of subdistricts.” Findings of Fact, Conclusions of Law, Judgment and
Decree, In re Confined Aquifer New Use Rules for Div. 3, Case No. 04CW24 (Dist. Ct.
Water Div. 3 Nov. 9, 2006) (2006 Confined Aquifer New Use Rules Decree), ¶ 417;
see § 37-92-501(4)(b)(I), (c). A group of water users in the Rio Grande Water
Conservation District (“RGWCD”) followed suit and developed the framework
for what would become the Subdistrict (the Subdistrict’s formal name is “Special
Improvement District No. 1 of the Rio Grande Water Conservation District”). 2009
Subdistrict Decree, ¶ 20. The designated goal of the Subdistrict was the
management of groundwater in the Closed Basin. Id. at ¶¶ 20, 38.
¶18 Once the Subdistrict was approved by the Alamosa County District Court
in July 2006, the RGWCD appointed a board of managers (the “Board”) and
charged it with preparing a plan of water management, pursuant to section
37-48-126, C.R.S. (2019). Id. at ¶ 21. The Board held several public meetings to
16
gather input from the major ditch companies and other irrigators operating in the
Closed Basin regarding declining water levels in the aquifers and depletions to the
Rio Grande. Id. Based on this feedback and consultations with expert water
engineers, the Board decided that it needed more information on the current
location and status of the hydraulic divide to formulate a groundwater
management plan that accurately accounted for the Closed Basin’s current
hydrological conditions. See id. The Board thus sought and received approval for
state funding to conduct a study. See id.
¶19 The completed study, titled “Engineering Report on San Luis Valley
Groundwater Level Study” (“Hydraulic Divide Study”), revealed that as of the fall
of 2007, “groundwater contours from Del Norte to near Monte Vista d[id] not
indicate the existence of a groundwater divide northerly of the Rio Grande,” which
led to the conclusion that well-pumping in the unconfined aquifer of the Closed
Basin was causing depletions to the Rio Grande. Id. at ¶ 67. “The Hydraulic
Divide Study also concluded, however, that a reduction in such well pumping in
the Closed Basin and recovery of the aquifer” to sustainable levels “would likely
result in restoring the [h]ydraulic [d]ivide,” which in turn would yield a significant
reduction in depletions to the Rio Grande. Id. at ¶ 68.
¶20 Given the findings of the Hydraulic Divide Study, the Subdistrict, through
the Board, prepared a plan for water management (the “Plan”) that included a
17
groundwater management strategy “based upon the premise that when or if the
[h]ydraulic [d]ivide is north of the river between Del Norte and Alamosa, it
reduces the injurious depletions to senior surface rights because it reduces leakage
from the Rio Grande into the Closed Basin.” Id. at ¶ 71. Thus, the Plan proposed
to re-establish and maintain the hydraulic divide to help reduce or eliminate the
depletions to the Rio Grande caused by irrigation-related well-pumping in the
Closed Basin. Id. at ¶ 63.
¶21 To re-establish the hydraulic divide, the Subdistrict agreed to (1) “work
closely with the State and Division Engineers . . . to calculate injurious stream
depletions resulting from well pumping,” and (2) “replace those depletions in the
time, at the location, and in the amount needed to prevent injury.” Id. at ¶ 95.
Once re-established, the Plan explained, the hydraulic divide would be
maintained through “a system of self-regulation using economic-based incentives
that promote responsible irrigation water use and management and insure the
protection of senior surface water rights.” Id. at ¶ 41. Such incentives would
include giving owners of surface water rights within the Subdistrict “surface water
credits which [would] reduce the variable fee they are . . . assessed for water they
pump,” and could be “exchanged, traded, leased or sold to other well water users
within the Subdistrict.” Findings of Fact, Conclusions of Law, Judgment and
Decree, In re Rio Grande Water Conservation Dist., and Concerning the Office of the
18
State Engineer’s Approval of the Plan of Water Mgmt. for Special Improvement Dist. No.
1 of the Rio Grande Water Conservation Dist., Case Nos. 06CV64 and 07CW52 (Dist.
Ct. Water Div. 3 May 27, 2010) (2010 Subdistrict Decree), ¶¶ 77–78. In other words,
the Plan sought to replace the injurious stream depletions caused by operation of
the Subdistrict wells with water rights that would be purchased or leased by the
Subdistrict. Id. at ¶ 267.
¶22 Following many rounds of revisions, the Subdistrict’s amended Plan (the
“Amended Plan”) was approved by the water court in May 2010. It was
subsequently upheld by this court in December 2011 in San Antonio I, 270 P.3d at
935.
¶23 The implementation of the Amended Plan meant that the Subdistrict had to
begin replacing injurious stream depletions in 2012. Recognizing that it would
need both stored water and storage space to meet its replacement obligations, the
Subdistrict approached SMRC, which owns two reservoirs, about leasing water
from the Company’s shareholders to replace depletions under the Amended Plan.
SMRC took the Subdistrict up on its proposal. But because its water rights were
limited to irrigation, SMRC had to apply for a change of use to include the
replacement of depletions. That application became the genesis of the dispute that
is at the heart of this case.
19
III. Facts and Procedural History
¶24 SMRC is a mutual reservoir company that is responsible for storing and
releasing water to its shareholders, who own the right to use that water. All SMRC
shareholders have their water delivered either through the Monte Vista Canal or
the Rio Grande Canal. The Company’s bylaws allocate ten percent of its shares to
the shareholders whose lands are served by the Monte Vista Canal and ninety
percent of its shares to the shareholders whose lands are served by the Rio Grande
Canal. Only the Rio Grande Canal delivers water into the Closed Basin for
irrigation use.9
¶25 SMRC’s water is stored in its two reservoirs: the Santa Maria Reservoir and
the Continental Reservoir.10 The Company’s water storage rights in both
reservoirs predate the Rio Grande Compact (the “Compact”), which sets storage
9The vast majority of lands served by the Rio Grande Canal are located within the
Closed Basin; the remaining lands served by the Rio Grande Canal lie south of the
Closed Basin between the hydraulic divide and the Rio Grande. 2018 SMRC
Decree, ¶ 90.
10 SMRC holds absolute storage rights in the Santa Maria Reservoir and the
Continental Reservoir. Under a series of decrees, SMRC is currently entitled to
store a total of 37,524 acre-feet in the Santa Maria reservoir (15,871.21 acre-feet with
an appropriation date of August 11, 1896, and 21,652.79 acre-feet with an
appropriation date of September 22, 1902). It can also store a total of 26,716
acre-feet in the Continental Reservoir (8,832 acre-feet with an appropriation date
of June 1, 1901, and 17,884 acre-feet with an appropriation date of May 4,
1907). SMRC’s application sought a change of use for all of this water, which was
decreed for irrigation.
20
restrictions on reservoirs constructed after its enactment. Because most water
users in the Valley have water storage rights postdating the Compact, they cannot
store as much water as SMRC can. Not surprisingly, SMRC was an appealing
potential partner for the Subdistrict as the Subdistrict undertook efforts to comply
with the provisions of the Amended Plan.
¶26 When the Subdistrict contacted SMRC, shortly after this court upheld the
Amended Plan in San Antonio I, it inquired about leasing water from SMRC’s
shareholders to replace depletions to the Rio Grande. Because all of SMRC’s
shareholders rely on the Subdistrict’s continued success, SMRC had every
incentive to help the Subdistrict meet its replacement obligations. As mentioned,
though, SMRC could not do so unless it first obtained a change-of-use decree
allowing its water to be used for replacement, in addition to its already-decreed
use for irrigation.11
¶27 In January 2013, SMRC filed an “Application for Change of Water Right” to
use its water storage rights in the Santa Maria and Continental Reservoirs to
replace depletions to the Rio Grande in order to prevent injury to surface water
11To apply for a change-of-use decree, SMRC needed to amend its articles of
incorporation and bylaws to give shareholders the power to lease their water–right
shares to the Subdistrict. After notifying shareholders by letter and holding open
meetings, the necessary amendments were approved, thereby allowing
shareholders to lease their pro rata shares of reservoir water to the Subdistrict for
use in Water Division No. 3.
21
rights in the Rio Grande and elsewhere in Water Division No. 3. In addition to its
requested change of use, SMRC asked the water court to confirm the Company’s:
(1) historical irrigation use of water rights on lands served by the Monte Vista
Canal and Rio Grande Canal; (2) historical irrigation practice of using water rights
for aquifer recharge and withdrawal of corresponding water by means of wells;
and (3) right to fully consume, by first use, reuse, and successive use, the water it
delivers into the Closed Basin.
¶28 The water court accurately explained the practical effect of the change
requested by SMRC as follows: “[T]he leased water will be released from the
reservoirs and sent down the Rio Grande and will not be diverted for irrigation in
the service area of the Rio Grande Canal, i.e. in the Closed Basin.” 2018 SMRC
Decree, ¶ 81. Anticipating a reduction in the amount of water diverted to the
Closed Basin, Warner and a number of other parties filed timely statements of
opposition to SMRC’s application, arguing that, if granted without adequate terms
and conditions, the requested change would injure water users in the Closed
Basin. The water court referred the application and statements of opposition to
the Water Referee for Water Division No. 3, who, pursuant to section 37-92-302(4),
C.R.S. (2019), was charged with evaluating the merits of the opposers’ statements
in consultation with the Division Engineer.
22
¶29 In May 2013, after reviewing the application and statements of opposition,
the Division Engineer submitted a written report in which he recommended “that
th[e] requested change of water right be granted” with one condition: “that such
change . . . not expand the consumption of the water right beyond that which has
been the historical practice for agricultural purposes.” SMRC then met with the
various opposers to explore what terms and conditions might assuage their
concerns. Based on their input, it drafted a proposed decree in which it agreed to
replicate accretions (including return flows) to the Rio Grande to prevent injury to
other water rights diverting from the Rio Grande. By April 2016, all opposers
except Warner had stipulated to the entry of SMRC’s proposed decree, and so
SMRC moved to refer the case back to the water court to hold a trial on SMRC’s
application in light of Warner’s objections.
¶30 Warner’s statement of opposition was premised on his concern that SMRC’s
application, if granted, would interfere with his downstream surface and
groundwater rights. Warner, a rancher, owns two parcels of land on which he
grows hay for his livestock using flood irrigation. His properties are located in the
Closed Basin, generally east and north of land that receives the water SMRC
delivers through the Rio Grande Canal. Because he flood irrigates, Warner needs
the groundwater beneath his lands to stay at a level close enough to the surface to
reduce ditch losses and allow water to carry further across his crop land. Thus, to
23
the extent that the water court’s approval of SMRC’s application might result in
lower surface and groundwater levels in the Closed Basin, Warner’s ability to
continue flood irrigating his crops is at risk. Accordingly, Warner opposed
SMRC’s requests for change of use and for recognition of both its historical
recharge practice and its right to fully consume its water.
¶31 At trial, SMRC presented evidence to show that its proposed change of use
would not cause harm to other water users. The Company’s expert witness,
Thomas Williamsen, who specializes in water resources engineering, testified that
he had quantified SMRC’s historical use of water between 1940 and 2010.
According to Williamsen, the data showed that owners of SMRC’s water rights
have historically diverted all water legally and physically available to them, such
that SMRC’s water has not been appropriated by downstream users in the Rio
Grande. Williamsen’s findings were corroborated by SMRC’s two lay witnesses,
SMRC’s president, Keith Holland, and SMRC’s superintendent, Jay Yeager.
Further, SMRC asserted that the water it diverts into the Closed Basin is imported
from the Rio Grande, which means that other water users have no vested right in
that water.
¶32 SMRC did concede, however, that not all of its water is imported because a
small portion of it is diverted to the area just south of the Closed Basin and the
hydraulic divide, where it may accrete to the Rio Grande. But SMRC assured the
24
water court that there was no risk of injury to water users there because the
Company had already agreed, as part of its settlement with the other opposers, to
replicate accretions to the Rio Grande that may result from the approved change
of use. For his part, Warner offered no hydrological or geological evidence to
demonstrate that the Company’s proposed change would adversely affect his
surface and groundwater rights. See 2018 SMRC Decree, ¶ 181.
¶33 With regard to the request for recognition of its historical recharge practice,
SMRC asked the court to take judicial notice of prior water court decrees from
Water Division No. 3 documenting SMRC’s recharge practice in the Closed
Basin.12 Each of SMRC’s witnesses also testified to its historical recharge practice.
Though Warner argued that the evidence presented didn’t show that SMRC’s
water rights were historically used for recharge, he did not present any evidence
12The prior water decrees referenced by SMRC were entered in the following
cases: Findings of Fact, Conclusions of Law, Judgment and Decree, Concerning the
Application for Change of Water Right of Rio Grande Canal Water Users Ass’n, Case No.
W-3979 (Dist. Ct. Water Div. 3 Dec. 27, 1984) (1984 Rio Grande Canal Decree);
Findings of Fact, Conclusions of Law, Judgment and Decree, Concerning the
Application for Change of Water Right of San Luis Valley Irrigation Dist., Case No.
W-3980 (Dist. Ct. Water Div. 3 Dec. 27, 1984) (1984 San Luis Valley Irrigation
District Decree); Findings of Fact, Conclusions of Law, Judgment and Decree, In re
Prairie Ditch Co., Case No. 96CW45 (Dist. Ct. Water Div. 3 Nov. 30, 2001) (2001
Prairie Ditch Company Decree); Findings of Fact, Conclusions of Law, Judgment
and Decree, In re San Luis Valley Canal Co., Case No. 96CW46 (Dist. Ct. Water Div.
3 Nov. 4, 2002) (2002 San Luis Valley Canal Company Decree); 2006 Confined
Aquifer New Use Rules Decree; and 2010 Subdistrict Decree.
25
showing why the water court should conclude that the historical facts reflected in
the previous decrees were inaccurate or no longer true. Nor did he present any
evidence to rebut the testimony of SMRC’s witnesses, which the water court found
credible and persuasive.
¶34 Finally, as to the request for recognition of its right to fully consume its
water to extinction, SMRC maintained that since the water it diverts into the
Closed Basin would not have flowed there absent its efforts, and once there, does
not naturally flow back to the Rio Grande, it is imported water that its
shareholders are entitled to fully consume. See § 37-82-106(1). Warner disputed
SMRC’s imported-water claim. He noted that recent decrees from Water Division
No. 3 had mentioned that the hydraulic divide historically separating the Closed
Basin from the Rio Grande no longer appeared to be clearly established. Thus,
asserted Warner, the Closed Basin was not “unconnected” from the Rio Grande
and should be considered tributary to the Rio Grande.
¶35 As further support for his contention that the Closed Basin and the Rio
Grande are hydraulically connected, Warner pointed to the data Williamsen
presented, which showed that removing SMRC’s water from irrigation in the Rio
Grande Canal service area could reduce accretions to the Rio Grande. But
Williamsen also testified that his review of groundwater flow data and
consultations with other experts in the field indicated that the projected losses are
26
entirely attributable to the area just south of the Closed Basin, between the
hydraulic divide and the Rio Grande. And, while acknowledging that recent
decrees had mentioned that the divide appeared to have diminished, Williamsen
opined that more current maps of groundwater contours showed that water in the
Closed Basin was still moving away from the divide toward the sump instead of
returning to the Rio Grande. Notably, Warner presented zero evidence to rebut
this testimony.
¶36 After three days of trial, the water court issued a thorough and well-
reasoned order. First, it approved the application for change of use subject to
SMRC’s compliance with various terms and conditions, including that SMRC
replicate historical accretions to the Rio Grande. “The terms and conditions of this
decree, if properly implemented,” the water court explained, “will
replicate . . . historical accretions and prevent injury to other water rights diverting
from the Rio Grande.” 2018 SMRC Decree, ¶ 170. Second, the water court
recognized the historical irrigation use of SMRC’s water rights on lands served by
the Monte Vista and Rio Grande Canals, id. at ¶ 43, and the historical irrigation
practice of recharging the unconfined aquifer of the Closed Basin with SMRC’s
27
water rights, id. at ¶ 62.13 Finally, the water court determined that SMRC was
entitled to fully consume—by first use, reuse, and successive use—water
recharging the aquifers of the Closed Basin to provide a water supply for irrigating
lands within the Subdistrict. Id. at ¶ 119.
¶37 As it relates to SMRC’s right to consume its water to extinction, the water
court concluded that the water is imported. Id. at ¶ 116. The evidence, observed
the court, showed that this water “does not naturally flow into the Closed Basin,
and once it is there, . . . does not naturally return to the Rio Grande.” Id. at ¶ 69.
The court acknowledged that recent decrees had cited studies “indicat[ing] that
the [hydraulic] divide” between the Rio Grande and the Closed Basin “has
retreated to very near the Rio Grande and . . . is not well-defined.” Id. at ¶ 78. But
the court reasoned that those studies didn’t establish “that the divide does not
exist.” Id. And, added the court, both Williamsen and the Assistant Division
Engineer, James Heath, provided “credible, uncontroverted testimony that the
hydraulic divide exists and . . . surface streams and groundwater in the
unconfined aquifer of the Closed Basin do not flow to the Rio Grande,” while
Warner failed to put forth any evidence to the contrary. Id. at ¶ 79.
13 The water court took judicial notice of its prior orders describing how other
water rights diverted through the Rio Grande Canal have been historically used
to recharge the aquifers of the Closed Basin. Id. at ¶ 44; see supra n. 12.
28
¶38 After the water court entered its decree, Warner filed a Motion to Amend
Judgment, arguing that (1) the water SMRC delivers to the Closed Basin is not
imported; (2) the court needed to reduce SMRC’s water-pumping to prevent
injury; and (3) the court should have conducted a historic consumptive use
analysis as required by Colorado law. Warner did not cite any legal authority in
support of his claims, and the court denied the motion. The court explained that
the first argument was unsupported by facts or law, the second argument was not
properly before the court, and the third argument was incorrect because the court
had actually conducted the historic consumptive use analysis. At SMRC’s request,
the court then found that Warner’s motion was “substantially groundless and
frivolous” and awarded SMRC its attorney fees. Warner then appealed to this
court.
IV. Standard of Review
¶39 Whether certain water is foreign to a stream system or watershed under
Colorado law is a mixed question of law and fact. See Chatfield E. Well Co. v.
Chatfield E. Prop. Owners Ass’n, 956 P.2d 1260, 1271–72 (Colo. 1998). Mixed
questions of law and fact are reviewed de novo, see Pagosa Area Water & Sanitation
Dist. v. Trout Unlimited, 170 P.3d 307, 313 (Colo. 2007), but with deference to the
water court’s factual findings if they are supported by the evidence, City of Black
Hawk v. City of Central, 97 P.3d 951, 953 (Colo. 2004). The sufficiency, probative
29
effect, and weight of the evidence before the water court, together with inferences
and conclusions to be drawn therefrom, are for the water court’s determination.
Gibbs v. Wolf Land Co., 856 P.2d 798, 801 (Colo. 1993). We will not disturb such a
determination unless it is “so clearly erroneous as to find no support in the
record.” Id.V. Analysis
¶40 An application for change of a water right “shall be approved” if the
proposed change “will not injuriously affect . . . persons entitled to use water
under a vested water right or a decreed conditional water right.” § 37-92-305(3)(a).
An applicant for change of a water right “bears the initial burden of establishing a
prima facie case that the proposed change will not have an injurious effect” on the
water rights of others. City & Cty. of Broomfield v. Farmers Reservoir & Irrigation Co.,
235 P.3d 296, 299 (Colo. 2010). If the applicant successfully meets this initial
burden, then “the opposers have the burden of going forward with evidence that
the proposed change will result in injury to existing water rights.” Id.¶41 Here, the water court found that SMRC met its burden—both by showing
that the proposed change pertains to imported water, 2018 SMRC Decree, ¶ 79,
and by agreeing to replicate accretions (including return flows) to the Rio Grande
to prevent injury to other water rights diverting from the Rio Grande, id. at ¶ 170.
Because Warner failed to present evidence to rebut SMRC’s prima facie case, the
30
water court approved SMRC’s requested change of use. Id. at ¶ 181. We perceive
no basis to disturb the water court’s decision.
¶42 Warner first contends that the water court applied the wrong legal standard
in finding that the water SMRC diverts to the Closed Basin is imported. More
specifically, Warner avers that designating water as imported based on whether it
would have naturally reached the stream system or watershed where it is being
used and, once there, whether it would have naturally flowed back to its source
contravenes Colorado law. We disagree.
¶43 We have repeatedly said that when water is introduced into a stream system
from an unconnected stream system, it is imported. See Bijou, 926 P.2d at 66.
Though we have never expressly defined “unconnected” stream systems, we have
consistently applied the same test to ascertain whether two streams are connected:
If the water would not have reached the receiving stream system without the
efforts of the water user and, once there, would not naturally have flowed back to
its original stream system, then the two systems are “unconnected” and the water
is imported. See, e.g., id. at 81 (“[E]ntities that produce or develop artificial water
that would otherwise have been unavailable to the stream system . . . can exert a
continuing right to such water outside the existing priority system on the
stream.”); id. (rejecting the City of Thornton’s claim that water diverted from the
Cache La Poudre River and delivered to adjacent drainages between the Poudre
31
and South Platte Rivers was imported because the water so delivered naturally
drained back to the South Platte River, to which the Poudre River is a tributary);
Fulton, 506 P.2d at 147 (“‘[D]eveloped water’ is that water which has been added
to the supply of a natural stream and which never would have come into the
stream had it not been for the efforts of the party producing it.”); Comrie, 225 P. at
214 (“[O]ne who artificially develops or produces water and adds or turns the
same into a natural stream, which water would not in due course otherwise have
reached the stream . . . may acquire a right thereto superior to the adjudicated
rights of earlier appropriators of the natural waters of the stream . . . .”); Ripley,
90 P. at 75 (holding that water was developed because it “formed no part of [the
stream’s] natural flow, and never would have come into the stream in any way
had it not been for the efforts of petitioner”).
¶44 Thus, the water court did not err. In our view, it properly determined that
since SMRC’s water “does not naturally flow into the Closed Basin, and
once . . . there, . . . does not naturally return to the Rio Grande,” 2018 SMRC
Decree, ¶ 69, it is imported. As such, the water court properly concluded that
Warner has no right to maintenance of return flows from the historical use of this
water.14
14Warner posits that the water court mistakenly held that SMRC was not required
to introduce evidence quantifying the return flows from its water. Quantification
32
¶45 Warner’s remaining arguments are largely challenges to the water court’s
findings of fact. We decline his invitation to second-guess the water court because
its factual findings are not “clearly erroneous.” Burlington Ditch, 256 P.3d at 667
(“Recognizing the water court’s unique ability to evaluate evidence and make
factual determinations in complex cases, we defer to the findings of the water court
unless they are clearly erroneous.”). Applying this highly deferential standard,
we discuss and reject each of Warner’s specific contentions in turn.
¶46 Warner argues that the water court was wrong in finding that the Rio
Grande and Closed Basin are “unconnected” stream systems. He insists that the
water court failed to consider the hydraulic connections between SMRC’s return
flows, the Rio Grande’s surface flows, and the confined and unconfined aquifers
in the Closed Basin. But the water court did consider—at length no less—“the
complex and non-linear interactions between the unconfined and confined aquifer
systems and the surface streams.” 2018 SMRC Decree, ¶ 87; see also id. at ¶ 66
(noting that “the evidence showed that the SMRC Water Rights are naturally
tributary to the Rio Grande” and that “[w]ater from the Rio Grande . . . does not
naturally reach the Closed Basin”); id. at ¶ 72 (quoting the Compact’s definition of
of SMRC’s return flows, avers Warner, was necessary to protect his interests.
Because this argument is premised on Warner’s incorrect assumption that he has
a right to SMRC’s return flows, it fails.
33
the Closed Basin as “that part of the Rio Grande Basin in Colorado where the
streams . . . do not normally contribute to the flow of the Rio Grande”); id. at ¶ 79
(reviewing the “credible, uncontroverted testimony that the hydraulic divide
exists and that because of the topographic and hydraulic divides, the surface
streams and groundwater in the unconfined aquifer of the Closed Basin do not
flow to the Rio Grande”); id. (mentioning that Warner “did not provide . . . any
evidence from which the court could make a different factual finding”).
¶47 Nevertheless, Warner maintains that the water court’s determination is at
odds with this court’s 2011 observation in San Antonio I that, in contrast to
“previous court decrees and groundwater studies” indicating that a “divide
formerly existed” between “the unconfined aquifer of the Closed Basin and the
unconfined aquifer . . . tributary to the Rio Grande,” no divide “clearly exists
today.” 270 P.3d at 941. Warner urges that the stream systems in question cannot
be deemed unconnected after San Antonio I. We are not persuaded.
¶48 After considering San Antonio I, the water court recognized that recent
studies have indicated “that the divide has retreated to very near the Rio Grande
and that the divide is not well-defined.” 2018 SMRC Decree, ¶ 78. But it was quick
to point out that none of the evidence presented during the trial supported the
conclusion that the divide no longer exists. Id. As the water court put it: Even
assuming “the hydraulic divide is poorly defined or very close to the Rio Grande,”
34
the evidence established that “water flowing north into the Closed Basin does not
return to the Rio Grande.” Id. at ¶ 77.
¶49 On the surface, the water court’s finding may seem inconsistent with the
remark in San Antonio I on which Warner places so much stock. But upon closer
inspection, the two are perfectly aligned. Recall that when we made the statement
in San Antonio I, it was in the context of reviewing and approving the Subdistrict’s
Amended Plan. The very purpose of the Amended Plan was “to re-establish and
maintain the [h]ydraulic [d]ivide.” 2009 Subdistrict Decree, ¶ 63 (emphasis
added). We explained in San Antonio I that the Amended Plan sought “to monitor
and maintain a mound of groundwater as a hydraulic divide between the unconfined
aquifer of the Closed Basin and the unconfined aquifer . . . tributary to the Rio
Grande.” San Antonio I, 270 P.3d at 941 (emphasis added). We added that the lack
of such a divide was “perhaps one reason why Subdistrict well pumping” was
“causing depletions to the Rio Grande and its tributaries.” Id.
¶50 Fast forward to this case, which proceeded to trial almost a decade later,
many years after the Amended Plan was implemented. The water court
concluded, with abundant record support, that the “credible, uncontroverted
testimony showed that the hydraulic divide exists” again. See 2018 SMRC Decree,
¶ 79. Rather than view this conclusion as incongruous with San Antonio I, we see
35
it as a testament to the Amended Plan’s success so far. The Amended Plan appears
to be doing precisely what it was designed to do.15
¶51 Just as we acknowledged a change related to the hydraulic divide in San
Antonio I, the water court did the same here. The only difference is that the
hydraulic divide did not clearly exist when we decided San Antonio I, whereas the
water court in this case found that it currently exists. If Warner’s rigid approach
had merit, we never would have been able to say in San Antonio I that a change
had occurred. Instead, regardless of what the evidence reflected at the time, we
would have stubbornly hewed to whatever observations appeared in previous
studies, decrees, or cases regarding the existence of the hydraulic divide. Because
these matters can be fluid and are subject to change, we reject Warner’s analytical
framework. Where, as here, the evidence (including the experts’ testimony) is
credible, persuasive, and uncontroverted, we prefer to rely on the record as the
most accurate, current, and complete indication of whether the hydraulic divide
15 Indeed, the most recent edition of the Citizen’s Guide to Colorado Groundwater
noted that “[s]tarting in 2012, farmers [in the Closed Basin] began operation of the
first groundwater subdistrict in the [V]alley with a state-approved groundwater
management plan.” Citizen’s Guide to Colorado Groundwater, Water Education
Colorado (March 19, 2020), https://issuu.com/cfwe/docs/groundwater_final
[https://perma.cc/6UES-6VY2]. And while acknowledging that “[t]he program
is still gaining steam,” the Guide commented that “the efforts have slowed the
[groundwater] declines and even replenished the aquifer in wet years.” Id.
36
exists. And the record before us leaves no doubt: At this time, there is a hydraulic
divide between the Closed Basin and the Rio Grande.
¶52 Warner contends, however, that the water court ignored its own recent
decision in In re Application for Water Rights of the City of Alamosa, where it held that
“water derived from the confined aquifer and placed into the Rio Grande” doesn’t
“meet the definition of imported water.” Order Denying Motion for
Determination of Question of Law, In re Application for Water Rights of the City of
Alamosa, Case No. 15CW3029 (Dist. Ct. Water Div. 3 Oct. 31, 2018) (2018 City of
Alamosa Decree), at 8. We are unpersuaded. The 2018 City of Alamosa Decree
dealt with entirely different water rights. The water at issue there was derived from
the confined aquifer. Here, the water under review is derived from the Rio Grande and
diverted to the Closed Basin. In any event, the water court’s ruling in this case
was properly grounded in the evidence presented at trial. Had the court
disregarded that evidence based on factual findings contained in the record from
a previous case, it would have erred. Regardless, we are not bound by the water
court’s decision in its 2018 City of Alamosa Decree.
¶53 Finally, we are unmoved by Warner’s assertion that the water court’s
approval of SMRC’s application undermines the General Assembly’s efforts to
manage the surface and groundwater systems in the Valley. The development of
the Subdistrict and the origins of this case demonstrate that the opposite is true.
37
¶54 The evidence presented at trial established that SMRC’s purpose in filing its
change-of-use application was to provide a source of water to the Subdistrict to
help ensure the successful effectuation of the Amended Plan, which is critical to
promoting long-term aquifer–sustainability. SMRC’s proposed change was also
triggered by a desire to support the Subdistrict’s efforts to maintain the hydraulic
divide and protect senior water rights in the Closed Basin. As the water court
recognized:
If less SMRC water is diverted for irrigation of land overlying the
Closed Basin, there will be less water in the artificial aquifer of the
Closed Basin which will result in the hydraulic divide moving closer
to the Rio Grande which will result in less return groundwater flow
to the river because there will be less irrigated acreage located south
of the hydraulic divide and north of the river.
2018 SMRC Decree, ¶ 90. Warner “provided no expert [testimony] or other
evidence” contradicting this conclusion. Id. at ¶ 91. Given the lack of contrary
evidence, and given further the deference we accord to the water court’s findings
of fact, we find no basis to disturb the determination that approval of SMRC’s
proposed change promotes, rather than inhibits, the General Assembly’s efforts to
manage the surface and groundwater systems in the Valley.
VI. Conclusion
¶55 The water court did not err either in approving SMRC’s change-of-use
application or in confirming SMRC shareholders’ right to fully consume the water
SMRC imports to the Closed Basin from the Rio Grande. Rather than cause an
38
injury to Warner, the water court’s order simply revealed to him that his past use
of return flows from SMRC’s imported water in the Closed Basin was a benefit to
which he had no enforceable right; Warner just didn’t know what he had ‘til it was
gone. We therefore affirm.16
16 Warner challenges the water court’s award of attorney fees against him, which
it entered pursuant to C.R.C.P. 11 based on his motion for reconsideration of the
final order. We review a decision to award attorney fees for an abuse of discretion.
Anderson v. Pursell, 244 P.3d 1188, 1193 (Colo. 2010). A court abuses its discretion
when its ruling is manifestly arbitrary, unreasonable, or unfair. Campbell v. People,
2019 CO 66, ¶ 21, 443 P.3d 72, 76. Here, the water court found, with ample record
support, that Warner’s motion to reconsider was “substantially groundless and
frivolous,” explaining that the motion’s first argument was unsupported by facts
or law, the second argument was not properly before it, and the third argument
was factually incorrect. Because we cannot say that the court abused its discretion,
we affirm the award of attorney fees.
39