Shohet, David Michael

English

University of Denver

Water Law Review Volume 8 Issue 2 Article 40 1-1-2005 Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., No. 04SA44, 2005 Colo. LEXIS 201 (Mar. 14, 2005) David Michael Shohet Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation David Michael Shohet, Court Report, Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., No. 04SA44, 2005 Colo. LEXIS 201 (Mar. 14, 2005), 8 U. Denv. Water L. Rev. 672 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWheld that the final EIR completely discussed groundwater-related is-sues, and sufficient evidence supported the Final EIR. . Therefore,the court held that the EIR comported with the CEQA requirements.Further, the court held that VACRG's argument that the EIR in-adequately described the impacts on the wetlands lacked merit. Thefinal EIR explicitly stated the Project's unavoidable adverse effect onthe wetlands. The EIR even quantified the amount of the wetlandslosses projected. The function of the final EIR was to provide informa-tion, and the court held the EIR served that purpose.VACRG next argued that the court should overturn approval of theProject because the EIR did not describe a complete and certain watersupply throughout the completion of the Project. The court stressedthat two critical issues under a CEQA include: (1) identifying a sourceof water for a project, and (2) addressing the environmental effects ofobtaining water from that source. The court held that the Projectidentified the potential water supply sources and analyzed the envi-ronmental effects of those sources. Further, the court held that an EIRwas adequate without identifying every possible source of water for theProject if the expected sources did not materialize. However, the EIRcould not list only speculative sources of water.The court held that, even though the EIR did not confirm the WFPwater sources, the EIR was adequate, and although the identifiedsources were incomplete, they were not speculative. The court re-jected VACRG's argument that the final EIR was speculative, becausethe availability of water from NVWF occurred on a first come first servebasis. Also, the court reasoned that the County was not required totake a "worse-case scenario" approach, but that the EIR met the CEQArequirements by discussing reasonable scenarios. Therefore, the courtheld that the County validly approved the Project, and affirmed thedecision of the trial court.Kate BrewerCOLORADOColo. Water Conservation Bd. v. Upper Gunnison River Water Conser-vancy Dist., No. 04SA44, 2005 Colo. LEXIS 201 ( Mar. 14, 2005) (hold-ing (1) the Colorado Water Conservation Board functions as a nar-rowly constrained fact finding advisory body when it reviews recrea-tional in-channel diversions applications, (2) Colorado water courtsgive presumptive effect to the findings of the Colorado Water Conser-vation Board, which are binding on the water courts, but a party mayproduce evidence to rebut that presumption and the water courts mustevaluate the contested factors using a preponderance of the evidencestandard, and (3) water courts must determine whether an applicationfor a recreational in-channel diversion is for a reasonable recreationexperience on each particular stream and determine the minimumVolume 8COURT REPORTSamount of stream flow necessary to accomplish that intended recrea-tion experience).The Upper Gunnison River Water Conservancy District ("District")filed for a conditional water right for a recreational in-channel diver-sion ("RICD"). The Colorado Water Conservancy Board ("Board")reviewed the application and, without evaluating the applicationstrictly, recommended a minimum stream flow necessary to provide areasonable recreation experience to the District Court, Water Division4. The Board recommended a flow amount less than requested by theDistrict and the District proceeded to water court for adjudication.After hearing testimony and reviewing the Board's findings andrecommendation, the water court issued a decree awarding a RICD inhigher flow amounts than the District requested. In doing so, the wa-ter court acknowledged that the District's application was the first ap-plication addressed under Senate Bill 01 216 ("SB 216"). Therefore,the water court began its analysis by examining the language of thestatute, which ultimately led the water court to treat the Board's find-ings of fact as a rebuttable presumption. The water court then exam-ined whether the District overcame the rebuttable presumption of theamount recommended by the Board. Based on the totality of the evi-dence presented, the water court concluded the District met the bur-den of proof to overcome the Board's rebuttable presumption. Withthe water court concluding that Gunnison should receive more waterthan recommended, the water court then looked at whether the Boardmade findings regarding stream flow amounts. The water court heldthe Board did not find whether the amounts applied for comportedwith the statutory factors of SB 216. SB 216 required the Board to lookat the following five statutory factors: compact impairment, streamreach appropriateness, access availability, instream flow rights injury,and maximum utilization ("Five Factors"). The water court also notedthe Board did not find the maximum quantity of flow that compliedwith the Five Factors. Thus, the water court concluded the Boardmade no presumptively valid findings concerning stream flows abovethe recommended amount. The water court itself then attempted todetermine the minimum stream flow for a reasonable recreational ex-perience as stated in SB 216. The water court, reluctant to usurp theDistrict's determination of the size and scope of a RICD, subject to thetraditional criteria of speculation and waste, concluded that the Dis-trict's requested stream flows did not reach the level of speculation orwaste. Lastly, the water court analyzed the District's requested streamflows under the Five Factors. Since the water court concluded theBoard did not make any presumptively valid findings regarding thesefactors, the water court concluded the District's requested stream flowswere appropriate under the Five Factors. Thus, the water courtgranted the District conditional water rights in a decree awarding theIssue 2WATER LA W REVIEWclaimed amounts in full. The Board appealed the water court's deci-sion to the Colorado Supreme Court.The court began its analysis by examining SB 216. The court notedthat SB 216 changed the statutory definitions of diversion and benefi-cial use to expressly encompass RICDs. The bill defined RICD to meanthe minimum stream flow as such flow is diverted, captured, con-trolled, and placed to beneficial use between specific points defined byphysical control structures pursuant to an application filed by a county,municipality, city and county, water district, water and sanitation dis-trict, water conservation district, or water conservancy district for a rea-sonable recreation experience in and on the water.The bill also outlined the review and adjudication process for anRICD application. To start the RICD process, SB 216 required an ap-plicant to submit a copy of the application to the Board for reviewprior to the water courts adjudication. Since this was the first step inthe RICD process, the court first addressed the extent of the Board'sreview of an RICD application.After looking at the plain language of SB 216 as well as the legisla-tive history of the bill, the court held the Colorado General Assemblyintended the Board to act as a narrowly constrained fact finding advi-sory board upon reviewing RICD applications. Thus, the Board, asrequired by SB 216, could only consider the Five Factors and makewritten factual findings as to these Five Factors. Reviewing an RICDapplication under the Five Factors required the Board to undertake acareful, probing analysis. The court, however, noted SB 216 limitedthe Board to reviewing an application on its face. Nothing in SB 216allowed the board to look beyond the stream flow claimed for the rec-reational experience intended by the applicant when reviewing anRICD. The court went on to further state that an applicant did nothave an entitlement to a grant recommendation from the Boardmerely upon a showing of water availability. The Board could recom-mend denial where an application did not comport with the Five Fac-tors. Once the Board completed its review, the application returned tothe water court for adjudication along with the factual findings andfinal recommendation. Since the water court looked at an RICD ap-plication after the Board, the court next examined the water court'srole.The court began this part of its analysis by noting that SB 216 im-posed several analytical burdens on the water court when reviewing anRICD application. First, the bill made the Board's finding of facts pre-sumptive, but subject to rebuttal by any party. Second, the water courtitself needed to apply the Five Factors to the RICD application. Basedon these burdens upon the water court, the court went on to defineeach burden.Starting first with the presumptive effect of the Board's findingsand recommendation, the court again examined SB 216. The courtVolume 8COURT REPORTSdetermined the recommendation given by the Board did not have pre-sumptive effect before the water court. The court noted a recommen-dation functionally was not rebuttable. Thus, the court held the watercourt needed only give the Board's findings presumptive effect. Look-ing at Colorado Rules of Evidence, the court determined "presump-tive" meant the water court needed to presume the Board's findingswere correct if no party presented any evidence to the water court onthe Five Factors. The court continued by noting that any party whopresented evidence on the Five Factors could rebut the presumptiveeffect of the Board's findings. The water court then needed to evalu-ate the contested factors anew, and, using the preponderance of theevidence standard, make findings of fact with respect to the contestedfactors.The court then addressed the water court's review of an RICD.The court determined the water court erred in adjudicating an RICDusing the beneficial use doctrine alone. SB 216 intended beneficialuse to encompass RICD uses of water, but only those uses limited tothe minimum stream flow for a reasonable recreational experience inand on the water. As a result, the court noted that an RICD applica-tion required proof of these elements before the water court decreed aconditional water right. The court went on to note that an RICD ap-plication did not satisfy the beneficial use requirement unless the ap-plication was limited to the minimum stream flow for a reasonable rec-reation experience in and on the water. The more difficult issue, how-ever, was determining exactly what SB 216 meant by its RICD defini-tion and, in particular, the phrases "minimum stream flow" and "for areasonable recreation experience in and on the water."The court, looking at the common usage of the term, held that thephrase "minimum stream flow," as used in the RICD definition, meantthe least necessary stream flow to accomplish a given reasonable rec-reation experience in and on the water. The phrase, "reasonable rec-reation experience in and on the water" in the RICD definition gavethe court more of a problem, since the term did not have a commonusage nor did SB 216 define the term. The court, in trying to definethe term, first noted the reasonableness of a given recreation experi-ence such as whitewater kayaking, varied by the appropriator's per-spective. A casual kayaker, for example, could be satisfied with low tomoderate flows, while an expert would probably demand higherstream flows. In addition, some non-kayakers could consider enoughstream flow to merely float the kayak reasonable. Thus, the term hadno plain meaning that the court could apply as written. The courttherefore turned to the legislative history and intent of the bill to de-fine the term. After a thorough review of the history and intent, thecourt determined the RICD definition essentially provided flexibility,requiring a recreation experience in and on the water be reasonable,considering the water availability of a particular stream reach. TheIssue 2WATER LAWREVIEWcourt opined that at a minimum, merely floating a kayak could be areasonable recreation experience on some reaches, while at a maxi-mum, a world-class expert course requiring nearly the entire flow of agiven stream could also be reasonable. Thus, the reasonableness of anapplicant's sought recreation experience depended on the available,unappropriated stream flow. As such, what constituted reasonablenessdepended entirely upon the river basin.Once the water court determined whether an RICD application wasfor an objectively reasonable recreation experience in and on thestream in question, then the water court needed to determine theminimum amount of stream flow necessary to accomplish that in-tended recreation experience. Thus, the statute might require thewater court to weigh conflicting expert testimony given by course de-signers or other interested parties, and to make a finding as to the leastnecessary stream flow to achieve an applicant's objectively reasonablerecreation experience. The court also made clear that the water courtcould not take at face value the appropriator's suggestion, as set forthin the application, of a reasonable recreation experience for thestream involved, nor should the water court accept, without scrutiny,the applicant's analysis of necessary stream flow to achieve that objec-tive. In making its determinations, the water court must carefullyevaluate the Five Factors, giving presumptive effect to unrebuttedBoard findings, and considering the Board's recommendation and anyother evidence submitted in the course of the trial.Thus, the court held both the Board and the water court erred,and remanded the case to the water court with instructions to remandto the Board to determine whether the application comported with theFive Factors.David Michael ShohetEast Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., No.03SA372, 2005 Colo. LEXIS 230 (Colo. Mar. 21, 2005) (holding theterms of a contract govern restrictive, contractually created water rightsand may not exceed the uses detailed in the contract).East Ridge of Fort Collins, LLC ("East Ridge") filed a complaint fordeclaratory judgment against the Larimer & Weld Irrigation Company("Irrigation Company"). East Ridge sought to change the point of di-version and place and the type of its water right pursuant to two con-tractual agreements. Conversely, the Irrigation Company claimed EastRidge owned a water right perpetually restricted to irrigation use. TheDivision 1 Water Court concluded the contractual nature of EastRidge's water right perpetually restricted the use to irrigation purposesonly. East Ridge appealed the water court's decision to the ColoradoSupreme Court. In its appeal, East Ridge requested the court deter-mine whether the contractual language prohibited conveying, chang-Volume 8

Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., No. 04SA44, 2005 Colo. LEXIS 201 (Mar. 14, 2005)

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2145&context=wlr

Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., No. 04SA44, 2005 Colo. LEXIS 201 (Mar. 14, 2005)

Abstract

Similar works

Full text

Available Versions

University of Denver