Vermillion Ranch Ltd. P’ship v. Raftopoulos Bros., 307 P.3d 1056 (Colo. 2013) (holding (i) the water court did not need to interpret the phrase “all other beneficial uses” in a previous decree nor determine the abandonment of commercial and industrial uses where the applicant only sought to change its irrigation rights; (ii) the water court incorrectly applied the “can and will” doctrine for a finding of reasonable diligence of a conditional water right when it found that a water right is speculative only when it is impossible to implement; (iii) the water court improperly granted conditional water rights because the applicants failed to prove a non-speculative use).

The Colorado Supreme Court (“Court”) reviewed three cases in which the District Court for Water Division 6 (“water court”) granted the parties’ applications for two conditional water rights and a change to an absolute right on Talamantes Creek in Moffat County.  The first adjudication of water rights on Talamantes Creek took place in the 1890s.  A single ranching family owned all of the decreed water rights on the creek until the 1950s, when the family split the property and water rights into two parts.  The Raftopoulos Brothers (“Raftopoulos”) eventually acquired the upstream parcel in 1985.  Vermillion Ranch Limited Partnership (“Vermillion”), members of which belong to the original ranching family, controlled the lower parcel.  The competing applications both proposed to appropriate water from Talamantes Creek for commercial and industrial purposes.


Case No. 11SA86 – Raftopoulos’ Application

The Court first reviewed Raftopoulos’s application.  Raftopoulos requested a change to its existing direct flow rights in order to add alternate points of diversion for irrigation and to move the place of use upstream.  Raftopoulos also sought a new conditional right to store 1440 acre-feet of water in one of two as yet unconstructed reservoirs.  Vermillion opposed Raftopoulos’s application on the grounds that the decrees for the absolute rights (“1974 decrees”) did not permit commercial and industrial uses by using the phrase “all other beneficial uses.”  In the alternative, Vermillion argued the water rights should be limited to irrigation, domestic, and stock uses only because Raftopoulos previously abandoned the commercial and industrial uses.  The water court decided the decree included commercial and industrial purposes in the phrase “all other beneficial uses” but granted the changes in diversion points and place of use for irrigation purposes only.  The water court also determined Raftopoulos did not abandon its commercial and industrial uses because it consistently used the full amount of its water right, albeit for other uses.  Finally, the water court granted Raftopoulos’s application for conditional storage rights in two sections of the Elk Ranch Reservoir because Raftopoulos “may” need the water rights for future mineral development.

Upon review, the Court held that the water court never needed to interpret the phrase “all other beneficial uses” in the 1974 Decrees.  Vermillion, in opposing the application, brought forth the argument that “all other beneficial uses” did not include industrial and commercial uses, but the Court held the interpretation had no relevance to the application because Raftopoulos sought to change its irrigation rights only.  The Court further held that the water court did not need to determine if Raftopoulos abandoned the commercial and industrial uses.  The Court vacated the water court judgment concerning these issues.

The second issue the Court considered was whether Raftopoulos met its burden to demonstrate a non-speculative intent to use the new conditional water storage right for commercial and industrial purposes.  To obtain a conditional water right, the Court noted, the applicant must show that (i) it took the “first step,” which includes an intent to appropriate the water and an overt act manifesting such intent; (ii) the intent is not based on speculative sale or transfer of the water to be appropriated; and (iii) the applicant “can and will” complete the appropriation with diligence and within a reasonable time.  The water court found Raftopoulos met this burden based on testimony that it “may” develop mineral rights and “may “need water for that purpose, and that it contracted with Moffatt County for dust suppression.  However, the Court reversed and held that without tangible evidence of actual development activities or a reasonable estimate of the quantity of water required for that development or for dust suppression, Raftopoulos did not demonstrate a non-speculative need for the water.  As such, the Court reversed the water court decree and denied Raftopoulos’s new conditional storage rights.


Case No. 11SA124 – Vermillion’s Two Applications

The Court next reviewed the water court’s approval of Vermillion’s two applications.  Vermillion acquired a conditional water right in 1975 and amended it in 2003 to include three alternate places of storage that would not exceed 1200 acre-feet.  The first application sought a finding of reasonable diligence with respect to this conditional water storage right.  The second application aimed to expand new conditional storage rights for commercial and industrial uses and involved constructing reservoirs on Raftopoulos’s land for storage.  Vermillion’s second application sought to expand its total storage to 2400 acre-feet to provide for industrial and commercial uses.

Raftopoulos opposed both applications on the grounds that both were speculative because Vermillion could not acquire the necessary permits, did not assess the condition of the land, and did not show how it would finance the possible costs of construction.  The water court initially denied both applications but later reversed its decision and entered decrees granting both applications.  The water court did not change its findings of fact when it reversed the judgment but rather applied a different standard to the evidence.  The alternative standard the water court applied stated that the water court could only deny the applications if it found that impediments made it impossible for Vermillion to construct the diversions.

The Court looked to the “can and will” requirement found at Colo. Rev. Stat. § 37-92-305(9)(b) (2012) to determine whether the water court properly granted Vermillion’s applications.  The “can and will” doctrine asks if a project to appropriate water “can and will be completed with diligence within a reasonable time.”  According to the Court, the “can and will” test is a balance that includes relevant factors, including economic and technical feasibility.  Though these two factors are not dispositive of the “can and will” test, the Court relied on them to decide whether Vermillion exercised reasonable diligence and noted their relevance in most applications of the “can and will” doctrine.

In opposition to Vermillion’s applications, Raftopoulos argued Vermillion failed to show the economic feasibility and technical feasibility of the reservoir meant to store the new conditional water storage rights.  The Court recognized that the “can and will” requirement did not impose a burden of proof upon the applicant to prove feasibility but also observed that feasibility remained a relevant factor that Vermillion did not address.  The Court reasoned that such evidence could take the form of construction timelines, construction cost breakdowns, land acquisition budgets, steps to acquire necessary permits, or analysis of the feasibility of design and construction of the reservoirs.  Vermillion failed to present any such evidence.  The Court reasoned the failure to set forth economic feasibility evidence might lead to the conclusion that Vermillion had no intent to build the project.  The Court concluded that Vermillion failed to meet its burden to show a substantial probability that the reservoirs “can and will” be completed with diligence in a reasonable amount of time.



The Supreme Court ultimately vacated the lower court’s interpretation of the 1974 Decrees and reversed the judgments granting both Raftopoulos’s and Vermillion’s applications for anti-speculation reasons.







The title picture is covered by the Creative Commons Attriubtion-Share Alike 3.0 Unported License.  This picture is attributed to TheSoberPirate, and the use of this picture does not suggest TheSoberPirate endorses this blog.


On November 5, 1913, William Mulholland, Chief Engineer of the Los Angeles Aqueduct (“Aqueduct”), proclaimed at its opening: “There it is. Take it!”  Mulholland was referring to the water that would soon spur a period of economic growth for Los Angeles and quench the thirst of over four million people across 464 square miles.  The growth of Los Angeles over the past century has demonstrated the success of Mulholland’s Aqueduct.  Though this project has been hailed for its creativity and success in achieving the goal of bringing needed water to this region, it also has had significant environmental impacts, especially on the ecosystems around the Owens Valley.

The Aqueduct’s centennial anniversary occurs on November 5, 2013, accompanied with the renovation of the area surrounding the Mulholland Memorial Fountain located in Los Angeles’ Griffith Park.  Such an event can serve to inspire future innovation by providing a platform to discuss additional water resources as Los Angeles’ need for water continues to mount.  Moreover, this centennial celebration offers an opportunity to consider the environmental repercussions from projects similar to the Aqueduct.  The goal of all future water-resource development projects should include obtaining water supplies with minimal cost to the environment and the local ecosystems.


In the early twentieth century, Los Angeles was a city at a crossroads in its economic and social development. Without adequate water resources, the potential economic opportunities would not have been fully realized.  The solution was to import water from the Owens River, a distant and available water source over two-hundred miles away.  Mulholland and many other Los Angeles officials worked under  early-twentieth-century principles of utilizing available natural resources for human consumption without significant concern for environmental consequences.  They viewed untapped natural resources, such as rivers that flowed freely to oceans, as an inefficient use of resources.

As a result of a number of “questionable” land dealings on behalf of the Los Angeles Department of Water and Power (“LADWP”), the city obtained considerable land along the Owens River.  Owens Valley ranchers contested the project, but with the support of President Roosevelt and the necessary land in hand, the city completed the gravity-fed 233-mile long Aqueduct in five years at a cost of approximately $23 million.

In developing the Aqueduct, the City of Los Angeles undertook numerous measures to maximize the use of the watershed to satisfy the needs of the Los Angeles community.  However, this focus on water development overshadowed concerns about environmental impacts.  As a result, many environmental issues that subsequently surfaced still linger.  The depletion of Owens Lake due to substantial Owens River diversions is one such problem.  By 1929, Owens Lake was nearly depleted, leaving a dry lakebed covered in dust.  Los Angeles is now taking steps to manage the alkali dust that sporadically blows off the dry lakebed and contributes to the air pollution in the southern Owens Valley.  This mineral-laced dust has been recognized as the greatest source of particulate pollution in the country.  To ameliorate the harms from the toxic dust storms, Los Angeles constructed a system of gates that steer some water into the original lakebed.  The Owens Lake Dust Mitigation Program utilized 75,300 acre-feet of water in 2012-13 and may utilize as much as 95,000 acre-feet during the 2013-14 runoff year.  This program allows natural regrowth of cottonwood trees and other vegetation and also fosters the return of native animals to the area.

Although Owens Lake still suffers from significant impacts caused by the Aqueduct diversions, the Owens River has been part of one of the largest river restoration efforts in the West.  After a dry spell of nearly a century, water is again flowing along a 62-mile stretch of the Owens River.  During the 2012-13 runoff year, the Lower Owens River had a minimum flow of forty cfs or greater. Several environmental mitigation measures now in place, including the establishment of a warm-water fishery in a once dry area of the river, help ensure that the surrounding ecosystem is restored and preserved.

Los Angeles again faces a crossroads

The LADWP, the largest municipally owned and operated retail water utility in the country, currently faces immense challenges in securing and utilizing its limited water resources. The southern California coastal plain averages less than fifteen inches of rain annually, and the city must import nearly 85% of its water.

Despite Los Angeles’s commitment to one of the nation’s more intensive water conservation programs, the ever-growing population continually increases demand for water.  By the year 2035, water demand is expected to increase to 711,000 acre-feet.  Water managers encounter a difficult challenge in developing new water supplies and enhancing the current system’s reliability without initiating new and expensive projects or reigniting litigation over current resources – like the Owens River.

Currently, the majority of Los Angeles’s water is derived from multiple sources: the Aqueduct, the Colorado River Aqueduct, the California Aqueduct, and local groundwater supplies.  Historically, these sources have been sufficient to satisfy the city’s needs. However, future projections require the city to identify and implement additional methods to meet the increasing water demand.  The LADWP has studied numerous other potential water supplies, such as purchasing the water from foreign areas, recharging groundwater sources, and implementing stormwater recapture projects.

A water recycling and groundwater recharge program could take a larger role in providing necessary water supplies. Groundwater provides a significant source of the city’s current total water supply, and many environmentalists advocate for the use of advanced-treated recycled water to both meet increasing demand and also aid groundwater replenishment.  Similarly, the LADWP has been collaborating with other agencies to improve stormwater capture projects. In doing so, the LADWP has renovated the existing stormwater capture facilities and spread infiltration systems throughout the region to increase the amount of water captured. These projects have the capacity to expand groundwater reliability, water conservation, water quality, and flood control, while also helping to meet Los Angeles’ looming water demands.


Los Angeles’ economic development and vitality is dependent upon reliable water supplies. In the face of an increasing demand for water, LADWP is dedicated to identifying additional water sources to meet those future needs.  Many environmental advocates are cautiously optimistic about Los Angeles’ heightened environmental mindfulness with future water development.  The Aqueduct’s centennial anniversary provides an opportunity for LADWP officials to further demonstrate a commitment to balancing the needs of a thirsty region with conserving the environment. While still echoing the words of William Mulholland – “There it is. Take it!” – Los Angeles should now “take” the opportunity to combine past grievances and innovations with new methods to obtain water in an environmentally conscious manner.


Antonio Rossmann & Michael J. Steel, Forging the New Water Law: Public Regulation of “Proprietary” Groundwater Rights, 33 Hastings L.J. 903 (1982).

L.A. Aqueduct Centennial 2013, Los Angeles Department of Water & Power (last visited Oct. 6, 2013).

Los Angeles Aqueduct, Los Angeles Department of Water & Power, (last visited October 6, 2013).

Randal C. Archibold, A Century Later, Los Angeles Atones for Water Sins, N.Y. Times. (Jan. 1, 2007),

William L. Kahrl, Part II the Politics of California Water: Owens Valley and the Los Angeles Aqueduct, 1900-1927, 6 Hastings W.-Nw. J.Envtl. L. & Pol’y 255 (2000).

The title picture is covered by the Creative Commons Attribution 2.0 Generic license.  This picture is attributed to the City of Los Angeles, and the use of this picture does not suggest the City of Los Angeles endorses this blog.

Weinheimer Ranch, Inc. v. Pospisil, 299 P.3d 327 (Mont. 2013) (holding water court made no administrative or judicial error in denying, for lack of sufficient evidence, a water right holder’s motion to amend his water right to an earlier priority date).

In 1991 Weinheimer Ranch, Inc. (“Ranch”) acquired a sixty acre-foot per year water right from Francis Weinheimer.  Francis acquired the water right from his father Franz Weinheimer, who originally filed a notice of appropriation for the water right in 1971.  In 1984 the Montana Water Court (“water court”) issued a Temporary Preliminary Decree (“decree”) for the Judith Basin River that provided a 1900 priority date and a historical diversion point in Section Four for the Ranch’s water right.  The decree also provided an 1897 priority date for George Pospisil’s (“Pospisil”) senior water right.  Pospisil owns land adjacent to the Ranch.  According to the decree, the point of diversion for both water rights was Odenwald Creek.

In 2002, after Pospisil placed a call on Odenwald Coulee, the Ranch filed a motion with the water court to amend its water right’s historical right, priority date, and source.  The Ranch filed a supplemental motion in 2003.  Pospisil thereafter filed an objection to the Ranch’s proposed amendment of the historical right and priority date but did not contest that, due to a past clerical error, the listed source should be amended from Odenwald Creek to Odenwald Coulee.  Before the water court considered the motion, Senior Water Master Kathryn Lambert (“water master”) held a hearing on the motion.

The Ranch relied on two documents, both discovered in 2002, to support its motion to amend the water right.  The first document was a Notice of Appropriation of Water Right (“1896 notice”) filed by Adrian Odenwald (“Odenwald”), the Ranch’s predecessor in interest.  Among other things, the 1896 notice listed a priority date of 1882, the diversion point as Section Nine, and an attestation by Odenwald that the information listed on the 1896 notice was true and correct.  The second document was a 1969 Montana Water Resources Survey of Fergus County (“survey”).  The survey stated Odenwald filed the 1896 notice for a water right with an 1882 priority date.  In addition, the survey separately described the Ranch’s current water right. Weinheimer also testified, and Pospisil conceded, that since the 1930s no ditch existed from Section Nine to Section Four.

After consideration, the water master recommended the water court deny the Ranch’s motion due to insufficient evidence.  The water court accepted the water master’s recommendation and denied the Ranch’s motion to amend its historical right and priority date.  The water court further ruled that the water right described in the 1896 notice and mentioned in the survey was abandoned because the Ranch, or its predecessor in interest, failed to properly file a claim on the water right as required by state law.  Finally, the water court amended the water master’s ruling that no surface water existed in Section Nine since 1882, ruling instead that the evidence only supported a finding that no surface water existed since the 1930’s.

The Montana Supreme Court (“Court”) considered two issues on appeal.  First, the Court considered whether the factual record mandated an inference that the 1896 notice mistakenly listed Section Nine instead of Section Four as the point of diversion for the Ranch’s water right.  The Ranch argued that Odenwald never owned land in Section Nine and that Odenwald actually diverted the water only a quarter mile from the diversion point detailed in the 1896 notice, suggesting a mistaken point of diversion listing.  But because Odenwald attested to the validity of the 1896 notice, because no party brought up the accuracy of the 1896 notice for more than a century, and because the Ranch and its predecessors already filed claims with a 1900 priority date, the Court held the water master reasonably declined to infer mistake in the listed point of diversion.

Second, the Court analyzed whether the water court made a clear error in its findings of fact.  The Ranch first argued that because Section Nine did not contain a water source to appropriate and because Odenwald never owned land in Section Nine, the 1896 Notice mistakenly listed the diversion point as Section Nine and should have listed Section Four.  The Court noted it was not clear that no water flowed in Section Nine, but reasoned that even if it were, that fact would not prove Odenwald intended to appropriate water from Section Four.  Additionally, the Court noted it is common for a water right to originate outside the physical boundaries of a water right holder’s property, so not owning property at the diversion point did not prove mistake in the 1896 Notice.  The Ranch then argued that the two water rights mentioned in the survey—the Ranch’s current water right and the water right described in the 1896 notice—actually represented the same water right.  The Court stated that another reasonable interpretation of the survey was that the two water rights were distinct.  The Court held that the Ranch failed to prove error on the part of the water court.

Accordingly, the Court affirmed the water court’s denial of the Ranch’s motion to amend its water right.


The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License by Tony Hisgett, who does not in any way endorse this blog.


The fifteen inches or more of precipitation that began falling the second week of September caused massive flooding across the state of Colorado, with some describing the torrential rains as a “one-in-a-thousand-year rainfall event.”

As Colorado floodwaters recede, new health risks have begun to arise, and residents now face a threat of contaminated waters. Gary Wockner, Colorado program director for Clean Water Action, said: “[the biggest] concern is oil and gas and fracking chemicals in the water. . . . Oil, gas, and fracking chemicals are poisonous to people and animals and could pollute farms and drinking water supplies.” The full extent of damage is not yet known, as many areas have not yet been inspected.

Floodwaters caused the release of more than 43,000 gallons of oil and more than 18,000 gallons of produced water. Carl Erickson, a Colorado resident and activist with the local group Weld Air and Water, said that the flooding has served as a “wake-up call” that oil and gas development has its consequences.

Anadarko Petroleum Corporation reported two oil spills – 323 barrels (13,500 gallons) along the St. Vrain River, and 125 barrels (5,250 gallons) into the South Platte River. Environmental Protection Agency (“EPA”) spokesman, Matthew Allen, said that both releases involved condensate, a mixture of oil and water. Anadarko workers attempted to contain the South Platte oil spill by placing absorbent booms in the water, but state officials reported the booms have only collected residual oil. The Colorado Oil and Gas Association (“COGA”) is currently working with the Colorado Department of Public Health and Environment, the National Response Center, and the EPA to monitor cleanup efforts.

The flooding reportedly affected at least a thousand gas wells. Noble Energy estimates it shut down between five to ten percent of its wells. In addition, a four-inch Anadarko natural gas pipeline began leaking after the ground around it washed away. Anadarko spokesman, John Christiansen, stated that Anadarko promptly shut off the pipeline and contained the leak.

The flood’s impact on Colorado’s oil and gas fields and the resulting threat to health and the environment is of particular concern to Representative Jared Polis, who serves on the House Committee on Natural Resources (the “Committee”). In a joint letter with Representative Peter DeFazio, the Committee’s ranking Democrat, Polis asked the panel’s chairman, Representative Doc Hastings, to hold a hearing in order to “fully understand the [potentially] grave consequences resulting from [the] flood.” In the letter, Polis stressed that a congressional inquiry might help identify “best practices,” which could mitigate future contamination caused by flooding.  Best practices, include prohibitions on open pits of produced water; closed loop systems for recycling produced water; ways of securing holding tanks, which can be swept away by flood waters; and limitations on well drilling in flood plains.

Additional problems could emerge once inspectors examine sites more thoroughly. Currently, the EPA is working with the Federal Emergency Management Agency (“FEMA”), as well as state and local agencies, to assess the flood’s impact on drinking water and wastewater. Wockner stated, “It’s great news that the EPA is engaging. We have serious concerns that because [Colorado] has so few inspectors and regulators, the [oil and gas] industry is out there self-policing. We need [the] EPA to step in and make sure the public and environment are protected.”

The September 2013 floods have been described as “the worst natural disaster in Colorado so far this century.” Now that the waters have begun to recede, the long process of cleanup and reconstruction can begin. If you would like to help, please visit:


Samantha-Rae Tuthill, Thousands of Gallons of Oil Released into Colorado Floodwaters, AccuWeather, Sept. 20, 2013,

Colleen Slevin and Matthew Brown, Colorado Flooding Triggers Oil Spills, Shutdowns, The Boston Globe, Sept. 20, 2013,

Keith Coffman, Likely Death Toll in Colorado Floods Rises to At Least 10, Reuters, Sept. 20, 2013,

Tom Yulsman, Colorado Floods: Rescue and Recovery from ‘Biblical’ Rainfall, Sept. 20, 2013,

Tom Kenworth, Full Extent of Oil and Gas Spills From Colorado Floods Remains Unknown, Oct. 7, 2013,

Editorial, As Colorado Floods Recede, A Will to Rebuild, The Denver Post, Oct. 7, 2013,

Thirsty in Yemen


Less than one percent of the water in the world is fresh water available for human use.  This makes water a precious resource for countries around the world, including Yemen.  However, Yemen is currently set on a course to become the first nation in the world to deplete its fresh water supply.

In the 1970s, the water table in Sana’a, the capital of Yemen, reached as high as thirty meters below the earth’s surface.  Currently, the water table is as far as 1,200 meters below the surface in some areas of Sana’a.  This means that the aquifer is below sustainable levels for the growing population of Sana’a, and experts predict that by 2025 Sana’a will run out of water.  Nationwide water depletion is equally as precarious, with one report finding the majority of Yemen’s twenty-one aquifers failing to replenish during the rainy seasons.

Approximately ninety percent of Yemen’s domestic water supply is utilized for agricultural purposes.  Many of Yemen’s water problems stem from the farming of qat, a mild stimulant chewed by over seventy-five percent of the men in Yemen.  While qat is economically lucrative and returns a profit five times greater per cubic meter of water used than the next most profitable crop, qat farming also consumes fifty percent of the water used for agricultural purposes and forty percent of Yemen’s total domestic water supply.  Although farmers will likely continue to grow qat because of the strong market, qat farming only accounts for six percent of the total Yemen GDP and displaces more sustainable crops.

Another factor aggravating the water crisis in Yemen is the central government’s ineffective management of water-well drilling.  The Yemen government estimates that ninety-nine percent of the water extracted from the wells is unlicensed.  Yemen law mandates that only the government may dig and maintain water wells.  However, according to Sharia Law, the religious law of Islam, a landowner who drills a well on his private land owns the well, not the government.  Thus, landowners continue unlicensed drilling and water withdrawal from the aquifers in Yemen.

Trying to find Solutions

In order to address the water crisis, Yemen officials proposed several creative solutions; however, most require the cooperation of Yemen’s citizens.  Policy makers propose that the Yemen government should encourage its farmers to move away from cultivating qat and grow more sustainable crops that use less water.  In order to reduce farmer’s cultivation of qat, policy makers suggest the elimination of government subsidies and public purchases of qat.  However, as long as the cultivating of qat remains lucrative for farmers, it is unlikely that the farmers will stop growing qat.  Another potential solution is to set up rainwater-harvesting tanks in rural areas to reduce reliance on groundwater.  Policy makers also proposed that the Yemen government could desalinate water from the ocean.  However, desalination is costly and Yemen would likely need help from foreign governments in order to develop desalination plants.

In part because of the excessive qat farming and the uncontrolled production of private wells, Yemen’s water resources are nearly depleted.  Although time is against the people of Yemen, if the nation works together, along with  foreign assistance, Yemen can still create sustainable water conservation programs to correct its water crisis.


Adam Heffez, How Yemen Chewed Itself Dry, Foreign Affairs (Jul. 23, 2013),

Haley Sweetland Edwards, Yemen Water Crisis Builds, Los Angeles Times (Oct. 11, 2009),

Krista Mahr, What if Yemen is the First Country to Run out Water?, Time (Dec. 14, 2010),

Yemen: Time Running Out for Solution to Water Crisis, Irin (Aug. 13, 2012),

The title picture is covered by the Creative Commons Attribution 2.0 Generic license.  This picture is attributed to Flickr by Ai@ce, and the use of this picture does not suggest Flickr or Ai@ce endorse this blog.