I. INTRODUCTION AND SUMMARY OF HOUSE BILL 16-1392

Colorado House Bill 16-1392 was introduced in March 2016 within the context of increasing water demands, which, without proper management will outpace the available supply by 2050.[1] The House Committee on Agriculture, Livestock, and Natural Resources postponed the bill indefinitely in April 2016.[2] To date, growing demand has largely been addressed through water conservation, construction of new water infrastructure, and the permanent transfer of water rights from agricultural areas to support municipal supplies.[3] Unfortunately, conservation alone is insufficient, new storage projects are costly, and permanent acquisition of agricultural lands and water rights can have detrimental impacts on agricultural communities and may lead to habitat loss and impacts to recreational water uses.[4]

Colorado is a prior appropriation state, one of many across the American West.[5] Prior appropriation means that the right to use water follows a “first in time, first in right” approach, giving the first person to appropriate water from a river or stream the right to use the water over all subsequent users.[6] Unlike riparian systems in the Eastern United States, the Colorado system of prior appropriation does not limit an individual’s right to use water to those who own lands adjacent to the source. Therefore, water rights holders are free to transport water, sometimes great distances, to its intended place of use.[7]

In the prior appropriation system, rights can be transferred like any other property right.[8] However, transfer of water rights in Colorado can come at a high cost. Water transfers require adjudication before a Colorado water court. Before approving the transfer, the water court will assess the historic consumptive use of the water right to ensure that the amount transferred does not injure other water right holders, which may decrease the amount of the original appropriation—and therefore the value of the right.[9] That means if a farmer wants to transfer a water right originally decreed for one hundred acre feet of water, and the water court finds that he has only historically used seventy-five acre feet, his water right is reduced to seventy-five acre feet, significantly decreasing its value. The risk of this loss, along with the high transaction costs of the water court adjudication process, has limited the number of water transfers that take place.[10]

Legislators drafted House Bill 16-1392 to address some of these issues. The drafters of the bill intended to set rules for the creation of water banks and facilitate the temporary transfer of water rights at a reduced transactional cost, with limited court involvement.[11] The legislation would have placed the Colorado Water Conservation Board (“CWCB”) in charge of operating the water banks created under the program (consulting with the state engineer and with some responsibilities delegated to individual water districts).[12] The CWCB would have also been charged with establishing rules for their administration in accordance with specific guidelines for the rules in the proposed legislation.[13]

There is no universal definition for a water bank, and in fact, states that have developed water banks tailor them specifically to the resources available and the needs of the state.[14] In general, water banks are intended to pair water sellers with water users, to help facilitate the temporary exchange of water rights with reduced transaction costs, and decrease long-term liability for water right holders.[15] While the form of water banks varies, their basic purpose has typically been to encourage the transfer of water from areas with low economic use to areas of high economic use and high demand.[16]

At a basic level, this is the goal of HB 16-1392. The bill, if enacted, would have provided a powerful tool for Colorado municipalities to manage their future water demands while protecting vested rights and preserving Colorado’s agricultural heritage and local economies.

II. Benefits of Passing HB 16-1392 

HB 16-1392 is favorable because it would: (A) provide a cost-effective mechanism for temporarily transfering water from consumptive agricultural uses to municipal use while reducing impacts on farming; (B) address specific issues with previous attempts at water banking in Colorado; and (C) reduce transaction costs and long time periods for transfers.

A. Water banks allow for temporary transfers of water from agricultural areas while preserving Colorado’s agricultural heritage

Open water markets, where water is exchanged as any other fungible commodity, is conceptually appealing, particularly in the West where supplies are limited.[17] Water markets prioritize higher value uses of water, specifically low consumption-high value municipal use over highly consumptive agricultural uses.[18] The prior appropriation system, while bearing some resemblance to a market with the ability to sell and exchange water rights, actually works counter to the market favoring older priority uses over newer, growing demands.[19]

Open water markets, however, can have devastating effects on smaller farming communities. Allowing a market driven approach, especially given the disparity in value, may encourage “buy and dry” approaches, where water is sold or permanently transferred to municipal use.[20] “Dry” agricultural lands can be overcome with noxious, invasive species, and the permanent loss of agricultural land can have severe impacts on local farming communities that rely on agricultural production for a wide range of economic activities.[21] As a result, while the market may incentivize individual farmers to sell their water rights for individual gain, the economic loss on the community as a whole may be far reaching.[22]

The Colorado legislature agrees the danger of “buy and dry” approaches must be mitigated,[23] and the proposed HB 16-1392 attempts to mitigate that danger by restricting the market’s ability to fully control water transfers. Under the proposed legislation, transfer of a full water right would only be allowed for up to three years in a ten-year period, or alternatively, thirty percent of a water right could be transferred over a ten-year period.[24] The proposed legislation ensures that market incentives don’t result in the whole-sale transfer of agricultural water rights. This preservation of agricultural use will protect against encroachment of invasive species (and, therefore, protect agricultural economies) while still allowing transfers to supplement farmer’s incomes and supplement municipal water supplies.

B. HB 16-1392 is specifically tailored to address Colorado’s water needs and agricultural traditions.

Previous attempts in Colorado, most notably the Arkansas River Water Bank (“ARWB”), have not been successful.[25] Stakeholders have identified several reasons for the failure of the ARWB, among them were the high prices of banked water, that fact that the ARWB was a virtual bank with no firm storage for physically banking the water, and uncertainty about the ARWB’s ability to deliver water to various regions.[26]

HB 16-1392 is an attempt to rectify some of ARWB’s failings by better tailoring the approach to Colorado’s needs. First, by expanding the banking system to basins outside of the Arkansas River basin, it includes markets that can accommodate the higher cost of water, such as markets with larger urban populations.[27] Additionally, the transfers under HB 16-1392 will hopefully provide a stronger incentive for participation by allowing the transfer of surface water.

C. Unlike traditional transfers, water bank transfers under HB 16-1392 would have lower transaction costs and are less likely to run afoul of the “no-injury rule”.

One major impediment to traditional water transfers is the high transaction cost. In addition to the transaction costs of obtaining court approval, transfers are also forced to absorb any third-party costs intended to prevent material injury to other vested rights owners, and not run afoul of the “no-injury” rule.[28] In some markets, this “potential” for injury can add significant costs to a transaction and may eliminate the value of the transfer entirely.[29] Unlike other western states, under Colorado’s prior appropriation law, the transfer of a water right requires adjudication from a water court rather than an administrative agency.[30] Like many of Colorado’s water laws, this approach is highly protective of existing water users, but is costly, reduces flexibility in the system, and can discourage otherwise beneficial transfers. In order to file for a transfer, the water right holder must file an application with the water court, which allows any person to file a statement of opposition within two months of the application, forcing a public hearing.[31] A final decree is not awarded until after the hearing. The result is that a single transfer can be costly and may take up to five or ten years.[32]

Additionally, in order for any water transfer to be approved it must pass the “no-injury rule.” The “no-injury” rule states that changes in water type, place, or time of use can only be approved if it will have no injury to other users.[33] To determine if an injury may occur, the “historic consumptive use” must be calculated. In addition to being a time-consuming and possibly costly calculation, determining the historic consumptive use can result in a permanent reduction in the water right itself. [34] The uncertainty of how the court will calculate historic consumptive use can reduce the incentive for any temporary transfers.[35]

HB 16-1392 addresses the cost and injury issues raised by traditional water transfers. First, deposits and withdrawals from the bank would not require a court adjudication or a change of use approval.[36] However, the state engineer’s would still need to certify water bank applications and would review each application to ensure beneficial use of the water and avoid potential injury.[37] Furthermore, notice is still required and interested parties can comment on deposit and withdrawal applications.[38] As opposed to a hearing, commenters are invited to have a conference with all parties and the state engineer to discuss ways in which the withdrawal or deposit can be structured so as to avoid material injury.[39] While the goal of the bill is to limit challenges and hearings, it preserves the rights of interested parties to challenge deposits and withdrawals that may injure their vested rights.

Second, the proposed 37-80.3-104(n)–(r), requires the CWCB to develop a streamlined process for calculating historic consumptive use, return flow obligations, and material injury.[40] CWCB must establish a website where users can confidentially review their historic consumptive use and return flow obligations.[41] As further protection, “[p]articipation in the water bank cannot serve as a basis for a reduction of the historical consumptive use, loss, or abandonment of a water right.”[42] However, if a deposit is made and there is no withdrawal of the banked water after two years, then it may be considered a failure to put the water to beneficial use.[43] This provision is intended to prevent water users from using the bank as a means of preserving unused water rights when there is no demand for withdrawal.

The streamlined process is one of the key features of HB 16-1392, and is essential to water banking in general. While the adjudications place a higher burden on those challenging the transactions, that is inevitable when attempting to facilitate the quick and easy transfers and necessary to promote efficient water use and support the growing municipal need.

III. Conclusion

Although water banking is likely to serve as only one tool in meeting the growing needs for municipal water in the state, it can be a powerful means of making water available to growing cities without endangering local economies or Colorado’s traditional agricultural heritage. Although the failure of the ARWB identified some of the problems facing water banking in Colorado, the specific approach proposed under HB 16-1392 should help address the issues that resulted in the previous failures. Although the Bill has been indefinitely postponed due to lack of support, water banking likely represents a necessary tool for Colorado’s water future.

Thomas Witt

Image: The Colorado Capitol. Flickr User Onasill ~ Bill Badzo, Creative Commons.

Footnotes

[1] Colo. Water Conservation Bd., The Colorado Water Plan, 1-9 (Nov. 2015), https://www.colorado.gov/pacific/sites/default/files/CWP2016.pdf. In Colorado, there is an increasing gap between supply and demand in municipal water supplies, particularly along the Front Range. The completion of new water projects is likely to be insufficient to address this gap, and by 2050 water shortfalls are predicted statewide. Id.

[2] Hearing on H.B. 16-1392 Before the H. Comm. On Agric., Livestock & Nat. Res., 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016) (voting to postpone indefinitely on April 11, 2016).

[3] Id. at 6-1, 6-59, 6-115–116, 6-127.

[4] Id. at 6-1, 6-8, 6-59, 6-142.

[5] Chennat Gopalakrishnan, The Doctrine of Prior Appropriation and Its Impact on Water Development: A Critical Survey, 32 Am. J. Econ. & Soc. 61, 61 (1973).

[6] Janis M. Carey & David L. Sunding, Emerging Markets in Water: A Comparative Institutional Analysis of the Central Valley and Colorado-Big Thompson Projects, 41 Nat. Resources J. 283, 308 (2001).

[7] Id. at 307–08.

[8] Justice Greg Hobbs, The Public’s Water Resource: Articles on Water Law, History, and Culture, 71–72 (2d ed. 2010).

[9] Megan Hennessy, Colorado River Water Rights: Property Rights in Transition, 71 U. Chi. L. Rev. 1661, 1670 (2004), see also David C. Taussig, The Devolution of the No-Injury Standard in Changes Cases of Water Rights, 18 U. Denv. Water L. Rev. 116, 117–18, 144 (2014).

[10] Anne J. Castle & Lawrence J. MacDonnell, An Enhanced Water Bank for Colorado 2 (Getches-Wilkinson Ctr. for Nat. Resources, Energy and the Env’t, Univ. of Colo. Law Sch. (2016), https://www.colorado.edu/law/sites/default/files/An%20Enhanced%20Water%20Bank%20for%20Colorado.pdf.

[11] H.B. 16-1392 §§ 1 (37-80.3-102(1)(a),(b)(I)), 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016).

[12] H.B. 16-1392 §§ 1 (37-80.3-104(1),102(a), 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016).

[13] H.B. 16-1392 §§ 1 (37-80.3-102(1)(a), 104(2)), 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016).

[14] Amanda E. Cronin and Lara B. Fowler, Northwest Water Banking: Meeting Instream and Out of Stream Water Needs in the Pacific Northwest, 102 Water Rep. 10, 10., (Aug. 15, 2012), http://www.coloradowatertrust.org/images/uploads/resources/Northwest_Water_Banking.pdf.

[15] Id.

[16] See Loretta Singletary, Water Banking: What it is and How Does it Work?, W. Resource Issues Educ. Series, no. 6., (n.d.), https://www.unce.unr.edu/publications/files/ho/other/fs9809.pdf. (providing an overview of water banking).

[17] Id.

[18] Mark Squillace, Water Transfers for a Changing Climate, 53 Nat. Res. J. 55, 56 (2013) (stating that “[w]ater markets have special appeal in the western United States where the prior appropriation doctrine favors historic, low-value agricultural water rights over far more valuable domestic water rights”).

[19] Id.

[20] Id. at 62. See also 26th Annual Water Law Conference: Twenty-First Century Water Supply,

Use and Distribution: Do the Rules Still Apply?, 11 U. Den. Water L. Rev. 389, 405–06 (2008)

(“‘[B]uy and dry’ [is] the permanent transfer [of water] from agricultural use to municipal use that can dry the land. . . . [T]he transfer is a one-time deal where municipalities buy shares in a ditch company, often far from the municipality, and the water is permanently removed from irrigation use by the ditch company. The irrigator and the region then can suffer from the limited or lost agricultural productivity resulting from the water transfer.”).

[21] Squillace, supra note 13A, at 62.

[22] Peter D. Nichols, Leah K. Martinsson & Megan Gutwein, All We Really Need to Know We Learned in Kindergarten: Share Everything (Agricultural Water Sharing to Meet Increasing Municipal Water Demands), 27 Colo. Nat. Res., Energy & Envtl. L. Rev. 197, 202–03 (2016).

[23] Id.

[24] H.B. 16-1392 § 1 (37-80.3-104(2)(i)), 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016).

[25] Ralph Scanga Jr., Update of Water Banking in the Arkansas Presented to the Interim Water Resources Review Committee, (Aug. 21, 2013), https://www.colorado.gov/pacific/sites/default/files/13WaterResourcesUpdateonWaterBanking.pdf (stating that while some water “deposits” were made into the bank, no withdrawals were ever made).

[26] Id.

[27] Colorado is divided into seven different management division based on hydrological basins. State of Colo. Dep’t of Nat. Res. Div. of Water Res., Colorado River Basins (2005), https://www.colorado.gov/governor/sites/default/files/documents/colorado_river_basins.pdf.

[28] Hennessy, supra note 7, at 1670. (describing the operation of the “no injury rule” in water transactions).

[29] Id.

[30] Nichols, Martinsson & Gutwein, supra note 14, at 205.

[31] Id. (If there is no opposition, or if a settlement can be reached with any opposing parties, the court can approve the transfer with stipulations, if necessary).

[32] Id. at 206.

[33] See Hennessy, supra note 7, at 1669–70.

[34] See Taussig, supra, note 7, at 144.; See Justice Greg Hobbs, supra note 6, at 72; See Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1157–58 (Colo. 2001) (The burden of showing no injury is on the party seeking the transfer. The challenge of proving a negative leads to both higher costs and greater uncertainty in the outcome of a hearing. In fact, in the Arkansas River Basin, the Colorado Supreme Court has held that there is a presumption of injury that must be overcome for some transfers).

[35]See Hennessy, supra note 7, at 1670; See, e.g., In Re Water Rights of Cent. Colo. Water Conservancy Dist., 147 P.3d 9, 20 (Colo. 2006) (a rather extreme example of how uncertainty regarding the calculation of historic consumptive use can result in the permanent reduction of water rights).

[36] H.B. 16-1392 § 1 (37-80.3-104(2)(e)), 70th Gen. Assemb., 2nd Reg. Sess. (Colo. 2016).

[37] Id. at (g),(k).

[38] Id. at (m)(II)–(III).

[39] Id. at (m)(IV).

[40] Id. at (n)–(r).

[41] Id. at (s).

[42] Id. at (8).

[43] Id.


University Of Denver Water Law Review Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

        Denver, Colorado                         April 7, 2017

Separation of Powers: A Comparison of Administrative, Legislative, and Judicial Water Regimes

(Full video of the panel below)

This panel brought in three experts to discuss the benefits and drawbacks of water law regimes that are administrative, legislative or judicial in nature. Sturm College of Law Professor Tom Romero moderated the panel.

David Barfield, the Kansas Chief Engineer, spoke first and discussed the administrative regime. He explained the background of Kansas water law and the historical development of its administrative regime. The population of Kansas mostly resides in the wetter southeast, while most irrigation occurs in the west. This, combined with occasionally unavailable surface water, has led western irrigators to rely upon the groundwater of the Ogallala-High Plains aquifers. These aquifers do not interact with the surface stream and receive essentially no recharge.

To deal with these issues, Kansas has used several different water regimes. Before 1945, Barfield explained that Kansas used a judicial regime with few water laws. The state instead relied on the common law of riparian rights. The courts also interjected some elements of prior appropriation, creating a confusing mix of doctrines. In 1944, the Kansas Supreme Court decided this system no longer worked. The legislature responded, passing the 1945 Kansas Water Appropriation Act. Barfield said this legislative regime lasted from 1945 to about 1978. During this period, the legislature entered interstate compacts, partnered with the federal government to improve water storage, created an office dedicated to water planning, and much more. In 1978, the legislature made major amendments to its water law, shifting Kansas into an administrative regime. This put the chief engineer in charge of administering the state’s water system. The chief engineer’s duties include managing permitting, all prior vested rights, all prior appropriation rights, any changes of water rights, and any other issues that may come up. While this system effectively manages the state’s water, it has not fully addressed groundwater overdevelopment.

To deal with the overdevelopment problem, the Kansas legislature passed the Groundwater Management District Act, which created five groundwater management districts. In each district, the locals adopt management programs for groundwater use, subject to chief engineer approval. However, Barfield said, these plans have at best slowed down aquifer depletion. He said solving this problem requires solving hundreds of smaller problems. One of the problems he identified is the worry that conserving water will result in losing water rights. To address this, Barfield has eliminated “use it or lose it” within closed management districts. The irrigators’ water rights will no longer lose their water right by non-use. Barfield said since this elimination irrigator have reduced their use of the aquifers. While the issues persist, Barfield explained that Kansas’ administrative regime has been working towards solutions.

Rich Gordon, a former member of the California State Assembly spoke next to discuss the legislative regime. He discussed California’s blend of prior appropriation and riparianism. California’s prior appropriation roots date back to the 1849 Gold Rush. The miner’s used first-in-time, first-in-right to determine water rights. In 1850, California adopted riparian rights in its constitution, but by 1851 California recognized prior appropriative rights as equals with riparian rights. In 1914, California established a permit system for its appropriative rights. This led to a system with three types of rights: pre-1914 appropriative, post-1914 appropriative, and riparian. On their own, riparian rights are difficult to quantify without stream-wide adjudication. But only a few streams have received these. Groundwater poses similar issues because its only regulations have been court imposed. In addition, the majority of California’s water is in the north, while most of its need for water is in the south. With this variety of rights, difficulty of quantification, limited control of groundwater, and geographic disparity, California’s water rights system has become difficult to navigate.

With these difficulties as a baseline, Gordon explained that California’s legislature only gets involved to respond to crises or to headlines. California’s recent drought provided both. Gordon noted the significance of the legislature passing the Sustainable Groundwater Management Act (SGMA). SGMA aimed to address the subsidence issue resulting from groundwater over-pumping. Originally, the act would have fully regulated groundwater basins. However, because it resulted from compromise (as legislation tends to do), SGMA instead requires local governments to establish groundwater sustainability agencies to manage wells. Though later questioned about the actual adoption of these agencies, Gordon said he believes that people will prefer local control over a state imposed system.

Gordon also discussed the major issue resulting from California’s premise that most of the state’s water can be stored in snowpack. The state does not have the capacity to store water outside snow pack. Combine this with California’s penchant for wet or dry years (rather than average years), and the state cannot capture the benefit of the wet years to make up for the dry years because of its lack of storage. One of the solutions the legislature has put forth, has been allowing public entities to obtain water rights for captured storm water. Gordon concluded by describing the difficulty of working in the legislative role. Because legislation requires compromise, it is difficult to fully solve real problems.

Finally, Greg Hobbs, a retired Colorado Supreme Court Justice, spoke to discuss the judicial regime. He began by detailing the evolution of Colorado’s water regime. Congress carved Colorado out to cover the head waters of five great rivers—the Platte, the Arkansas, the Colorado, the Republican, and the Rio Grande. After Colorado’s gold rush in 1859, agriculture became a huge industry, because it was “rumored that the miners liked to eat.” Colorado needed the prior appropriation system because it allowed moving water from rivers to farms. An early draft of the Colorado Constitution declared water to be the property of the state, left to the legislature to distribute, but the influence of farmers led to a different final wording. Instead the constitution embraces prior appropriation by declaring the water of the natural stream to be the property of the public, subject to appropriation. The early Colorado Supreme Court case, Coffin v. Left Hand Ditch, firmly rejected the existence of any riparian water rights.

The Colorado legislature later gave the district courts the responsibility to decree water rights. According to Hobbs, the legislature did not trust itself or an administrative apparatus to hand out water rights. He said the legislature did not want to require the people ask the government to use water. By putting the decision into the courts, the legislature instead trusted the people with their own water. In 1881, the legislature created the State Engineer to enforce those decrees and administer the system of water rights.

Unfortunately, these judges did not have a full view of the streams. The 1969 Act addressed this by creating seven water divisions, each based upon a major river basin.
Each with a water judge, an alternate water judge, and a water referee. The referee works with the parties to investigate the water rights and attempt to obtain a consent decree. The act also explicitly recognized tributary groundwater within the priority system, because new wells had previously forced 1860s water rights to be curtailed.

When questioned about the cost of the court system limiting access, Hobbs noted that it still provides the best protections. In 1969, the Colorado legislature considered several options, including administrative and political regimes. These were all rejected in favor of the water court system and the water referee. This system provides extensive protection for everyone’s water rights and, Hobbs asserted, without these protections Colorado would not have such an extensive water market.

Hobbs explained that by splitting the water regime into a system of checks and balances—water rights decreed by the court, administered by the executive branch, and problems solved by the legislature—Colorado avoids the pressures that could be applied on any one branch to not enforce the doctrines of prior appropriation in some circumstances. Hobbs expressed worry about the pressure faced by administrative agencies that both hand out water permits and enforce those permits.

With each panelist having discussed their regimes, Romero moved the panel into question and answer. He asked the panelists how their regimes could benefit from a change or borrow from the other regimes to improve or address the challenges posed by social, political, and environmental issues. Gordon said that, while Californians never want to admit they can learn from others, their system is convoluted and would be better off with a more coordinated system that could better address groundwater. Barfield said that Kansas has already borrowed extensively from other states to create their system. He said, contrary to Hobbs’ worries about an administrative regime, that chief engineers can certainly do it all. He does not foresee further changes to Kansas’ system. Hobbs noted that the downstream states keep Colorado honest. Through compacts, Colorado has been forced to consider other states, and better administer its own waters. Similarly, Hobbs explained that other interests, including reserved water rights, and public lands continue to impact considerations of water rights within Colorado. The panelists then fielded questions from the audience until they ran out of time.

Each panelist discussed how the unique history of their state molded the regime it now uses. It is the unique challenges faced by each state that has created differing water systems that, mostly, work to create efficient use and administration of water.

 

Rioux Jordan


Case Note: Concerning the Application for Water Rights of Town of Minturn,

Supreme Court of Colorado

359 P.3d 29

Supreme Court Case No. 14SA295

October 26, 2015

An Appeal from the District Court Water Division No. 5

Case No. 12CW77

Honorable Judge Thomas W. Ossola

 

I. INTRODUCTION

Generally, individuals may represent themselves in courts of law.[1] For example, a criminal defendant may choose to serve as his own counsel in his death penalty trial.[2] In the realm of water law in Colorado, any person may insert themselves into water-court proceedings.[3] However, after a recent decision, a person may not proceed pro se in water court while acting in a trustee capacity.[4] This article addresses why the ability to represent oneself in Colorado water court exists, even in the context of Tucker v. Minturn. The article will first provide pertinent background on Colorado’s water regime as well as context to the Minturn decision. Moreover, the article suggests this ruling is analogous to the way courts treat unrepresented parties in water court. Last, the article will make a policy recommendation that could potentially ameliorate the inequity that exists in the realm of water disputes.

II. BRIEF BACKGROUND ON COLORADO WATER COURTS

In order to understand how a pro se water court litigant wrote his own legal brief and argued before the Colorado Supreme Court, it is helpful to first explain the legal regime behind Colorado water law. Pursuant to Colorado’s Constitution, water rights are unique because ownership remains in the general public, subject to prior appropriation.[5] Under the Water Rights Determination and Administration Act of 1969 (“the Act”),[6] the Colorado legislature created a framework for specialized water court proceedings.[7] Unlike other states that have created administrative water agencies, under the Act, Colorado “retained a judicial system and charged it with administrative functions.”[8] The Act divided Colorado into seven water divisions, corresponding to its seven major drainages.[9]

A user must file an application with the appropriate water clerk in order to be granted a water right or to change an existing water right.[10] Every month, each water division prints resumes of pending water applications, publishing them both in newspapers and online.[11] Moreover, the resumes are sent to rights-holders potentially affected by an application.[12] If someone wishes to object to an application, he or she may file a statement of opposition.[13] A water referee, serving as a fact-finder, consults with the division engineer before making a ruling to either approve, partially approve, or deny each application.[14] Notably, “[i]nterested parties who are dissatisfied with the ruling may file a protest. A protest results in a hearing at which the water judge determines the issues [on a] de novo” standard of review.[15] These hearings are safeguards for potentially injured parties to state or restate their opposition to an application. In these protest hearings, the applicant, and all other parties who oppose the application, will generally hire lawyers and engineers, which “can be rather expensive.”[16]

Another safeguard ensuring that referees’ determinations are appropriate is that their rulings are reviewed semi-annually by the division’s water court judge, who has the statutory power to confirm, modify, or reverse the decisions.[17] Thereafter, any appeals go directly to the Colorado Supreme Court.[18]

III. FACTS OF THE MINTURN CASE

The town of Minturn is a small municipality located upstream from the confluence of Gore Creek and the Eagle River on Colorado’s Western Slope.[19] In fulfilling its duty to provide water to its residents, Minturn was originally decreed what is known as the Bolts Lake conditional water right in 1999 for 320 acre-feet in the District Court for Water Division 5 (“Division 5 Water Court”).[20]

Bolts Lake lies on a property known as Battle Mountain.[21] This property is described as “one of the most coveted, disputed, and complex pieces of land in the Rocky Mountains.”[22] Although Battle Mountain was not at issue in the Minturn case, its description serves as an appropriate primer for water rights, which could also be characterized as coveted, disputed, and complex.

In 2012, Minturn filed its sexennial application for a finding of reasonable diligence in developing its Bolts Lake water right.[23] This finding was an important step because it would be Minturn’s only storage right,[24] and without a water storage right, Minturn’s “beneficial use of water would be limited to short runoff periods.”[25]

Soon after Minturn filed its application, Mr. Jeff Tucker inserted himself into the adjudication by filing a statement of opposition, claiming an interest in affected water rights as a trustee of an express trust.[26] However, Tucker provided no evidence regarding the purported trust nor the allegedly affected water rights.[27] Notably, Tucker has previously opposed efforts by Minturn to appropriate the Bolts Lake water right.[28]

Incidentally, back in 2011, a Colorado magazine referred to Tucker as a “mysterious man” who had filed several lawsuits related to Battle Mountain.[29] Moreover, in its answer brief to the Supreme Court, Battle Mountain Entities asserted “Tucker has inserted himself into many Colorado cases, claiming various entities . . . hold an interest in the Battle Mountain Property.”[30] The answer brief also indicated that Tucker has a history of fraudulent, failed property ownership claims, casting doubt on the veracity of his trusteeship.[31]

In response to Tucker’s Bolts Lake opposition, the Water Court held a case management conference and raised sua sponte the question whether Tucker could proceed pro se in the capacity of a trustee.[32]

The Water Court ultimately held that the Tucker, a non-attorney, could not represent a trust in a water proceeding, and the court granted Minturn’s application and Decree.[33] Tucker appealed the Water Court’s ruling, which propelled the issue to the province of the Colorado Supreme Court.[34]

Oral arguments for Minturn occurred on September 30, 2015.[35] Tucker, acting as his own attorney, argued against attorneys from the well-known firm Holland & Hart, and argued first.[36] At the podium, Tucker made no mention of the unidentified beneficiaries of the trust, further exacerbating the legitimacy of his role as a pro se opposer.[37]

One notable query for Tucker came from Chief Justice Rice, who expressed her concern with the rule against the unauthorized practice of law.[38] Rice suggested that Tucker’s self-representation implicated the interests of (albeit unknown) others, which could cross that line.[39] In response, Tucker made an interesting characterization: He stated that it was his personal perspective that Americans have always had the right to represent themselves in court, and that the right to be represented by counsel is more of a secondary right.[40]

Next, Minturn’s attorney, Megan Winokur, argued before the justices. Winokur conceded that there is a unique level standing in Colorado water law.[41] Any person has a right to file a statement of opposition in a case without demonstrating any explicit interest or injury.[42] This lower threshold for standing results from Colorado’s waters belonging to the public.[43]

Nonetheless, Winokur asserted that there are good reasons to require counsel on behalf of parties in water court.[44] First, individuals are entitled to competent representation.[45] Second, attorneys are held to certain ethical standards.[46] Third, having attorneys represent the rights of clients ensures orderly and organized legal proceedings.[47] Last, Winokur stressed that Tucker’s pro se participation implicated “the time and [financial] resources of a small municipality” in defending the Water Court’s decision.[48]

A month later, the court upheld the Water Court’s determination: because Tucker was trying to represent the interests of a trust, he was acting in a capacity that involved the interests of individuals other than himself, which meant he, as a trustee, was not allowed to represent a trust pro se in a litigation matter.[49]

IV. THE ISSUE OF SELF-REPRESENTATION IN WATER COURT

An issue the court did not directly address in its short Minturn decision is whether Colorado water court proceedings are fundamentally different from other court proceedings requiring counsel.  The uniqueness of water law creates a paradox for self-represented parties. Minturn’s own attorney noted the lower threshold of standing in water disputes that entitles anyone, with or without an attorney, to file a statement of opposition, which represents “a legal system that provides stability and fairness” to all Coloradans.[50] Since “water is legally and historically a public resource,” water proceedings implicate fundamentally different values than more privatized or individualized disputes where attorneys are prevalent.[51] Thus, although Tucker may not have been the most appropriate pro se party for whom this suggestion should be made, the current framework provides a mechanism for lay people, without the resources to hire a lawyer, to challenge another’s use of water.

More broadly speaking, however, the Minturn ruling is consistent with other Colorado court decisions that hold pro se water court parties to a certain standard. For example, a non-attorney’s water lawsuit was dismissed for lack of jurisdiction because the petitioner improperly filed it in district court, not water court.[52] Thus, the court did not grant the petitioner special consideration because he lacked a law degree.[53]

Moreover, the Colorado Supreme Court has also found that merely because a pro se party “did not know of his obligations under the Water Court Rules or the Rules of Civil Procedure d[id] not excuse his failure to make . . . required disclosures.”[54] The Court further held that, “[w]hile courts may take into account the fact that a party is appearing pro se, pro se parties are ‘bound by the same rules of civil procedure as attorneys licensed to practice law.’”[55]

Thus, non-attorneys like Tucker have the right to present their own case, but Colorado courts will hold them to the same standard as lawyers because “otherwise, ignorance is unjustly rewarded.”[56] In Minturn, Tucker asserted a perplexing due process claim for the first time to the Colorado Supreme Court.[57] Tucker’s choice not to hire counsel means that he “must be prepared to accept the consequences of his mistakes and errors” in representing himself both in the water court and on appeal.[58] Therefore, there is a balancing act in keeping water courts accessible to those who may not be able to afford an attorney, while also ensuring that water court proceedings are not abused by pro se litigants.

Despite the unique public entitlement to Colorado’s unappropriated waters, when a non-attorney represents his or her own interests (or the interest of others like in Minturn) in a legal forum, issues may arise. One litigator notes that “self-represented part[ies] suffer from lack of experience, expertise, and often, basic competence.”[59] Further, unrepresented parties’ lack of training and experience creates more of a burden for courts, “which often must decipher unclear arguments, tease out unmade arguments, and parse the record to a greater extent than it would for a represented party.”[60]

V. POLICY RECOMMENDATION: PRO BONO WATER COURT PROGRAM

While there may be equally “keen competition among [all types of] water users,” [61] there is oft-times inequitable bargaining power among those users due to disparate financial resources and knowledge of Colorado’s regime governing water law. Water disputes can be highly-technical processes, involving scientific assessments.[62] It may be difficult for a person who cannot hire an engineer, let alone an attorney, to successfully bring an action in a water court. Therefore, the fundamentally complicated nature of water law often motivates interested parties to retain counsel.

However, in light of available resources for pro se litigants in other contexts, there is an opportunity to provide self-represented litigants with attorneys in water court. Notably, by way of a fairly recent Chief Justice Directive, Colorado courts are permitted to supply “limited self-help assistance to pro se litigants in non-criminal appeals, [in order] to facilitate their access to the courts.”[63] Perhaps this type of program could be extended and tailored to assist pro se water court litigants.

In the appellate context, the Colorado Bar Association has initiated the Appellate Pro Bono Program.[64] This program pairs indigent litigants, who would otherwise appear unrepresented, with volunteer lawyers.[65] A way to make water court proceedings more fundamentally fair would be to create a Water Court Pro Bono Program for the seven water court divisions, streamlining disputes involving unrepresented parties.

Another potential avenue for pro se Colorado water court litigants would be the creation of a water law clinic at the University of Denver Sturm College of Law. Given the demographic and economic difficulties associated with agricultural water users in particular, the establishment of this type of clinic could help farmers and other water users navigate the court process. For example, student attorneys could assist clients in protecting their own water rights. The University of Denver’s strong reputation for both water law and its clinical programs, coupled with its expanding water law course offerings,[66] including a Water Court Practice Seminar and a Water Transactions Seminar, would make it an ideal forum for a clinic serving pro se water court litigants who need assistance.

VI. CLOSING

While water law is complex, Minturn demonstrates it remains rife with contention as its public nature opens the floodgates for pro se parties to insert themselves into water court proceedings. However, if Jeff Tucker had been required to meet with a water law attorney, or alternatively, have law students from a Water Law Clinic work with him, perhaps his lengthy and costly appeal could have been avoided.

 

Kathleen Cecelia Cunilio*

Image: A water tower sits above the town of Minturn, Colorado. Flickr user MyEyeSees, Creative Commons.

 

Footnotes

* J.D., University of Denver, 2017. A tremendous thank you to Professor Tom Romero for his mentorship, comments, and support in the writing of this piece. Thanks also to the editors of the University of Denver Water Law Review for their work in editing this Note. Finally, thank you to the Open Courts Colorado program for providing Colorado law students like myself with an opportunity to observe appellate court proceedings, such as Tucker v. Minturn.

[1] People v. Adams, 243 P.3d 256, 265 (Colo. 2010) (“An individual has the right to represent himself pro se, as his own counsel in civil and criminal cases. . . .”).

[2] Kevin Sack, Dylann Roof to Represent Himself at Trial in Charleston Church Shootings, N.Y. Times (Nov. 28, 2016), http://www.nytimes.com/2016/11/28/us/dylann-roof-charleston-massacre.html?_r =0 (last visited Nov. 28, 2016).

[3] See Colo. Rev. Stat. § 37-92-302(1)(b) (2012).

[4] In re Water Rights of Town of Minturn, 359 P.3d 29, 30 (Colo. 2015).

[5] Colo. Const. art. 16, § 5; Colo. Rev. Stat. § 37-92-103(12) (2014).

[6] Colo. Rev. Stat. §§ 37-92-101–602 (2016).

[7] David H. Getches et al., Water Law in a Nutshell 164–165 (4th ed., 2009) [hereinafter Getches].

[8] Id. at 164.

[9] Id. at 165.

[10] A. Dan Tarlock et al., Water Resource Management: A Casebook in Law and Public Policy 203 (7th ed., 2014) [hereinafter Tarlock].

[11] Id.

[12] Id.

[13] Colo. Rev. Stat. § 37-92-302(1)(b).

[14] Tarlock, supra note 10, at 203.

[15] Id.; see also Wadsworth v. Kuiper, 562 P.2d 1114, 1119 (Colo. 1977) (noting that “persons, including the State of Colorado, might file a protest to the ruling of a referee even though they had not filed a statement of opposition to an application” for a water right.).

[16] Tarlock, supra note 10, at 203.

[17] Id.

[18] Id.

[19] Town of Minturn History, http://www.minturn.org/community/MinturnHistory/index.html (last visited Mar. 13, 2017).

[20] Brief of Applicant-Appellee at 4, Town of Minturn v. Tucker, No. 2014SA295 (Colo. Sept. 30, 2015) [hereinafter Brief of Applicant-Appellee].

[21] See Battle Mountain Resort, http://battlemountainresort.com/description/ (last visited Mar. 13, 2017) (“Bolts Lake itself was built by the Bolt brothers at the turn of the century and used for fishing and boating. They cut a channel through solid rock to feed it with a diversion from Cross Creek.”).

[22] Patrick Doyle, The Last Resort, 5280 Magazine, June 2011, at 72, available at http://www.minturn.org/pdf/PublicNotices/5280_Article_-_The_Last_Resort_06-2011.PDF [hereinafter Doyle].

[23] Brief of Applicant-Appellee, supra note 20, at 3.

[24] Id. at 4.

[25] Getches, supra note 7, at 200.

[26] Brief of Opposer-Appellee at 3, Town of Minturn v. Tucker, No. 2014SA295 (Colo. Sept. 30, 2015) [hereinafter Brief of Opposer-Appellee].

[27] Id. (“Trustee’s Statement of Opposition does not state for what entity or trust he is acting as trustee.”).

[28] See Winslow Taylor, Town of Minturn v. Tucker, 16 U. Denv. Water L. Rev. 485, 493 (Apr. 15, 2013) (“After the water court entered . . . the final decrees, Minturn discovered the stipulation decree based several consumptive use calculations on billing statements . . . which made the monthly calculations differ by one month and not reflect[ive] of actual monthly historical use numbers. Minturn petitioned the water court to correct the decrees. Tucker was the only opposer [to these decree corrections].”).

[29] Doyle, supra note 22, at 92.

[30] Brief of Opposer-Appellee, supra note 26, at 3 n.2.

[31] Id.

[32] Brief of Applicant-Appellee, supra note 20, at 10 (At this hearing Senior Water Court Judge Ossola said, “And here we have Mr. Tucker, who I understand is not a lawyer . . . and styles himself in the pleadings as trustee, but . . . I don’t know what Mr. Tucker is trustee of. The term ‘trustee’ causes me to assume that there is a trust of which he is the trustee, and that raises the question [what he is a] trustee of.”).

[33] See Minturn, 359 P.3d at 31.

[34] Id.

[35] Oral Argument Schedule, State of Colo. Judicial Dep’t (Sep. 30, 2015), https://www.courts.state.co.us/Courts/Supreme_Court/Oral_Arguments/Index.cfm?year=2015&month=9.

[36] See Oral Argument 14SA295, Tucker v. Town of Minturn, 359 P.3d 29 (Colo. 2015), https://cojudicial.ompnetwork.org/shows/14sa295 (last visited Nov. 29, 2016) [hereinafter Oral Argument Video Recording].

[37] Id.

[38] Id. at 8:07; See Colo. Rev. Stat. § 12-5-101 (2014) (In Colorado, an individual is statutorily required to obtain a law license in order to practice law).

[39] Oral Argument Video Recording, supra note 36, at 8:10.

[40] Id. at 11:10.

[41] Id. at 15:10.

[42] Id. at 15:18.

[43] Id. at 15:25; see also Colo. Const. art. XVI, § 5.

[44] Oral Argument Video Recording, supra note 36, at 22:15.

[45] Id. at 22:28; see also Colo. Rules of Prof’l Conduct r. 1.1 (2016).

[46] Oral Argument Video Recording, supra note 36, at 22:38; see generally Colo. Rules of Prof’l Conduct pmbl. (2016).

[47] Oral Argument Video Recording, supra note 36, at 22:41.

[48] Id. at 24:28. Moreover, Winokur also told the court that Tucker’s pro se involvement with the Water Court implicated the three types of concerns she listed.

[49] Minturn, 359 P.3d at 32.

[50] Getches, supra note 7, at 3; Oral Argument Video Recording, supra note 36, at 15:18; Brief of Opposer-Appellee, supra note 26, at 28 n.4.

[51] Getches, supra note 7, at 11.

[52] See People v. Spencer, 524 P.2d 1084, 1085 (Colo. 1974).

[53] Id. at 1085–87.

[54] Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564, 572 (Colo. 2009).

[55] Id. (citing to Negron v. Golder, 111 P.3d 538, 540 (Colo. App. 2004)).

[56] Knapp v. Fleming, 258 P.2d 489, 489–90 (Colo. 1953).

[57] Opening Brief of Opposer-Appellant at 14–16, Town of Minturn v. Tucker, No. 2014SA295 (Colo. Sept. 30, 2015).

[58] Viles v. Scofield, 261 P.2d 148, 149 (Colo. 1953).

[59] Marcy G. Glenn, Pro Se Civil Appeals: The Problem and Special Standards and Rules, Colo. Law., Mar. 2016, at 63, 64. [hereinafter Glenn I].

[60] Marcy G. Glenn, Pro Se Civil Appeals-Resources and Opportunities, Colo. Law., June 2016, at 57, 60 [hereinafter Glenn II].

[61] Getches, supra note 7, at 1.

[62] James S. Witwer and P. Andrew Jones, Statutory and Rule Changes to Water Court Practice, Colo. Law., June 2009, at 53, 56 (stating that “[t]oday’s water litigants arrive at the courthouse with complex hydrologic models, gigabytes of data, and a cadre of expert witnesses. Colorado has a large number of qualified, ethical professionals who fulfill this role, helping attorneys, participants, and judges understand the complexities of hydrology and related technical fields”).

[63] Glenn I, supra note 59, at 65; see generally Chief Justice Michael L. Bender, Colo. Chief Justice Directive 13-01 (June 12, 2013), https://www.courts.state.co.us/Courts/Supreme_Court/Directives/13-01.pdf.

[64] Glenn II, supra note 60, at 57.

[65] Id.

[66] See generally Course List, University of Denver College of Law Registrar, http://www.law.du.edu/forms/registrar/course-list.cfm (last visited May 8, 2017).


Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

Denver, Colorado                         April 7, 2017

“To be a Coloradan, What Water Means?” Keynote Presentation by Ken Salazar, Former U.S. Secretary of the Interior and U.S. Senator

 

At the 2017 University of Denver Water Law Review Symposium in Denver Colorado, former United States Secretary of the Interior, Ken Salazar, offered his insight into what water means as a Coloradan.

Secretary Salazar began with how his history has defined what water means to him. His family has farmed and ranched the soils of the Rio Grande and its tributaries in the San Luis Valley since 1598. His family had priority number twenty-three out of the Rio San Antonio, and good and bad years affected his family’s crop. Secretary Salazar said he did not grow up rich, but he grew up surrounded by the Sangre de Cristo and San Juan mountains and the Rio Grande and Rio San Antonio. A lot of the divine providence that guided him through the experiences of serving the people of Colorado and the United States he said started in the San Luis Valley where he learned about the nexus between humans and the planet on which we survive.

Secretary Salazar applauded Colorado for being a pioneer in dealing with water issues, but warned that the state still has a long way to go. Colorado pioneered the doctrine of Prior Appropriation, which, despite criticism, has changed and evolved to become a working system. Other historic examples of where Colorado led the way include Colorado’s efforts to integrate ground and surface water uses in the 1960s and Colorado’s creation of the Instream Flow Program in the 1970s.

Secretary Salazar next identified two major water-related challenges facing Colorado: population growth and climate change. Colorado’s population is expected to nearly double in the next forty years. The challenge Colorado faces is how to supply those additional people and still preserve the open spaces its citizens have come to love. Secretary Salazar also briefly addressed climate change. According to projections, the Colorado River and the Rio Grande basins can expect to see a significant reduction in precipitation. So, as environmental demands increase, Secretary Salazar is hopeful that society will continue to recognize the importance of protecting and restoring America’s ecosystems.

In the face of such challenges, Secretary Salazar said it is important to look back on stories where Colorado has been successful. For example, he recounted a story from 1990 when he was head of Colorado’s Department of Natural Resources. California, in the midst of a severe drought, was preparing to litigate some of the miscalculations made during the drafting of the Colorado River Compact hoping to get a greater share of the water supply. Secretary Salazar oversaw a group of Colorado officials tasked with responding to California. Just when all hell seemed ready to break loose, Secretary Salazar and the group decided to send an olive-branch in the form of a letter. In that February 21, 1991 letter, which Secretary Salazar authored and Governor Roy Romer sent to Governor Pete Wilson of California, Colorado offered to collaborate. It said Colorado understood California’s needs, and that it was willing to work with the other Colorado River basin states and the federal government to assure that California would make it through the drought. However, the letter also indicated that Colorado wanted to be sure that any ensuing agreements were addressed within the Law of the River and that the framework of the law not be changed. A quarter century later, the February letter has stood the test of time and set a precedent for collaboration among the Colorado River basin states, the federal government, and the nation of Mexico. So, if collaboration was possible on such a litigated river, then it is possible that the tradition of collaboration might continue in the future.

“In the West, when you touch water, you touch everything,” concluded Secretary Salazar, quoting the late Congressman from Colorado, Wayne Aspinall. This is true today, and will remain true in the future. So, in looking for solutions, Secretary Salazar urged the audience to look back at the past to provide lessons for the present.

After sharing his insight, Secretary Salazar provided the symposium with an opportunity for questions, during which time the symposium raised four matters: the Sangre de Cristo mountains; the 1872 Mining Law; the Senate’s recent decision to exercise the “nuclear” option for confirming Supreme Court nominee Neil Gorsuch; and, Secretary Salazar’s opinion of current Secretary of the Interior, Ryan Zinke.

Secretary Salazar finished his keynote address with a message of hope. He said that even though nothing is certain because of the current presidential administration, the United States is a strong nation and a strong democracy. Time will pass and there will be new leaders. Climate change is not going away, it is an existential issue with which someone will have to grapple. Secretary Salazar pointed to energy innovation by the private sector and explained that he is not despairing. There will be a 2020 and a 2024. The United States of America has the capacity to grapple with these tough issues that affect Colorado, the nation, and the planet.

Trevor C. Lambirth


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

 

Denver, Colorado                          April 8, 2016

THE HISTORY AND IMPORTANCE OF INTERSTATE WATER COMPACTS

The 2016 University of Denver Water Law Review Annual Symposium focused on the topic of Interstate Water Compacts, both past and present.  The first speaker, retired Colorado Supreme Court Justice Gregory Hobbs, spoke on the history and importance of interstate water compacts, both in the United States as a whole and Colorado in particular.

Justice Hobbs began the Symposium by noting how interstate compacts illustrate the delicate mix of federalism that makes the United States unique.  His presentation centered around the story of Delphus Carpenter, a graduate of the Sturm College of Law and the father of the interstate water compacts created in Colorado.  Born in 1877, a year after Colorado became a state, Carpenter grew up in Greeley working the land.  After graduating law school, he became a practitioner in Greeley.  He was a strong believer in the prior appropriation doctrine.  Coloradans at that time, and settlers across the West, believed that they owned the water within their territories, but this view would soon prove incorrect.

Justice Hobbs noted the significance of 1902.,  During this year the Federal Reclamation Act took effect and Kansas sued Colorado over water rights in Kansas v. Colorado.  Moreover, both the Bureau of Reclamation and the Federal Government asserted that planned reclamation project should receive all unappropriated water.  Justice Hobbs explained that the states, including Colorado, were not happy with the situation that was developing in the West, a war of sorts for water rights.  In 1907, the Supreme Court finally issued its decision in Kansas v. Colorado, holding that a fact specific equitable apportionment analysis would control these types of disputes between states over water rights.  Justice Hobbs stated how Colorado “won” the first round of apportionment due to its settled agriculture across the state.

Next, Justice Hobbs discussed how the changing border of the United States in the late nineteenth century affected the development of water rights in the West, particularly in regards to Mexico.  At that time, homesteading was the philosophy of the West, and, when federal law granted a homestead it only included surface water rights.  Justice Hobbs asserted that this foreshadowed the eventual difficulty of adjudicating groundwater rights under interstate compacts.  Justice Hobbs remarked on the prescience of the framers of the Colorado Constitution, who declared that the water belonged to the public and the people.  This idea was part of the homestead philosophy, but had even deeper roots in the traditions of Native Americans who lived in the West long before Europeans had settled there.

Justice Hobbs then turned back to the story of  Carpenter.  He explained that Carpenter entered into this mix of uncertainty after graduating from law school.  Carpenter was a one term state senator.  Nonetheless, after he left office, the whole state of Colorado turned to him on a bipartisan basis to assist them in the growing number of disputes over waters within the state.  In 1908, the Supreme Court declared that the new reservations for Native Americans needed enough reserve water to sustain their populations and such water was not subject to any state doctrines.  Justice Hobbs discussed how it was a rude awakening for the states to learn that they did not own their own water.  Additionally, there was growing concern among the citizens of Colorado over lawsuits from downstream states.  At this time, Carpenter represented the Greeley Water District, and sought one hundred thousand acre-feet of water from the Laramie River—but Wyoming was not inclined to deal.  Justice Hobbs explained how all of these circumstances forced Carpenter to reconsider his belief in the prior appropriation doctrine, and prompted him to begin research on compacts to settle these disputes.

Justice Hobbs described how people in Colorado and the surrounding states were not receptive to the idea of the federal government issuing decrees to resolve these water disputes.  Carpenter and others wanted to rely on state sovereignty to resolve the disputes between the states and make binding contracts.  These negotiations began in 1922 in Washington D.C.  Justice Hobbs described how Carpenter brought detailed maps along with him to show plans to irrigate the entire Eastern Slope.  Carpenter also wanted the states to be able to use the water as they saw fit within their own borders.  By the end of the negotiations, he accomplished his goal of giving state courts the power to work within their own rules through compacts.  Carpenter also set the landscape for how courts adjudicate these water rights today.

Justice Hobbs closed his speech by describing the importance of water storage here in the West, especially as more and more people migrate to urban centers like Denver.  Justice Hobbs noted how Carpenter knew this when he worked as a state senator to establish the correct priority dates for the reservoirs in Colorado.  To illustrate this point, Justice Hobbs displayed various images of reservoirs across Colorado, including Cherry Creek and the Rio Grande Reservoir.  Justice Hobbs asserted that, following the 1922 negotiations, Carpenter laid the foundation from which eight more interstate compacts would arise.  However, Justice Hobbs pointed out that the success of interstate compacts does not ensure a conflict-free future.  Justice Hobbs finished his remarks by saying: “We want it all, and we think we can do it all.  But there is a limited water supply, and we share it.”

 

Brian Hinkle


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.

 

Conclusion

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.


 

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: www.helpcoloradonow.com.


Sources:

Samantha-Rae Tuthill, Thousands of Gallons of Oil Released into Colorado Floodwaters, AccuWeather, Sept. 20, 2013, http://www.accuweater.com/en/weather-news/water-contamination-boulder-fl/17865986.

Colleen Slevin and Matthew Brown, Colorado Flooding Triggers Oil Spills, Shutdowns, The Boston Globe, Sept. 20, 2013, http://www.bostonglobe.com/business/2013/09/19/colorado-flooding-triggers-oil-spills-shutdowns/2cG8nHJBmyNmjEAApJYh8L/story.html.

Keith Coffman, Likely Death Toll in Colorado Floods Rises to At Least 10, Reuters, Sept. 20, 2013, http://www.reuters.com/article/2013/09/20/us-usa-colorado-flooding-idUSBRE98I0YX20130920.

Tom Yulsman, Colorado Floods: Rescue and Recovery from ‘Biblical’ Rainfall, Sept. 20, 2013, http://nation.time.com/2013/09/18/on-the-ground-in-colorado-digging-out-after-the-deluge/.

Tom Kenworth, Full Extent of Oil and Gas Spills From Colorado Floods Remains Unknown, Oct. 7, 2013, http://thinkprogress.org/climate/2013/10/07/2738341/oil-spills-colorado-floods/.

Editorial, As Colorado Floods Recede, A Will to Rebuild, The Denver Post, Oct. 7, 2013, http://www.denverpost.com/editorials/ci_24107674/colorado-floods-recede-will-rebuild


Greeley water officials are once again concerned about the effects of wildfire on the city’s water supply.  The Galena fire that started on March 15, 2013 burned 1,348 acres of land west of Fort Collins before full containment five days later.  This fire was reminiscent of the nearby High Park fire of last June that burned 87,284 acres, destroyed 259 homes, killed one person, and cost millions of dollars to clean the Poudre River.

The major concern for Greeley, located about 50 miles away from the Galena fire, centers not on the damage from the blaze itself, but the effects of runoff washing ash and fire debris into the city’s water supply.  The fire burned parts of Lory State park that drain into the Horsetooth Reservoir; a reservoir that provides up to 35% of Greeley’s water supply.

Northern Water, a public agency established to build the Colorado-Big Thompson Project and provide supplemental water to northeastern Colorado, immediately stepped in after the Galena fire to mitigate the effects on the area’s water.  Northern Water installed ten debris booms throughout Lory State Park at areas that drain into the Horsetooth Reservoir.  The debris booms consisted of mesh bags filled with wood chips to filter the water and catch any ash and debris before reaching the reservoir.  Northern Water used similar debris booms during the June High Park fire cleanup.

Because the forecast predicated rain only a few days after the fire, Northern Water wanted to act quickly and place appropriate mechanisms before any significant runoff occurred.  Northern Water completed the debris boom installation in two days and spent $15,000 on the project.

The wildfire increase of recent years, combined with the extremely early-season Galena fire, causes concern for Greeley water officials.  Accordingly, the city began exploring new ways to reduce fire damage and seeks partnering with the United States Forest Service to achieve this goal.

While the Galena fire’s effects on Greeley’s water supply still remain unclear, the fire’s smaller acreage and reduced devastation suggest that the impacts on the water supply and quality will not be as great as after the High Park fire.


Sources:

Fire Burning Northwest of Fort Collins, The Greeley Tribune, Mar. 15, 2013, http://www.greeleytribune.com/news/crime/5570876-113/fire-homes-friday-reservoir.

Alex Ruiz, Galena Fire Has Greeley Water Officials Concerned, Northern Colorado 5, March 19, 2013, http://www.noco5.com/story/21694538/greeley-water-supply-hit.

John Orr, Galena fire: Northern Water installs debris booms to mitigate effects to Horsetooth Reservoir #codrought, Coyote Gulch (Mar. 24, 2013, 7:24 AM), http://coyotegulch.wordpress.com/2013/03/24/galena-fire-northern-water-installs-debris-booms-to-mitigate-effects-to-horsetooth-reservoir-codrought/.

Galena Fire in Larimer County 100 Percent Contained at 1,348 Acres, Denver Post, Mar. 20, 2013, http://www.denverpost.com/breakingnews/ci_22833790/galena-fire-larimer-county-100-percent-contained-at.

Northern Water, http://www.northernwater.org (last visited Sept. 4, 2013).