Upper Eagle Reg’l Water Auth. v. Wolfe, 371 P.3d 681 (Colo. 2016) (holding that an owner of multiple water rights can choose to divert and make absolute any of its in-priority, conditional water rights and is not required to make absolute a senior conditional water right before a junior conditional water right, so long as the owner lives with his or her choice and does not injure the rights of other water users).
Effective as of March 25, 2004, the Upper Eagle Regional Water Authority (the “Authority”) formed a water service agreement with the Edwards Metropolitan District and the Cordillera Metropolitan District. Under the agreement, the Cordillera Metropolitan District gave certain water rights and facilities to the Authority, which in turn provided water services to the Cordillera area. The rights conveyed to the Authority included the SCR Diversion Point No. 1 conditional water right (the “Senior Lake Creek Right”), with a priority year of 1989, and the Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”), with a priority year of 1991. Pursuant to the agreement, the Authority would limit use of both conditional water rights to irrigation, domestic, commercial, and fire protection purposes, with diversions to occur at the Edwards Drinking Water Facility.
On July 4, 2004, a day on which there was no call on the Colorado and Eagle Rivers, the Authority diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River for beneficial use in the Cordillera area. The Authority allocated 0.47 cfs of this diversion to its Junior Eagle River Right. On December 29, 2004, the Authority filed an Application for a Finding of Reasonable Diligence and to Make Water Right Absolute (“Application”). The Application requested confirmation that the Authority had made absolute 0.47 cfs of the Junior Eagle River Right at the Edwards Drinking Water Facility for irrigation, domestic, commercial, and fire protection purposes during free conditions. The State and Division Engineers (the “Engineers”) opposed the Application.
The Engineers initially argued the Authority must make diversions in accordance with the “seniors first” policy, requiring that users first attribute diversions to senior absolute water rights, then to senior conditional rights, and finally, junior conditional rights. A Water Court granted the Engineers’ motion for summary judgment in part and denied the Authority’s claim for making 0.47 cfs of the Junior Eagle River Right absolute. The court held the Authority did not have discretion to choose a junior water right over a senior water right when both rights decreed the same point of diversion for the same purposes at the same place of use.
The Authority appealed the Water Court’s decision, arguing that it should have the discretion to choose the conditional water right it wants to divert and use. The Colorado Supreme Court reviewed de novo the Water Court’s conclusions of law.
The Court only examined whether Authority had to attribute its diversion to a senior water right. The Engineer partially based its argument on a previous Colorado Supreme Court holding, which required that applicants seeking to make a conditional water right absolute first show they appropriated water in excess of an existing absolute decree. The Court rejected that argument by distinguishing the facts of this case as involving a choice between two conditional rights rather than a choice between a conditional right and an absolute right. The Court reasoned that the previous case was not compatible, because the Authority had to attribute one of its conditional rights to a needed water diversion.
The Engineers then argued that application of a “seniors first” policy here would help effectively administer the prior appropriation system and “correctly express” the Colorado Constitution and state statutes. The Engineers believed that if the Court allowed the Authority to freely select among its conditional water rights, the Authority could change its attribution of diversions from one day to the next. The Engineers claimed that this potential behavior was dangerous because it could allow the Authority to make absolute more water rights than it actually needed. The Court did not accept the Engineers’ argument.
The Court ruled that once the Authority makes 0.47 cfs of the Junior Eagle River Right absolute, it must live with that choice; the only way the Authority could later perfect its other conditional water rights is through showing with quantifiable evidence that it requires more water than 0.47 cfs of the Junior Eagle River Right to fulfill the need of the Cordillera area. The Court summarized that, absent any evidence of waste, hoarding, or injury to the rights of other water users, the Authority may choose which of its conditional water rights it wishes to divert and make absolute.
Accordingly, the Court reversed the order of the Water Court that the July 4, 2004 diversion must be allocated to the Senior Lake Creek Right, and remanded the case with instructions to make 0.47 cfs of the Junior Eagle River Right absolute.
Image: Flowing water on the way up to Hanging Lake located in Glenwood Canyon, Colorado. Flickr User Zach Dischner, Creative Commons.