Wednesday, January 19, 2011

Looking Ahead to the Oral Arguments in the "FRICO" Water Rights Case: Regardless of Outcome, the Case Has Major Implications for State's Water Law

Tomorrow the University of Denver’s Sturm College of Law has the distinct honor of providing the venue for a session of the Colorado Supreme Court. The Court will hear argument on Case No. 2009SA133, an appeal from a decision by the District Court, Water Division 1—encompassing the entire South Platte drainage, an area extending generally from the Continental Divide east to Colorado’s border with Nebraska and from the Palmer Divide north to Colorado’s border with Wyoming—regarding an application seeking changes to certain historical agricultural water rights.

The Court’s opinion will be a landmark in Colorado water law, and represents the increasing scrutiny applicants before the Water Court face. The water rights at issue are substantial legal and physical rights within the South Platte basin, and the parties—the applicants and the several opposers—represent significant water users and water rights owners in the metro-Denver area.

As is becoming typical for water rights applications in Colorado, and particularly in the South Platte Basin, the application giving rise to this appeal involves a complex system of water rights and parties. The application was filed in 2002, later to be amended, and opposed by forty-five parties. This application involves historical agricultural water rights operated within the FRICO-Burlington system just northeast of Denver (“FRICO water rights”).

These water rights and their proposed changes are generally one element of a large, regional municipal water supply proposal, which is addressed in a handful of still-pending cases before the Water Court. After disentangling and reorganizing some of these issues into a new, partially consolidated case, and after settlement with many of the parties, trial to the Water Court lasted sixteen days in the spring of 2008. The Water Court issued its Findings of Fact, Conclusions of Law, and Order on the issues and evidence presented at trial; the order, which is indicative of the complexity of this case, is 154 pages in length.

To provide some general context, water rights are established by diversion of water from the public waters of the state and placement to beneficial use; the Water Court only confirms the use and administration date by its decrees. Upon diversion and beneficial use, the water right develops the parameters by which the right is defined, including the location of diversion, the location of use, the type of use, and the seasonal timing of the use.

Any owner of a water right—water rights are freely alienable, as any other real property right, and may be transferred separate from ownership of adjacent land—may change any aspect of the water right on application to the Water Court for a change of water right and published notice of the proposed change. It is the Water Court’s duty to determine whether the proposed change will materially injure other vested water rights. One means of protecting other water rights from material injury is to limit the amount of water after the change to the quantity of historical consumptive use.

Colorado’s prior appropriation system governs a system of property rights that are extraordinarily valuable and to which owners have strong and emotionally-charged connections. Our water law has a history dating back to the claims and practices associated with mining as the territory developed in the 1860s, and the practice of water law routinely involves reliance on and reference to judicial opinions entered just after statehood, in 1876. Similarly, water rights in the state, operated according to the prior appropriation system, carry priorities dating to the earliest adjudications, in 1862.

As greatly steeped in this long history as both the rights and the law by which they are governed are, the rights and the prior appropriation system adapt as our society and water needs change. Using the Water Court process, users may apply their water rights to new and changing uses. As pressure on the State’s water supply mounts due to increased demands and recent dry years, other water users, the Court, and state officials view proposed changes with a keen eye. This increased scrutiny together with advancing sophistication within proposed water projects continues to raise questions our long history of water law has yet to address. The Water Court and the Supreme Court—appeals of Water Court decisions are taken directly to the Supreme Court; the Court of Appeals does not have jurisdiction over water matters—advance our system of water law by interpreting how such new questions fit within the prior appropriation system of law and policy.

Tomorrow’s argument to the Supreme Court presents such questions for review. The application, while encompassing a more extensive scope of water rights, issues, and parties than the average application for a change of water right, is surely representative of a change of historical agricultural water rights to municipal uses. Particularly given the geographic proximity of the FRICO water rights to the Denver metro area, as well as the significant extent of the operations to proceed from this change, the application is hotly contested.

Several of the issues the Supreme Court must decide result from physical changes in the 1960s and the 1990s impacting the operation of the FRICO water rights. Changes by the City of Denver to accommodate sewer and flood concerns redirected the supply of water in the river in the vicinity of the FRICO water rights. The Water Court must approve any changes to the location from which a water user diverts its water right; here the Water Court refused to permit continued diversion of greater than the amount of water physically available—now greatly reduced as a result of the changes—at the original headgate. Further, the Water Court refused to include in the calculation of consumptive use the water diverted under the FRICO water rights within the new configuration. As is evident based on its detailed findings, the Water Court meticulously considered the evidence and argument it received on the issues. The Water Court’s decision is soundly based on Colorado water law precedent protecting other water rights. These are unique circumstances, however, and may be distinguished from prior decisions.

With this appeal, the Supreme Court must balance competing protective measures: those protecting the entire system of water rights and those protecting continued use of a water right within an ever changing society. While the weight of Colorado’s water law has developed to protect water rights and maintain water supplies legally available to users, this case presents a unique question regarding changes for which an applicant seeks approval but did not independently implement. Regardless of the outcome of this case, it will impact future water operations and proposed changes presented to the Water Court.

If the Water Court’s determinations are affirmed, future change applicants will face an even greater burden to support their claims and water users may be reluctant to enter into arrangements intended to maintain the flexibility of what is generally a user-enforced system. If the Court overturns the Water Court’s determinations, individual water users may have greater confidence to enter into agreements with other users, but any such bargain will be rigorously reviewed and likely contested by non-participating users.

Marjorie L. Sant
Panorama Law Practice, LLC
Sturm College of Law LLM Student

Editor's note: Marjorie Sant, a graduate of the University of Colorado School of Law, is an experienced Colorado water lawyer. Currently she is pursuing a Masters in Environmental and Natural Resources Law at the University of Denver Sturm College of Law

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