Board of the County Commissioners of the County of Arapahoe v. Crystal Creek Homeowners' Ass'n

No. 98SA327 (14 P.3d 325) (Colo. November 20, 2000)

ELR Digest

The court affirms a state water court decision denying and dismissing with prejudice a county's applications for decrees for conditional water rights for a large water storage project west of the Continental Divide in the Upper Gunnison River Basin. The county argued that the basin contained ample water resources for its own appropriation. The water court, however, disagreed. The court first holds that the water court properly applied the "can and will" doctrine in determining the amount of water available for appropriation by the county in the basin. The record supports the water court's findings. The court next holds that Congress intended the Colorado River Storage Project Act (CRSPA) to serve as a mechanism for upper basin states to develop their water resources and still meet obligations under the Colorado River Compact. CRSPA projects allow Colorado to develop its water resources while ensuring that adequate water remains in storage to help meet the Colorado River Compact's obligations in dry years. The court next holds that, historically, the United States has an absolute decree for water rights from three nearby dams known as the Aspinall Unit and has historically applied the water afforded by the decree to full beneficial use. Thus, the decree represents a senior water right and the county may not appropriate the Aspinall Unit water for its own use. The court also holds that once the Aspinall Unit is taken into account, the Gunnison River Basin does not contain enough unappropriated water for the project. Under the decree, the United States agreed to subordinate 60,000 acre-feet of water to junior in-basin water users, to release water from the Aspinall Unit as necessary to allow the state to meet its delivery obligations under the Colorado River Compact, and to make 240,000 acre-feet of the decreed water available for contractual use by future Colorado water users. The court also holds that the water court correctly dismissed the county's claim for a conditional water right for its pumping plant at nearby Taylor Park because the county lacked an existing permit. Without a permit, the county could not satisfy the "can and will" requirements for a conditional decree.

The full text of this opinion is available from ELR (28 pp., ELR Order No. L-303).

Counsel for Appellants
Paul J. Zilis
Vranesh & Raisch
1720 14th St., Boulder CO 80306
(303) 443-6151

Counsel for Appellees
Charles B. White
Petros & White
The Equitable Bldg.
730 17th St., Ste. 820, Denver CO 80202
(303) 825-1980

[31 ELR 20307]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]