Back at the end of January I was howling with other water wonks at the Colorado Water Congress Annual Convention. The case, Wolfe v. Sedalia, Historical Beneficial Consumptive Use Calculation — Change of Water Right And Augmentation Plan Decree — Claim And Issue Preclusion – Prolonged Unjustified Period of Nonuse was a topic of discussion by many in the hallways in between sessions.
The decision came down yesterday from the Colorado Supreme Court. Here’s an excerpt:
JUSTICE HOBBS delivered the Opinion of the Court.
This appeal concerns the historical beneficial consumptive use quantification of an 1872 irrigation right in a change of water right and augmentation plan proceeding involving water diverted from West Plum Creek in the South Platte River system, Water Division No. 1. Sedalia Water and Sanitation District (“Sedalia”) is the current owner of a portion of that water right, which it acquired from Owens Brothers Concrete Company (“Owens Concrete”). The State and Division Engineers (“the Engineers”) participated as parties in Owens Concrete’s 1986 augmentation plan case. They also appear as parties in this case.
When the concrete company owned this portion of the originally decreed appropriation, it obtained a change of water right decree quantifying an annual average of 13 acre-feet of water available for use as augmentation plan credit for replacement of out-of-priority tributary groundwater depletions from a well. Having acquired the concrete company’s interest in the 1872 priority, Sedalia claimed a right to the same amount of historical consumptive use water for its well augmentation plan in this case. On competing motions for summary judgment, the water court ruled that the doctrine of issue preclusion prohibited the Engineers from relitigating the quantification question, although the Engineers could raise the issue of abandonment at trial if they wished.
The issue the Engineers present for appeal concerns “a third successive change of the Ball Ditch water right” and whether its “average annual historical use last quantified by the second change decree” should be requantified in this proceeding to take into account “twenty-four years of subsequent nonuse.” In their briefs and at oral argument, the Engineers urge us to adopt a comprehensive rule that every change case triggers requantification of a water right. On the other hand, Sedalia asks us to adopt the polar opposite rule—that once determined in a previous change case, the amount of historical beneficial consumptive use allocated to the original appropriation carries through every subsequent change case and cannot be relitigated.
We adopt no such cosmic rule. Instead, we address the case before us in light of applicable claim and issue preclusion water cases. We affirm the water court’s judgment in part and reverse it in part. We hold that issue preclusion applies to prevent relitigation of the historical beneficial consumptive use quantification made in the 1986 Owens Concrete change of water right and augmentation decree, but this legal doctrine does not prevent a water court inquiry into the 24 years of post-1986 nonuse the Engineers allege. On remand from this decision and in finalizing Sedalia’s decree, the water court should take any evidence and legal argument offered by the parties on the issue of the alleged post-1986 nonuse. If the water court finds there has been prolonged unjustified nonuse of the water right between entry of the prior change decree and the pending decree application, it may conclude that this constitutes a changed circumstance calling for the selection of a revised representative period of time for calculating the average annual consumptive use amount available for Sedalia’s change of water right and augmentation decree.
The legislature may provide even more guidance to the State Engineer’s office with SB15-084, Water Right Partial Historical Consumptive Use.
More water law coverage here.