Justia Environmental Law Opinion Summaries

Select Energy Services, LLC, wanted to run a water pipeline across an old, partly destroyed irrigation ditch alongside the South Platte River. An easement arising from a water right long associated with that ditch stood in its way. K-LOW, LLC owned the easement, and attempted to block Select’s pipeline as a trespass. Yet, because the water right supporting the easement recently changed, K-LOW’s easement might no longer exist. Whether the easement existed turned on the scope of the underlying water right. Absent that water right, K-LOW’s trespass claim failed. The water court found no right to divert water from the ditch, and the Colorado Supreme Court agreed with its determination. Because, by its plain language, the decree defining the water right allowed its holder to divert water only at the pump downriver from the disputed ditch, the Court concluded the decree did not include a right to divert water from that ditch. View "Select Energy Servs., LLC v. K-LOW, LLC" on Justia Law

The City of Aurora was the sole owner of the capital stock of Busk-Ivanhoe, Inc., which owned a one-half interest in water rights decreed in 1928 to the Busk-Ivanhoe System for supplemental irrigation in the Arkansas River Basin by Garfield County District Court (in Civil Action 2621, known as the "2621 Decree"). The decree contained no reference to storage of exported water on the eastern slope prior to its decreed use for supplemental irrigation in the Arkansas River Basin. Nevertheless, water decreed to the Busk-Ivanhoe System has been stored in reservoirs before put to beneficial use. In 1987, Busk-Ivanhoe began to put its water rights to use in Aurora. Busk-Ivanhoe did not file an application to change the type and place of use of these rights until 2009. The water court for Water Division 2 approved Busk-Ivanhoe's change application allow use of the rights within Aurora's municipal system. The rulings were confirmed in 2014. The issues raised in this appeal centered on the water court's quantification of the water rights to be changed under the application. After review, the Supreme Court concluded: (1) the water court erred when it concluded that storage of the Busk-Ivanhoe rights on the eastern slope prior to use was lawful; (2) because the storage of the water rights was unlawful, the water court erred in concluding the volumes of exported water paid as rental fees for storage in its historic consumptive use quantification of the water rights; and (3) the water court erred in concluding it was required to exclude the twenty-two years of undecreed use of the water rights from the representative study period. The water court's 2014 order was reversed and the matter remanded for further proceedings. View "Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc." on Justia Law

On July 4, 2004, the Upper Eagle Regional Water Authority (the “Authority”) diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River and delivered that water to the Cordillera area for beneficial use. On that date, there was a “free river” (meaning that there was no call on the Colorado or Eagle Rivers). Of the water diverted and delivered to Cordillera, the Authority allocated 0.47 cfs to its Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”) and filed an application to make this amount absolute. The State and Division Engineers opposed the application, asserting that the Authority could not make its Junior Eagle River Right absolute when it owned another, more senior conditional water right, the SCR Diversion Point No. 1 water right (the “Senior Lake Creek Right”), decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The water court agreed with the Engineers, and held that the July 4, 2004, diversion had to be allocated first to the Senior Lake Creek Right. The Authority appealed, and the Colorado Supreme Court reversed, holding that where there was no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights was entitled to select which of its different, in-priority conditional water rights it wished to first divert and make absolute. "[T]he portfolio owner must live with its choice. Since it has chosen to make a portion of the Junior Eagle River Right absolute, the Authority may not now divert and use the Senior Lake Creek Right unless it demonstrates that it needs that water right in addition to the Junior Eagle River Right." View "Upper Eagle Reg'l Water Auth. v. Wolfe" on Justia Law

Boulder County chose to develop "the Bailey Farm" into a public open-space park which would feature several ponds formed from abandoned gravel pits filled with groundwater. The County had to replace out-of-priority stream depletions caused by evaporation from those ponds. To meet this obligation, the County filed an application for underground water rights, approval of a plan for augmentation, a change of water rights, and an appropriative right of substitution and exchange. The water court dismissed the application without prejudice, and the County now appeals that judgment. The components of the County’s application were interdependent, such that approval of the application as a whole hinged on approval of the plan for augmentation, which in turn hinged on approval of the change of water rights. To ensure this change would not unlawfully expand the Bailey Farm's water rights, the County conducted a parcel-specific historical consumptive use (“HCU”) analysis of that right. The water court found this HCU analysis inadequate for several reasons and therefore concluded the County failed to carry its burden of accurately demonstrating HCU. The pivotal consideration in this case was whether the County carried its burden of proving HCU. Like the water court, the Supreme Court concluded it did not. The Court therefore affirmed the water court’s judgment on that basis. View "Cty. of Boulder v. Boulder & Weld Cty. Ditch Co." on Justia Law

The issue this case presented for the Colorado Supreme Court’s review centered on whether a non-attorney trustee of a trust could proceed pro se before the water court. Appellant-trustee J. Tucker appealed the water court’s ruling that as trustee of a trust, he was not permitted to proceed because he was representing the interests of others. He also appealed the court’s order granting appellee Town of Minturn’s application for a finding of reasonable diligence in connection with a conditional water right. Appellant’s pro se issue was one of first impression before the Supreme Court, and the Court held that the water court correctly ruled that as a non-attorney trustee, appellant could not proceed pro se on behalf of the trust. In light of that determination, the Court did not address appellant’s other arguments regarding the sufficiency of the verification. View "Tucker v. Town of Minturn" on Justia Law

The issue before the Supreme Court in this matter centered on whether Denver could properly use quantified transmountain lawn irrigation return flows (LIRFs) as a substitute supply of water for its Civil Action (C.A.)3635 exchanges. The Court held that that properly quantified transmountain LIRFs are legally indistinguishable from reusable transmountain effluent and, therefore, the water court correctly determined that Denver could use its properly quantified transmountain LIRFs as substitute supply for the appropriative rights of exchange in C.A. 3635. In addition, the Court affirmed the water court's holding that junior appropriators could not claim injury premised solely upon the proper operation of the C.A. 3635 exchanges. View "Denver v. Englewood" on Justia Law

The issue before the Supreme Court in this case centered on two water rights cases involving Raftopoulos Brothers (Raftopoulos) and Vermillion Ranch Limited Partnership (Vermillion). In Case No. 11SA86, the Court vacated the portions of the water court’s order interpreting the phrase "all other beneficial uses" in a 1974 change decree regarding Raftopoulos’s absolute water rights and whether Raftopoulos had abandoned any right to use the decreed water for commercial or industrial purposes. The Court reversed the portion of the water court’s order decreeing Raftopoulos’s requested new conditional water storage rights to the extent the decree permits the water to be used for industrial and commercial purposes. In Case No. 11SA124, the Court reversed the water court’s order granting Vermillion’s application for a finding of reasonable diligence for previously decreed conditional water storage rights and granting Vermillion’s application for a new conditional water storage right. View "Vermillion Ranch Limited Partnership v. Raftopoulos Brothers" on Justia Law

Respondents Christopher Roinestad and Gerald Fitz-Gerald were overcome by poisonous gases while cleaning a grease clog in a sewer near the Hog's Breath Saloon & Restaurant. The district court concluded that Hog's Breath caused respondents' injuries by dumping substantial amounts of cooking grease into the sewer thereby creating the clog and consequent build up of the gas. On summary judgment, the district court found the saloon liable under theories of negligence and off-premises liability and granted respondents damages. The saloon carried a commercial general liability policy issued by Petitioner Mountain States Mutual Casualty Company which sought a ruling it had no duty to indemnify Hog's Breath. The district court agreed that under the terms of the policy, the insurer had no duty under a pollution exclusion clause. The appellate court reversed the ruling in favor of the insurer, finding the pollution exclusion clause was ambiguous and that its application to cooking grease (a common waste product) could lead to absurd results and negate essential coverage. Upon review, the Supreme Court reversed, finding that the saloon released enough grease to amount to a discharge of a pollutant, and that the insurance policy pollution exclusion clause barred coverage in this case. View "Mountain States Mutual Casualty Company v. Roinestad" on Justia Law

Grand Valley Citizens' Alliance filed a complaint alleging that it was entitled to a hearing on an application for permit to drill pursuant to section 34-60-108(7), C.R.S. (2011), of the Oil and Gas Conservation Act. The district court dismissed the complaint. The court of appeals reversed the district court, holding that under subsection 108(7), Grand Valley Citizens were entitled to a hearing because it had a filed a petition on a matter within the jurisdiction of the Commission. After its review, the Supreme Court reversed the court of appeals judgment, holding that section 34-60-108(7) requires a hearing only for rules, regulations, and orders. Permits are governed by section 34-60-106(1)(f), which grants the Oil and Gas Commission broad authority to promulgate rules governing the permitting process, including the authority to determine who may request a hearing. View "Colorado Oil & Gas Conservation Commission" on Justia Law

With the approval of the Public Utilities Commission (PUC), in 2005 the Public Service Company of Colorado (Xcel) began constructing a coal-fired electric power unit known as "Comanche 3." When Xcel sought to recover a portion of its construction costs nearly four years later in a rate proceeding, Petitioner Leslie Glustrom intervened. Petitioner sought to introduce testimony that Xcel acted improperly and, consequently, should not recover its costs. The PUC excluded most of her testimony, a ruling that Petitioner challenged. Petitioner separately challenged the depreciation rate and the possibility that Comanche 3 might not be "used and useful" at the time rates went into effect. The PUC denied her challenges, and the district court affirmed. Upon review, the Supreme Court held that the PUC did not abuse its discretion when it struck substantial portions of Petitioner's testimony pursuant to the Colorado Rules of Evidence. Further, the depreciation rate approved by the PUC was established pursuant to law and in accordance with the evidence. Lastly, the PUC was free to exercise its discretion in departing from a strict application of the "used and useful" principle. Petitioner failed to meet her burden in showing why such a departure here would result in a rate that is unjust and unreasonable in its consequences. View "Glustrom v. Colorado Public Utilities Commission" on Justia Law