WAS Update:

The Supreme Court issued its Advance Sheet Headnote ruling on the WAS case on November 23, 2009. The Court upheld the trial court decisions on post pumping depletions, Box Elder Creek depletions, and the well call issue, and reversed the trial court on the substitute water supply plan appeal standard. The ruling offers no relief from depletions for WAS and will not improve WAS’ ability to project additional pumping in the short term. However, WAS’ augmentation plan decree remains intact, providing a mechanism for authorizing pumping when WAS assembles sufficient water supplies to overcome the post pumping depletion burden.

Post Pumping Depletions

WAS argued that it should not have been held responsible for post pumping depletions generated by pumping that occurred prior to the filing of WAS’ 2003 augmentation plan application. Five of the six Justices that participated in the decision voted to uphold the trial court. Justice Coats authored a dissent sharply critical of the majority.

Box Elder Creek Depletions

WAS argued that the trial court’s creation of an ‘imaginary stream’ in Box Elder Creek resulted in an error in calculating the timing of depletions, and that instead, depletions should be calculated based upon present day conditions present in the basin. The Supreme Court agreed with the trial court, approving the trial court’s condition that depletions must be calculated as if Box Elder Creek flows continuously from the Horse Creek reservoir to the South Platte River.

Well Call

WAS argued that the Division Engineer should be allowed to place a call using the priority date of a well to ensure that South Platte Reservoirs receive sufficient water to fill, but not so much that wells replace water benefitting only junior recharge rights. The Supreme Court refused to consider the issue on technical grounds.

Substitute Water Supply Plan Standard

WAS argued that Substitute Water Supply Plan appeals should be heard under the “abuse of discretion standard” supplied by Colorado’s administrative procedure act, which provides some deference to the decision of the State Engineer, not under a “de novo” standard, which would require a full blown trial. The Supreme Court agreed with WAS.

The full text of the opinion is available here