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CITY OF BOULDER
LITIGATION SUMMARY - PENDING WATER COURT CASES
May 5, 2010
The cases pending in the Water Court for Water Division 1 in Greeley (South Platte Basin) in which
the City of Boulder is a party are summarized below. The cases are separated into three categories:
(1) cases in which the City is the applicant, (2) cases involving claims for water rights in the Boulder
Creek Basin in which the City has filed statements of opposition, and (3) cases involving claims for
water rights on the South Platte River and its tributaries downstream of the confluence of St. Vrain
Creek and the South Platte River, in which tjw City has filed statements of opposition.
It should be noted that it is considered normal practice to file a statement of opposition in any water
filing which could potentially affect the City's interests in anyway. Only by participating in a case
can the City learn the details of the applicant's planned actions, and have an opportunity to shape the
final decree to insure that its interests are fully protected.
Cases in which the City is the applicant:
Case No. 99CW217. This is an application by the City for new water storage rights for Barker
Meadow Reservoir. The City currently has decreed water storage rights for the Reservoir for
municipal use in the amount of 8,000 acre-feet per year. The total capacity of the Reservoir is
approximately 11,687 acre-feet. This application requests approval of a conditional initial fill water
storage right in the amount of 3,687 acre-feet per year (to bring the City's total decreed municipal
water storage rights for Barker Meadow Reservoir to 11,687 acre-feet per year) and a conditional
water storage right in the amount of 11,687 acre-feet per year to refill the Reservoir each year. The
City acquired Public Service Company's remaining interests in the Reservoir in March 2001.
Statements of opposition to the application were filed by District 6 Water Users Association, Public
Service Company, the Town of Nederland, the City of Lafayette and Eldora Enterprises, LLC.
Public Service Company and the City of Lafayette have withdrawn their statements of opposition.
This case is currently set for a status conference with the Water Referee on July 29, 2010.
Case No. 06CW132. This is an application by the City to make partially absolute and for finding
of reasonable diligence for conditional exchange rights involving Lower Boulder Ditch water and
Baseline Reservoir water. Statements of opposition to the application were filed by Central
Colorado Water Conservancy District, the Ground Water Management Subdistrict of the Central
Colorado Water Conservancy District, the Well Augmentation Subdistrict of the Central Colorado
Water Conservancy District, City and County of Broomfield, New Consolidated Lower Boulder
Reservoir and Ditch Company, and Water Users Association of District No. 6. This case is currently
set for a status conference with the Water Referee on June 22, 2010.
Case No. 08CW 163. This is an application by the City for approval of a plan for augmentation to
replace evaporation losses to Boulder Creek associated with a gravel pit, referred to as Arapahoe Pit
D, owned by Open Space and Mountain Parks. Statements of opposition to the application were
filed by Central Colorado Water Conservancy District, the Ground Water Management Subdistrict
of the Central Colorado Water Conservancy District, the Well Augmentation Subdistrict of the
Central Colorado Water Conservancy District, the Lower South Platte Water Conservancy District,
the Colorado Water Conservation Board, Water Users Association of District No. 6, Platte Valley
Irrigation Company, The Farmers Reservoir and Irrigation Company, the City of Lafayette, Logan
Well Users, Inc. and Eldora Enterprises, LLC. This case is set for a 5-day trial begining on January
10, 2011.
Case No. 10CW 107. This is an application by the City for a finding of reasonable diligence for the
conditional water storage right forPark Reservoir. The deadline for statements of opposition is May
31, 2010.
Cases in which the City has filed statements of opposition - Boulder Creek Basin:
The City is an objector in 35 cases involving water or water rights in the Boulder Creek Basin.
Fourteen of these cases are for changes of water rights and/or approval of plans for augmentation,
five of the cases are applications to make conditional water rights absolute and/or for finding of
reasonable diligence for all or portions of conditional water rights, and 16 cases are for confirmation
of new direct flow and/or storage water rights from Boulder Creek or its tributaries. All of these
cases have the potential to reduce the supply of water available to the City's water rights or to
otherwise adversely affect the City's water supply if appropriate terms and conditions are not
included in any decrees entered by the Water Court in these cases.
The City expects to negotiate settlements in most, if not all, of these cases. Two of the 35 cases are
currently set for trial, in July 2011. The remainder of the cases are set for status conferences with
the Water Referee or have no current settings.
Cases in which the City has filed statements of opposition - South Platte River and Tributaries
Downstream of Confluence of St. Vrain Creek With the South Platte River:
The City's municipal water supply system relies, in part, on diversions from the upper reaches of
Boulder Creek. Boulder Creek is tributary to St. Vrain Creek which is tributary to the South Platte
River downstream of Platteville, in the vicinity of Xcel Energy's Fort St. Vrain Power Plant.
Beginning in the late 1980s, the City began to monitor, and subsequently became increasingly
concerned about, the effects on its water rights of depletions to the lower South Platte River caused
by irrigation wells operating under undecreed substitute water supply plans. Until 2002, these wells
had been allowed to operate through annual temporary substitute supply plans approved by the State
Engineer. Because the wells had not obtained decreed augmentation plans from the Water Court,
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other water users did not have an opportunity to request conditions on the well use that would protect
their water rights. The limited amount of information the City and others were able to obtain
indicated that the operation of these irrigation wells was causing a deficit to the South Platte River
of tens of thousands of acre-feet every year. As junior irrigation wells deplete the flows on the South
Platte River, they reduce the amount of water available to satisfy the lawful demands of more senior
water rights, including reservoir storage rights, lower on the river. These ditch and reservoir owners
have relatively senior water rights, so they place a call on the river and force water to be passed by
upstream diverters. These upstream diverters are junior to the ditches and reservoirs, but senior to
the irrigation wells. Any of these upstream diverters with sufficiently senior water rights then places
a call against junior water rights upstream of them, creating a "domino effect." The "domino effect"
of the calls moves upstream, transferring the injury caused by the irrigation wells along with it.
Ultimately, the effect reaches the diverters nearest the Continental Divide. These headwaters
diverters are similar to the last domino that bears all remaining impact with no one farther upriver
to help absorb the injury. The City is one of these high-altitude diverters.
In 2002 and 2003, both the Colorado Supreme Court and the Division 1 Water Court issued
decisions confirming that the Water Courts, not the State Engineer, have statutory authority to
approve well augmentation plans. In 2002 and 2003, the legislature confirmed the requirement for
these wells to obtain court-approved augmentation plans. As a result, beginning in late 2002, several
thousand well owners filed applications with the Water Court for approval of their operations, either
in groups or individually. These applications include changes of water rights to add augmentation
as a use, confirmation of new water rights to be used for augmentation (primarily recharge projects),
and approval of plans for augmentation. Many of these cases have already been settled and the
Water Court has entered decrees approving the requested changes of water rights, new water rights
and plans for augmentation for more than 2,600 wells, on terms and conditions that will prevent
injury to the City's water rights.
The City is currently an objector in 80 additional cases of this same type that are-still pending. These
cases, which involve approximately 300 wells, continue to concern the City because of the potential
for injury to the City's water rights from calls that will occur if depletions from these wells are not
frilly replaced or historical return flows from changed water rights are not maintained, particularly
during the non-irrigation season. Through its participation in these cases, the City seeks to insure
that depletions from wells are properly quantified and replaced whenever there is an unmet demand
for water (a "call"), that recharge credits are used in specific decreed plans for augmentation and are
properly calculated, that the quantities of water changed to new uses for augmentation are consistent
with the historical use of the water rights, that historical return flows from changed water rights are
replaced whenever there is a call, that augmentation uses are only made under Water Court decreed
plans for augmentation or substitute water supply plans approved in accordance with statute, and that
the City's water rights are not subject to calls that otherwise would not occur.
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The City is also an objector in 11 additional cases on the South Platte River downstream of its
confluence with St. Vrain Creels. These cases include the Colorado Division of Wildlife Tamarack
Recharge Project, seven cases brought by the Farmers Reservoir and Irrigation Company, East
Cherry Creek Valley Water and Sanitation District, United Water and Sanitation District and others
for changes of water rights, plan for augmentation for wells and other structures and new water rights
to supply water to the southern Denver metropolitan area, one application for an augmentation plan
for wells proposed to be used in a new ethanol plant and two applications for augmentation plans
for new wells on Box Elder Creek.
Nineteen of the pending lower South Platte River cases are set for trial over the next two years. Two
of the pending cases have gone to trial and are on appeal. Another of the pending cases has gone to
trial and the parties are awaiting a ruling from the Water Judge. The remainder of the pending lower
South Platte River cases are either set for status conferences with the Water Referee or have no
current settings. The City expects to negotiate settlements in most, if not all, of these cases.
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