Buffalo Park Development Co. v. Mountain Mutual Reservoir Co.

Summary

The Colorado Supreme Court upheld a water court judgment approving Buffalo Park Development Company's augmentation plan for two subdivisions and dismissing its applications for three others. The court held that Buffalo Park failed to prove the availability of unappropriated groundwater or, alternatively, a noninjurious augmentation plan protecting existing groundwater users. It also rejected Buffalo Park's argument that the water court should have reopened the proceedings to allow additional proposed protective conditions.

Holdings

1. An applicant for a conditional groundwater right must prove at trial that unappropriated water is available under conditions existing at the time of the application; the applicant may not defer that threshold showing under a wait-and-see or retained-jurisdiction approach.
2. An applicant for an augmentation plan bears the burden of proving a noninjurious plan by presenting reliable evidence of the amount, timing, and location of proposed depletions and the amount, timing, and legal availability of replacement water.
3. A homeowners association has standing to oppose a water application and hold the applicant to its burden of proof when it represents members who possess potentially injured vested groundwater rights.
4. A party that believes it has not received an adequate opportunity to propose protective augmentation-plan terms must alert the water court and make a motion or offer of proof before final judgment; an appellate court will not reopen a lengthy proceeding when the applicant failed to do so.
5. The water court did not abuse its discretion by excluding expert testimony that was not included in the required pretrial disclosure.

Questions Presented

1. Whether Buffalo Park proved that unappropriated tributary groundwater was available for the proposed conditional water rights.
2. Whether Buffalo Park proved that its augmentation plan would prevent material injury to vested groundwater rights of existing small-capacity domestic well owners.
3. Whether the water court afforded Buffalo Park an adequate opportunity to propose additional protective terms and conditions before final judgment.
4. Whether Bear Mountain Homeowners Association had standing to oppose the application and assert injury to its members' vested groundwater rights.
5. Whether the water court abused its discretion by excluding Buffalo Park's untimely disclosed expert testimony and limiting related evidence.

Disposition

affirmed