Upper Eagle Regional Water Authority v. Wolfe

Summary

The Colorado Supreme Court considered whether retained jurisdiction under section 37-92-304(6), C.R.S., could be invoked to address injury or likely injury arising from the operation of augmentation plans. The court held that petitions alleging operational evidence of inadequate replacement-water accounting were sufficient to require further proceedings, even absent proof of actual injury or use of particular reservoir releases. The court reversed the water court’s dismissals and remanded for evidentiary proceedings and possible extension or revision of the augmentation-plan decrees.

Holdings

1. Section 37-92-304(6) authorizes the water court to invoke retained jurisdiction to preclude likely future injury to vested water rights and decreed conditional water rights, even before actual injury has occurred.
2. An augmentation plan is effective for operational purposes upon entry of its decree, even if it will not become fully operational until a later date; reservoir releases are not a prerequisite to invoking retained jurisdiction.
3. The petitions stated sufficient facts which, if proved, would satisfy the petitioners' burden of going forward to show that injury had occurred or was likely to occur because the existing decree provisions were inadequate.
4. The party seeking to reopen an augmentation-plan decree must initially plead and prove facts showing actual or likely injury attributable to inadequate decree provisions; if that burden is met, the decree holder must establish noninjury and the adequacy of the existing protective provisions.

Questions Presented

1. Whether retained jurisdiction under section 37-92-304(6), C.R.S., may be invoked to preclude likely future injury as well as remedy actual injury.
2. Whether the water court erred by dismissing the petitions after concluding that the augmentation plans had not operated because no releases had been made from the supplemental reservoirs.
3. Whether the retained-jurisdiction periods should be extended because nonoccurrence of injury had not been conclusively established.

Disposition

reversed_and_remanded