Colorado Supreme Court hands down anti-speculation water ruling

For immediate release
Nov. 2, 2009

Contact:
Melinda Kassen, (303) 440-2937, x 101

Drew Peternell, (303) 440-2937, x 102
(note: Mr. Peternell is travelling and will be unavailable for comment until after Nov. 11)

Colorado Supreme Court hands down anti-speculation water ruling

Trout Unlimited hails decision as a “victory for reality-based water planning”


(Denver)—The Colorado Supreme Court today handed down a decision that reinforced the principle that Colorado municipalities must base water projects on clearly demonstrated and credible projections of future need.

In the case, Pagosa Area Water and Sanitation District and San Juan Water Conservancy District v. Trout Unlimited, the Court ruled that Pagosa area water districts had not sufficiently demonstrated a need for the amount of water they claimed for the proposed Dry Gulch Reservoir, based on projected population growth and water availability over a 50-year planning period.

“The Supreme Court reaffirmed today that it will not tolerate public utilities speculating in water,” said Drew Peternell, director of TU’s Colorado Water Project, who argued the case before the state’s highest court. “This is a victory for reality-based water planning.”

The ruling is the second time Trout Unlimited has challenged the district water court’s decrees in the so-called Dry Gulch case—and the second time it has won.

In 2006, TU challenged a decision by Judge Gregory G. Lyman, the District Court judge who serves as the water judge in Division 7 in Colorado’s southwest. The decision would have allowed a reservoir of 35,300 acre feet two miles northeast of Pagosa Springs, using diversions from the San Juan River totaling 180 cubic feet per second, which TU was concerned could lower streamflows and hurt trout habitat in the river.

Trout Unlimited appealed that decision to the Colorado Supreme Court, which in 2007 reversed Judge Lyman’s findings and remanded the case back to him for reevaluation of the districts’ future water needs.

Without examining new evidence, as the Court had suggested would be necessary, Judge Lyman issued another decree in 2008, awarding the Pagosa Springs districts enough water to build a Dry Gulch Reservoir of 25,300 acre feet in size, using diversions from the San Juan River totaling 150 cfs.

Trout Unlimited appealed again, arguing that the revised figures still weren’t in line with credible future water use projections and amounted to speculation.

Today, the Colorado Supreme Court unanimously agreed with TU. While the Court did allow a 50-year planning horizon (TU had argued that a 40-year timeframe was reasonable), the Court found that there wasn’t evidence to support the quantities of water the judge had awarded, either in terms of the direct flow rights or in terms of storage.

The 25,300 acre feet size approved by the water court for the Dry Gulch Reservoir is based on “speculative claims, at least in part,” said the Court. Unless the Pagosa districts can now demonstrate a “substantial probability” that a reservoir of that size is needed to meet future needs, the water court must reduce the amount of their claimed water.

“The ruling underscored that municipalities can’t justify a new water right without real evidence to support it,” said Melinda Kassen, director of TU’s Western Water Project. “This protects Coloradoans from irresponsible water grabs and speculative development.”

Colorado law already has rules preventing speculation in water rights. Although there is an exception in some situations for municipalities, the Supreme Court today made clear that the public exception should be interpreted narrowly.

Looking ahead, TU called this latest ruling an opportunity for all water stakeholders to sit down and craft comprehensive solutions for meeting the region’s real water needs.

“We’re ready to talk with the Pagosa Springs stakeholders and craft a solution that meets a range of valid needs, including municipal growth, agriculture and recreation and wildlife,” said Peternell. “But any solution has to be based on credible, substantiated numbers about future water supply and needs.”

Link to full Court ruling: http://www.courts.state.co.us/Courts/Supreme_Court/opinions/2008/08SA354... [1]

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Trout Unlimited is the nation’s largest coldwater conservation organization, with 140,000 members dedicated to conserving, protecting, and restoring North America’s trout and salmon fisheries and their watersheds.