Board Of County Commissioners v. Park County Sportsmen's Ranch, Ll

45 P.3d 693 (2002)

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Nature of the Case

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Facts

Ps and D own property in South Park, Colorado. D filed with the Water Court an application for a conditional water rights decree and plan for augmentation and exchange involving extraction from and recharge of water into the South Park formation for augmentation, storage, and beneficial use. The South Park formation is a natural geological structure containing aquifers that D intends to utilize in connection with its project. D owns 2,307 acres of land in South Park. D claimed the right to occupy saturated and unsaturated portions of the South Park formation for water extraction, augmentation, and storage as part of a water project it calls the South Park Conjunctive Use Project intended for City of Aurora municipal use. The project would include twenty-six wells to withdraw water from the South Park formation and six surface reservoirs for artificially recharging the aquifers. D's application did not propose to locate any of the project's recharge and extraction features on Ps' properties. The aquifers of the South Platte formation are tributary to the natural stream and projects affecting them are subject to Colorado's prior appropriation law. D's application sought a decree for aquifer water extraction, recharge, augmentation, exchange, and storage activities, identifying two 'Reservoir Zones' within the South Platte formation in connection with its claimed 'conditional underground storage rights,' each zone having a volume of 70,000 acre-feet of water for a total of 140,000 acre-feet extending under approximately 115 square miles of land. Ps objected to D's Water Court application. They also filed a complaint for declaratory relief seeking a determination that the placement or storage of water above or below the surface of their lands, absent their consent, would constitute a trespass. D answered that its project did not require Ps' consent. Ps filed a motion for summary judgment in the declaratory judgment action, which the Water Court denied. The Water Court determined that: (1) artificial recharge activities involving the movement of underground water into, from, or through aquifers underlying surface lands of the Landowners would not constitute a trespass; and (2) D's proposed project would not require Ps' consent or condemnation and the payment of just compensation. Ps appealed.