DATE FILED: October 27, 2016 2:22 PM DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 8th Street, Suite 104 Glenwood Springs, CO 81601 (970) 945-5075 CONCERNING THE APPLICATION FOR WATER RIGHTS MAROON CREEK LIMITED LIABILITY COMPANY In Maroon Creek and its tributaries in Pitkin County, Colorado FILING ll): 3054DCCA29751 CASE NUMBER: 2016CW3063 COURT USE ONLY Attorneys for the Colorado Water H. COFFMAN, Attorney General DEREK L. TURNER Assistant Attorney General Attorney Reg. 414091" Natural Resources Environment Section Office of the Colorado Attorney General 1300 Broadway, 7th Floor Denver, CO 80203 Telephone: (720) 508-6306 FAX: (720) 508-6039 (FAX) Emaili derek.turnm@coag.gov *Counsel of Record Case No. 2016CW3063 Water Div. 5 STATEMENT OF OPPOSITION OF THE COLORADO WATER CONSERVATION BOARD Name of objector: Colorado Water Conservation Board Mailing address: 1313 Sherman Street, Room 721, Denver, CO 80203. Name of ditch or structure: As more fully described in the application. State facts Why this application for water rights should not be granted or Why it should be granted only on certain conditions1 Statement of Opposition Case No. 16CW3063 Page 2 of 6 The Applicant seeks an order from the Court declaring that the Judgment and Decree entered in Case No. 89CW282 includes a right to refill four reservoirs (Maroon Creek Development Corporation Reservoir Nos. 1, 2, 3, and 4) under the decree?s 1989 adjudication. The CWCB holds instream ?ow water rights in Water Division 5 on Maroon Creek, the Roaring Fork River, and the Colorado River, that are decreed in Case Nos. 76' 85CW0639, 85CW0646, 10CW0184, 92CW286 and 94CW330. The CWCB is an opposing party in Applicant?s pending application for an augmentation plan in Case No. 14CW3149, Water Division 5, where the CWCB has asserted that the Applicant?s decree in Case No. 89CW282 did not include refill rights for the four reservoirs. The CWCB ?les this statement of opposition to ensure that its water rights are not injured by the Application, and to ensure that the relief granted by the Court in this case is in accordance with the law concerning the adjudication and administration of decreed storage rights. The principle that reservoirs are limited to one fill per year is well- established in Colorado water law. ?Colorado law dictates that a reservoir is limited to one annual filling, according to its decreed capacity.? N. Sterling Irrigation Dist. V. Simpson, 202 P.3d 1207, 1211 (Colo. 2009). A reservoir priority authorizes the reservoir owner to fill the reservoir ?once during any one year, up to its capacity, and restricts the right, upon one appropriation, to a single filling for any one year.? Windsor Reservoir Canal 00. V. Lake Supply Ditch 00., 98 P. 729, 733 (Colo. 1908). Therefore, absent specific language in a decree to the contrary, a decreed right to fill a reservoir is limited to a single filling per year. The decree at issue in the Application in this case was a stipulated decree negotiated between the objectors to Case No. 89CW282 and the applicant in that case. See 1111, Judgment and Decree, Case No. 890W282 (attached to the Application in this case as Applicant?s Exhibit A). As a stipulated decree, the 89CW282 decree must be interpreted in accordance with principles of contract law. USI Properties East, Inc. V. Simpson, 938 P.2d 168, 173 (Colo. 1997). When interpreting a contract, intent of the parties is to be determined primarily from the language utilized. Id. at 173, citingKN Energy, Inc. V. Great West Sugar 00., 698 P.2d 769, 776 (Colo. 1985); Radiologv Prof?l Corp. V. Trinidad Area Health Ass?n, 77 P.2d 748, 750 (Colo. 1978). The plain and generally accepted meanings of the words are to be used in ascertaining whether an agreement is ambiguous. Id. at 173, citing May V. United States, 756 P.2d 362, 369 (Colo. 1988);Radiology Prof?l Corp, 577 P.2d at 750; and Heller v. Fire Ins. Exch, 800 P.2d 1006, 1009 (0010. 1990). If no ambiguity exists in the terms of the contract, then the reviewing court shall not consider extraneous evidence. Id. at 273, citing Radiolch Prof?l Corp, 577, P.2d at 750. Statement of Opposition Case No. 16CW3063 Page 3 of 6 Here, the decree for the Maroon Creek Development Reservoirs Nos. 1'4 is not ambiguous, and the Court should not consider extraneous evidence to determine the rights adjudicated therein, including any of the extrinsic evidence described in the Application in this case (the application, amended application, and resume notice filed in Case No. 89CW282). This Court need not consider such evidence in determining whether the stipulated decree awarded a right to refill the reservoirs after the initial filling. The decree awarded the following amounts to the Maroon Creek Development Corporation reservoirsl a. Maroon Creek Development Corporation Reservoir No. 11 7.7 acre-feet of water conditionally, for domestic, commercial, irrigation, recreation, and fish and wildlife purposes, appropriated on December 22, 1989; b. Maroon Creek Development Corporation Reservoir No. 21 4.6 acre-feet of water conditionally, for domestic, commercial, irrigation, recreation, and fish and wildlife purposes, appropriated on December 22, 1989; c. Maroon Creek Development Corporation Reservoir No. 31 9.2 acre-feet of water conditionally, for domestic, commercial, irrigation, recreation, and fish and wildlife purposes, appropriated on December 22, 1989; d. Maroon Creek Development Corporation Reservoir No. 41 13.6 acre/feet of water conditionally, for domestic, commercial, irrigation, recreation, and fish and wildlife purposes, appropriated on December 22, 1989. First, based on the long-accepted one-fill rule, as described above, the statements describing the above reservoir rights are not ambiguous as to whether the court approved the right to refill the structures after the first fill. The decree unambiguously awards a single fill, of the specific amounts of each reservoir?s capacity, described above, to each reservoir. Because the decree is unambiguous, this Court need not review extrinsic evidence to find that the 1989 decree did not adjudicate a right to fill each reservoir multiple times under the 1989 appropriation. If the parties who stipulated to the 1989 decree, including the Applicant in that case, had intended to agree to an adjudication of multiple fillings of the four reservoirs, they would have included express language regarding the appropriation and adjudication of a right to refill the reservoirs. No such language exists in the decree, and no such language should be interpreted into the decree based on extrinsic evidence. The stipulated decree speaks for itself. See ?hi'mem Hi!ng Line Canal 63: Reservoir Ca. V. City of'GUJden, 975 P.2d 189. 199 11.14 (Colo. 1999) is fundamental that a decree should be complete and certain in itself?). Statement of Opposition Case No. 16CW3063 Page 4 of 6 Second, ?if a decree is susceptible of more than one interpretation, one of which is consistent with applicable legal principles and the others of which are inconsistent with those principles, [a court] must obviously choose that interpretation which accords with controlling legal norms.? Orr U. Arapahoe Water Sanitation Dist, 753 P.2d 1217, 1222 (Colo. 1988). Even assuming that the decree is susceptible to more than one interpretation as to whether the language awards a right to refill the reservoirs after their first fill, this Court should reject an interpretation which is contrary to the long-accepted single-fill rule. The controlling legal norm for the appropriation of reservoir storage rights, since as early as 1908, is that a reservoir appropriation is for a single filling. See Windsor, 98 P. at 733-34. ?An appropriation acquired by building a reservoir and storing water in it, and thereafter using it on lands, is measured by its holding or storage capacity. The quantity of water which may, in any one year, be lawfully stored therein upon one appropriation is not the number of cubic feet that may be run into it as the result of successive fillings and emptyings, but what it will hold as the result of a single filling. Id. at 7 34. This Court should not choose an interpretation of the decree in 89CW282 which is not in accord with the single-fill rule. For those reasons and for other such reasons to be determined upon such later investigation based upon discovery or other disclosures properly made in the court of the prosecution of this case, this Court should deny the Application. 4. The CWCB is unable to determine from the application whether additional grounds for opposition exist, and therefore reserves the right to assert other grounds for opposition as they become known. 5. This Statement of Opposition is continuing in nature and shall apply to any and all future amendments to the original application. Dated this 27th day of October, 2016. H. COFFMAN Attorney General E-filed pursuant to C.R.C.P. 121. Duly signed original on file at the Office of the Attorney General. Derek L. Turner 44091" Assistant Attorney General Natural Resources and Environment Section Attorney for the Colorado Water Conservation Board *Counsel of Record Statement of Opposition Case No. 16CW3063 Page 5 of 6 mammanon STATE OF COLORADO 53 CITY AND COUNTY OF DENVER I, Don West, Water Resources Engineer, Colorado Water Conservation Board, being duly sworn, hereby state that I have read the foregoing Statement of Opposition, and that the contents are true to the best of my knowledge. Signed original on ?le with the O??'ce of the Attorney General for the State of Colorado Om WW Don wrist, P.E. Water Resources Engineer Colorado Water Conservation Board Subscribed and sworn to before me this 35? day of October, 2016 in the City and County of Denver, State of Colorado. oousLAs w. MAHAN Signed original on ?le with the Of?ce of the RY mags; $233200 Attorney General the State of Colorado NOTARY ID I 20144036361 (r Notmatfru??mo My Commission expires! Statement of Opposition Case No. 16CW3063 Page 6 of _6 CERTIFICATE OF SERVICE This is to certify that on this 27th day of October, 2016, I caused a true and correct copy of the foregoing STATEMENT OF OPPOSITION OF THE COLORADO WATER CONSERVATION BOARD to be served electronically via ICCES File Serve to each of the following: Party Name Party Type Attorney Name Division 5 Engineer Division Engineer Division 5 Water Engineer (State of Colorado DWR Division 5) Maroon Creek Limited Liability Applicant Haley M. Carmer Company Nicole Garrimone- Campagna (Garfield and Hecht PC) State Engineer State Engineer Colorado Division of Water Resources (State of Colorado - Division of Water Resources) E-filed pursuant to C.R.C.P. 121. Duly signed original on file at the Office of the Attorney General Margaret L. Popick Margaret L. Popick CWCB Instream Flow Water Right/3* Statement of Opposition Case No. 16CW3063 EXHIBIT A CW CB Case No. Stream Upper Terminus Lower Terminus Rate/Timing (db/Period) Approp. Date Watershed 76W2945 Maroon Creek con? Maroon Creeks con? Roaring Fork River 14 (1/1 - 12/31) 01/14/1976 Roaring Fork Maroon Creek (Stap leton Bros Ditch) Stap-leton Bros Ditch con? Roaring Fork River 3.33 (5/1 - 10/31) 06/30/1904 Roaring Fork 85CW0639 Roaring Fork River con? Fryingpan River con? Maroon Creek 75 (10/1 - 3/31) 145 (4/1 - 9/30) 1 1/08/ 1985 Roaring Fork 85CW0646 Roaring Fork River con? Maroon Creek con? Fryingpan River 30 (10/1 - 3/31) 55 (4/1 - 9/30) 11/08/1985 Roaring Fork Roaring Fork River (Stapleton Bros Ditch) con? Maroon Creek con? Owl Creek 3.54 (5/1 - 10/31) 06/30/1904 Roaring Fork IOCW0184A Roaring Fork River (Stapleton Bros Ditch) con? Owl Creek con? Fryingp an River 0.39 (5/1 - 5/31) 0.59 (6/1 - 6/30) 0.64 (7/1 - 7/31) 0.5 (3/1 - 8/31) 0.4 (9/1 9/30) 0.15 (10/1 - 10131) 06/30/1904 Colorado headwaters- Plateau 92CW0286 Colorado River (15' mile reach) Tailrace Grand Valley Irr C0 div con? Gunnison River 531 (7/1 - 9130) 03/05/1992 Colorado headwaters- Plateau Colorado River (15' mile reach) 27.5 Road Gage Con? Gunnison River 300 (7/1 - 9/30) 1 1/04/ 1994 Colorado headwaters- Plateau increases 92CW286 for a total ?ow of 881 in that reach ADonated Acquired Water Right