DATE FILED: November 27, 2019 3:42 PM

DISTRICT COURT, WATER DIVISION NO. FILING
6,
ID: D43CF6AFCB6C5
CASE NUMBER: 2014CW3043
COLORADO
Routt County Justice Center
1955 Shield Drive, Unit 200
Steamboat Springs, CO 80487
(970) 879-5020
CONCERNING THE APPLICATION FOR
WATER RIGHTS OF:
The RIO BLANCO WATER CONSERVANCY
DISTRICT, a Colorado Water Conservancy
District
In the White River or its Tributaries
In RIO BLANCO COUNTY, COLORADO

 COURT USE ONLY 

Attorneys for the State Engineer and Division
Engineer, Water Division 6:
PHILIP J. WEISER
Attorney General
ANDREW NICEWICZ
Assistant Attorney General
Attorney Reg. # 44903*
MARC D. SARMIENTO
Assistant Attorney General
Attorney Reg. # 46322*
Water Resources Unit
Natural Resources & Environment Section
Office of the Colorado Attorney General
1300 Broadway, 7th Floor
Denver, CO 80203
Telephone: (720) 508-6259 (Nicewicz);
(720) 508-6429 (Sarmiento)
FAX: (720) 508-6039
Email: andy.nicewicz.@coag.gov;
marc.sarmiento@coag.gov
*Counsel of Record

Case No.: 14CW3043
Division: 2B

ENGINEERS’ REPLY IN SUPPORT OF MOTION TO INTERVENE

 The State Engineer and the Division Engineer for Water Division 6
(“Engineers”), by and through undersigned counsel, hereby file their Reply in
support of their Motion to Intervene.
ARGUMENT
Ever since filing the Report of the Division Engineer on March 17, 2015,
Exhibit 1 at 3, ¶ 5, the Engineers have expressed concerns regarding the
speculative nature of the claim of the Rio Blanco Water Conservancy District
(“RBWCD”) for a 90,000-acre-foot conditional water right. The Engineers have
actively engaged in the Summary of Consultation process with the belief that their
concerns would be addressed through that process. The Engineers have filed
additional reports, participated in nearly all status conferences in this case wherein
they appraised the Court of the status of remaining issues, and held discussions and
meetings with RBWCD in attempts to resolve the Engineers’ concerns. And
throughout this case, the Engineers have consistently maintained that RBWCD
must demonstrate that its claimed water right is not speculative. Although
RBWCD has addressed some of the Engineers’ concerns in the past six months, the
Engineers maintain that RBWCD has not met its burden. This case was put on the
trial track on October 9, 2019, without the Engineers’ concerns having been
resolved.
The Engineers’ intervention will not prejudice RBWCD, and the Engineers’
decision to pursue resolution through the Summary of Consultation process instead
Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 2 of 13

 of filing a statement of opposition constitutes mistake and excusable neglect within
the meaning of section 37-92-304(3), C.R.S. The Court may also grant permissive
intervention under C.R.C.P. 24(b). Therefore, the Court should grant the
Engineers’ motion to intervene.
I.

RBWCD will not be prejudiced by the Engineers’ intervention.
In this case, RBWCD must demonstrate that it has met all of the standards for

the appropriation of a conditional water right, including showing a non-speculative
need for the claimed water. E.g., Upper Yampa Water Conservancy Dist. v. Dequine
Family L.L.C., 249 P.3d 794, 799 (Colo. 2011); Vermillion Ranch Ltd. P’ship v.
Raftopoulos Bros., 2013 CO 41, ¶ 33, 307 P.3d 1056, 1064. In arguing that it will be
prejudiced by the Engineers’ intervention, RBWCD points to the Engineers’ recitation
of those standards in the Engineers’ statement of opposition, and claims that “the
Engineers’ intervention is sought for purposes of expanding [the] Engineers’
opposition.” Rsp. Mot. Intervene at 6.
RBWCD fails to explain how being held to the requirements for a conditional
water right constitutes prejudice. As stated in the Engineers’ motion to intervene,
the Colorado Supreme Court has equated “prejudice” with actions that cause undue
surprise or prevent a party from preparing its case adequately. See Mot. Intervene
at 7, ¶ 15.h (citing Pub. Serv. Co. v. Blue River Irr. Co., 753 P.2d 737, 740–41 (Colo.
1988); J.P. v. Dist. Court, 873 P.2d 745, 751 (Colo. 1994)). Since a trial for this case
has not been set yet, RBWCD cannot claim that the Engineers’ intervention will
Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 3 of 13

 prevent it from adequately preparing its case. And given the Engineers’ consistent
stance regarding the speculative nature of RBWCD’s claims, RBWCD cannot assert
that it is surprised by the Engineers’ position that it must demonstrate that its
claimed conditional water right is not speculative.
RBWCD’s application in this case claimed a 90,000 acre-foot storage right for
“municipal, industrial, commercial, irrigation, domestic, recreation, piscatorial,
augmentation, wildlife habitat, maintenance and recovery of federally listed
threatened and endangered species, hydroelectric power generation, and all other
beneficial uses.” Exhibit 2, Application at 3, ¶ 7. The March, 4, 2015, W.W. Wheeler
& Associated White River Storage Feasibility Study Report (“Wheeler Report”)
described the long-term projected water storage needs as follows:
•

Municipal and Industrial: 1,600–3,500 acre-feet

•

Oil and Natural Gas: 3,500 acre-feet

•

Oil Shale: 8,500–42,300 acre-feet

•

Environmental: 3,000–42,000 acre-feet

•

TOTAL: 16,600–90,950 acre-feet

Exhibit 3 at 7, Table 3.1. RBWCD relied on the upper ranges of these projections to
support its conditional water right claim for 90,000 acre-feet.
As described in the October 4, 2018, Additional Written Report Outlining
Outstanding Concerns, Exhibit 4, the Division Engineer questioned the bases for
these demands. In response, RBWCD agreed to remove its claims for industrial/oil
Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 4 of 13

 and natural gas/oil shale and irrigation uses. Exhibit 5, May 16, 2019, Response to
Additional Comments of the Division Engineer at 4. However, RBWCD also almost
doubled the identified demand for municipal and industrial use for the Town of
Rangely (“Rangely”) to 3,000–7,000 acre-feet and identified a new demand for
recreation of 15,000–24,000 acre-feet. Id. at 6. The amount identified as needed for
environmental for threatened and endangered species remained at 3,000–42,000 acrefeet, despite RBWCD’s acknowledgement that the amount needed for this use was
unknown. Id. at 4–5. RBWCD also identified a new demand for a sediment pool of
3,000–24,000 acre-feet, and a new demand for an insurance pool of 0–3,000 acre-feet.
Id. at 6. RBWCD’s application in this case did not describe either of these uses, and
the Wheeler Report did not attribute any demands to these uses. Thus, despite
removing its claims for industrial/oil and natural gas/oil shale, which originally
accounted for over half of the demand for the claimed water right, the total demands
for water identified by RBWCD actually increased to 24,000–100,000 acre-feet.
(Again, RBWCD relied on the higher-end of this projected amount to support its claim
of 90,000 acre-feet.) As detailed in the August 1, 2019, Second Additional Written
Report Outlining Outstanding Concerns, Exhibit 6, the Division Engineer continued
to express concerns with the revised claimed amounts.
Since filing that last report, the Engineers have engaged in discussions and met
with RBWCD with the goal of resolving remaining issues. In these discussions,
RBWCD agreed to drop the new identified use for a sediment pool, revise the demand
Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 5 of 13

 for Rangely to 6,720 acre-feet, and revise the total amount claimed to 66,720 acre-feet
or 72,720 acre-feet, depending on whether the proposed reservoir is constructed offchannel or on-channel, respectively. The Engineers have continued to express
concerns regarding the amount of water identified by RBWCD as needed for: (1) use
by Rangely (6,720 acre-feet); (2) maintenance and recovery of federally listed
threatened and endangered species (42,000 acre-feet); and (3) an insurance pool (3,000
acre-feet for the off-channel reservoir). The amounts associated with these uses
account for 67%–78% of the revised amounts now claimed by RBWCD.1
RBWCD’s request that the Engineers limit their opposition to concerns
regarding the amounts of water needed by Rangely, for threatened and endangered
species use, and for an insurance pool, see Rsp. Mot. Intervene at 6, was unreasonable
and ignores the nature of RBWCD’s claim in this case. The demands identified by
RBWCD for particular uses does not mean that RBWCD is claiming multiple water
rights for particular uses with specific amounts for each use. The Engineers’
remaining concerns regarding particular demands thus cannot be discretely separated
from the overall requirement for RBWCD to demonstrate a non-speculative need for
the total claimed water right.
Past experience in this case also has demonstrated that even if RBWCD
addresses the Engineers’ remaining concerns tied to these three particular uses, it is
likely that RBWCD will raise further issues in doing so. For example, when RBWCD
48,720 acre-feet out of 72,720 acre-feet for the on-channel reservoir, and 51,720 acrefeet out of 66,720 acre-feet for the off-channel reservoir, respectively.

1

Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
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 removed its claim for industrial/oil and natural gas/oil shale, it replaced that claim in
part with previously unidentified new uses and demands for a sediment pool and an
insurance pool. The Engineers thus have determined that it would not be appropriate
to expressly limit their involvement in this case as requested by RBWCD.
For over four-and-a-half years, the Engineers have consistently expressed
concerns with the sufficiency of RBWCD’s claims. As such, the Engineers’ motion to
intervene and statement of opposition is wholly consistent with the Engineers’
position throughout the summary of consultation process and as communicated to
RBWCD—that is, RBWCD “must demonstrate that the water rights are not
speculative and in doing so, provide the amount of water reasonably necessary to
serve the reasonable anticipated needs of the applicant above its current water
supply.” Exhibit 1, Report of the Division Engineer at 3, ¶ 5.
RBWCD’s assertion that “the Engineers’ intervention is sought for purposes of
expanding [the] Engineers’ opposition,” Rsp. Mot. Intervene at 6, is thus without
basis. RBWCD has therefore failed to show why granting the Engineers’ motion to
intervene would be prejudicial.
II.

Not filing a statement of opposition in this case was mistake or
excusable neglect by the Engineers.
The Engineers engaged in the Summary of Consultation process as part of

their statutory duties and responsibilities, including, the “clear obligation to
represent the public interest in proceedings involving water rights,” Bar 70 Enter.,
Inc. v. Tosco Corp., 703 P.2d 1297, 1304 (Colo. 1985), and the “duty to protect our
Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 7 of 13

 system of prior appropriation,” Wadsworth v. Kuiper, 193 Colo. 95, 101, 562 P.2d
1114, 1118 (1977). Enforcement of the anti-speculation doctrine furthers the State
of Colorado’s maximum utilization and optimum beneficial use goals, see Pagosa
Area Water & San. Dist. v. Trout Unlimited, 170 P.3d 307, 317 (Colo. 2007), and
speculative claims actually discourage those who have a need and use for the water
from developing it, Colo. River Water Conservation Dist. v. Vidler Tunnel Water Co.,
197 Colo. 413, 417, 594 P.2d 566, 568 (1979). The responsibilities of the Engineers
to represent the public interest and to protect the system of prior appropriation
therefore extend to ensuring that claims for conditional water rights are not
speculative. These responsibilities did not end in this case simply because the case
was put on a trial track. In fact, the Division Engineer already has the requisite
standing to appeal any judgment inconsistent with Colorado law. C.A.R. 1(e)
(providing that in the appeal of water matters, “[i]f not an appellant, the division
engineer shall be an appellee”). This Court should have the benefit of any legal
argument that may be made in any appeal of a speculative water right that was, at
least in part, lacking legitimate and documentable needs at the time of filing the
water right application. Although the Engineers still continue to engage in
discussions with RBWCD with the objective of resolving remaining issues without
the need for a trial, filing a motion to intervene has become necessary in order for
the Engineers to fulfill their duties.

Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 8 of 13

 Throughout the Summary of Consultation process, the Engineers believed
that the concerns they expressed regarding the speculative nature of RBWCD’s
claims could be resolved without needing to file a statement of opposition. This
assumption was incorrect, and falls within the meaning of “mistake” and the
“elastic concept” of “excusable neglect.” See SL Grp., LLC v. Go W. Indus., Inc., 42
P.3d 637, 641 (Colo. 2002) (noting that, in the context of section 37-92-304(10),
C.R.S. (2001), “construing the term [excusable neglect] to have the meaning
intended by the legislature requires consideration of the context in which it appears
and the apparent purposes of the General Assembly in using it.”).
III.

The Court may grant permissive intervention under C.R.C.P. 24(b).
The preamble of the Water Court Rules states, “Except as expressly provided

in these rules, the Colorado Rules of Civil Procedure . . . shall apply to water court
practice and procedure.” That Water Court Rule 7 “does not mention C.R.C.P. 24,”
Rsp. Mot. Intervene at 7, is plainly not an “express” provision regarding the
applicability of C.R.C.P. 24(b). See also Am. Water Dev., Inc. v. City of Alamosa, 874
P.2d 352, 381 (Colo. 1994) (rejecting the contention that C.R.C.P. 41(a)(2) does not
apply to water right adjudications when Water Court Rule 5(b) contains no
indication that C.R.C.P. 41 is not fully applicable to water cases). Accordingly,
C.R.C.P. 24 “shall apply” in this instance, and permissive intervention is
appropriate under the plain language of the Water Court Rules. Moreover, the
mandatory intervention contemplated by Water Court Rule 7 for all parties serves
Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 9 of 13

 an entirely different purpose than permissive intervention under C.R.C.P. 24 for an
agency charged with administering section 37-92-103(3), C.R.S., the antispeculation statute at issue in this case.
CONCLUSION
The Engineers support the development of water storage projects consistent
with Colorado’s Water Plan, including projects in the White River Basin. But this
support extends only to those water storage projects that meet the legal
requirements for appropriating a conditional water right—in particular, that an
applicant has demonstrated a non-speculative need for the water. “Our constitution
guarantees a right to appropriate, not a right to speculate.” Vidler, 197 Colo. at
417, 594 P.2d at 568. RBWCD currently has not met its burden to demonstrate a
non-speculative intent to appropriate the amount of water it claims. RBWCD will
not be prejudiced by being held to this legal standard. As such, and for the reasons
explained above, this Court should grant the Engineers’ motion to intervene.

Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 10 of 13

 Respectfully submitted this 27th day of November, 2019.
PHILIP J. WEISER
Attorney General
Filed pursuant to C.R.C.P. Rule 121 § 1-26.
/s/ Andrew Nicewicz
___________________________________________
ANDREW NICEWICZ, #44903*
Assistant Attorney General
MARC D. SARMIENTO, #46322
Assistant Attorney General
Water Resources Unit
Natural Resources and Environment Section
Attorneys for the State and Division Engineers
*Counsel of Record

Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 11 of 13

 CERTIFICATE OF SERVICE
This is to certify that on the 27th day of November, 2019, I caused a true and
correct copy of the foregoing ENGINEERS’ REPLY IN SUPPORT OF MOTION
TO INTERVENE to be served electronically via CO-Courts e-file system or by US
Mail first class to each of the following:
Party Name

Party Type

Attorney Name

4M Ranch LLC

Opposer

37669 Highway 64
Meeker, CO 81641

Colorado Water Conservation
Board

Opposer

Jennifer Lyn Mele (CO
Attorney General)

Daniel W. Savage

Opposer

Barbara Lynn Clifton
(Barbara L Clifton PC)

Division 6 Engineer

Division Engineer Division 6 Water Engineer
(Water Resources
Steamboat)

Exxon Mobil Corporation

Opposer

Glenn Edward Porzak
Karen Leigh Henderson
Kristin Howse Moseley
(Porzak Browning &
Bushong LLP)

Joan L. Savage

Opposer

Barbara Lynn Clifton
(Barbara L Clifton PC)

Marshall T. Savage

Opposer

Barbara Lynn Clifton
(Barbara L Clifton PC)

Rio Blanco Water Conservancy
District

Applicant

Alan E. Curtis
David C. Taussig
Virginia Marie
Sciabbarrasi
(White and Jankowski
LLC)
Edward Bryan Olszewski
(Olszewski, Massih &
Maurer, P.C.)

Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 12 of 13

 Party Name

Party Type

Attorney Name

Roy E. Savage

Opposer

Barbara Lynn Clifton
(Barbara L Clifton PC)

State Engineer

State Engineer

Colorado Division Of
Water Resources (State of
Colorado - Division of
Water Resources)

Terracarta Energy Resources
LLC

Opposer

Jefferson Venable Houpt
Ryan M. Jarvis
(Beattie Houpt and Jarvis
LLP)

United States of America

Opposer

Kristen C Guerriero
(US Attorney’s Office)

E-filed pursuant to C.R.C.P. 121.

/s/

Margaret L. Popick

Engineers Reply in Support of Motion to Intervene
Case No. 14CW3043
Page 13 of 13