WSPC12924 - Laserfiche WebLink

Home Browse Search

e e , ~ I '1 Stipulations to Amend change the ALP construction and water delivery date to January 1, 2009. In the event construction is not complete by January 1, 2009, the Tribes have until January 1,2012 to decide whether to accept the water right or litigate or renegotiate their claims. Therefore, the Court fmds that it is reasonable to require that the United States, acting for the benefit ofthe Ute Tribes, and the Ute Tribes file a report in January of the year 2009, and every sixth calendar year thereafter, demonstrating the Tribes' progress in applying their respective reserved water rights, not currently in use, to beneficial use. 77. Water courts are required to incorporate into decrees a condition regarding reconsideration of the question of injury by the water court during "such period after the entry of such decision as is necessary or desirable to preclude or remedy [injury]" to the vested rights of others. C.R.S. ~ 37-92-304(6); see City of Thomton, supra at 1359. The change applications and the proposed amendmentsS are subjectto reconsideration of the question of injury pursuant toC.R.S. g 37-92-304(6). The statutory protection of section 37-92-304(6), C.R.S., is intended to protect vested water rights holders insofar as it allows the water court to reconsider the question of injury until it is convinced that the nonoccurrence of injury to water rights is conclusively established. Given the anticipated schedule for cornpletionof ALP, and the amended deadline for final acceptance ofthe water rights by the Ute Tribes as outlined in paragraph 76 above, the Court finds it is reasonable to anticipate identification of initial uses of the Tribes' water rights by the Tribes between January 1,2009, and January 1,2012. Therefore, the Court will impose a period of retained jurisdiction for reconsideration of the question of injury through December 31,2012. Pursuant to C.R.S. ~ 37-92-304(6), the period of reconsideration may be extended if the nonoccurrence of iJtiury is not then established. 78. The state doctrine of beneficial use is applicable to these water rights. See Order (3/7/05), p. 25; see Applicant's Ex. 2&3 (1991 Consent Decrees) at Stipulation for a Consent Decree, "6.A., 7.A., and 12.D (references to beneficial use). The Court's scrotiny of how and where the water will be used is necessarily limited in advance of the application of the water to actual use where reserved rights are involved, however, this should not prohibit a change of use. See U.S. v. City and CO\Ulty of Denver. Bv and Through Bd. of Water Com'rs. 656 P.2d 1,35 (Colo.1982). 79. The Court finds that the Ute MO\Ultain Ute Tribe's water is not yet placed to beneficial use, in part because ALP has not been completed. Opponents did not present any argument or evidence suggesting that the Ute Mountain Ute Tribe lacks legal authority to use reserved water for M&l purposes or is unlikely to apply water to beneficial M&I uses. Furthermore, M&I uses are recognized uses of the Ute Mountain Ute Tribe's and the Southern Ute Tribe's reserved water rights as established in the 1991 Consent Decrees. See Applicant's Ex.. 2&3 (1991 Consent Decrees) at Stipulation for a Consent Decree, ~~6.A. & 7.A. Finally, the ALP decree in Case No. 80CW237 designates municipal and industrial uses, inter alia, of Ridges Basin Reservoir. 5 In this respect, the proposed amendments are analogous to a "change ofwatcr right" underC.R.S. ~ 37- 92-304(6) because, the amendments change the description of the water right with the result of potential injury to other vested water rights in the absence of imposition of conditions. 24