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to cause the injury is hydrologically connected to the stream and has been improperly <br />included in the designated Basin. The evidence presented on connectivity and injury <br />must be different from that which was before the Commission when the Basin was <br />originally designated. Upon such a showing, the Commission is required to alter the <br />Basin's boundaries to exclude the improperly designated ground water. Once the ground <br />water is no longer designated, jurisdiction over that water rests in the water courts and the <br />State Engineer. <br />4) Cherokee Metropolitan District v. Simpson, 148 P.3d 142 (Colo. 2006), <br />November 27, 2006 <br />The Supreme Court affirmed the water court's interpretation of a stipulated decree <br />provision contained in Cherokee's conditional water rights diligence decree. The <br />contested provision concerned Cherokee's use of two sets of wells in the Upper Black <br />Squirrel Creek Designated Ground Water Basin, known as Cherokee Wells 1 -8 in the <br />northern part of the basin and the Sweetwater Wells in the southern part of the basin. The <br />diligence decree allows water from the Sweetwater Wells to be utilized within and <br />outside of the designated basin, while Cherokee Wells 1 -8 are limited to uses within the <br />basin that discharge any unconsumed water back into the designated basin. Two <br />exceptions to the in -basin limitation on Wells 1 -8 allow water from these wells to be <br />utilized outside the basin for "emergency and backup purposes" that "include the inability <br />to get sufficient supply from Cherokee owned Sweetwater wells." The water court found <br />that the stipulated provision providing for these exceptions was ambiguous and heard <br />extrinsic evidence as to its intent. The water construed the provision to provide that <br />Wells 1 -8 may be used to supply water outside of the basin only for emergency and <br />backup purposes when its Sweetwater Wells are unable to produce a sufficient supply of <br />water to meet the commitments that existed at the time the parties entered into the <br />stipulation. The water court found that, at the time the parties entered the stipulation, <br />Cherokee's commitments outside of the basin totaled no more than 2,683 acre feet, and at <br />the time of trial the Sweetwater Wells were capable of producing 3,407 acre feet. After <br />the stipulation, Cherokee undertook a series of commitments to supply water to new <br />developments within its boundaries but outside the designated basin, which increased its <br />out -of -basin commitments to 4,944.02 acre feet. Cherokee sought to use the existing <br />Wells 1 -8 to meet some of its out -of -basin commitments rather than develop three more <br />Sweetwater Wells. However, the water court found that the Sweetwater Wells developed <br />at the time of trial already provided water sufficient to meet Cherokee's out -of -basin <br />commitments that existed at the time of the stipulation. Accordingly, Wells 1 -8 could not <br />be used as a backup source for Cherokee's out -of -basin commitments. <br />5) Tonko v. Mallow, 154 P.3d 397 (Colo. 2007), March 19, 2007 <br />In this minor decision concerning an appeal from Water Division 2, the Supreme <br />Court held that the Water Court erred in dismissing on the grounds of issue preclusion the <br />Appellants' application for a change in water right. The Appellants, Johnny and Donna <br />Tonko, had initially brought a condemnation proceeding in district court seeking a ditch <br />right -of -way. The district court held that it lacked subject matter jurisdiction to <br />