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                                                 ADVANCE SHEET HEADNOTE
                                                              April 20, 2020

                                   2020 CO 27

No. 18SA244, Santa Maria Reservoir Co. v. Warner—Application for Change of
Use of Water—Native Water—Imported Water—Hydraulic Divide.

      The supreme court affirms the water court’s approval of the change-of-use

application submitted by the Santa Maria Reservoir Company (“SMRC”) with

respect to the water it diverts from the Rio Grande into the Closed Basin. Like the

water court, the supreme court concludes that the water SMRC diverts into the

Closed Basin is imported water because it does not naturally flow into the Closed

Basin and, once there, does not naturally return to the Rio Grande. In so doing,

the supreme court rejects the appellant’s contention that the water in question

cannot be imported water because the Rio Grande and the Closed Basin are

hydraulically connected. Instead, since the record establishes that a hydraulic

divide currently exists between the two stream systems, the supreme court finds

them to be unconnected.
      Relying on longstanding precedent establishing that downstream users of

return flows from imported water do not have a vested right in the future

importation of such water, the supreme court rules that the appellant was not

injured by the water court’s approval of SMRC’s change-of-use application.

Contrary to the appellant’s contention, the court holds that SMRC is entitled to

fully consume all of the water it imports into the Closed Basin.

      Further, the supreme court upholds the water court’s rulings recognizing

the historical irrigation use of SMRC’s water rights on lands served by the Monte

Vista and Rio Grande Canals and the historical irrigation practice of recharging

the unconfined aquifer of the Closed Basin with SMRC’s water rights.
                The Supreme Court of the State of Colorado
                2 East 14th Avenue • Denver, Colorado 80203

                                 2020 CO 27

                   Supreme Court Case No. 18SA244
                         Appeal from District Court
    Alamosa County District Court, Water Division 3, Case No. 13CW3002
                 Honorable Pattie P. Swift, Water Judge

   Concerning the Application for Water Rights of the Santa Maria Reservoir
                Company in the Rio Grande or its Tributaries.

                            Applicant-Appellee:

                      Santa Maria Reservoir Company,

                                      v.

                            Opposer-Appellant:

                                 Jim Warner,

                                     and

                            Opposers-Appellees:

 Colorado Division of Parks and Wildlife, Colorado Water Conservation Board,
Conejos Water Conservancy District, Costilla Ditch Company, Rio Grande Water
              Conservation District, and Richard H. Ramstetter,

                              and Concerning

                                 Appellees:

  Kevin Rein, State Engineer; and Craig W. Cotten, Division Engineer, Water
                                  Division 3.
                              Judgment Affirmed
                                   en banc
                                 April 20, 2020


Attorneys for Applicant-Appellee:
Carlson, Hammond & Paddock, LLC
William A. Paddock
Mason H. Brown
Katrina B. Fiscella
      Denver, Colorado

Attorneys for Opposer-Appellant:
Confluence Water Law LLC
John J. Cyran
       Denver, Colorado

Richard L. Arnett
      Alamosa, Colorado

Attorneys for Opposer-Appellee Rio Grande Water Conservation District:
Hill & Robbins, P.C.
David W. Robbins
Peter J. Ampe
Matthew A. Montgomery
       Denver, Colorado

Attorneys for Appellee Craig W. Cotten:
Philip J. Weiser, Attorney General
Paul L. Benington, First Assistant Attorney General
      Denver, Colorado

No appearance on behalf of Colorado Division of Parks and Wildlife, Colorado
Water Conservation Board, Conejos Water Conservancy District, Costilla Ditch
Company, Richard H. Ramstetter, or Kevin Rein.



JUSTICE SAMOUR delivered the Opinion of the Court.

                                       2
¶1      Singer-songwriter Joni Mitchell wrote in one of her hit songs that “you don’t

know what you’ve got ‘til it’s gone.” Joni Mitchell, Big Yellow Taxi (Siquomb

Publ’g Corp. 1970). The sentiment is helpful in articulating our resolution of this

appeal from the District Court of Water Division No. 3 (the “water court”). We

conclude that Jim Warner was not injured by the water court’s approval of the

change-of-use application submitted by the Santa Maria Reservoir Company

(“SMRC” or the “Company”) with respect to the water it diverts from the Rio

Grande into the Closed Basin. Because that water is imported water, SMRC is

entitled to fully consume all of it. The water would not be in the Closed Basin,

much less available for use by Warner and other water users in the Closed Basin,

without its importation by SMRC. Thus, rather than cause an injury to Warner,

the approval of SMRC’s application simply revealed to him that his past use of

return flows from SMRC’s imported water in the Closed Basin was a benefit to

which he had no enforceable right; Warner just didn’t know what he had ‘til it was

gone.

¶2      Warner presents a gumbo of claims in urging us to overturn the water

court’s approval of SMRC’s application. First, he argues that the water court

applied the wrong legal standard in determining that the water SMRC diverts

from the Rio Grande into the Closed Basin is imported. Second, Warner contends

that the water court’s imported-water determination was based on its mistaken

                                          3
conclusion that the Rio Grande and the Closed Basin are “unconnected” stream

systems.   According to Warner, the two stream systems are hydraulically

connected, and the water court’s contrary finding ignores its own legal precedent

and this court’s caselaw. Finally, Warner posits that the water court’s decree is

inconsistent with the General Assembly’s efforts to manage the surface and

groundwater systems in the San Luis Valley (the “Valley”). More specifically,

Warner challenges the water court’s definition of imported water as overly broad

and asserts that the decree issued effectively permits the removal of “thousands of

acre-feet” of water from the Valley without regard for the impact of that removal

upon individual water users and the long-term sustainability of water systems in

the Valley.1

¶3    In order to place this appeal in context, we begin by visiting the central

tenets of the prior appropriation doctrine and the principles governing water

users’ rights in imported water. We then transition to an overview of the history

of the administration of water rights in the particular area at issue, Subdistrict

No. 1 of Water Division No. 3 (the “Subdistrict”). An understanding of this




1 Warner also requests that we review the water court’s alternative ruling that even
if the water in dispute is not imported into the Closed Basin, SMRC’s change of
use would not cause a legally cognizable injury to Warner’s water rights. Because
we conclude that the water under scrutiny is imported by SMRC into the Closed
Basin, we need not address this issue.
                                         4
background is important because it simultaneously sheds light on SMRC’s

motivation for seeking the contested change of use and informs our analysis of

Warner’s arguments. We next set forth this case’s factual and procedural history,

followed by the governing standard of review. We end by analyzing the merits of

the claims raised by Warner. Because we conclude that the water court’s factual

findings have record support and that the water court correctly interpreted and

applied Colorado law, we affirm its judgment.

                         I. Relevant Legal Principles

¶4    Under Colorado law, use rights pertaining to water that’s “native”2 to a

public stream are governed by the doctrine of prior appropriation.         City of

Thornton v. Bijou Irrigation Co., 926 P.2d 1, 65 (Colo. 1996).   Pursuant to this

doctrine, “[t]he first person to divert unappropriated water and to apply it to a

beneficial use has a water right superior to subsequent appropriators from the

same water resource.” Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1377 (Colo.

1982). Though subsequent users may appropriate water from the same source,

those subsequent users (whose rights are “junior” to the prior appropriator’s) may



2 “Native” water refers to surface and underground water naturally occurring in
a watershed. See Native Waters, R. Waskom & M. Neibauer, Glossary of Water
Terminology,      Colo.        St.     U.      Extension      (May       2012),
https://extension.colostate.edu/topic-areas/agriculture/glossary-of-water-
terminology-4-717/ [https://perma.cc/DP3A-RDTY].


                                        5
not appropriate water to the extent that it diminishes the amount needed by the

previous water users (“senior” rights holders).         See Colo. Const. art. 16, § 6;

§ 37-92-103(10) C.R.S. (2019); Burlington Ditch Reservoir & Land Co. v. Metro

Wastewater Reclamation Dist., 256 P.3d 645, 661 (Colo. 2011). Regardless of how

senior one’s water right may be, however, the prior appropriation doctrine only

entitles water users to use as much water as they actually need—any surplus water

remaining after an appropriator’s initial use, e.g., return flows, must be allowed to

return to the stream from which it came so that it is available for use by

downstream water users. Pulaski Irrigating Ditch Co. v. City of Trinidad, 203 P. 681,

682 (Colo. 1922). This requirement speaks to the concept, central to Colorado’s

prior appropriation doctrine, that water users must avoid causing injury to the

rights of other users.3 See, e.g., § 37-92-302(2)(a), C.R.S. (2019).

¶5    Notably, though, the concern about injury to downstream water users isn’t

present in the context of water that has been “imported” to a stream system or

watershed.4 This is so because “the ability of downstream users to divert imported



3We defined “injury” to a water right in Burlington Ditch, 256 P.3d at 661, as a
“diminution of the available water supply that a water right holder would
otherwise enjoy at the time and place and in the amount of demand for beneficial
use under the holder’s decreed water right operating in priority.”
4Over time, this court has come to treat “imported,” “foreign,” and “developed”
water similarly. See, e.g., Bijou, 926 P.2d at 66 (“‘[F]oreign water’ includes
nontributary groundwater introduced into a stream as well as water imported

                                            6
water exists entirely at the sufferance of the importer.” Bijou, 926 P.2d at 72; see

also id. at 71 (“[D]ownstream users of return flows from foreign waters gain only

a right in the water that they actually divert and do not have a vested right in

future importation.”). Accordingly, “a different standard has evolved for water

that is brought into a watershed or stream system from a source unconnected with

the receiving system.” Id. at 66.

¶6    This different standard traces back to a case from the early twentieth

century, Ripley v. Park Center Land & Water Co., 90 P. 75 (Colo. 1907), which dealt

with developed water added to a stream by the petitioner’s own efforts. Id. at

76–77. In Ripley, the dispute centered on underground water that had been

extracted as part of mining operations and diverted into a nearby stream where

the petitioner sought an exclusive right to use it. Id. at 75. Prior appropriators on

the stream objected, arguing that the water was subject to the same priority system

for water native to the stream. Id. at 76. We disagreed, concluding that “such

water[] . . . formed no part of [the stream’s] natural flow[] and never would have

come into the stream” in the first place “had it not been for the efforts of




from an unconnected stream system.”); id. at 66 n.59 (referring to “water extracted
from an underground source unrelated to the natural flow of the stream” as
“developed water”); City & Cty. of Denver v. Fulton Irrigating Ditch Co., 506 P.2d
144, 147 (Colo. 1972) (“[W]e see no distinction between the rights of owners of
developed water from a mine and the rights of Denver as to its imported water.”).
                                         7
petitioner.” Id. at 75. Therefore, we held that the petitioner had an exclusive right

to use and collect the extracted water—one that existed separate and apart from

the priority system in the stream. Id. at 76–77.

¶7    We applied this precept in Comrie v. Sweet, 225 P. 214 (Colo. 1924):

      [O]ne who artificially develops or produces water and adds or turns
      the same into a natural stream, which water would not in due course
      otherwise have reached the stream on the surface or in the underlying
      sands, may acquire a right thereto superior to the adjudicated rights
      of earlier appropriators of the natural waters of the stream . . . .

Id. at 214. Twenty-seven years later, we reaffirmed the principle in Brighton Ditch

Co. v. City of Englewood, 237 P.2d 116 (Colo. 1951), this time in the context of water

imported by transbasin diversion. There, the City of Englewood sought, among

other things, to change its point of diversion in the South Platte River. Id. at 118.

Downstream appropriators objected based on the expected decrease in

transmountain water return flows from which they benefited. Id. at 118–19. But

our court rejected their argument, explaining that “appropriators on a stream have

no vested right to a continuance of importation of foreign water which another has

brought to the watershed.” Id. at 122. Because the water in question was not native

to the stream, we found that the City of Englewood had no obligation to maintain

the return flows for downstream appropriators. Id. Thus, “Brighton Ditch suggests

an implicit recognition that an importer has a greater right to use the water for its




                                          8
own beneficial purposes than do appropriators of native water.” Bijou, 926 P.2d

at 66.

¶8       The imported water doctrine was subsequently codified by the General

Assembly as part of the Water Right Determination and Administration Act of

1969. Id. at 66–67. Section 37-82-106(1), C.R.S. (2019), provides:

         Whenever an appropriator has lawfully introduced foreign water into
         a stream system from an unconnected stream system, such
         appropriator may make a succession of uses of such water by
         exchange or otherwise to the extent that its volume can be
         distinguished from the volume of the streams into which it is
         introduced. Nothing in this section shall be construed to impair or
         diminish any water right which has become vested.

¶9       Though the right to reuse imported water to exhaustion “existed

independently of the statute,” the passage of “[s]ection 106(1) expressly establishes

that the rules applicable to foreign water differ from the rules that govern the use

of native water.” Bijou, 926 P.2d at 67. Whereas appropriators of water native to

a stream generally may not reuse or make successive use of water after initial use,

“a plain reading of the [imported water] statute suggests that legal importation of

foreign water is the only prerequisite for future reuse and successive use of such

water.”5 Id. at 68–69. This makes sense for two reasons. First, but for the




5“Reuse” refers to a subsequent use of the imported water for the same purposes
as the original use; “successive use” refers to a subsequent use of the imported
water for a different purpose than the original use. See Fulton, 506 P.2d at 146–47.
                                         9
importer’s efforts, the water would not be in the basin of use to begin with. See

City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148, 154 (Colo. 1990). Second,

allowing importers of foreign water to reuse and make successive use of that water

helps ensure they don’t divert more water from the basin of origin than is

necessary. See Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., 2016 CO 75,

¶ 48, 386 P.3d 452, 465 (“Importers of foreign water are accorded wide latitude as

to the use and disposal of the water in the basin of import in order to allow the

flexible and efficient use of foreign water and to minimize the amount of water

imported . . . .”); Fulton, 506 P.2d at 148 (“In order to minimize the amount of water

removed from [the basin of origin] . . . importers should, to the maximum extent

feasible, reuse and make successive uses of the foreign water.”).

¶10   Changes to imported water rights aren’t subject to the restrictions that

changes to native water rights are.        In the context of native water, section

37-92-305(3), C.R.S. (2019), requires an applicant to show that the proposed change

won’t cause injury to other water users. But when a change-of-use application is

related to imported water, the “no-injury” requirement of section 37-92-305(3)

doesn’t apply because of the “common law rule that downstream users of return

flows from foreign waters . . . do not have a vested right in future importation.”

Bijou, 926 P.2d at 71. Therefore, imported water is “exempt from the restrictions

of section 37-92-305(3).” Id. at 73; see also Bd. of Waterworks of Pueblo, 793 P.2d at

                                          10
154 (“Because these actions involve foreign water and are addressed by section

37-82-106 . . . the general change of water right criteria . . . are inapplicable.”).

¶11   The only injury legally possible from a change to imported water rights is if

the change increases the historical amount, rate, or length of time of diversion so

as to adversely affect junior priorities in the basin of origin. Robert V. Trout et al.,

Acquiring, Using, and Protecting Water in Colorado 147 (rev. ed. 2011). Thus, a water

court may impose terms and conditions to ensure that the amount of water

diverted from the basin of origin doesn’t change compared to historical practice.

Id.

¶12   With this recap of the pertinent law as a backdrop, we now turn to review

the history of the administration of water rights in the Subdistrict. This historical

background, in addition to being the linchpin to understanding the impetus for

SMRC’s change application, contextualizes Warner’s contentions.

                 II. Historical Background of the Subdistrict

¶13   As the water court observed, the Valley, which is located in south-central

Colorado, spans approximately ninety miles from north to south and fifty miles

from east to west. Findings of Fact, Conclusions of Law, Judgment and Decree,

Concerning the Application for Water Rights of the Santa Maria Reservoir Co., Case No.

13CW3002 (Dist. Ct. Water Div. 3 June 1, 2018) (2018 SMRC Decree), ¶ 46. It is

sandwiched between the Sangre De Cristo Range (to the east) and the San Juan


                                           11
Mountains (to the west). Id. at ¶ 99. The Rio Grande enters the Valley on the west

side near Del Norte and continues in a southeasterly direction through Monte

Vista to Alamosa, where it takes a southerly course for nearly forty miles and,

passing through a break in the San Luis Hills, flows into New Mexico. Id. at ¶ 46.

In Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. 2008), we described the

unique water systems of the Valley as follows:

      The Valley contains underground water in the form of a confined
      aquifer and an unconfined aquifer. The unconfined aquifer lies above
      the confined aquifer, and it is directly connected with surface streams
      in some places. Below the unconfined aquifer lie “relatively
      impermeable beds of clay and basalt,” which separate the unconfined
      aquifer from the confined aquifer. The layers of clay and basalt do
      not exist around the perimeter of the Valley, and so surface water
      recharges the confined aquifer system at those edges.

Id. at 255 (citations omitted). The illustration below depicts a cross-section of

generic confined and unconfined aquifers:6




6 See Aquifer, Nat’l Geographic, https://www.nationalgeographic.org/media/
aquifer-illo/ [https://perma.cc/6KSU-JT9P].
                                        12
¶14   There are multiple geographic regions within the Valley. One of those, the

Closed Basin, is of particular relevance here. Below is a map outlining the area of

the Closed Basin within the Valley (the Valley is depicted by the purple outline):7




7 See Jingyi Chen et al., Confined Aquifer Head Measurements and Storage
Properties in the San Luis Valley, Colorado, from Spaceborne InSAR Observations,
Water Res. Research (April 21, 2016) https://doi.org/10.1002/2015WR018466
[https://perma.cc/K5U2-X46C].


                                        13
¶15    The Closed Basin is a watershed north of the Rio Grande that is separated

from the Rio Grande and its tributaries by both a topographic divide and a

hydraulic divide.8 2018 SMRC Decree, ¶ 50. As a result of the topographic divide,

surface streams entering the Closed Basin do not flow into the Rio Grande. Id. at

¶ 51. Instead, they flow toward the “sump,” which is the topographic low point

of the Closed Basin. Id. The hydraulic divide has the same effect: Groundwater in

the unconfined aquifer of the Closed Basin flows to the sump, not to the Rio

Grande. Id. Groundwater pumping occurs primarily in two regions of the Valley,

the Closed Basin and the Conejos and Alamosa River Valleys, and is critical to

support the thriving agricultural economy in the high-altitude desert-climate of

the area.   Jingyi Chen et al., Confined Aquifer Head Measurements and Storage

Properties in the San Luis Valley, Colorado, from Spaceborne InSAR Observations, Water

Res.   Research    (April   21,   2016)   https://doi.org/10.1002/2015WR018466

[https://perma.cc/K5U2-X46C].

¶16    Irrigation and recharge practices play an important role in the hydrology of

the Closed Basin and, notably, affect the location and status of the hydraulic



8 The “hydraulic divide” refers to a ridge in the groundwater table that lies north
of the Rio Grande and extends generally from northwest of Monte Vista to east of
Alamosa. It is approximately at the southern boundary of the Closed Basin. This
ridge prevents the natural movement of unconfined groundwater from the Closed
Basin into the Rio Grande. See Alamosa-La Jara Water Users Prot. Ass’n v. Gould,
674 P.2d 914, 943 (Colo. 1983).
                                          14
divide. 2018 SMRC Decree, ¶¶ 70–79. As the water court explained, “large-scale

importation of water into the Closed Basin . . . created the hydraulic divide,” and

the hydraulic divide’s “location varies in response to climatic conditions and

irrigation practices.” Id. at ¶ 75. Historically, well-pumping within the Closed

Basin has had the effect of diminishing the hydraulic divide, which in turn has led

to injurious depletions to the Rio Grande. See Findings of Fact, Conclusions of Law

and Order, Concerning the Office of the State Engineer’s Approval of the Plan of Water

Mgmt. for Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.,

and In re Rio Grande Water Conservation Dist., Case Nos. 07CW52 and 06CV64 (Dist.

Ct. Water Div. 3 Feb. 18, 2009) (2009 Subdistrict Decree), ¶ 59. In addition,

well-pumping in the Closed Basin has depleted the surface streams and aquifers

in the Closed Basin—a system that has long been understood to be

overappropriated.    See, e.g., Alamosa-La Jara Water Users Prot. Ass’n v. Gould,

674 P.2d 914, 918 (Colo. 1983) (“By 1900, the natural flow of all surface streams in

the [V]alley was over-appropriated.”). Though efforts have been undertaken for

years to offset these depletions, ultimately, it was “[t]he significant drought of the

early twenty-first century [that] increased the urgency for a sustainable water

supply solution” in the Closed Basin. San Antonio, Los Pinos & Conejos River

Acequia Pres. Ass’n v. Special Improvement Dist. No. 1 (San Antonio I), 270 P.3d 927,

933 (Colo. 2011).

                                         15
¶17   In 2004, the General Assembly took up this issue and adopted Senate Bill

04-222 (“SB 04-222”), which requires the State Engineer to focus on the

sustainability of the Closed Basin’s aquifer system by regulating the confined and

unconfined aquifers so as to “maintain a sustainable water supply in each aquifer

system.” § 37-92-501(4)(a)(I), C.R.S. (2019). The passage of SB 04-222 also offered

water users in the Valley “the opportunity to work together to protect senior water

rights by collective actions” aimed at reducing “water use in general via the

formation of subdistricts.” Findings of Fact, Conclusions of Law, Judgment and

Decree, In re Confined Aquifer New Use Rules for Div. 3, Case No. 04CW24 (Dist. Ct.

Water Div. 3 Nov. 9, 2006) (2006 Confined Aquifer New Use Rules Decree), ¶ 417;

see § 37-92-501(4)(b)(I), (c). A group of water users in the Rio Grande Water

Conservation District (“RGWCD”) followed suit and developed the framework

for what would become the Subdistrict (the Subdistrict’s formal name is “Special

Improvement District No. 1 of the Rio Grande Water Conservation District”). 2009

Subdistrict Decree, ¶ 20.    The designated goal of the Subdistrict was the

management of groundwater in the Closed Basin. Id. at ¶¶ 20, 38.

¶18   Once the Subdistrict was approved by the Alamosa County District Court

in July 2006, the RGWCD appointed a board of managers (the “Board”) and

charged it with preparing a plan of water management, pursuant to section

37-48-126, C.R.S. (2019). Id. at ¶ 21. The Board held several public meetings to

                                        16
gather input from the major ditch companies and other irrigators operating in the

Closed Basin regarding declining water levels in the aquifers and depletions to the

Rio Grande. Id. Based on this feedback and consultations with expert water

engineers, the Board decided that it needed more information on the current

location and status of the hydraulic divide to formulate a groundwater

management plan that accurately accounted for the Closed Basin’s current

hydrological conditions. See id. The Board thus sought and received approval for

state funding to conduct a study. See id.

¶19   The completed study, titled “Engineering Report on San Luis Valley

Groundwater Level Study” (“Hydraulic Divide Study”), revealed that as of the fall

of 2007, “groundwater contours from Del Norte to near Monte Vista d[id] not

indicate the existence of a groundwater divide northerly of the Rio Grande,” which

led to the conclusion that well-pumping in the unconfined aquifer of the Closed

Basin was causing depletions to the Rio Grande. Id. at ¶ 67. “The Hydraulic

Divide Study also concluded, however, that a reduction in such well pumping in

the Closed Basin and recovery of the aquifer” to sustainable levels “would likely

result in restoring the [h]ydraulic [d]ivide,” which in turn would yield a significant

reduction in depletions to the Rio Grande. Id. at ¶ 68.

¶20   Given the findings of the Hydraulic Divide Study, the Subdistrict, through

the Board, prepared a plan for water management (the “Plan”) that included a

                                         17
groundwater management strategy “based upon the premise that when or if the

[h]ydraulic [d]ivide is north of the river between Del Norte and Alamosa, it

reduces the injurious depletions to senior surface rights because it reduces leakage

from the Rio Grande into the Closed Basin.” Id. at ¶ 71. Thus, the Plan proposed

to re-establish and maintain the hydraulic divide to help reduce or eliminate the

depletions to the Rio Grande caused by irrigation-related well-pumping in the

Closed Basin. Id. at ¶ 63.

¶21   To re-establish the hydraulic divide, the Subdistrict agreed to (1) “work

closely with the State and Division Engineers . . . to calculate injurious stream

depletions resulting from well pumping,” and (2) “replace those depletions in the

time, at the location, and in the amount needed to prevent injury.” Id. at ¶ 95.

Once re-established, the Plan explained, the hydraulic divide would be

maintained through “a system of self-regulation using economic-based incentives

that promote responsible irrigation water use and management and insure the

protection of senior surface water rights.” Id. at ¶ 41. Such incentives would

include giving owners of surface water rights within the Subdistrict “surface water

credits which [would] reduce the variable fee they are . . . assessed for water they

pump,” and could be “exchanged, traded, leased or sold to other well water users

within the Subdistrict.” Findings of Fact, Conclusions of Law, Judgment and

Decree, In re Rio Grande Water Conservation Dist., and Concerning the Office of the

                                        18
State Engineer’s Approval of the Plan of Water Mgmt. for Special Improvement Dist. No.

1 of the Rio Grande Water Conservation Dist., Case Nos. 06CV64 and 07CW52 (Dist.

Ct. Water Div. 3 May 27, 2010) (2010 Subdistrict Decree), ¶¶ 77–78. In other words,

the Plan sought to replace the injurious stream depletions caused by operation of

the Subdistrict wells with water rights that would be purchased or leased by the

Subdistrict. Id. at ¶ 267.

¶22    Following many rounds of revisions, the Subdistrict’s amended Plan (the

“Amended Plan”) was approved by the water court in May 2010.                  It was

subsequently upheld by this court in December 2011 in San Antonio I, 270 P.3d at

935.

¶23    The implementation of the Amended Plan meant that the Subdistrict had to

begin replacing injurious stream depletions in 2012. Recognizing that it would

need both stored water and storage space to meet its replacement obligations, the

Subdistrict approached SMRC, which owns two reservoirs, about leasing water

from the Company’s shareholders to replace depletions under the Amended Plan.

SMRC took the Subdistrict up on its proposal. But because its water rights were

limited to irrigation, SMRC had to apply for a change of use to include the

replacement of depletions. That application became the genesis of the dispute that

is at the heart of this case.




                                         19
                        III. Facts and Procedural History

¶24   SMRC is a mutual reservoir company that is responsible for storing and

releasing water to its shareholders, who own the right to use that water. All SMRC

shareholders have their water delivered either through the Monte Vista Canal or

the Rio Grande Canal. The Company’s bylaws allocate ten percent of its shares to

the shareholders whose lands are served by the Monte Vista Canal and ninety

percent of its shares to the shareholders whose lands are served by the Rio Grande

Canal. Only the Rio Grande Canal delivers water into the Closed Basin for

irrigation use.9

¶25   SMRC’s water is stored in its two reservoirs: the Santa Maria Reservoir and

the Continental Reservoir.10      The Company’s water storage rights in both

reservoirs predate the Rio Grande Compact (the “Compact”), which sets storage




9The vast majority of lands served by the Rio Grande Canal are located within the
Closed Basin; the remaining lands served by the Rio Grande Canal lie south of the
Closed Basin between the hydraulic divide and the Rio Grande. 2018 SMRC
Decree, ¶ 90.
10 SMRC holds absolute storage rights in the Santa Maria Reservoir and the
Continental Reservoir. Under a series of decrees, SMRC is currently entitled to
store a total of 37,524 acre-feet in the Santa Maria reservoir (15,871.21 acre-feet with
an appropriation date of August 11, 1896, and 21,652.79 acre-feet with an
appropriation date of September 22, 1902). It can also store a total of 26,716
acre-feet in the Continental Reservoir (8,832 acre-feet with an appropriation date
of June 1, 1901, and 17,884 acre-feet with an appropriation date of May 4,
1907). SMRC’s application sought a change of use for all of this water, which was
decreed for irrigation.
                                          20
restrictions on reservoirs constructed after its enactment. Because most water

users in the Valley have water storage rights postdating the Compact, they cannot

store as much water as SMRC can. Not surprisingly, SMRC was an appealing

potential partner for the Subdistrict as the Subdistrict undertook efforts to comply

with the provisions of the Amended Plan.

¶26   When the Subdistrict contacted SMRC, shortly after this court upheld the

Amended Plan in San Antonio I, it inquired about leasing water from SMRC’s

shareholders to replace depletions to the Rio Grande. Because all of SMRC’s

shareholders rely on the Subdistrict’s continued success, SMRC had every

incentive to help the Subdistrict meet its replacement obligations. As mentioned,

though, SMRC could not do so unless it first obtained a change-of-use decree

allowing its water to be used for replacement, in addition to its already-decreed

use for irrigation.11

¶27   In January 2013, SMRC filed an “Application for Change of Water Right” to

use its water storage rights in the Santa Maria and Continental Reservoirs to

replace depletions to the Rio Grande in order to prevent injury to surface water



11To apply for a change-of-use decree, SMRC needed to amend its articles of
incorporation and bylaws to give shareholders the power to lease their water–right
shares to the Subdistrict. After notifying shareholders by letter and holding open
meetings, the necessary amendments were approved, thereby allowing
shareholders to lease their pro rata shares of reservoir water to the Subdistrict for
use in Water Division No. 3.
                                         21
rights in the Rio Grande and elsewhere in Water Division No. 3. In addition to its

requested change of use, SMRC asked the water court to confirm the Company’s:

(1) historical irrigation use of water rights on lands served by the Monte Vista

Canal and Rio Grande Canal; (2) historical irrigation practice of using water rights

for aquifer recharge and withdrawal of corresponding water by means of wells;

and (3) right to fully consume, by first use, reuse, and successive use, the water it

delivers into the Closed Basin.

¶28   The water court accurately explained the practical effect of the change

requested by SMRC as follows: “[T]he leased water will be released from the

reservoirs and sent down the Rio Grande and will not be diverted for irrigation in

the service area of the Rio Grande Canal, i.e. in the Closed Basin.” 2018 SMRC

Decree, ¶ 81. Anticipating a reduction in the amount of water diverted to the

Closed Basin, Warner and a number of other parties filed timely statements of

opposition to SMRC’s application, arguing that, if granted without adequate terms

and conditions, the requested change would injure water users in the Closed

Basin. The water court referred the application and statements of opposition to

the Water Referee for Water Division No. 3, who, pursuant to section 37-92-302(4),

C.R.S. (2019), was charged with evaluating the merits of the opposers’ statements

in consultation with the Division Engineer.




                                         22
¶29   In May 2013, after reviewing the application and statements of opposition,

the Division Engineer submitted a written report in which he recommended “that

th[e] requested change of water right be granted” with one condition: “that such

change . . . not expand the consumption of the water right beyond that which has

been the historical practice for agricultural purposes.” SMRC then met with the

various opposers to explore what terms and conditions might assuage their

concerns. Based on their input, it drafted a proposed decree in which it agreed to

replicate accretions (including return flows) to the Rio Grande to prevent injury to

other water rights diverting from the Rio Grande. By April 2016, all opposers

except Warner had stipulated to the entry of SMRC’s proposed decree, and so

SMRC moved to refer the case back to the water court to hold a trial on SMRC’s

application in light of Warner’s objections.

¶30   Warner’s statement of opposition was premised on his concern that SMRC’s

application, if granted, would interfere with his downstream surface and

groundwater rights. Warner, a rancher, owns two parcels of land on which he

grows hay for his livestock using flood irrigation. His properties are located in the

Closed Basin, generally east and north of land that receives the water SMRC

delivers through the Rio Grande Canal. Because he flood irrigates, Warner needs

the groundwater beneath his lands to stay at a level close enough to the surface to

reduce ditch losses and allow water to carry further across his crop land. Thus, to

                                         23
the extent that the water court’s approval of SMRC’s application might result in

lower surface and groundwater levels in the Closed Basin, Warner’s ability to

continue flood irrigating his crops is at risk.    Accordingly, Warner opposed

SMRC’s requests for change of use and for recognition of both its historical

recharge practice and its right to fully consume its water.

¶31   At trial, SMRC presented evidence to show that its proposed change of use

would not cause harm to other water users. The Company’s expert witness,

Thomas Williamsen, who specializes in water resources engineering, testified that

he had quantified SMRC’s historical use of water between 1940 and 2010.

According to Williamsen, the data showed that owners of SMRC’s water rights

have historically diverted all water legally and physically available to them, such

that SMRC’s water has not been appropriated by downstream users in the Rio

Grande. Williamsen’s findings were corroborated by SMRC’s two lay witnesses,

SMRC’s president, Keith Holland, and SMRC’s superintendent, Jay Yeager.

Further, SMRC asserted that the water it diverts into the Closed Basin is imported

from the Rio Grande, which means that other water users have no vested right in

that water.

¶32   SMRC did concede, however, that not all of its water is imported because a

small portion of it is diverted to the area just south of the Closed Basin and the

hydraulic divide, where it may accrete to the Rio Grande. But SMRC assured the

                                         24
water court that there was no risk of injury to water users there because the

Company had already agreed, as part of its settlement with the other opposers, to

replicate accretions to the Rio Grande that may result from the approved change

of use. For his part, Warner offered no hydrological or geological evidence to

demonstrate that the Company’s proposed change would adversely affect his

surface and groundwater rights. See 2018 SMRC Decree, ¶ 181.

¶33   With regard to the request for recognition of its historical recharge practice,

SMRC asked the court to take judicial notice of prior water court decrees from

Water Division No. 3 documenting SMRC’s recharge practice in the Closed

Basin.12 Each of SMRC’s witnesses also testified to its historical recharge practice.

Though Warner argued that the evidence presented didn’t show that SMRC’s

water rights were historically used for recharge, he did not present any evidence




12The prior water decrees referenced by SMRC were entered in the following
cases: Findings of Fact, Conclusions of Law, Judgment and Decree, Concerning the
Application for Change of Water Right of Rio Grande Canal Water Users Ass’n, Case No.
W-3979 (Dist. Ct. Water Div. 3 Dec. 27, 1984) (1984 Rio Grande Canal Decree);
Findings of Fact, Conclusions of Law, Judgment and Decree, Concerning the
Application for Change of Water Right of San Luis Valley Irrigation Dist., Case No.
W-3980 (Dist. Ct. Water Div. 3 Dec. 27, 1984) (1984 San Luis Valley Irrigation
District Decree); Findings of Fact, Conclusions of Law, Judgment and Decree, In re
Prairie Ditch Co., Case No. 96CW45 (Dist. Ct. Water Div. 3 Nov. 30, 2001) (2001
Prairie Ditch Company Decree); Findings of Fact, Conclusions of Law, Judgment
and Decree, In re San Luis Valley Canal Co., Case No. 96CW46 (Dist. Ct. Water Div.
3 Nov. 4, 2002) (2002 San Luis Valley Canal Company Decree); 2006 Confined
Aquifer New Use Rules Decree; and 2010 Subdistrict Decree.
                                         25
showing why the water court should conclude that the historical facts reflected in

the previous decrees were inaccurate or no longer true. Nor did he present any

evidence to rebut the testimony of SMRC’s witnesses, which the water court found

credible and persuasive.

¶34   Finally, as to the request for recognition of its right to fully consume its

water to extinction, SMRC maintained that since the water it diverts into the

Closed Basin would not have flowed there absent its efforts, and once there, does

not naturally flow back to the Rio Grande, it is imported water that its

shareholders are entitled to fully consume. See § 37-82-106(1). Warner disputed

SMRC’s imported-water claim. He noted that recent decrees from Water Division

No. 3 had mentioned that the hydraulic divide historically separating the Closed

Basin from the Rio Grande no longer appeared to be clearly established. Thus,

asserted Warner, the Closed Basin was not “unconnected” from the Rio Grande

and should be considered tributary to the Rio Grande.

¶35   As further support for his contention that the Closed Basin and the Rio

Grande are hydraulically connected, Warner pointed to the data Williamsen

presented, which showed that removing SMRC’s water from irrigation in the Rio

Grande Canal service area could reduce accretions to the Rio Grande.             But

Williamsen also testified that his review of groundwater flow data and

consultations with other experts in the field indicated that the projected losses are

                                         26
entirely attributable to the area just south of the Closed Basin, between the

hydraulic divide and the Rio Grande. And, while acknowledging that recent

decrees had mentioned that the divide appeared to have diminished, Williamsen

opined that more current maps of groundwater contours showed that water in the

Closed Basin was still moving away from the divide toward the sump instead of

returning to the Rio Grande. Notably, Warner presented zero evidence to rebut

this testimony.

¶36   After three days of trial, the water court issued a thorough and well-

reasoned order. First, it approved the application for change of use subject to

SMRC’s compliance with various terms and conditions, including that SMRC

replicate historical accretions to the Rio Grande. “The terms and conditions of this

decree,   if   properly   implemented,”        the   water   court   explained,   “will

replicate . . . historical accretions and prevent injury to other water rights diverting

from the Rio Grande.” 2018 SMRC Decree, ¶ 170. Second, the water court

recognized the historical irrigation use of SMRC’s water rights on lands served by

the Monte Vista and Rio Grande Canals, id. at ¶ 43, and the historical irrigation

practice of recharging the unconfined aquifer of the Closed Basin with SMRC’s




                                          27
water rights, id. at ¶ 62.13 Finally, the water court determined that SMRC was

entitled to fully consume—by first use, reuse, and successive use—water

recharging the aquifers of the Closed Basin to provide a water supply for irrigating

lands within the Subdistrict. Id. at ¶ 119.

¶37   As it relates to SMRC’s right to consume its water to extinction, the water

court concluded that the water is imported. Id. at ¶ 116. The evidence, observed

the court, showed that this water “does not naturally flow into the Closed Basin,

and once it is there, . . . does not naturally return to the Rio Grande.” Id. at ¶ 69.

The court acknowledged that recent decrees had cited studies “indicat[ing] that

the [hydraulic] divide” between the Rio Grande and the Closed Basin “has

retreated to very near the Rio Grande and . . . is not well-defined.” Id. at ¶ 78. But

the court reasoned that those studies didn’t establish “that the divide does not

exist.” Id. And, added the court, both Williamsen and the Assistant Division

Engineer, James Heath, provided “credible, uncontroverted testimony that the

hydraulic divide exists and . . . surface streams and groundwater in the

unconfined aquifer of the Closed Basin do not flow to the Rio Grande,” while

Warner failed to put forth any evidence to the contrary. Id. at ¶ 79.




13 The water court took judicial notice of its prior orders describing how other
water rights diverted through the Rio Grande Canal have been historically used
to recharge the aquifers of the Closed Basin. Id. at ¶ 44; see supra n. 12.
                                         28
¶38      After the water court entered its decree, Warner filed a Motion to Amend

Judgment, arguing that (1) the water SMRC delivers to the Closed Basin is not

imported; (2) the court needed to reduce SMRC’s water-pumping to prevent

injury; and (3) the court should have conducted a historic consumptive use

analysis as required by Colorado law. Warner did not cite any legal authority in

support of his claims, and the court denied the motion. The court explained that

the first argument was unsupported by facts or law, the second argument was not

properly before the court, and the third argument was incorrect because the court

had actually conducted the historic consumptive use analysis. At SMRC’s request,

the court then found that Warner’s motion was “substantially groundless and

frivolous” and awarded SMRC its attorney fees. Warner then appealed to this

court.

                             IV. Standard of Review

¶39      Whether certain water is foreign to a stream system or watershed under

Colorado law is a mixed question of law and fact. See Chatfield E. Well Co. v.

Chatfield E. Prop. Owners Ass’n, 956 P.2d 1260, 1271–72 (Colo. 1998).       Mixed

questions of law and fact are reviewed de novo, see Pagosa Area Water & Sanitation

Dist. v. Trout Unlimited, 170 P.3d 307, 313 (Colo. 2007), but with deference to the

water court’s factual findings if they are supported by the evidence, City of Black

Hawk v. City of Central, 97 P.3d 951, 953 (Colo. 2004). The sufficiency, probative


                                        29
effect, and weight of the evidence before the water court, together with inferences

and conclusions to be drawn therefrom, are for the water court’s determination.

Gibbs v. Wolf Land Co., 856 P.2d 798, 801 (Colo. 1993). We will not disturb such a

determination unless it is “so clearly erroneous as to find no support in the

record.” Id.

                                    V. Analysis

¶40   An application for change of a water right “shall be approved” if the

proposed change “will not injuriously affect . . . persons entitled to use water

under a vested water right or a decreed conditional water right.” § 37-92-305(3)(a).

An applicant for change of a water right “bears the initial burden of establishing a

prima facie case that the proposed change will not have an injurious effect” on the

water rights of others. City & Cty. of Broomfield v. Farmers Reservoir & Irrigation Co.,

235 P.3d 296, 299 (Colo. 2010). If the applicant successfully meets this initial

burden, then “the opposers have the burden of going forward with evidence that

the proposed change will result in injury to existing water rights.” Id.

¶41   Here, the water court found that SMRC met its burden—both by showing

that the proposed change pertains to imported water, 2018 SMRC Decree, ¶ 79,

and by agreeing to replicate accretions (including return flows) to the Rio Grande

to prevent injury to other water rights diverting from the Rio Grande, id. at ¶ 170.

Because Warner failed to present evidence to rebut SMRC’s prima facie case, the


                                          30
water court approved SMRC’s requested change of use. Id. at ¶ 181. We perceive

no basis to disturb the water court’s decision.

¶42   Warner first contends that the water court applied the wrong legal standard

in finding that the water SMRC diverts to the Closed Basin is imported. More

specifically, Warner avers that designating water as imported based on whether it

would have naturally reached the stream system or watershed where it is being

used and, once there, whether it would have naturally flowed back to its source

contravenes Colorado law. We disagree.

¶43   We have repeatedly said that when water is introduced into a stream system

from an unconnected stream system, it is imported. See Bijou, 926 P.2d at 66.

Though we have never expressly defined “unconnected” stream systems, we have

consistently applied the same test to ascertain whether two streams are connected:

If the water would not have reached the receiving stream system without the

efforts of the water user and, once there, would not naturally have flowed back to

its original stream system, then the two systems are “unconnected” and the water

is imported. See, e.g., id. at 81 (“[E]ntities that produce or develop artificial water

that would otherwise have been unavailable to the stream system . . . can exert a

continuing right to such water outside the existing priority system on the

stream.”); id. (rejecting the City of Thornton’s claim that water diverted from the

Cache La Poudre River and delivered to adjacent drainages between the Poudre

                                          31
and South Platte Rivers was imported because the water so delivered naturally

drained back to the South Platte River, to which the Poudre River is a tributary);

Fulton, 506 P.2d at 147 (“‘[D]eveloped water’ is that water which has been added

to the supply of a natural stream and which never would have come into the

stream had it not been for the efforts of the party producing it.”); Comrie, 225 P. at

214 (“[O]ne who artificially develops or produces water and adds or turns the

same into a natural stream, which water would not in due course otherwise have

reached the stream . . . may acquire a right thereto superior to the adjudicated

rights of earlier appropriators of the natural waters of the stream . . . .”); Ripley,

90 P. at 75 (holding that water was developed because it “formed no part of [the

stream’s] natural flow, and never would have come into the stream in any way

had it not been for the efforts of petitioner”).

¶44   Thus, the water court did not err. In our view, it properly determined that

since SMRC’s water “does not naturally flow into the Closed Basin, and

once . . . there, . . . does not naturally return to the Rio Grande,” 2018 SMRC

Decree, ¶ 69, it is imported. As such, the water court properly concluded that

Warner has no right to maintenance of return flows from the historical use of this

water.14


14Warner posits that the water court mistakenly held that SMRC was not required
to introduce evidence quantifying the return flows from its water. Quantification

                                          32
¶45   Warner’s remaining arguments are largely challenges to the water court’s

findings of fact. We decline his invitation to second-guess the water court because

its factual findings are not “clearly erroneous.” Burlington Ditch, 256 P.3d at 667

(“Recognizing the water court’s unique ability to evaluate evidence and make

factual determinations in complex cases, we defer to the findings of the water court

unless they are clearly erroneous.”). Applying this highly deferential standard,

we discuss and reject each of Warner’s specific contentions in turn.

¶46   Warner argues that the water court was wrong in finding that the Rio

Grande and Closed Basin are “unconnected” stream systems. He insists that the

water court failed to consider the hydraulic connections between SMRC’s return

flows, the Rio Grande’s surface flows, and the confined and unconfined aquifers

in the Closed Basin. But the water court did consider—at length no less—“the

complex and non-linear interactions between the unconfined and confined aquifer

systems and the surface streams.” 2018 SMRC Decree, ¶ 87; see also id. at ¶ 66

(noting that “the evidence showed that the SMRC Water Rights are naturally

tributary to the Rio Grande” and that “[w]ater from the Rio Grande . . . does not

naturally reach the Closed Basin”); id. at ¶ 72 (quoting the Compact’s definition of




of SMRC’s return flows, avers Warner, was necessary to protect his interests.
Because this argument is premised on Warner’s incorrect assumption that he has
a right to SMRC’s return flows, it fails.
                                        33
the Closed Basin as “that part of the Rio Grande Basin in Colorado where the

streams . . . do not normally contribute to the flow of the Rio Grande”); id. at ¶ 79

(reviewing the “credible, uncontroverted testimony that the hydraulic divide

exists and that because of the topographic and hydraulic divides, the surface

streams and groundwater in the unconfined aquifer of the Closed Basin do not

flow to the Rio Grande”); id. (mentioning that Warner “did not provide . . . any

evidence from which the court could make a different factual finding”).

¶47   Nevertheless, Warner maintains that the water court’s determination is at

odds with this court’s 2011 observation in San Antonio I that, in contrast to

“previous court decrees and groundwater studies” indicating that a “divide

formerly existed” between “the unconfined aquifer of the Closed Basin and the

unconfined aquifer . . . tributary to the Rio Grande,” no divide “clearly exists

today.” 270 P.3d at 941. Warner urges that the stream systems in question cannot

be deemed unconnected after San Antonio I. We are not persuaded.

¶48   After considering San Antonio I, the water court recognized that recent

studies have indicated “that the divide has retreated to very near the Rio Grande

and that the divide is not well-defined.” 2018 SMRC Decree, ¶ 78. But it was quick

to point out that none of the evidence presented during the trial supported the

conclusion that the divide no longer exists. Id. As the water court put it: Even

assuming “the hydraulic divide is poorly defined or very close to the Rio Grande,”

                                         34
the evidence established that “water flowing north into the Closed Basin does not

return to the Rio Grande.” Id. at ¶ 77.

¶49   On the surface, the water court’s finding may seem inconsistent with the

remark in San Antonio I on which Warner places so much stock. But upon closer

inspection, the two are perfectly aligned. Recall that when we made the statement

in San Antonio I, it was in the context of reviewing and approving the Subdistrict’s

Amended Plan. The very purpose of the Amended Plan was “to re-establish and

maintain the [h]ydraulic [d]ivide.”       2009 Subdistrict Decree, ¶ 63 (emphasis

added). We explained in San Antonio I that the Amended Plan sought “to monitor

and maintain a mound of groundwater as a hydraulic divide between the unconfined

aquifer of the Closed Basin and the unconfined aquifer . . . tributary to the Rio

Grande.” San Antonio I, 270 P.3d at 941 (emphasis added). We added that the lack

of such a divide was “perhaps one reason why Subdistrict well pumping” was

“causing depletions to the Rio Grande and its tributaries.” Id.

¶50   Fast forward to this case, which proceeded to trial almost a decade later,

many years after the Amended Plan was implemented.                The water court

concluded, with abundant record support, that the “credible, uncontroverted

testimony showed that the hydraulic divide exists” again. See 2018 SMRC Decree,

¶ 79. Rather than view this conclusion as incongruous with San Antonio I, we see




                                          35
it as a testament to the Amended Plan’s success so far. The Amended Plan appears

to be doing precisely what it was designed to do.15

¶51   Just as we acknowledged a change related to the hydraulic divide in San

Antonio I, the water court did the same here. The only difference is that the

hydraulic divide did not clearly exist when we decided San Antonio I, whereas the

water court in this case found that it currently exists. If Warner’s rigid approach

had merit, we never would have been able to say in San Antonio I that a change

had occurred. Instead, regardless of what the evidence reflected at the time, we

would have stubbornly hewed to whatever observations appeared in previous

studies, decrees, or cases regarding the existence of the hydraulic divide. Because

these matters can be fluid and are subject to change, we reject Warner’s analytical

framework. Where, as here, the evidence (including the experts’ testimony) is

credible, persuasive, and uncontroverted, we prefer to rely on the record as the

most accurate, current, and complete indication of whether the hydraulic divide




15 Indeed, the most recent edition of the Citizen’s Guide to Colorado Groundwater
noted that “[s]tarting in 2012, farmers [in the Closed Basin] began operation of the
first groundwater subdistrict in the [V]alley with a state-approved groundwater
management plan.” Citizen’s Guide to Colorado Groundwater, Water Education
Colorado (March 19, 2020), https://issuu.com/cfwe/docs/groundwater_final
[https://perma.cc/6UES-6VY2]. And while acknowledging that “[t]he program
is still gaining steam,” the Guide commented that “the efforts have slowed the
[groundwater] declines and even replenished the aquifer in wet years.” Id.
                                        36
exists. And the record before us leaves no doubt: At this time, there is a hydraulic

divide between the Closed Basin and the Rio Grande.

¶52   Warner contends, however, that the water court ignored its own recent

decision in In re Application for Water Rights of the City of Alamosa, where it held that

“water derived from the confined aquifer and placed into the Rio Grande” doesn’t

“meet the definition of imported water.”               Order Denying Motion for

Determination of Question of Law, In re Application for Water Rights of the City of

Alamosa, Case No. 15CW3029 (Dist. Ct. Water Div. 3 Oct. 31, 2018) (2018 City of

Alamosa Decree), at 8. We are unpersuaded. The 2018 City of Alamosa Decree

dealt with entirely different water rights. The water at issue there was derived from

the confined aquifer. Here, the water under review is derived from the Rio Grande and

diverted to the Closed Basin. In any event, the water court’s ruling in this case

was properly grounded in the evidence presented at trial.               Had the court

disregarded that evidence based on factual findings contained in the record from

a previous case, it would have erred. Regardless, we are not bound by the water

court’s decision in its 2018 City of Alamosa Decree.

¶53   Finally, we are unmoved by Warner’s assertion that the water court’s

approval of SMRC’s application undermines the General Assembly’s efforts to

manage the surface and groundwater systems in the Valley. The development of

the Subdistrict and the origins of this case demonstrate that the opposite is true.

                                           37
¶54   The evidence presented at trial established that SMRC’s purpose in filing its

change-of-use application was to provide a source of water to the Subdistrict to

help ensure the successful effectuation of the Amended Plan, which is critical to

promoting long-term aquifer–sustainability. SMRC’s proposed change was also

triggered by a desire to support the Subdistrict’s efforts to maintain the hydraulic

divide and protect senior water rights in the Closed Basin. As the water court

recognized:

      If less SMRC water is diverted for irrigation of land overlying the
      Closed Basin, there will be less water in the artificial aquifer of the
      Closed Basin which will result in the hydraulic divide moving closer
      to the Rio Grande which will result in less return groundwater flow
      to the river because there will be less irrigated acreage located south
      of the hydraulic divide and north of the river.

2018 SMRC Decree, ¶ 90. Warner “provided no expert [testimony] or other

evidence” contradicting this conclusion. Id. at ¶ 91. Given the lack of contrary

evidence, and given further the deference we accord to the water court’s findings

of fact, we find no basis to disturb the determination that approval of SMRC’s

proposed change promotes, rather than inhibits, the General Assembly’s efforts to

manage the surface and groundwater systems in the Valley.

                                 VI. Conclusion
¶55   The water court did not err either in approving SMRC’s change-of-use

application or in confirming SMRC shareholders’ right to fully consume the water

SMRC imports to the Closed Basin from the Rio Grande. Rather than cause an
                                        38
injury to Warner, the water court’s order simply revealed to him that his past use

of return flows from SMRC’s imported water in the Closed Basin was a benefit to

which he had no enforceable right; Warner just didn’t know what he had ‘til it was

gone. We therefore affirm.16




16 Warner challenges the water court’s award of attorney fees against him, which
it entered pursuant to C.R.C.P. 11 based on his motion for reconsideration of the
final order. We review a decision to award attorney fees for an abuse of discretion.
Anderson v. Pursell, 244 P.3d 1188, 1193 (Colo. 2010). A court abuses its discretion
when its ruling is manifestly arbitrary, unreasonable, or unfair. Campbell v. People,
2019 CO 66, ¶ 21, 443 P.3d 72, 76. Here, the water court found, with ample record
support, that Warner’s motion to reconsider was “substantially groundless and
frivolous,” explaining that the motion’s first argument was unsupported by facts
or law, the second argument was not properly before it, and the third argument
was factually incorrect. Because we cannot say that the court abused its discretion,
we affirm the award of attorney fees.
                                         39
