The North Sterling Litigation: 05CW125

Last December the Division 1 Water Court issued a ruling in Case No. 05CW125 involving a lawsuit filed by the North Sterling Irrigation District against the State Engineer.  As a matter of law, the suit concerned Colorado’s “one-fill” rule for irrigation reservoirs.  As a practical matter, the suit was a direct challenge of the State Engineer’s authority.

A brief background on Colorado’s so-called “one fill” rule:  Most water rights decreed to reservoirs are based on a volumetric amount, for example, a reservoir might have a decree for 10,000 acre-feet.  The question, then, is when to curtail diversions when the volumetric limit is met.  Under the one (or single) fill rule, reservoirs are entitled to one complete fill pursuant to such rights each year. 

So what constitutes a year?  In 1939, in response to a Colorado Supreme Court ruling abolishing the differentiation between a storage and a direct flow season, then-State Engineer Hinderlieder sent a letter to water commissioners and others purporting to establish a “water year” as November 1 through October 31 for purposes of administration of the single fill rule. 

Now, back to North Sterling’s suit.  Reservoirs, including North Sterling, often completely empty prior to October 31 each year.  Under the administratively imposed water year North Sterling is not entitled to divert until October 31 if it has previously diverted its entire volumetric limit that year. 

So a few years ago North Sterling placed a call for water prior to October 31.  The State Engineer refused to enforce this call.  This resulted in North Sterling’s lawsuit in 2005, claiming, among other things, a regulatory taking of water it was entitled to, and, basically, an injunction against the State Engineer from administering North Sterling’s water rights based on the presumptive water year claiming that such administration was injurious to North Sterling’s water rights. 

Here’s where it gets interesting.  North Sterling was (and is) represented by Tim Buchanan.  When North Sterling filed its lawsuit, virtually every major water user in Division 1 moved to intervene in the case siding with the State Engineer; every one, that is, except the City of Boulder and Centennial Water and Sanitation District (think: Highlands Ranch).  Those two parties are represented by Veronica (Ronnie) A. Sperling. 

So at trial the alignment of the parties was basically: North Sterling, Boulder and Centennial (and Pawnee Well Users) vs. everyone else.  Of course, sometime before trial Ronnie Sperling joined Tim Buchanan’s firm, so the case was tried as: Bucanan & Sperling vs. everyone else. 

Why was Boulder involved?  Why was Centennial involved?  We frankly haven’t figured that out.  While administration of the mainstem reservoirs does impact some of thier own water rights, the impact of a favorable outcome in this case probably would not have had any substantive impact on the yield of their water rights.  But we will explore this topic in more depth in later posts…

The court ultimately sided with the State Engineer, but North Sterling has filed its notice of intent to appeal.  Look for a final decision in the next year or so.   There are many implications of an ultimate result favorable to North Sterling’s, chief among them would be that the State Engineer would probably be forced to administer every reservoir in the State based on differing water years, thus divesting the State Engineer of a necessary administrative tool in place for over half a century.