Franktown Citizens Coalition II, Inc. v. Independence Water and Sanitation District.

2025 CO 5. No. 23SA154. Not-Non-tributary Groundwater—Denver Basin—Augmentation Plan—Anti-speculation Doctrine—Denial of Motion for Summary Judgment—Injury.

February 10, 2025

This case concerns Independence Water and Sanitation District’s (Independence) application to amend its augmentation plan for not-nontributary groundwater in the Denver Basin by adding uses for the augmented water to the plan. Franktown Citizens Coalition II, Inc., and West Elbert County Well Users Association opposed Independence’s application, arguing that the proposed amendment to the augmentation plan did not comply with the anti-speculation doctrine. The water court for Water Division 1 concluded that the anti-speculation doctrine was inapplicable and issued a final judgment and decree approving Independence’s application.

The supreme court held that the water court did not err in declining to apply the anti-speculation doctrine to Independence’s application to amend its augmentation plan for not-nontributary groundwater in the Denver Basin for two reasons. First, applying the anti-speculation doctrine to applications to obtain or amend an augmentation plan would not make sense because the anti-speculation doctrine does not advance the purpose of an augmentation plan: to permit out-of-priority diversions, provided that diverters demonstrate that they will not injure existing water rights. Second, in reviewing an application to obtain or amend an augmentation plan, the water court need only determine whether the plan will injuriously affect existing water rights. Answering this question does not require applying the anti-speculation doctrine.

Because the water court properly found that Independence’s amended augmentation plan will not result in injury, the court affirmed the water court’s judgment and decree.