CON F IDE N T I A. L. M E M 0 RAN DUM

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1 i JOHN W. SUTHERS STATE OF COLORADO STATE SERVICES BUILDING Attorney General 1525 Sherman Street - 7th Floor DEPARTMENT OF LAW Denver( Colorado CYNTHIA H. COFFMAN. Phone 303) Chief Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL DANIEL D. DOMENICO Solicitor General June 18,2012 CON F IDE N T I A. L. M E M 0 RAN DUM PRIVILEGED ATTORNEY-CLIENT MEMORANDUM TO: FROM: RE: James Eklund Deputy Legal Counsel Governor's Office Casey Shpall, Deputy Attorney General John Cyran, First Assistant Attorney General Natural Resources and Environment Section Attorney General's Office Governor's Authority under the Colorado Disaster Emergency Act of1992 to issue an Executive Order Suspending the Operation ofjudicially Approved Augmentation Plans On June 15,2012, you requested the Natural Resources and Environment Section ofthe Attorney General's Office to prepare an infonnalmemorandum addressing whether the Governor has authority to issue an executive order suspending the operation ofjudicially approved augmentation plans in order to allow certain irrigation wells to pump ground water wells in a manner inconsistent with the State's prior appropriation system. The following is the requested memorandum. The opinions expressed in this memorandum are those ofthe authors, and not of the Attorney General., I. Legal and Factual Background Pumping oftributary groundwater by irrigation wells in the South Platte River basin is subject to specific statutory and constitutional restrictions. The South Platte River basin is considered over-appropriated. As a result, Supreme Court has held that, pursuant to Colorado's prior appropriation system, pumping ofground water in the South Platte that may result in outof-priority depletions that could reduce the amount ofwater available to senior water rights may only occur under the provisions of an approved augmentation plan or substitute water supply /

2 Page 2 plan. Simpson v. Bijou Irrigation Co., 69 P.3d 50, (Colo. 2003); see also C.R.S. ;37-92-, ' 308(3)(a).. I.,I As a result of the Supreme Court's ruling in Simpson v. Bijou, various well usersl' associations have obtained judicially approved augmentation plans. These plans were typically obtained only after extensive judicial proceedings involving numerous objectors. See, e.g. Findings of Fact, Conclusions of Law and Decree, Case No. 03CW99 (May 14, 2008) (hereinafter "03CW99 Decree'~). These judicial decrees ultimately approved by the Court include extensive provisions. governing well pumping. 03CW99 Decree. These provisions, among other things, govern how the parties must determine the time, place and amount of depletions caused by well pumping; the amount of water that the well user must provide to replace such depletions; the location where the well user must provide such replacement water; the timing of the replacement water; : < procedures that must be followed to make such replacements; procedures for predicting future depletions caused by well pumping; procedures for replacing future depletions; procedures for amending the plan; and procedures for accounting for such depletions and replacements. i Id.. Wells covered by the augmentation plans may pump water only pursuant to the provisions of the plan. Id. The 2012 water year has resulted in reduced water in the South Platte River basin. As a result, many of the owners of irrigation wells covered by judicially approved augmentation plans do not have sufficient replacement water to replace depletions caused by out~of-priority ; pumping. Accordingly, pursuant to the specific provisions of the applicable augmentation plans, these wells are not authorized to pump. On June 14,2012, the Weld County Commissioners proposed that Governor.j Hickenlooper issue an executive order pursuant to C.R:S (7) authorizing certain wells to pump tributary groundwater, where such pumping otherwise would.be prohibited u~~er. the terms of the applicable judicially approved augmentation plan. Specifically, the Weld County Commissioners reques~ed that the Governor issue an order that!; [S]uspends for thirty (30) qays the application of all or any portion of the terms of the Water Rights Determination and Administration Act of 1969, whlch pertains to augmentation requirements for permitted irrigation well pumping as applied to the South Platte River in the territory defmed for this Executive Order, and any augmentation plan or substitute water supply plan order, regulation or procedure, arid administration thereof, to any irrigation water pumping authorized by this Executive Order. H'"..,.. ~ Memorandum from John A. Meininger to Governor John Hickenlooper, (June 14,2012)1 (emphasis omitted).

3 Page 3 II. Analysis It is the authors' opinion that the Governor does not have authority to issue the executive order requested by the Weld County Commissioners. First, the requested order is not authorized by the plain language of C.R.S (7). Peoplev. Owens, 228 P.3d 969,972 (Colo. 2010). Section (7) provides as follows: In addition to any other powers conferred upon the governor by law, the governor may: (a) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency. This provision ostensibly grants the governor authority to issue orders that suspend the provisions of any "regulatory statute" as well as "the orders, rules, or regulations of any state agency." Notably, this provision does not give the Governor the authority to suspend judicial orders, judgments, or decrees. A water court decree is a judgment, and like other court orders has preclusive effect and is not subject to collateral attack. Farmer's High Line Canal Reservoir Co. v. City ofgolden, 975 P.2d 189 (Colo. 1999). Thus, by its plain language, (7) does not authorize the Governor to suspend the operation of such decrees. As noted, the augmentation plans governing the operation of irrigation wells within the South Platte River basin typically include detailed provisions dictating the conditions under which such wells may be pumped. These provisions typically require the well user to provide sufficient "replacement water" to replace all out-of-priority depletions, as such depletions are determined pursuant to specific engineering tables included within the decree. The well owners intended to be covered by the requested executive order do not have sufficient replacement water to replace the depletions required under the decree. Thus, pursuant to the provisions of applicable court decrees, the well owners may not pump their wells. C.R.S. section (7) does not authorize the Governor to suspend court orders to allow well owners to pump in a manner contrary to an applicable court decree. Second, the Governor does not have authority to issue the executive order requested by the Weld County Commissioners because such an interpretation of (7) would create separation of powers concerns. Court should not.interpret a statue as creating a separation of powers conflict, when such a conflict is not evident based upon the language of the statute. People v. Owens, 228 P.3d 969, 972 (Colo. 2010).

4 Page 4 Article III ofthe Colorado Constitution prohibits any department ofgovernment from exercising the power belonging to either ofthe other departments. COLO. CaNST. art. 3. The General Assembly is charged with enacting legislation, the Executive Department with seeing that the laws are faithfully executed, and the Judicial Department with the administration of. justice. Colo. Gen. Assembly v. Lamm, 704 P.2d 1371, 1380 (Colo. 1985); Smith v. Miller, 384 P.2d 738,741 (Colo. 1963). The judiciary's complete independence and freedom from interference is a fundamental principle of separation ofpowers. Smith, 384 P.2d at 741. Even though there appears to be no case law directly addressing whether the Governor may issue an executive order overriding a judicial determination, the Colorado Court ofappeals has held that the General Assembly may not delegate to an executive agency the power to overturn a judicial determination. See Board ofcounty Commissioner v. Industrial Commission, 650 P.ld 1297, (Colo. App. 1982). Specifically, the Court ofappeals held that "the legislative branch of government is 'powerless to confer judicial duties on officials of other departments.'" Id. citing People v. Trueblood, 480 P.2d 548 (Colo. 1971); Denver v. Lynch, 18 P.2d 907 (Colo. 1932). Interpreting C.R.S. section (7) as authorizing the Governor to issue an executive order altering a court-ordered decree would in effect interpret the statute as a grant of duties to an official ofthe executive department. Such a grant would necessarily interfere with the judiciary's power and thus violate separation ofpowers principles. '. Third, the Governor does not have authority to issue the executive order requested by the Weld County Commissioners because such an order would create concerns with respect to the operation of Colorado's constitutional prior appropriation system: I " Article 16 ofthe Colorado constitution defines the water doctrine known as "prior appropriation." The Constitution of the State of Colorado, in Sections 5 and 6 ofarticle'xvi, provides:,11 5. Water of streams public property. The water of every natural stream, not heretofore appropriated, within the State ofcolorado, is hereby declared to be the property of the public, and the same is dedicated to the use ofthe people ofthe state, subject to appropriation as herein provided. 6. Diverting unappropriated water priority ofpreferred uses. The right to divert the unappropriated waters ofany natural stream to beneficial uses shall never be denied. Priority ofappropriation shall give the better right as between those using water for the same purposes; but when the waters of any natural stream are not ;l sufficient for the service ofall those desiring to use ofthe same; those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those

5 Page 5 (Emphasis added.) using the water for agricultural purposes shall have preference over those using the same for manufacturing. Since 1876, the constitution and subsequent water court rulings have governed the use, diversion and storage of water in Colorado. "Priority of appropriation shall give the better right as between those using the water for the same purposes..." is the basis for the first in use, first in right doctrine of water appropriation. Id. This Colorado water doctrine is the legal foundation upon which water is governed, managed and distributed in Colorado. The prior appropriation doctrine is codified in the Water Right Determination and Administration Act of 1969, C.R.S., et seq. Section provides: Legislative declaration--basic tenets of Colorado water law (l)(a) It is hereby declared to be the policy ofthe state of Colorado that all water in or tributary to natural surface streams, not including nontributary ground water as that term is defined in section , originating in or flowing into this state have always been and are hereby declared to be the property of the public, dedicated to the use of the people ofthe state, subject to appropriation and use in accordance with sections 5 and 6 of article XVI of the state constitution and this article. As incident thereto, it is the policy ofthis state to integrate the appropriation, use, and administration of underground water tributary to a stream with the use of surface water in such a way as to maximize the beneficial use of all of the waters of this state. An executive order attempting to alter water use that is otherwise subject to a courtordered water rights decree would implicate constitutional concerns under the prior appropriation doctrine and separation ofpowers principles. Article XVI of the Colorado Constitution mandates that the diversion of water be governed by the prior appropriation doctrine and establishes that priority of appropriation is determinative of competing water rights. COLO. CONST. art. XVI, 6. Additionally, the judiciary has the authority to construe the Constitution's meaning and is considered the "final arbiter" of what the Constitution provides. Ed. ofcounty Comm'rs v. Vail Associates, 19 P.3d 1263, 1272 (Colo. 2001). Thus, an executive order altering the use of water to allow out-of-priority diversions contrary to a judicial decree contravenes the Constitution's prior appropriation doctrine.