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Absent an adjudication under the 1969 Water Right Determination and Administration Act, water rights are generally incapable of being enforced. Once a water right has been adjudicated, it receives a legally vested priority date that entitles the owner to a certain amount of water subject only to the rights of senior appropriators and the amount of water available for appropriation. The holder of an adjudicated right is entitled to the use of a certain amount of water unless called out by senior users or unless the stream itself contains insufficient flow.
Empire Lodge, a nonprofit homeowners’ association, has been diverting water out of priority to fill two ponds known as the Beaver Lakes, which the residents of the Beaver Lakes Subdivision utilize for fishing and recreation. It does not have an augmentation plan decree, or a conditional or absolute decree confirming a water appropriation and adjudicating a priority for filling the ponds. In 1986, the State Engineer informed Empire Lodge that it needed an augmentation plan decree from the water court. From 1987 to 1997, Empire Lodge made its out-of-priority diversions under periodic approvals by the State Engineer that were conditioned on Empire Lodge filing an augmentation plan application with the water court. These approvals contained conditions requiring substitute water to the Arkansas River and subjecting Empire Lodge's water use to the call of the Moyers' Empire Creek Ditch right. As a substitute supply, Empire Lodge leased shares of Twin Lakes Reservoir and Canal Company water. The point of replacement into the Arkansas River was below the Moyers' point of diversion on Empire Creek. The Moyers irrigate their property with 4.9 c.f.s. from Empire Creek, decreed under Priority No. 34 to the Empire Creek Ditch. Empire Lodge did not provide a substitute supply to the Moyers' water right. Over the course of twelve years, Empire Lodge failed to initiate a water court augmentation plan proceeding. The Moyers placed frequent calls upon Empire Lodge's pond-filling activities. In response to these calls, Empire Lodge sought a futile call determinationfrom the Division Engineer. Relying on a study Empire Lodge commissioned, the Division Engineer identified conditions upon which a futile call determination might be made, but no futile call determination actually resulted therefrom.
In January 1994, the Moyers sued Empire Lodge in Lake County District Court (Lake County lawsuit) alleging that: (1) Empire Lodge had violated an easement agreement between the Moyers and Empire Lodge; and (2) Empire Lodge had illegally diverted water, causing injury to the Moyers' water rights. In the Lake County lawsuit, the court retained jurisdiction over the easement issue but dismissed the diversion issue as being a "watermatter" consigned exclusively to the water court. On August 23, 1996, without possessing any decree for its pond filling activities, Empire Lodge filed suit in water court for relief against the Moyers claiming that they had: (1) unlawfully expanded their irrigated acreage to include land outside of their decreed place of use without applying for a change of use; (2) were using water for undecreed purposes; (3) were irrigating land required to be removed from irrigation through a "dry-up" covenant in the Parkville Water District water transfer; and (4) were violating the "duty of water" limitation, one cubic foot per second of water per fifty acres, expressed in the decree. The Water Court issued its Order and Judgment on March 13, 2000. The Water Court dismissed Empire Lodge's claims and issued an injunction against operation of Empire Lodge's out-of-priority diversions pending adjudication of an augmentation plan.
Does Empire Lodge have standing in water court to invoke the futile call and enlargement doctrines against the Moyers’ water use?
Decreed prior appropriations are entitled to maintenance of the condition of the stream existing at the time of the respective appropriations. Lacking an adjudication of its rights, Empire Lodge did not possess a legally cognizable right to invoke, in court, the futile call doctrine or enlargement doctrines against the Moyers' water use. These are rights that only decreed water rights holders-have standing to assert. Exercise of the State Engineer's enforcement discretion does not obviate the requirement that those making water uses must obtain a decree adjudicating their rights if they desire to have standing to enforce them. Had Empire Lodge proceeded through a conditional or absolute water right proceeding or through an augmentation plan proceeding, or both, it could have raised the enlargement issue in two ways. In a proceeding for adjudication of a conditional or absolute water right, it could have sought to demonstrate that unappropriated water was available for its appropriation were it not for an illegal enlargement of the Moyers' water right. In a proceeding for adjudication of an augmentation plan, it could have sought to demonstrate that the Moyers' demand for replacement water to its decreed water right is not justified, in whole or part, due to an illegal enlargement.