West Slope prevails in major water case

Western Slope interests led by the Grand Valley Water Users’ Association have prevailed in the Colorado Supreme Court in a major water case involving transmountain diversions to the Front Range.

In a ruling handed down Monday, the high court ruled that a water court in Pueblo erred in concluding that storage of transmountain water rights on the Eastern Slope was lawful despite the lack of a water court decree allowing for the water’s storage prior to its use for its decreed purpose.

“I think it’s very significant and is really a significant victory for the West Slope with regard to transmountain diversions. Essentially the Supreme Court is saying that Colorado water law still applies to transmountain diversions,” said Kirsten Kurath of Grand Junction, a lead attorney in the case for Western Slope interests.

The case involves a 2009 change-of-use application in water court by Busk-Ivanhoe, Inc., which is owned by the city of Aurora. The Busk-Ivanhoe System diverts water from the upper Fryingpan River area east of Aspen through a tunnel beneath the Continental Divide and into the Arkansas River Basin, where it is stored before being put to use.

Busk-Ivanhoe owns a one-half interest in water rights decreed in 1928 by Garfield County District Court to the Busk-Ivanhoe System for supplemental irrigation in the Arkansas River Basin. The decree is silent on storage of exported water on the Eastern Slope prior to its use for supplemental irrigation.

“Nevertheless, transmountain water decreed to the Busk-Ivanhoe System has been stored in reservoirs on the eastern slope before being put to beneficial use,” the Supreme Court said in Monday’s ruling, in which it held that action to be unlawful.

Busk-Ivanhoe belatedly filed for the change-of-use application 22 years after Aurora had it begin putting its water rights to municipal use. The application review involves an analysis of the historic consumptive water use under the right. Storing water allows for more use than simply relying on available flows. The court ruled that the calculated historic use of the diverted water needs to be reduced by any extent that the illegally stored water unlawfully expanded decreed rights.

It also held that because the storage of the water rights was unlawful the water court erred, when quantifying historic use, by including the volumes of exported water paid as rental fees for storage on the Eastern Slope.

In addition, the high court said the water court erred in determining it was required to exclude the 22 years of undecreed municipal use from its historic use analysis. The Supreme Court ordered the water court to reconsider the issue, and said if it finds the 22 years of use to be unjustified, it should consider including them “as ‘zero-use’ years for purposes of its historic consumptive use analysis.”

Based on its previous analysis, the water court had quantified the transferable yield of the Busk-Ivanhoe water rights as 2,416 acre-feet per year. An acre-foot is 326,000 gallons.

Several other entities joined the Grand Valley Water Users’ Association in challenging the water court actions overturned by the high court. They include the Colorado River District, Pitkin and Eagle counties, the Basalt Water Conservancy District, the Orchard Mesa Irrigation District and the Ute Water Conservancy District, along with the Colorado Division of Water Resources.

A number of Front Range interests, including the Board of Water Commissioners for the city and county of Denver and the Southeastern Colorado Water Conservancy District, had joined in supporting Busk-Ivanhoe in the appeal.

From the Western Slope perspective, a key aspect of the ruling is that it concluded that the right to store transmountain diversion water prior to use in the basin where it’s imported isn’t automatic, but must be reflected or implied in the water rights decree.

To some degree, transmountain diversion water is treated differently from other water in Colorado. Importers of the water can reuse it over and over.

“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 from the western slope,” the court noted in its ruling.

“… However, the right to reuse and successively use imported water is not the equivalent of a right to store imported water without authorization before it is first applied to its decreed beneficial use,” the high court ruled.

Kurath said she doesn’t know how many other transmountain diversions might be affected by the ruling. But she said the ruling’s broad implications arise from its affirmation that while transmountain diversions are treated differently in some regards, other aspects of Colorado water law can’t be ignored.

“You can’t just disregard the law if you’re a transmountain diverter,” she said.

Chief Justice Nancy Rice and Justice William Hood, III, concurred with the decision as it pertained to the 22 years of undecreed municipal use of the water, but otherwise dissented. Rice wrote in their dissent that the facts of the case show that “storage was necessary to effectuate the lawfully decreed irrigation rights,” was intended by the appropriators and was within the scope of the appropriation.

An attorney representing Busk-Ivanhoe said Monday he was prohibited by his client from commenting.


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