“It was a complete defeat for the Western Slope” — Pitkin County Attorney John Ely

From the Aspen Daily News (Brent Gardner-Smith):

Pitkin County and the Colorado River District are planning to appeal a judge’s ruling that gives the city of Aurora the right to use water from the upper Fryingpan River basin for municipal purposes, without a penalty for 23 years of “unlawful” water use.

“It was a complete defeat for the Western Slope,” Pitkin County Attorney John Ely said of the order issued on May 27 by Larry C. Schwartz, a state water court judge in Pueblo.

As it stands today, the court’s ruling means Aurora can retain the 1928 priority date on its full right to divert 2,400 acre-feet a year through the Busk-Ivanhoe tunnel for municipal instead of irrigation purposes. Over 60 years, Aurora can divert 144,960 acre-feet under the right.

Pitkin County and other Western Slope entities wanted the court to reduce the scope of Aurora’s water right, as the Front Range city has been using the water from the Busk-Ivanhoe system for municipal purposes, without a decree, since 1987.

The “West Slope Opposers,” as the court called them, also argued that the court should consider that Aurora was also storing water on the East Slope without an explicit right to do so, which they felt constituted an “expansion” of its water rights.

The board of the River District agreed on July 15 to appeal the judge’s ruling, while the Pitkin County commissioners agreed shortly after the May ruling. Ely said he understands the Colorado State Engineer’s Office also plans to appeal.

Pitkin County has spent $247,500 on the Busk-Ivanhoe water case so far, and using money from the county’s Healthy Rivers and Streams fund to pay for outside water attorneys.

Other parties from the Western Slope in the case are Eagle County, Basalt Water Conservancy District, Grand Valley Water Users Association, Orchard Mesa Irrigation District and the Ute Water Conservancy District. Trout Unlimited is also a party to the case, which is 09CW142 in Water Division 2.

Transbasin water

Since 1928, about 5,000 acre-feet of water a year has been diverted from Ivanhoe, Lyle, Hidden Lake and Pan creeks, headwater streams of the Fryingpan River.

The water is sent from Ivanhoe Reservoir to Busk Creek through a pipe in the Busk-Ivanhoe tunnel, first built as a railroad tunnel in the late 1880s. From Busk Creek, the water flows to Turquoise Reservoir and the Arkansas River, and eventually reaches Aurora and Pueblo.

The Pueblo Board of Water Works owns the right to half of the water diverted through Busk-Ivanhoe tunnel, and in 1993 it changed the use of its water right from irrigation to municipal.

In 1987, Aurora bought the other half of Busk-Ivanhoe water and started using its half of the water for municipal purposes. But it didn’t come in for a change-of-use decree from water court until 2009.

Aurora’s 2009 application received 35 statements of opposition and as is common in water court, opponents were winnowed down to a core group. Many cases are settled before trial, but this case went to a five-day trial in July 2013.

Judge Schwartz’s subsequent ruling in May established the parameters of how a new decree for Aurora’s water should read, and the draft decree is now being prepared, Ely said. Once the proposed decree is filed with the court, it will trigger the appeal period in the case. Appeals in water court cases go directly to the Colorado Supreme Court.

Greg Baker, the manager of public relations for Aurora Water, was contacted early Friday afternoon for comment. He said officials were in various meetings throughout the day, and they couldn’t be reached by deadline.

“Zero” years

Ely said Pitkin County is primarily concerned about the judge’s decision not to take into account the 23 years that Aurora used water for undecreed purposes, i.e.,, municipal instead of irrigation.

Ely said it is a “fundamental” part of Colorado water law that non-use diminishes the scope of your water right when you go to change it, and it appears Aurora is getting “special treatment” because the water right is a transmountain diversion.

He said that when determining the “historic consumptive use” of a water right — which is what can legally be changed to another use — it is common practice for the court to reduce the scope of a water right by averaging in any years of “zero” or non-use. And undecreed uses typically count as “zero” years.

“But what the court said in this case said was, ‘We’re just not going to look at those years’ of zero use,” Ely said.

Judge Schwartz decided that the period from 1928 to 1986 — before Aurora started using the water — was the best “representative period” to use to determine how much water Aurora had been putting to proper use.

“The representative study period to be utilized should be based on a period of time that properly measures actual decreed beneficial use, and that excludes undecreed uses,” Schwartz concluded.

“The use of zeros during the years of undecreed use would permanently punish (Aurora) for the undecreed use after 1987,” Schwartz also wrote. “This court does not view a change application case as a means to permanently punish a water user for undecreed use.”

In regard to the issue of undecreed storage, the judge looked at the history of the water right, and found that while the original decree from 1928 may have been silent on the subject of East Slope storage, it was always part of the plan by the water developers to store water in a reservoir on the East Slope.

“West Slope Opposers assert that the storage of the Busk-Ivanhoe water in the Arkansas River Basin is an ‘expansion’ of use,” Schwartz wrote. “Storage of the Busk-Ivanhoe water in the Arkansas River Basin is not an expansion. Said storage has always been a part of the water right.”

Ely said the Colorado River District is more concerned about the storage issue than Pitkin County is. However, the county does feel the judge’s overall response to Aurora’s request to change its water right was faulty.

“We knew they were going to be able to change their use, it was just a question of how much,” Ely said. “And it was a question if the Front Range would be held to the same standard as everybody else, in terms of using their water consistent with a decree, or if they get some kind of special treatment for being a transbasin diversion. The judge, and his order, found that they should get some kind of special treatment, and we think that runs contrary to the law.”

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on the coverage of land and water in Pitkin County. More at http://www.aspen
journalism.org.

More water law coverage here.