From (Erin McIntyre):
Andrea Clark, Tom Kirkpatrick and Dana Black allege that Powderhorn bought a 1-cubic-foot-per-second winter water right that didn’t totally belong to the person who sold it to the resort. They also allege that removing more water from Mesa Creek in the winter will harm the other water users and worsen problems with the creek icing over, and that the ski resort can’t put the water it purchased to beneficial use at this time and bought the water rights on speculation.
The plaintiffs claim that Powderhorn should not be able to change the use of water it purchased from the Mesa Creek Ditch, which was formerly used during the winter for domestic and livestock purposes. The resort purchased the water from former Mesa Creek Ditch Association board president George Bevan.
According to court documents, Powderhorn intends to divert a maximum of 150 acre-feet of water during the winter, transport it to the H.U. Robbins Reservoir and store it there until it uses the water for making snow. The reservoir has a decreed capacity of a little more than 100 acre-feet of water and is located more than a mile from Mesa Creek, its source, according to state water records.
However, the plaintiffs allege that Powderhorn’s intent to use the water isn’t good enough — that the state’s requirement for water rights to be put to beneficial use should be applied here. In other words, they claim Powderhorn’s purchase of the water with no infrastructure for transporting it to its reservoir was speculative, which is not a legal use under Colorado law for those water rights. They also claim the resort’s reservoir needs significant repairs and has not been used for nearly 40 years, and that the resort hasn’t proved it can or will be able to transport or store the water.
Powderhorn’s attorneys claim the resort already proved the change in the water rights wouldn’t hurt any of the other water users and that Bevan owned and used the water he sold the resort for decades.
They also plan on calling Andy Daly, co-owner of Powderhorn, to testify that the water rights are necessary to have a reliable water source for snowmaking. This comes during a winter in which the resort didn’t open until the week before Christmas, snowpack levels are dismal and Powderhorn limited its operating days for weeks to keep its runs open with snow made by the resort.
Daly also plans on telling the court that Powderhorn will find one way or another to transport the water the 1.19 miles from Mesa Creek to its reservoir, though it does not have a way to do so currently, according to court documents.
“As for landowner access, Powderhorn can purchase, lease, or condemn the rights of way necessary to convey the subject water right to the ski mountain and H.U. Robbins Reservoir,” said the brief filed by the ski resort’s attorney, Glenn Porzak.
Other parties in the case include the Colorado Division of Water Resources and Ute Water Conservancy District, the largest domestic water provider in the Grand Valley. Ute Water became involved in the matter before the ski resort purchased the water in 2016, according to an agreement between the two entities that was signed by Ute’s board president at the time.
In the agreement, Ute Water agreed to not oppose Powderhorn’s application asking the state for permission to change the water right’s specified use to snowmaking. In exchange, Powderhorn offered shares of stock in the Mesa Creek Reservoir and Canal Co. and also said it would ask the state to let Ute Water have water that it bypassed and didn’t divert for snowmaking.
The plaintiffs are represented by Clark’s husband, attorney Jim French, who is handling the case pro-bono, and Isaiah Quigley, a Grand Junction attorney.
The case is set for a three-day trial in front of Chief Judge James Boyd in [Water Court Division Five].