HB16-1228 Agriculture Protection Water Right Transfer Mechanism meeting recap

Flood irrigation — photo via the CSU Water Center

From The Sterling Journal-Advocate (Jeff Rice):

The Colorado Water Conservation Board and the Colorado Division of Water Resources is holding a series information and input meetings on the new Agricultural Water Protection Water Right law. A handful of local farmers and other interested parties attended the session on Wednesday at the Sterling Public Library.

The new law, which was sponsored by both Rep. Jon Becker, R-Fort Morgan, and Sen. Jerry Sonnenberg, R-Sterling, installs safeguards in the event that irrigators want to change part of their water right to a new beneficial use.

Deputy State Engineer Kevin Rein conducted the session, first walking through the process of writing rules and regulations to put the new law into effect, and then encouraging questions and discussion of the new rules.

Much of the discussion centered around whether the new program was even feasible for individual irrigators or would be a better fit for irrigation districts and ditch companies. It was generally agreed that, because of costs and the intricacies of water law, the larger the entity managing the lease, the better the plan would work. Individual irrigators could pledge a certain number of their water shares toward the ditch company’s AWPWR program and let the company worry about return flows, legal fees, and other details based on the total amount of water leased.

Don Ament, who represents Colorado in the South Platte Recovery Program, said he wants to follow up to see whether irrigators in the South Platte River Basin would, by virtue of being part of the SPRP, be automatically part of a conservation program, as required by the new law. He was told during the meeting that “Title 38” of Colorado Revised Statutes might prohibit that. It’s possible the wrong CRS was cited, since Title 38 has to do with tenant and landlord rights, while Title 37 is about water and irrigation. Ament said he would have to look into the law…

There also was significant discussion of just how much water a farmer could lease. The new law limits the amount of water an irrigator can lease out to half of his consumptive use right. That’s to help make sure most of the irrigation water still goes to irrigate crops.

Early in the discussion, Rein displayed a graphic that showed a water right that allowed 10 cubic feet per second of water flow through an irrigator’s head gate. If his historic return flow was four CFS, that meant his consumptive use is six CFS. He would then be allowed to lease half of the six CFS, or three CFS, under the AWPWR program. That would leave him a total of seven CFS of ditch flow to irrigate with. Because he would be running less water on his land, his return flow would naturally diminish. That’s why the law requires a substitute water supply plan; it would show how the irrigator would maintain his historic return flow of 4 CFS.

But that, it turns out, is the simple part. To complicate matters, irrigators don’t actually measure their water rights in a ditch company in cubic feet per second, but in shares. And farmers typically wouldn’t want to lease half of their total shares as part of an alternative transfer, even temporarily.

If, for instance, a farmer owns 100 shares in a ditch company, he may want to commit half of that, or 50 shares, to the AWPWR program. Because he would have only 50 shares in the program, he could lease only half of those 50 shares. But return flow still needs to be calculated, and return flow is measured in acre feet of water per year or in cubic feet per second. The irrigator (or his ditch company) would have to show how that return flow would be maintained.

To further complicate matters, shares don’t necessarily mean a specific amount of water. The amount of water a farmer’s 50 shares contains depends on how much water is available, who else is taking water with a higher, or older, priority, and other factors.

Rein said all of those factors would be up to the state engineer’s office to determine…

While discussion moved into the more esoteric realm of hypothetical legal matters, John Stulp, who serves as Gov. John Hickenlooper’s special policy advisor for water, reminded the group of the purpose of the new law.

“Keep in mind that the spirit of the law was to protect agriculture, and to give farmers the chance to participate in some of those revenue opportunities that are available through ATMs,” he said. “You need to be getting ready; it may not be your generation (that participates) but you need to do the groundwork for being flexible with your water right.”

Joe Frank, manager of the Lower South Platte Water Conservancy District, is known to be skeptical of ATMs because there is rarely any mention of how the water is to be stored for transfer and what kind of infrastructure will be needed to transfer it. He said after the meeting that, while he thinks flexibility in determining the end user on an ATM is a good thing, the new law still doesn’t address some of his concerns.

“There are still the inherent question marks about ATMs,” Frank said. “This just gives somebody who’s thinking about ATMs the ability to go to court once, change their water right, and be able to be flexible in who they lease the water to.

“But ATMs in general still have the issues that I brought up; you need a place to store it, you need a way to get it to the end user, you need a way of bringing multiple users together, so there are still those inherent issues.”

Frank said ATMs still represent a “drying up” of some farmland because the water is being diverted from irrigation to other consumptive uses.

“My alternative to ‘buy and dry’ is new supply,” he said. “We need to capture unappropriated water and store it, and maybe plug in ATMs. In my perfect world the best way to plug in an ATM is as part of a new project that takes advantage of available water supplies.”

Here’s the summary from the Colorado General Assembly website:

The act authorizes an owner of an absolute decreed irrigation water right in water division 1 or 2 that is used for agricultural purposes to seek a change-in-use decree in water court to obtain an agricultural water protection water right.

Under the changed water right available in water division 1 or 2, the water right owner may apply for a renewable one-year substitute water supply plan through which the water right owner may lease, loan, or trade up to 50% of the historical consumptive use portion of the water subject to the water right without designating the specific beneficial use for the leased, loaned, or traded water. The one-year substitute water supply plan authorizing the lease, loan, or trade of water may be renewed twice without reapplying if the terms and conditions of the plan remain unchanged. A new application is required every 3 years to maintain the substitute water supply plan.

Pursuant to rules developed by the state engineer and reviewed by the water judge for water division 1, the state engineer may approve a one-year renewable substitute water supply plan authorizing the lease, loan, or trade of water subject to an agricultural water protection water right in water division 1 or 2 if the following conditions are met:

  • The remaining portion of the water subject to the water right must continue to be used for agricultural purposes;
  • The water right must be protected by the owner’s participation in an agricultural water protection water program, for which the Colorado water conservation board will establish minimum criteria and guidelines;
  • The owner shall not lease, loan, or trade water subject to the water right outside of the water division with jurisdiction over the location of historical consumptive use; and
  • The transferable portion of the water subject to the water right must be delivered to a point of diversion that is subject to an existing water court decree.
  • 2017 Arkansas River Basin Water Forum: “Meet the Gap”

    Here’s the release from ARBWF:

    Retiring state engineer reveals all at Arkansas River Basin Water Forum

    Those mystified about what the expression “use it or lose it” means to water rights will have the opportunity to hear Colorado’s State Engineer Dick Wolfe explain the myth and reality of the concept on April 26.

    Wolfe, 55, is retiring from the position he has held for 10 years in June. But he agreed to explain how water rights can and cannot be abandoned at this year’s Arkansas River Basin Water Forum, April 26-27 at Hotel Elegante, 2886 S. Circle Drive, Colorado Springs.

    “We started looking at what ‘use it or lose it’ really meant two years ago,” Wolfe said. “We wanted to sort out the issues for our stakeholders.”

    What resulted was a special report from the Colorado Water Institute co-authored by Reagan Waskom, director of the CWI; Deputy State Engineer Kevin Rein; Wolfe; and consultant MaryLou Smith.

    The report is written more like a conversation than an operating manual, and delves into the mistaken notion that every drop of irrigation water must be applied, or the owner of the water right will risk abandonment.

    In practice, the owner of a water right must show the intention to abandon the water right for abandonment. However, the way in which water has been used affects the yield of a water right in change of use cases, according to the report.

    The concept is important as the state moves into new concepts such as irrigation water conservation, rotational fallowing, and in-stream water rights donations.

    Wolfe also plans to touch on his impending retirement, which he half-jokingly predicted when he told Gov. Bill Ritter in 2007 that he’d “like to have the job for 10 years and then retire.”

    During his watch, there were major changes in administration of state water law in the Arkansas River basin.

    The biggest change was the implementation of Surface Irrigation Improvement Rules, which were adopted to prevent expansion of water use by more efficient irrigation means such as sprinklers or drip tape. Wolfe addressed concerns by hosting months of meetings with irrigators and conservancy districts prior to filing an application in water court.

    “The most unexpected thing was that we were able to address the concerns of 22 objectors without going to trial,” Wolfe said.

    Another unexpected development was the rise of basin roundtables, which added new layers of review to already complicated water decisions.

    Finally, filed under “unfinished business” is how water rights are administered for marijuana cultivation.

    “That’s a statewide issue, but a lot of the activity seems to be centered in the Arkansas basin,” Wolfe said.

    Registrations and information about this year’s forum are available at http://www.ARBWF.org or contact, Jean Van-Pelt, 719-251-2845, ARBWF1994@gmail.com

    Rio Grande Basin Ag Producers workshop recap

    Pond on the Garcia Ranch via Rio Grande Headwaters Land Trust

    From The Valley Courier (Ruth Heide):

    Division of Water Resources State Engineer Dick Wolfe tackled the “use it or lose it” concern during the Rio Grande Basin Ag Producers’ Water Future Workshop in Alamosa on Tuesday.

    “People think they have got to divert everything under their water right or they will lose it,” Wolfe said.

    He said the important thing to remember is historical consumptive use.

    Most water in Colorado is diverted for irrigation, “for beneficial crop use,” he explained. Wolfe was involved in compiling a special report issued in February 2016 by the Colorado Water Institute in an effort to educate people on the “use it or lose it” concept.

    The report addresses five main concerns: 1) maintaining conditional water right; 2) administering absolute water right; 3) abandoned water right; 4) changing use of a water right from agriculture to municipal use; and 5) implications of conservation program participation.

    Wolfe specifically dealt with the fourth concern, changing the use of a water right, during Tuesday’s conference. He explained that water right changes come under dual administration, both from the state engineer’s office and the water court, which adjudicates the water right.

    “Any change of water right can be time consuming and costly,” he said.

    A change of water rights case has to consider whether the change will injure existing users or use more water than historically used.

    Water rights come with restrictions such as the maximum that can be diverted, flow rate and area of land, Wolfe explained. The historic consumptive use is critical in water use change cases, he added, with the historical consumptive use of a water right often being less than the maximum that was allowed to be diverted under the original decree. Wolfe used a hypothetical example of a water right decreed for 150 cfs (cubic feet per second), but only 100 cfs had historically been used to irrigate the farmland, with only 60 cfs actually consumed by the crop and 40 cfs returning to the river. If the owner of the property wanted to dry up the farmland and sell the water right to a factory, for example, the owner could not transfer the full 150 cfs that was decreed in the water right, Wolfe explained. The owner could only transfer the 60 cfs that was historically consumed on that property. The water that has historically gone down the river must continue to do so.

    Wolfe said someone might argue that they should divert their entire decreed right, then, but the crop can only consume so much water, and that consumptive use is what can be transferred.

    “The measure of that is still historical consumptive use,” Wolfe said. “It’s limited by the amount the crop can consume.”

    The duty of water is also something to consider, Wolfe added. If folks are diverting more water than they need, they could be depriving others and causing unintended impacts to the stream system, he explained.

    Colorado water law does not permit wasteful water use, and Wolfe said he would be issuing an order in the next few months giving clear guidance on what wasting water means.

    HB-1228 Notice — #Colorado Division of Water Resources

    Flood irrigation in the Arkansas Valley via Greg Hobbs

    From DWR/CWCB:

    In early April, the Division of Water Resources (“DWR”) and the Colorado Water Conservation Board (“CWCB”) will jointly hold four informational meetings and solicit public input related to the implementation of House Bill 16-1228, known as the Agricultural Water Protection Water Right Bill. This legislation, enacted in 2016, allows water users, if they choose, to change an irrigation water right through the water court to an “Agricultural Water Protection Water Right.” The change allows a portion of the water right to be put to a new beneficial use through a substitute water supply plan (“SWSP”) approved by the State Engineer, while a portion of the original water right must continue to be used for agricultural purposes. The legislation directed the CWCB to develop Criteria and Guidelines to address provisions in the bill and directed the State Engineer to promulgate rules that would guide the approval of a SWSP.

    The meetings will be held at the following times and locations:

    • Monday, April 3, 3 – 6 p.m., Island Grove Regional Park, Events Center Conference Room A, 501 N 14th Ave, Greeley, CO 80631
    • Tuesday, April 4, 3 – 6 p.m., Otero Junior College Student Center Banquet Room, 1802 Colorado Ave, La Junta, CO 81050
    • Wednesday, April 5, 3 – 6 p.m., Sterling Public Library Community Room, 420 N 5th St, Sterling, CO 80751
    • Thursday, April 6, 3 – 6 p.m., Upper Arkansas Water Conservancy District Board Room, 339 E Rainbow Blvd # 101, Salida, CO 81201

    The agenda for each meeting will be the same: description of House Bill 16-1228; discussion of the draft SWSP Rules; and discussion of the draft Criteria and Guidelines for the Agricultural Water Protection Program. Please visit the DWR website for more information on the legislation, public meetings, and process for providing feedback. The CWCB’s draft Criteria and Guidelines and the State Engineer’s draft Rules related to the implementation of House Bill 16-1228 are also available on the website, and the public is encouraged to review these drafts before the meetings.

    Please use this link to RSVP to a particular meeting location by March 30 if you plan to attend.

    From The Sterling Journal-Advocate (Jeff Rice):

    The Colorado Water Conservation Board and the Colorado Division of Water Resources will hold a series information and input meetings on the new Agricultural Water Protection Water Right law.

    There will be a meeting in Sterling April 4 from 3 to 6 p.m. at the Sterling Public Library.

    Correction: The meeting is April 5th.

    The new law, which was sponsored by both Rep. Jon Becker, R-Fort Morgan, and Sen. Jerry Sonnenberg, R-Sterling, installs safeguards in the event that irrigators want to change part of their water right to a new beneficial use.

    Under Colorado water law, an irrigator who wants to lease part of his water to another end-user must go through a state water court process to get what is called a “decree change.” A key to the decree change is making sure the irrigator maintains the return flow that would have resulted from using the water for irrigation. Return flow is water that has been used to irrigate a crop and either runs off or seeps down into the river aquifer to be used by irrigators downstream.

    Because water leases tend to be temporary, they are called “alternative transfer methods” because they are an alternative to buying the irrigated land outright and drying up the farmland, a practice called “buy and dry.”

    Previously, the irrigator had to have a specified end user for the ATM. If a change in the end user was desired, the irrigator had to go back to water court and repeat the decree change process.

    Under the new law, an irrigator will be able to change the end-user by submitting a substitute water supply plan to the state engineer’s office. The SWSP will have to include an explanation of how the irrigator will maintain his return flow obligation. The irrigator will still have to have a conservation program in place through a local agency such as a water conservancy district or irrigation district.

    Joe Frank, manager of the Lower South Platte Water Conservancy District, said the new law is an improvement over a similar measure that was introduced a year before.

    “Before, there was some fear that (water transfers) could lead to speculation, and that’s just not something we want to see,” Frank said. “(SB 16-1228) allows some flexibility, but reins in on the speculation piece so you can’t change all of your water right.”

    He said that while such alternative transfer methods are becoming more common, they aren’t ideal as a solution to the water shortage.

    “We don’t want to make this the end-all solution to the gap (in water supply) because it is still drying up some ag, but it isn’t a permanent dry-up,” Frank said. “The good part is you don’t have to keep going back to change your end-user.”

    More Coyote Gulch coverage of HB16-1228 here.

    @CWCB_DNR: January 2017 #Drought update

    Click here to read the update (Taryn Finnessey, Tracy Kosloff):

    Following a warm a dry autumn, winter has brought significant precipitation to the entire state, along with occasional cold snaps. As a result, all basins have experienced dramatic snow accumulation and are now well above normal for snowpack. Increased precipitation has also helped to alleviate drought conditions in many regions of the state, although moderate and severe drought remains on the eastern plains. Reservoir storage is above average and at this time water providers and agricultural producers have no significant concerns entering into the spring snow accumulation months.

  • Statewide water year- to- date snowpack as of January 18 is at 156 percent of average, representing a dramatic change from two months ago when snowpack accumulation was off to a much later than normal start. . The Yampa & White currently has the lowest snowpack in the state at 141 percent of normal while the basins of the Southwest have the highest snowpack at 170 percent of normal.
  • All basins received well above average precipitation in December ranging from a low of 144 percent in the Yampa & White to a high of 187 percent in South Platte. January to-date has seen even more accumulation ranging from a low of 236 percent of average in the Rio Grande to a high of 345 percent of average in the South Platte. Statewide December precipitation was 168 percent of average and January to date is at 280 percent of average.
  • Reservoir storage statewide remains high at 105% of normal. The Yampa &White River basins along with the Southwestern basins have the highest storage levels in the state at 118 and 114% of average, respectively. The Upper Rio Grande has the lowest storage levels at 86% percent.
  • Temperatures in northern areas of the state reached record lows of -48 degrees Fahrenheit (Walden) during recent cold snaps; while some SNOTEL sites are reporting 400+ percent of normal accumulation. On the plains the presence of snow on the ground provides insulation and protection to crops, like winter wheat, during these arctic blasts.
  • The Surface Water Supply Index (SWSI), calculated based on January 1 streamflow forecast and reservoir storage, is near normal statewide.
  • Despite heavy precipitation statewide, much of the eastern plains remain in some level of drought classification following a warm and dry fall. 20 percent of the state is currently experiencing abnormally dry conditions (D0) while 35 percents is classified as moderate drought (D1), less than 1 percent of the state, mostly in Lincoln County, is experiencing severe drought. This is an improvement from recent conditions.
  • A weak La Niña was diagnosed for late 2016, but forecasts indicate that it is unlikely to last and instead El Nino conditions are projected to develop during the spring. The development of a strong El Nino would favor increased precipitation for Colorado; however it is unclear if this will be a strong event.
  • Short term forecast show less active systems through the end of the month that are likely to result in dryer conditions than we have seen during the first half of January.
  • Globally 2016 was the warmest year on record, in Colorado 2016 was the 5th warmest year on record.
  • Colorado Drought Monitor January 17, 2017.
    Colorado Drought Monitor January 17, 2017.

    ‘As the Poudre Flows — Forest to Plains’ theme of Poudre River Forum

    Scott Hummer, general manager of North Poudre Irrigation Company, talks about how his agency worked with Fort Collins Natural Areas and Colorado Parks and Wildlife to include a fish passage when the irrigation company replaced a diversion structure on the Poudre River that was destroyed by the 2013 floods. Work was completed [in February 2016]. (Pamela Johnson / Loveland Reporter-Herald)
    Scott Hummer, general manager of North Poudre Irrigation Company, talks about how his agency worked with Fort Collins Natural Areas and Colorado Parks and Wildlife to include a fish passage when the irrigation company replaced a diversion structure on the Poudre River that was destroyed by the 2013 floods. Work was completed [in February 2016]. (Pamela Johnson / Loveland Reporter-Herald)

    Here’s the release from Colorado State University (Jim Beers):

    The Cache la Poudre River, which flows from the mountains through Fort Collins, Timnath and Windsor to the plains east of Greeley, is at the heart of countless activities: from irrigating crops and lawns to providing drinking water for more than 365,000 people and hosting numerous recreational activities.

    Those with connections to and concerns for the Poudre River will gather on Friday, Feb. 3 for the fourth annual Poudre River Forum. After its first three years at Larimer County Fairgrounds, the forum is moving down the river to Greeley as a reminder that the Poudre River is important to all who benefit from it — from its headwaters to its confluence with the South Platte. This year’s forum — the theme is “As the Poudre Flows — Forest to Plains” — will be held from 8:30 a.m.-4:30 p.m. at the Island Grove Events Center, 501 N. 14th Ave., Greeley. Pre-registration is required for all participants.

    Understanding the river, each other

    Sponsored by the Poudre Runs Through It Study/Action Work Group, the forum serves as a community-wide gathering of people from agricultural, municipal, business, recreational and environmental backgrounds to learn about and discuss issues related to the Poudre River.

    “The Poudre River Forum brings together those who use the river for agricultural and urban diversions and those who work to improve its ecological health. In the past those groups have not necessarily seen eye to eye,” said MaryLou Smith, PRTI facilitator. “Increasingly our participants are open to the idea that it takes collective vision and action to make the Poudre the world’s best example of a healthy, working river.”

    Once again, this year’s event will be facilitated by the Colorado Water Institute at Colorado State University. “The Forum is a great opportunity for the communities connected by the Poudre River to come together to better understand the entire watershed, and each other,” said Reagan Waskom, director of CWI.

    Forests and water quality/quantity

    Laurie Huckaby with the U.S. Forest Service, will present “The last 1,000 years in the Poudre according to the trees,” to kick off the topic of how important the upper watershed is to water quantity and quality.

    “Water quality and forests are inextricably linked,” said Joe Duda of the Colorado State Forest Service, who will join Huckaby as one of the presenters. “Forest conditions and insects, disease and fire all can have profound impacts on water flow and quality. Only healthy, resilient forests can continuously supply clean water.”

    Global lessons for local success

    “Finding the Balance: Managing Water for People and Nature” is the message of keynote speaker Brian Richter. Richter has been a global leader in water science and conservation for more than 25 years, and currently serves as chief scientist for the Global Water Program of The Nature Conservancy in Washington D.C. Richter’s ideas about the importance of recognizing the balance of working river/healthy river are the basis for which PRTI was initially formed. He has consulted on more than 120 water projects worldwide, and has served as a water advisor to some of the world’s largest corporations, investment banks, the United Nations, and has testified before Congress on multiple occasions. Richter co-authored,with Sandra Postel, the 2003 book Rivers for Life: Managing Water for People and Nature and in 2014 wrote Chasing Water: A Guide for Moving from Scarcity to Sustainability.

    Change affects all sectors

    An afternoon panel session will probe the impacts of change — positive and negative — along the Poudre River and how they have been similarly and differently addressed by agriculture, urban, and environmental sectors. They will discuss what anticipated future changes might these three sectors see as opportunities or incentives for mutually beneficial collaboration that could result in a healthier, working river?

    “It has been said that the only thing that is constant is change,” said John Bartholow, retired ecologist from U.S. Geological Survey, and panel coordinator/moderator. “The question is, can we learn to adapt to those changes sure to come on the Poudre in ways that benefit agriculture, municipalities, and the environment?”

    The panel will include Eric Reckentine, deputy director, City of Greeley Water and Sewer; John Sanderson, director of science, Nature Conservancy of Colorado; and Dale Trowbridge, general manager, New Cache la Poudre Irrigating Company.

    Videos, displays and music too

    The day-long forum also includes “River Snapshots” highlighting more than 15 projects undertaken by a variety of groups on the Poudre last year; “My How the Poudre Has Changed,” featuring historical 1970’s footage of the Poudre; updates from both the cities of Greeley and Fort Collins on current water programs; and over two dozen river-focused displays from community organizations and agencies. The day concludes with a social hour including food, beer and other beverages, and river-themed door prizes.

    Registration is $50 and includes lunch. Scholarships for students and reduced rates are available. The deadline to register is Friday, Jan. 27 at http://prti.colostate.edu/forum_2017.shtml.

    For more information, contact event coordinator Gailmarie Kimmel at PoudreRiverForum@gmail.com or 970-692-1443.

    West Slope water interests prevail at supreme court — Aspen Journalism

    Flow in the Fryingpan. Photo credit Brent Gardner-Smith (@AspenJournalism).
    Flow in the Fryingpan. Photo credit Brent Gardner-Smith (@AspenJournalism).

    From Aspen Journalism (Brent Gardner-Smith):

    A long-awaited ruling issued Monday by the Colorado Supreme Court sends Aurora back to court to discern exactly how much water the municipality can divert from the headwaters of the Fryingpan River through the Busk-Ivanhoe Tunnel under Hagerman Pass.

    And the ruling clarifies that transmountain water rights under the Continental Divide in Colorado do not automatically come with a right to store water in a reservoir, anymore than other water rights do.

    Aurora had argued there had always been an implied right in its decree to store water from the Fryingpan headwaters in Turquoise Reservoir. But the court didn’t agree.

    “The supreme court concludes that the right to store water in the basin of import prior to use is not an automatic incident of transmountain water rights, but rather, must be reflected, or at least implied, in the decree,” the court’s majority opinion stated. “In this case, the decree is silent with respect to storage of the water on the eastern slope prior to use for supplemental irrigation and, on the facts of this case, the record does not support the water court’s finding of an implied right in the decree for such storage. To the extent that unlawful storage of the water on the eastern slope expanded the decreed rights, such amounts cannot be included in the quantification of those rights.”

    The Colorado River District, which represents 15 Western Slope counties, said Tuesday in a statement it is “very pleased with the supreme court’s well-reasoned opinion in which it reversed the Division 2 water court. In particular, we are pleased with the court’s recognition that transmountain water rights are subject to the same legal principles as all other water rights in the state.”

    As might be expected, Aurora officials were less pleased.

    “The city is disappointed with [Monday’s] supreme court opinion reversing the trial court’s earlier decision,” said an Aurora representative in a statement. “The city regrets the departure from what it believed to be settled law regarding use of transbasin waters.

    “Additionally, it appears due consideration was not given to aspects of the trial court’s determinations regarding the state of the law when the water rights were originally requested,” the statement said. “Aurora is currently evaluating its possible next steps.”

    One possible next step is for Aurora to file a petition within 14 days for the supreme court to rehear the case.

    If Aurora does not petition for a rehearing, the case will be sent back to water court in Pueblo for a recalculation of how much water Aurora is allowed to divert via the Busk-Ivanhoe Tunnel for municipal purposes, instead of for irrigation purposes.

    The supreme court said the new calculation should include the 22 years from 1987 to 2009 when Aurora used the water for municipal purposes without a decreed right to do so.

    And by factoring in those 22 years of “zero use,” the new calculation is expected to lower the amount of water the Front Range city can divert from the Fryingpan in the future.

    Another aspect of the ruling could also reduce the size of Aurora’s water right, as the court found that much of the water diverted through the Busk-Ivanhoe Tunnel since 1928 had been stored without a decreed right to do so.

    “Because undecreed storage of a direct flow water right may amount to an expansion of that right, any expansion of the Busk-Ivanhoe water rights resulting from the unlawful storage of those rights on the eastern slope cannot be included in an historic consumptive use analysis,” the ruling stated.

    The court also suggested that harm may have been caused to junior water rights owners on the Western Slope by undecreed diversion and storage of the Busk-Ivanhoe water.

    “Storage of a decreed direct flow right can potentially expand that right by permitting the diversion of available water not immediately needed for beneficial use — water that would otherwise be left in the stream for junior water users,” the ruling said. “This impact on junior users does not cease to exist just because the water is diverted for export to another basin. Junior users in the basin of export have a right to divert and use water not lawfully diverted in the first place under a senior water right, regardless of whether that water is diverted for transmountain use.”

    A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.
    A map of the Busk-Ivanhoe system, with Ivanhoe Reservoir on the left side of the map and Turquoise Reservoir on the right.

    Worth the fight

    Pitkin County has been opposing Aurora in the case since 2009 and has now spent $353,000 in the process.

    “It was worth it,” said John Ely, Pitkin County attorney. “It was important for Pitkin County to assert that transmountain diverters are subject to the same legal consideration as any other water diverter or water user, because Pitkin County hosts two of the larger water diversions in the state.”

    In addition to the relatively small level of diversions through the Busk-Ivanhoe Tunnel by Aurora and Pueblo, significant amounts of water are diverted off the top of the Fryingpan and Roaring Fork rivers to the Front Range as part of the larger Fry-Ark and Twin Lakes projects.

    Aurora still has a valid water right from 1928 to divert 2,416 acre-feet of water through the tunnel for irrigation uses in the Arkansas River basin.

    But officials now want to use the same water for municipal purposes in Aurora, which is in the South Platte River basin.

    And when the growing Front Range city came into the court in 2009 seeking a change to its water right, it admitted it was already using the Fryingpan water for municipal purposes without a decreed right to do so, and had been doing so since 1987.

    However, Aurora told the court that that fact should not count against it in its change case. It also said it shouldn’t matter to the Western Slope how it used its water once it was sent under the Continental Divide, including if the water was stored in an East Slope reservoir or not.

    A judge in Division 2 water court in Pueblo agreed with Aurora and ruled in its favor in August 2014. That decision was appealed by a list of Western Slope interests directly to the supreme court, which issued its opinion on Dec. 6, 2016.

    Both the broad ruling, that storage is not an inherent right for transmountain diversions, and the narrow ruling, that Aurora needs to recalculate its historic consumptive use, were welcome news for Western Slope water interests.

    “The reason our clients stayed involved is [that] from the get-go, Aurora was asserting some untenable legal positions that seemed to rely in large part on the concept that, ‘Well, we’re a transmountain diverter, so we look at things differently,’” said Kirsten Kurath, an attorney in Grand Junction.

    She represented the Grand Valley Water Users Association, the Orchard Mesa Irrigation District, and the Ute Water Conservancy Districts in the case.

    The other Western Slope parties in the supreme court case were Eagle and Grand counties and the Basalt Water Conservancy District.

    The Colorado state engineer, and engineers in Divisions 1 and 5, were also in the case, and had sided with the arguments made by the Western Slope.

    On the Front Range side of the arguments were Aurora, Colorado Springs, Denver Water, Pueblo Board of Water Works, Greeley, Northern Water, Southeastern Water Conservancy District, Twin Lakes Reservoir and Canal Co., Lower Arkansas Valley Water Conservancy District, Busk-Ivanhoe Inc., Cache La Poudre Water Users Association, and the city of Northglenn.

    This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.
    This graphic shows the transmountain diversions in Colorado. The Bousted Tunnel, at 53,871 AF, the Twin Lakes Tunnel, at 46,930 AF, and the Busk-Ivanhoe Tunnel, at 4,123 AF, have taken (in this data set) a combined average of 105,024 AF a year from the top of the Roaring Fork and Fryingpan rivers headwaters.

    Previous stories on the case:

    Justice scolds Aurora over diverted Fryingpan River water use, June 10, 2015

    Water entities line up on either side of the Divide in state supreme court case, March 2, 2015

    Fryingpan water case appealed to Colorado Supreme Court Nov. 14, 2014

    Aurora trumps Western Slope in water rights case, Aug. 3, 2014

    Pitkin County fighting city of Aurora over Fryingpan water, Jan. 25, 2013

    Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of rivers and water. The Aspen Daily News published this story on Wednesday, Dec. 7, 2016.