White Jankowski Lawyers

Busk-Ivanhoe ruling re change of transmountain water right

April 29, 2013

On April 18, 2013, the Division 2 Water Court entered an order in Case No. 09CW142, which addressed what constituted an applicable historic use analysis for Busk-Ivanhoe, Inc.’s (owned by the City of Aurora) water rights in the Busk-Ivanhoe System.  In 2009, Busk-Ivanhoe filed an application for a change of water rights in Case No. 09CW142―after years of uses for undecreed purposes in Division 1. 

The Busk-Ivanhoe System exports water from Water Division 5 to Water Division 2.  The Pueblo Board of Water Works (“PBWW”) owns one-half of the System’s water rights; Busk-Ivanhoe, Inc. owns the other half.  In 1993, PBWW received a decree in Case No. 90CW340, which granted PBWW a change of water rights from irrigation to municipal use.  This decree included a finding regarding the average yearly historical diversions of the Busk-Ivanhoe System.  

Last week, the Division 2 Water Court issued an order that determined three questions of law with respect to Busk-Ivanhoe, Inc.’s historic use: 

1. Whether the change of the Busk-Ivanhoe System water rights adjudicated in 90CW340 resulted in a system-wide quantification of water rights, which bars re-litigation by Busk-Ivanhoe, Inc.

2. Whether claim or issue preclusion bars litigation of Busk-Ivanhoe, Inc.’s historical consumptive use of its water rights in Case No. 09CW142.

3. If claim and issue preclusion do not apply, should years of undecreed use be excluded entirely from the historical use analysis, rather than being counted as zero.

The court ruled: (1) the 90CW340 decree did not quantify the water rights of the entire System, but only PBWW’s one-half interest, and changes of transbasin water rights are subject to the same decreed beneficial use standards as changes of in-basin water rights; (2) neither claim or issue preclusion barred the litigation of Busk-Ivanhoe, Inc.’s historical consumptive use in the instant case; and (3) the representative period of historical use for Busk-Ivanhoe, Inc.’s water rights is a factual determination―an analysis of undecreed use cannot be excluded as a matter of law.