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Water Blog

A blog that focuses on legal developments affecting the water community in Colorado and other western states.  We also post news about water rights, water quality, and natural resources.  If you have a suggestion for a post, please contact us.

  

$8 million grant approved to restore Colorado River

Posted February 14, 2017

 On December 21, 2016, the U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS) announced that it agreed to provide $7.75 million in funds to the Colorado River Headwaters Project (the “Project”).  The Project is designed to create a bypass channel around Windy Gap Reservoir to reconnect the Colorado River and maximize restoration work being done by the Irrigators of Land in Vicinity of Kremmling (ILVK).  The Project is part of Grand County’s and its partners’ efforts to restore river systems impacted by trans-mountain diversions of water out of Grand County to Colorado’s Front Range.

The Project had its beginnings as part of the Windy Gap Bypass Funding Agreement between the Municipal Subdistrict of the Northern Colorado Water Conservancy District and several West Slope entities.  This grant application was the final push for funding led by Trout Unlimited, a fishery conservation group, and was joined by many other partners representing an array of interests, including agriculture, local government, water service, state agencies, and landowners.

The Project intends to use the funds to: construct a “bypass channel” around Windy Gap Reservoir to reconnect the Colorado River as a free-flowing river allowing fish passage and reestablishing the stone fly and sculpin populations; improve irrigation systems of the ILVK; and improve water quality and fish habitat downstream of the bypass.  Once the Colorado River is connected, the Project will directly benefit over 30 miles of the Colorado River and 4,500 acres of irrigated lands.

Currently, over 60 percent of the upper Colorado River’s native flows is diverted under the continental divide via trans-mountain diversions for use in the Front Range and northern Colorado.  This causes low flows which have undermined irrigation systems and the health of the Colorado River.  The low flows also result in higher temperatures and sediment buildup, which degrades aquatic habitat.

The Project will install innovative stream structures designed to maintain adequate water levels for irrigation and to improve fish habitat.  This will be the first project in the country to implement these engineering designs on such a large scale.

The Windy Gap Reservoir bypass and the improvements downstream near Kremmling, Colorado are pieces of a larger, regional effort by Grand County and its partners to restore the upper Colorado River. Other efforts include agreements such as the Windy Gap Firming Project Intergovernmental Agreement between the Municipal Subdistrict, Northern Colorado Water Conservancy District and Board of County Commissioners of Grand County, Colorado River Water Conservation District, Middle Park Water Conservancy District, and Northwest Colorado Council of Governments, and the Colorado River Cooperative Agreement, between Denver Water and western slope entities, which contain  significant river protections and a long-term monitoring and management process called “Learning by Doing” that requires stakeholders to work together to ensure the health of the Colorado River long-term.

This type of cooperative planning is what the Final Colorado Water Plan had in mind, and which may enable it to succeed.


Colorado Supreme Court Opinion in Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc.

Posted December 21, 2016

 

Factual Background:

The Busk-Ivanhoe System water rights were originally adjudicated on January 9, 1928, by the Garfield County District Court, Water District 38, in Case No. 2621, and were decreed for supplemental irrigation on approximately 80,000 acres of land in the Arkansas River Basin (the 2621 Decree). The 2621 Decree confirmed absolute and conditional water rights to divert water from tributaries to the Roaring Fork River, and included a priority for storage of 1,200 acre-feet of the diverted water in the Ivanhoe Reservoir on the western slope. Under the terms of the decree, the diverted water is exported through the Ivanhoe Tunnel to the eastern slope, and some is exported after storage in the Ivanhoe Reservoir.

The City of Aurora is the sole owner of capital stock in Busk-Ivanhoe, Inc. (Busk-Ivanhoe).  Busk-Ivanhoe owns a one-half undivided interest in the 2621 Decree. In 1987, Busk-Ivanhoe began to use its water for municipal purposes in Aurora, in Water Division 1. Busk-Ivanhoe did not file an application to change its use until 2009.

The water court approved Busk-Ivanhoe’s change application to allow the use of the Busk-Ivanhoe water rights for use within Aurora’s municipal system. The water court concluded that storage of water on the eastern slope prior to its use was lawful under the 2621 Decree; that volumes of exported water paid to rent storage on the eastern slope should be included in the historic consumptive use quantification of the water rights; and the undecreed use of water rights (from 1987-2009) should be excluded from the representative study in calculating historic consumptive use of the Busk-Ivanhoe water rights.

Issues on Appeal:

  1. Whether storing the Busk-Ivanhoe water rights on the eastern slope was lawful prior to use under the “2621 Decree;” and whether the volumes of water paid to rent such storage were wrongly included in calculating historic use.
  1. Whether years of non-use (for decreed purposes) were unjustified, and thus should be included as “zero-use” years for purposes of historical use quantification.

Decision:

First, the Colorado Supreme Court determined that the water court erred when it concluded that storage of the Busk-Ivanhoe water rights on the eastern slope was lawful prior to its use for decreed purposes. It is a principle in Colorado law that “the right to store water is not an automatic incident of a direct flow right.” Significantly, the Court held that this principle does not change solely because the rights are exported transmountain; the right to reuse imported water is not equivalent to the right to store imported water. Grand Valley Water Users Ass’n v. Busk-Ivanhoe, Inc., No. 14SA303, 2016 CO 75, ¶ 49 (Dec. 5, 2016).

Second, “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.” 2016 CO 75, ¶ 25. In this case, the 2621 Decree is silent on the storage of exported water on the eastern slope, and this does not support a finding of an implicit right to store water, particularly since the 2621 Decree explicitly provided for storage on the western slope prior to export.  In addition, the water court erred by relying on extrinsic evidence to show the intent of the original appropriators to store water on the eastern slope prior to use since such evidence was not before the court in the 2621 Decree proceedings. The water court on remand must re-quantify the water rights subject to change, taking out the unlawfully stored water from any historic use quantification of those rights. Because the storage of water on the eastern slope was unlawful, the water court also erred in including the volumes of exported water paid for storage to quantify historic consumptive use.

Third, the water court erred in finding that it was required to exclude the 22 years of undecreed use of water rights from the representative period in quantifying historic use. Rather, the water court on remand should determine whether the use of water for undecreed purposes was “unjustified.” If it finds that the use was unjustified, it should include the years of unjustified non-use in the representative period as “zero-use” years for purposes of quantifying historic use. 2016 CO 75, ¶ 72.

Dissenting in Part and Concurring in Part, Chief Justice Rice, joined by Justice Hood

Justice Rice agreed with the majority opinion that transmountain water rights do not automatically include a storage right, but disagreed that the storage of Busk-Ivanhoe rights on the eastern slope was unlawful. 2016 CO 75, ¶¶ 77-83. She agreed with the majority that the water court erred by concluding that it was required to exclude periods of undecreed use from the representative study.

White & Jankowski, LLP filed an amicus brief in support of the Colorado River Water Conservation District’s position on the transmountain storage issue.


Contesting a decision by the State Engineer’s action on a well permit outside a designated ground water basin

Posted December 7, 2016

If your application for a well permit outside a designated ground water basin has been denied by the State Engineer, or approved upon conditions you don’t like, you may have questions regarding what to do next. This blog post outlines the process for contesting such a decision, the appeal process, and the standard of review on appeal. This blog post does not constitute legal advice, but rather provides a basic overview of the process. If you have questions about a particular factual scenario, please do not hesitate to give our office a call.

  1. Requesting a Hearing.

As the first step to contesting a denial or conditional approval of a well permit, an applicant must request a hearing regarding the State Engineer’s denial of a well permit (or granting on unacceptable conditions). This is because under Colorado law, a party must exhaust administrative remedies before seeking judicial review of a government agency’s actions. The State Engineer has provided administrative processes in its procedural rules. The applicant must request a hearing within 60 days of the time when the State Engineer “gives notice” of its agency action (regarding the permit). The State Engineer “gives notice” by personal service or by mailing the same to the address of the applicant.

  1. Information to Include in the Request.

Information that must be provided in a request for a hearing includes: (1) the identity of the person requesting the hearing and the subject matter of the hearing; (2) the legal, statutory, and regulatory authority for the request; (3) the basis upon which the applicant believes that the State Engineer erred; and (4) an estimate of the time required for the hearing. While the general requirement is that parties request hearings by email, pro-se parties may request a hearing by regular mail.

  1. Setting the Hearing.

Once the State Engineer receives the request for a hearing the office shall provide the parties notice of a “setting” conference within a reasonable time frame, at which the date of the hearing will be chosen. Notice of the hearing date will be provided to all parties at least 30 days before the hearing. The notice may contain special procedures that the State Engineer deems appropriate.

  1. The Decision-Making Process.

The State Engineer may designate a person or persons as the “Hearing Officer,” to conduct hearings on his behalf, and to make “Initial Decisions” on the matters heard.  2 CCR 402-5, Rule 9(A). The State Engineer will establish deadlines for disclosures. Discovery is to be requested informally first. The party seeking to reverse or modify the State Engineer’s initial action has the burden of proof, which is by a “preponderance of the evidence.” The decision of the State Engineer must be based on the record, which will include all pleadings, applications, evidence, exhibits, and other papers presented or considered, and written briefs.

  1. Conduct of the Hearing.

Hearings will be conducted in the following manner, unless ordered otherwise by the State Engineer:

(a) Call to order and introductory remarks;
(b) Presentation of Stipulations or agreements between the Parties;
(c) Opening statements by the Party upon whom the burden of proof rests;
(d) Opening statements by all other Parties;
(e) Presentation of case-in-chief by the Party upon whom the burden of proof rests;
(f) Presentations by all other Parties wishing to offer evidence; . . .
(g) Rebuttal by the Party upon whom the burden of proof rests;
(h) Closing statement by Party upon whom the burden of proof rests;
(i) Closing statements by all other Parties.
(j) At the conclusion of any witness’ testimony, or at the conclusion of the Party’s entire presentation, all other Parties may then cross-examine each witness; . . .
(k) All briefs and memoranda of law that Parties file shall be served on the State Engineer or Hearing Officer and all Parties no later than five (5) days prior to the hearing.

  1. Appealing the Initial Decision.

Once the Initial Decision has been rendered and served on the applicant and other parties to the hearing, any party at this point may seek judicial review of the State Engineer’s decision. In order to appeal the State Engineer’s final agency action, the appealing party must commence an action in water court within 35 days after the agency action becomes effective. The complaint shall state the facts upon which the plaintiff claims that he or she has been adversely affected or aggrieved. The plaintiff must designate relevant parts of the record.

The applicant must seek review in water court rather than district court, under the Colorado Supreme Court’s holding in V Bar Ranch LLC v. Division Engineer for Water Division No. 3. In this case, the Colorado Supreme Court held that judicial review of a State Engineer’s Initial Decision must be in water court because such petitions constitute “water matters” which fall within the exclusive jurisdiction of water courts. The standard of review on appeal to the water court is the Administrative Procedures Act. Under this standard of review, the water court will not set aside the State Engineer’s decision unless it is “arbitrary and capricious,” “an abuse of discretion,” or is “based on findings of fact that are clearly erroneous.”


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