Keep Up To Date On New Developments

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.

  

Colorado Supreme Court reaffirms that water rights are limited to the terms of their decrees

Posted June 29, 2017

The Colorado Supreme Court recently interpreted a decree entered pursuant to Colorado’s simple change statute in the context of a trespass claim.  Select Energy Servs., LLC v. K-LOW, LLC, No. 16SA166, 2017 CO 43 (Colo. May 15, 2017).  The Court considered whether the simple change decree approving a new point of diversion at a pump eliminated any continuing right to divert water from an old ditch.  The Court reviewed the plain language of the decree and found that it only granted a right to divert water from the new downstream pump, not the old ditch, and thus K-LOW did not have the authority to assert a trespass claim regarding the ditch.

Background

The dispute involved two water decrees entered a century apart: (1) a 1914 decree establishing a right to divert water from the South Platte River through the Sterling Drain and Seepage Ditch; and (2) a 2014 decree relocating the point of diversion for that right from a headgate on the South Platte River to a pump farther downstream.

Faith Tabernacle Church (Faith) obtained the 1914 right and applied in 2014 to move the diversion point downstream from the original headgate and the terminus of the ditch, to a pump on Faith’s property.  The water court approved the application and entered the 2014 decree, memorializing the change in the right’s surface diversion point from the headgate to the downriver pump.

After changing the point of diversion, “Faith quit-claimed to K-LOW whatever property interest and rights it may have retained in the ditch itself.”  ¶ 8.  K-LOW then asserted that Select Energy Services (Select) had trespassed on K-LOW’s ditch easement by placing a pipeline across the ditch.  Select declined to remove the pipeline, and K-LOW filed a trespass claim in Weld County District Court.  The parties agreed that the validity of K-LOW’s trespass claim depended on whether the 2014 decree allowed continued diversions through the Sterling Drain and Seepage Ditch in addition to the newly approved pump.  “At the parties’ joint request, the court dismissed that action, and Select filed a new suit in the water court for Water Division No. 1 seeking a declaratory judgment as to whether the 2014 decree extinguished the right to divert water from the ditch.”  ¶ 9.  Select then moved for partial summary judgment, and the water court concluded that “because the 2014 decree moved the [water] right’s only diversion point to the pump on the South Platte, there remained no independent right to divert seepage, waste waters, or accretions elsewhere.”  ¶ 10.  K-LOW appealed that decision.

Colorado Supreme Court’s Decision

The Court considered the plain language of the simple change decree and noted that it identified a single point of diversion—the pump on the South Platte River—and thus did not recognize a continuing right to divert water from the ditch.  The Court reasoned that a water right is limited to what appears on the face of the decree.

The Court concluded that “[b]ecause, by its plain language, the decree defining the water right allows its holder to divert water only at a pump downriver from the disputed ditch, and that language is not susceptible to any other reasonable interpretation, we conclude the decree does not include a right to divert water from the ditch at issue.”  ¶ 21.  The Court declined to consider extrinsic evidence to clarify the 2014 decree’s meaning.  Given this reasoning, the Court affirmed the judgment of the water court, and K-LOW’s trespass claim failed.

This case reaffirms that water rights are limited to the terms of their decrees.  In making a simple change of a water right to a new point of diversion, if an applicant’s decree does not describe a continuing right to divert through the original point, then diversions will be limited to only the new point of diversion in the future.


$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.


Enter your email address to receive our latest blog posts.