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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.


Busk-Ivanhoe ruling re change of transmountain water right

Posted 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.

Division 1 rules/settlement

Posted April 11, 2013

On March 23, 2013, the Division 1 Water Court approved and entered the State Engineer’s final rules for measurement of tributary ground water diversions by wells in Water Division 1 (comprising the South Platte River basin).  These rules are similar to the State’s first well measurement rules, which were implemented for the Arkansas River basin in 1994 (and amended effective 2006).  In general, tributary wells in the South Platte River basin must be equipped with a certified Totalizing Flow Meter that is certified as accurate every four years.  Certain users may obtain a variance to use an alternate method that calculates water diversions based on the amount of electrical power used by the well.  White & Jankowski was successful in obtaining provisions that provide where decree terms are inconsistent or contrary to the well measurement rules, the terms and conditions approved by the water court will control.  This ensures that the terms approved by the water court will continue to govern the operation of wells, preserving the appropriate balance between water court and State Engineer authority.  First Assistant Attorney General John Cyran listened to the concerns of various water users regarding the rules and was ultimately able to obtain agreement and avoid the need for a trial on the rules.  John will begin work as a Referee in the Division 1 Water Court this summer.  Congratulations John!

CWCB instream flow water rights on the Colorado River — milestone

Posted March 29, 2013

On March 26, 2013, (Senior) Water Judge Ossola (Division 5) entered three decrees that provided the Colorado Water Conservation Board (CWCB) with instream flows on the main stem of the Colorado River.  Instream flows are a specific type of water right held by the CWCB that allows water to remain in a stream, without any diversion, in order to help preserve the natural environment to a reasonable degree―often referred to as “minimum” flows.

With the entry of these decrees, a 70-mile stretch of the Colorado River from the Blue River to the Eagle River is protected by contiguous instream flow decrees.  The first segment covers the Colorado River from the Blue River to the Piney River; the second segment extends from Piney River to Cabin Creek; and, the third segment extends from Cabin Creek to the Eagle River, which meets the Colorado River just past Gypsum.  Year-round flows are protected in a range from 500 cubic feet per second (cfs) up to 900 cfs.  

Entry of these decrees marks the early attainment of a milestone in the Upper Colorado River Wild and Scenic Stakeholder Group Management Plan to provide long-term protection measures for the recreational fishing “outstanding remarkable value” on this important stretch of the Colorado River as part of the BLM’s Resource Management Plan.  These decrees will also help preserve and improve proposed environmental flows of water jointly being sought by Grand County, CWCB and Denver Water, by “attaching” that water to CWCB’s instream flow rights through this reach.  Importantly, these decrees highlight how a diverse group of interested parties successfully collaborated in order to protect Colorado’s water resources for non-consumptive uses while safeguarding traditional water rights.

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