The Colorado River District, et. al. appeal May 2014 Aurora Busk-Ivanhoe diversion water court decision

March 2, 2015

From Aspen Journalism (Brent Gardner-Smith) via the Glenwood Springs Post Independent:

A water court case in Pueblo over the size of water rights from the upper Fryingpan River delivered through the Busk-Ivanhoe tunnel to the East Slope has now blossomed into a Colorado Supreme Court case full of powerful interests opposing each other across the Continental Divide.

A bevy of West Slope entities, including Pitkin, Eagle and Grand counties, the Colorado River District and the Grand Valley Water Users, Association are arguing against a May 2014 water court decision that gave Aurora the right to use 2,416 acre-feet of water from the Fryingpan for municipal purposes in Aurora instead of for irrigation purposes in the Arkansas River valley.

The new decree gives Aurora the right to divert up to 144,960 acre-feet of water over a 60-year period.

The other West Slope entities in the case are the Orchard Mesa Irrigation District, the Ute Water Conservancy District and the Basalt Water Conservancy District.

On other side, a list of the most powerful water entities on the East Slope have filed legal briefs supporting Aurora’s positions, including Denver Water, Colorado Springs, the Pueblo Board of Water Works, the Northern Water Conservancy District and the Southeastern Water Conservancy District.

Pitkin County is specifically arguing that the water court judge should have counted Aurora’s 22 years of undecreed use of the water for municipal purposes — between 1987 and 2009 — when determining the historic lawful use of the water right, and thus, the size of the right’s “transferable yield” from irrigation to municipal use.

Instead, the judge set 1928 to 1986 as the representative sampling of years and excluded the 22 years of Aurora’s admittedly undecreed use.

Expert testimony in the case indicated that if Aurora’s years of undecreed, or “zero,” use were averaged in, the size of the transferable water right would be reduced by 27 percent — which is what Pitkin County believes should happen.

“When water rights have been used unlawfully for more than a quarter of their period of record, a pattern of use derived solely from the other three-quarters of the period of record will not most accurately represent the historical use of the rights at issue,” attorneys for Pitkin County told the Supreme Court.

The Colorado state water engineer and division engineers in water divisions 1, 2 and 5 are also arguing alongside Pitkin County that the judge should have included the 22 years of “zero” use in a representative sampling of years.

“This court should remand the case with instructions to determine the average annual historical use between 1928 and 2009, including zeros for years when Aurora diverted water through the Ivanhoe Tunnel solely for undecreed uses,” attorneys for the state and division engineers wrote.

The various East Slope entities are arguing in the case that the judge did the right thing by not counting Aurora’s 22 years of undecreed municipal use.

“The water court’s quantification of the Busk-Ivanhoe rights followed all of the rules for a change case — it was based on a representative period of lawful decreed use, it was not based upon undecreed use, and it employed several other factors endorsed by this court to determine a representative period,” Aurora’s attorney’s wrote. “The water court correctly determined it need not go any further, rejecting the appellants’ novel legal theory and finding it unnecessary to prevent injury.”

UNDECREED STORAGE

Meanwhile, other West Slope entities, including the River District and Eagle County, are arguing that Judge Larry C. Schwartz erred in his opinion regarding the right to store water on the East Slope without a specific decree to do so.

“The water court misinterpreted the law and erroneously looked beyond the record in the original adjudication to conclude that no storage decree was necessary and then included water stored and water traded to others within the amount of the changed right,” attorneys for the West Slope entities wrote.

But the East Slope entities support the judge’s conclusion regarding storage.

“The water court correctly interpreted prior case law and ruled East Slope storage was within the ‘wide latitude’ accorded importers of transmountain water provided such storage did not result in an expansion of the Busk-Ivanhoe water rights,” attorneys for Aurora wrote.

Attorneys for Denver Water also told the court that “it does not matter whether a decree specifically identifies storage in the basin of use of the imported foreign water” because “once imported, the foreign water can be stored wherever.”

Built between the early 1920s and 1936, the Busk-Ivanhoe water system now diverts about 5,000 acre-feet of water a year from Ivanhoe, Pan, Lyle and Hidden Lake creeks, all tributaries of the upper Fryingpan River.

The system gathers water from the high country creeks and stores it briefly in Ivanhoe Reservoir, which sits at 10,900 feet. It then sends the water through a 1.3 mile-long tunnel under the Continental Divide to Busk Creek and on into Turquoise Reservoir near Leadville.

From there, the water can either end up in the lower Arkansas River basin, or via pumps, end up in the South Platte River basin, where Aurora is located, just east of Denver.

The Pueblo Board of Water Works owns half of the Busk-Ivanhoe water rights, which have a primary 1928 decree date. In 1990, Pueblo received a decree to use its half of the water for municipal purposes, and that decision is not at issue in this case.

Aurora bought 95 percent of its half of the Busk-Ivanhoe water rights in 1986, and by 2001 had purchased 100 percent of the right, paying at least $11.25 million, according to testimony in the case.

INTO WATER COURT

Aurora came in from the cold in 2009 and applied in water court to change its half of the Busk-Ivanhoe water to municipal uses.

And it also applied for specific water storage rights, including in a new reservoir to be built on the flanks of Mount Elbert called Box Creek Reservoir.

After a five-day trial in Div. 2 Water Court in Pueblo in July 2013, which resulted in 1,075 pages of transcripts and 6,286 pages of exhibits, Schwartz ruled in May 2014 in Aurora’s favor.

West Slope entities filed appeals in October with the Colorado Supreme Court, which directly hears appeals from the state’s water courts.

Opening briefs in the case were filed by West Slope entities in December, and a round of “answer briefs” and “friend of the court” briefs were filed last week by various entities.

The West Slope entities now have until March 21 to file reply briefs in the case.

Once the case is set, oral arguments will be heard before the Supreme Court justices in Denver.

Editor’s note: Aspen Journalism is covering rivers and water in collaboration with The Aspen Times and the Glenwood Springs Post Independent. More at http://www.aspenjournalism.org.


Aurora diversion decision faces appeal — The Pueblo Chieftain

November 29, 2014

From The Pueblo Chieftain (Chris Woodka):

A decision earlier this year that sets limits on how much water Aurora can divert through the Busk-Ivanhoe system is being appealed by Western Slope groups.

The Lower Arkansas Valley Water Conservancy District last week agreed to enter the case as well because it could affect its diversions through the Larkspur Ditch.

Division 2 water judge Larry Schwartz approved a decree that would allow Aurora to divert an average 2,416 acre-feet annually.

Pitkin County, the Colorado River District and Grand Valley Water Users appealed the decision based on the calculation of historic use of the four high-mountain creeks which are part of the Busk-Ivanhoe system.

Aurora shares Busk-Ivanhoe with the Pueblo Board of Water Works on the system that formerly was operated by the High Line Canal through the Carleton Tunnel, which once was a train and automobile route across the Continental Divide. It delivers water into Turquoise Lake near Leadville. The tunnel has collapsed in several spots, but water can still make its way through.

Pueblo Water has a 1993 decree changing its water rights from its 1971 purchase of its half of Busk-Ivanhoe. Aurora purchased the other half in 1986.

Lower Ark water attorney Peter Nichols said the change case on the Larkspur Ditch is stayed in water court because of issues similar to Busk-Ivanhoe case.

“The district has filed an amicus brief in the Busk-Ivanhoe case because the decision contains an issue similar to the change on Larkspur,” Nichols told the board.

The Lower Ark purchased most of the Larkspur Diversion from the Gunnison River from the Catlin Canal Co.

Water court cases are appealed directly to the Colorado Supreme Court.

More Busk-Ivanhoe coverage here.


The Lower Ark District is scoring Colorado Canal shares to keep the water in the Arkansas Valley

November 25, 2014
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

From The Pueblo Chieftain (Chris Woodka):

The Lower Arkansas Valley Water Conservancy District is purchasing Colorado Canal water rights from the Ordway Feedyard.

“We’re purchasing the shares within the next 30 days to make sure the water stays in the Arkansas Valley,” said Jay Winner, Lower Ark general manager. “It’s about a $4 million package.”

The Colorado Canal once irrigated 50,000 acres in Crowley County, but has largely fallen into the hands of Colorado Springs and Aurora through purchases made in the 1980s.

Earlier, in the 1970s, canal shareholders began selling off shares of Twin Lakes to Colorado Springs and Pueblo. Later Aurora and Pueblo West also bought big blocks of Twin Lakes shares.

The Lower Ark purchase from Ordway Feedyard includes 276 shares paired with Lake Henry storage, and 282 shares paired with Lake Meredith storage.

The feedlot has other sources of water to meet its own needs, most significantly a 15-year lease signed in 2012 with the Pueblo Board of Water Works to supply 700 acre-feet of augmentation water annually for a pipeline completed last year.

In another matter, the Lower Ark board last week accepted two conservation easements on the High Line Canal for Jason and Jennifer Stites. The easements are for a total of 224 acres with 18 shares of High Line water, for a cost of about $360,000. The easements were split for estate planning purposes, according to Lower Ark Conservation Manager Bill Hancock.

More Lower Arkansas Valley Water Conservancy District coverage here.


Water reuse: “It’s not a question of ‘Can we do it?’ We can do it” — John Rehring #COWaterPlan

November 23, 2014

Reverse Osmosis Water Plant

Reverse Osmosis Water Plant


From The Denver Post (Bruce Finley):

Colorado water providers facing a shortfall…are turning to a long-ignored resource: wastewater.

They’re calculating that, if even the worst sewage could be cleaned to the point it is safe to drink — filtered through super-fine membranes or constructed wetlands, treated with chemicals, zapped with ultraviolet rays — then the state’s dwindling aquifers and rivers could be saved.

Colorado officials at work on the first statewide water plan to sustain population and industrial growth recognize reuse as an option.

“We need to go as far and as fast as we can on water-reuse projects,” Colorado Water Conservation Board director James Eklund said.

But there’s no statewide strategy to do this.

Other drought-prone states, led by Texas, are moving ahead on wastewater conversion to augment drinking-water supplies.

Several obstacles remain: huge costs of cleaning, legal obligations in Colorado to deliver water downstream, disposal of contaminants purged from wastewater, and safety.

Local water plans recently submitted by leaders in five of Colorado’s eight river basins all call for reuse, along with conservation and possibly capturing more snowmelt, to address the projected 2050 shortfall.

Front Range utilities will “push the practical limit” in reusing water, according to the plan for the South Platte River Basin, which includes metro Denver. The Arkansas River Basin plan relies on reuse “to the maximum potential.”

Western Slope authorities in the Gunnison, Yampa and Colorado river basins contend Front Range residents must reuse all available wastewater as a precondition before state officials consider new trans-mountain projects.

The emerging Colorado Water Plan, to be unveiled Dec. 10, remains a general guide, lacking details such as how much water is available. Nor does this 358-page draft plan specify how much of Colorado’s shortfall can be met by reuse.

Water industry leaders urge an aggressive approach. Colorado officials should determine how much water legally can be reused and analyze how this could boost supplies, WateReuse Association director Melissa Meeker said in a letter to the CWCB. Colorado’s strategy “should be crafted to encourage innovation and creativity in planning reuse projects.”

Cleaning up wastewater to the point it can be reused as drinking water long has been technically feasible. Water already is recycled widely in the sense that cities discharge effluent into rivers that becomes the water supply for downriver communities.

Cleaning systems

In 1968, utility operators in Windhoek, Namibia, a desert nation in Africa, began cleaning wastewater and pumping it into a drinking-water system serving 250,000 people.

Denver Water engineers in the 1980s pioneered a multiple-filter cleaning system at a federally funded demonstration plant. From 1985 to 1991, Denver Water used wastewater to produce 1 million gallons a day of drinking water, which proved to be as clean as drinking water delivered today.

Delegations of engineers from Europe and the Soviet Union visited.

“There was a sense we were ahead,” said Myron Nealey, a Denver Water engineer who worked on the project.

But utility leaders scrapped it, partly out of fear that customers would object to drinking water that a few hours earlier might have been flushed from a toilet. They also were struggling to dispose of thousands of gallons a day of purged contaminants — a super-concentrated salty mix that must be injected into deep wells or buried in landfills. [ed. emphasis mine]

So Denver Water has focused instead on recycling wastewater solely for irrigation, power-plant cooling towers and other nonpotable use. An expanding citywide network of separate pipelines distributes this treated wastewater — 30 million gallons a day.

“Reuse is definitely a way to maximize the use of the water we have,” said Jim Lochhead, manager of Denver Water and former natural resources director for the state.

“We’re in the exploration stage of trying to analyze what are the options for various types of reuse,” Lochhead said. “What’s the most effective? What’s the least costly? What’s the most secure?”

Meanwhile, drought and population growth in Texas have spurred construction of water-cleaning plants at Wichita Falls and Big Spring. Engineers have installed water-quality monitoring and testing systems sensitive enough to track the widening array of pathogens, suspended particles and hard-to-remove speciality chemicals found in wastewater.

A Texas state water plan calls for increasing reuse of wastewater eightfold by 2060. The New Mexico town of Cloudcroft is shifting to reuse as a solution to water scarcity. And California cities hurt by and vulnerable to drought, including San Diego, are considering wastewater conversion for drinking water.

Costs can be huge, depending on the level of treatment. Water industry leaders estimate fully converted wastewater costs at least $10,000 per acre-foot (325,851 gallons).

By comparison, increased conservation, or using less water, is seen as the cheapest path to making more water available to prevent shortages. The most costly solution is building new dams, reservoirs and pipelines that siphon more water from rivers.

Colorado also faces legal constraints. The first-come-first-serve system of allocating water rights obligates residents who rely on diverted water from rivers to return that water, partially cleaned, to the rivers to satisfy rights of downriver residents and farmers.

However, much of the Colorado River Basin water diverted through trans-mountain pipelines has been deemed available for reuse. Western Resource Advocates experts estimate more than 280,000 acre-feet may be available. In addition, water pumped from underground aquifers — the savings account that south Denver suburbs have been tapping for decades — is available for reuse.

Indirect reuse

While nobody in Colorado has embarked on direct reuse of treated wastewater, Aurora and other cities have begun a form of indirect reuse that involves filtering partially treated wastewater through river banks. This water then is treated again at Aurora’s state-of-the-art plant. Cleaned wastewater then is blended with water from rivers to augment municipal supplies.

The most delicate challenge has been dealing with safety — making sure engineered water-cleaning systems are good enough to replace nature’s slow-but-sure settling and filtration.

While industry marketers focus on semantics to try to make people feel more comfortable — rejecting phrases such as “toilet to tap” to describe reuse — engineers are honing the systems.

They envision early-detection and shut-off mechanisms that quickly could stop contaminants left in water from reaching people. They aim for filtration and other advanced treatment sufficient to remove the multiplying new contaminants found in urban wastewater. Cleaning water increasingly entails removal of plastic beads used in personal-care products; mutating viruses; resistent bacteria; synthetic chemicals such as herbicides; ibuprofen; birth control; anti-depressants; and caffeine.

“That’s the whole job of treatment and monitoring, to remove pathogens and other contaminants to where it is safe to drink,” said John Rehring of Carollo Engineers, a Denver-based expert on water reuse.

“It’s not a question of ‘Can we do it?’ We can do it,” he said. “And because of growing affordability and public acceptance, we’re starting to see it implemented.”


Western Slope appeals ruling
 on water usage — Grand Junction Daily Sentinel

November 17, 2014

From The Grand Junction Daily Sentinel (Gary Harmon):

Aurora should be penalized for storing and using West Slope water without having the appropriate water rights, several West Slope water agencies contend in a case before the Colorado Supreme Court.

The West Slope agencies, including the Grand Valley Water Users’ Association, Orchard Mesa Irrigation District and Ute Water Conservancy District, appealed a ruling in which a Pueblo water court upheld the transmountain diversion of 2,416 acre feet of water from the headwaters of the Fryingpan River to Aurora via an irrigation diversion.

The Western Slope agencies don’t object to the diversion per se, but contend that Aurora should not benefit from using what was billed as irrigation water by using the water for municipal purposes.

The distinction is important because water that diverted across the Continental Divide is considered to be a 100-percent consumptive use. That’s because there is no return flow back to the West Slope.

Aurora sought a change of use for the water in 2009, but had been diverting it since 1987. The irrigation decree also didn’t allow storage of the water.

West Slope agencies said Aurora’s years of municipal use that were inconsistent with the irrigation decree should be included as zeroes in the calculation of the average historical consumptive use. That would reduce the amount of water that Aurora could divert through the Busk-Ivanhoe system, which has a 1928 water right for irrigation in the lower Arkansas River valley.

The Grand Valley water agencies are appealing the ruling from the water court in Pueblo that upheld Aurora’s storage of the water in East Slope reservoirs, and others, including the Colorado River Water Conservation District, also are asking the Supreme Court to reconsider the way the court calculated the amount of water that could be diverted for Aurora’s municipal use.

“We are not opposing the change, just the calculation,” river district spokesman Chris Treese said. “We feel that if the court ignores this sort of negligence of the change-of-use laws, that it would encourage similar extra-legal uses of water whether it involves transmountain water or in-basin uses.”

A hearing has yet to be scheduled in the case.

More water law coverage here.


Pitkin County: The Colorado River District, et. al., to appeal recent water court decree for Busk-Ivanhoe Ditch

November 14, 2014

From The Aspen Times (Brent Gardner-Smith):

Pitkin County, the Colorado River District and the Grand Valley Water Users Association have each filed an appeal with the Colorado Supreme Court over a recent Water Court decree setting the size of a diversion from the headwaters of the Fryingpan River. The decree gives Busk-Ivanhoe Inc., an entity owned by the city of Aurora, the right to divert an average of 2,416 acre-feet of water a year from four high-mountain creeks for use within Aurora’s water-service area east of Denver.

But the appellants want the high court to review how Water Court Judge Larry C. Schwartz calculated the historical use of the 1928 water right and then used the answer to define the size and scope of Aurora’s new right. At issue is whether the period from 1987 to 2009, when Aurora was admittedly using water from the Busk-Ivanhoe system for municipal purposes without a decree to do so, should be included in a representative study period of use.

The original 1928 decree for the Busk-Ivanhoe water right only allowed the water to be used for irrigation in the lower Arkansas River Valley.

Pitkin County Attorney John Ely said if the 22 years of undecreed use at issue is factored in, Aurora’s new right might be half the size of the one approved by the judge.

The state engineer and three division engineers, who enforce water-right decrees, also have appealed the judge’s decision.

“The engineers believe that ‘undecreed’ use is equivalent to no decreed use, and that a calculation of average annual historical use must include the 22-year period during which there was no decreed use,” the appeal from the state engineer states.

But the judge sees it differently.

“In the circumstances of this case, including the years after 1986 in the study period but attributing zero diversions to all such years is not necessary to protect junior water rights from injury,” Schwartz wrote.

Aurora, which began buying Busk-Ivanhoe irrigation water in 1987, filed documents with the Water Court in 2009 to change the use of its water from irrigation to municipal uses.

In July 2013, a five-day trial was held in Pueblo. Schwartz issued a substantial ruling on May 27. On Aug. 15, he issued a decree defining the water right.

In early October, the four appeals were filed with the Supreme Court, which directly hears appeals from Water Court. Opening legal briefs are expected by mid-February.

High-mountain water

Busk-Ivanhoe Inc. owns half of the roughly 5,000 acre-feet diverted by the Busk-Ivanhoe system each year. The other half is owned by the Pueblo Board of Water Works and is not at issue in the case.

Busk-Ivanhoe has the right to divert 100 cubic feet per second of water from Hidden Lake Creek, 50 cfs from both Pan Creek and Lyle creeks and 35 cfs from Ivanhoe Creek. A 21-foot-tall dam on Ivanhoe Creek forms Ivanhoe Reservoir, and a 30-inch pipe carries water for 1.3 miles under the Continental Divide near Hagerman Pass. Water exits the pipe, runs down Busk Creek to Turquoise and Twin Lakes reservoirs and then is moved to Aurora.

The new decree would allow Aurora to divert as much as 144,960 acre-feet of water over a 60-year period, at an annual average of 2,416 acre-feet.

Joining the Colorado River District in its appeal is the Basalt Water Conservancy District and Eagle County, and joining the Grand Valley Water Users Association is the Orchard Mesa Irrigation District and the Ute Water Conservancy District.

Those entities also question the judge’s decisions regarding the storage of Busk-Ivanhoe water on the Front Range, which has been done for decades without a decreed right.

Schwartz said even though the original decree was silent on the subject of storage, it was always the “intent” of the water developer to store the water on the Front Range.

He also found that storing the Busk-Ivanhoe water without a decreed right after it had been moved under the Continental Divide “did not cause an injurious expansion or alteration of stream conditions” in the Colorado River Basin.

The appellants disagree.

“We feel the Water Court’s rulings were erroneous and would set a dangerous precedent of holding transmountain diverted water rights to different requirements as in-basin rights when it comes to decree and decree-change calculations,” said Eagle County Attorney Bryan Treu. “There should not be separate rules for transmountain diversions.”

Greg Baker, manager of public relations for Aurora Water, said Aurora officials couldn’t discuss the litigation.

Aspen Journalism is an independent, nonprofit news organization collaborating with The Aspen Times on coverage of rivers and water. More at http://www.aspenjournalism.org.

More water law coverage here.


Denver, South Metro purchase pipeline to move finished water to customers (WISE Project)

November 3, 2014

From The Pueblo Chieftain (Chris Woodka):

A pipeline that will tie metro areas together has been purchased by Denver and the South Metro Water Supply Authority. The purchase will delay other efforts by metro water providers to take water from other parts of the state by allowing water suppliers to be used more effectively.

The 20-mile long East Cherry Creek Valley Water and Sanitation District’s western pipeline was purchased for $34 million, connecting Denver’s supply line to Aurora’s Prairie Waters Project. South Metro will pay 85 percent and Denver 15 percent. The ECCV pipeline originally was built to move water from a well field to the west to the community located between Denver and Aurora. It was built with excess capacity and will be modified to serve several other districts along its route.

The move will allow districts in the South Metro group to receive water from Prairie Waters and give Denver and Aurora a source of emergency supply.

Those districts are largely dependent upon Denver Basin groundwater, but need surface supplies in order to sustain underground resources. By cooperating with neighbors, they are able to reduce the costs of new supplies.

Denver, Aurora and 10 members of South Metro entered the Water Infrastructure and Supply Efficiency partnership in order to share water resources. Other projects have included reallocation of Chatfield Reservoir water, opening of Rueter-Hess Reservoir at Parker and other projects by individual members.

“With those successes, we’re taking another look at our long-term plan,” said Eric Hecox, general manager of the South Metro District.

That could be good news for the Arkansas River basin, which was targeted among future sources of water supply in South Metro’s 2007 water plan. Since then, conservation efforts have reduced demand. In addition, growth slowed during the recession, giving the water providers a little breathing room, Hecox said.

“With WISE moving ahead, it complements other water supply efforts. It doesn’t meet all of our needs, but moves things forward,” Hecox said. In the next few months, the Colorado­Wyoming Coalition, led by South Metro, will be completing an analysis of whether to launch a feasibility study for the Flaming Gorge pipeline, which would deliver water from Wyoming to cities within that state as well as Colorado’s Front Range.

One of the South Metro’s members is the Rangeview district east of Aurora, backed by Pure Cycle, a company which has proposed piping water from shares it owns on the Fort Lyon Canal near La Junta to the northern cities.

The groups also will be looking at coordinating its plan with the upcoming state water plan.

“Many of the options in the state water plan are the same options we’re looking at,” Hecox said.

More WISE Project coverage here.


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