A showdown over how transmountain diversions are calculated is brewing in the Colorado Supreme Court — Chris Woodka

March 3, 2015

From The Pueblo Chieftain (Chris Woodka):

A showdown over how transmountain diversions are calculated is brewing in the Colorado Supreme Court.

At issue is last year’s ruling on a change of use case filed by Aurora in water court in Pueblo.

Division 2 Water Judge Larry C. Schwartz ruled that Aurora is entitled to export an average of 2,416 acre-feet (787 million gallons) annually, even though Aurora waited more than 20 years to change the use of the water from agriculture to municipal.

Aurora shares Busk-Ivanhoe with the Pueblo Board of Water Works on the system that formerly was operated by the High Line Canal. It brings water into Busk Creek above Turquoise Lake from Ivanhoe Lake through the Carleton Tunnel, which once was a train passage and later an automobile route across the Continental Divide.

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 from High Line shareholders beginning in 1986, but did not file for a change of use until 2009.

Western Slope groups and the state Division of Water Resources are arguing that Aurora’s claim to water should be reduced by 27 percent because the city misused the water after purchasing its share of the Busk-Ivanhoe system.

They claim that Schwartz should have counted the 22-year period as zeros when calculating the historic use of water from the Busk-Ivanhoe system. Schwartz determined that the years where the water was used improperly should not count in the calculation, but said the amount of Aurora’s diversion should be recalculated separately from the amount awarded to Pueblo in 1993.

Aurora’s share is slightly less than Pueblo Water’s (2,634 acre-feet average annually) as a result.

Supporting Schwartz’s decision are the state’s largest municipal water providers, including Denver Water, Colorado Springs, Pueblo Water, Northern Water and the Southeastern Colorado Water Conservancy District, all of which bring water across the Continental Divide.

They argue that water courts serve to prevent injury to other water users, not penalize inappropriate historic uses.

“It’s not very likely to have a direct impact on any of our existing rights,” said Alan Ward, Pueblo Water’s resource manager. “We appreciate the court did not see a need to be punitive. That could be an issue with other water rights in the future.”

The Lower Arkansas Valley Water Conservancy District also supports Schwartz’s position because of its own pending change case on the Larkspur Ditch, which it purchased from the Catlin Canal and uses to bring water over from the Gunnison River basin.

Schwartz ruled in favor of Aurora in the case (09CW142) in May, and it was appealed by multiple Western Slope groups in October. Reply briefs in the case are due March 21, after which the court could hear oral arguments.

More water law coverage here


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.


Tomorrow: Source to Sea — Down the Colorado River with Zak Podmore #ColoradoRiver

January 14, 2015
Zak Podmore and Will Stauffer-Norris

Zak Podmore and Will Stauffer-Norris

From email from the Eagle River Watershed Council:

Tomorrow, Thursday the 15th
Source to Sea:
Down the Colorado River
with Zak Podmore

Donovan Pavilion
5:30 pm reception & 6 pm presentation
tickets free, $10 suggested donation, cash bar

More Eagle River watershed coverage here.


The latest issue of “The Current” newsletter is hot off the presses from the Eagle River Watershed Council

December 8, 2014
Eagle River Basin

Eagle River Basin

Click here to read the newsletter. Here’s an excerpt:

When we planted saplings at the Edwards Restorations site a few years ago, we encircled them with wire cages to protect them from local beavers. The trees are now outgrowing the cages but still aren’t quite big enough to withstand the industrious beavers.

A group of 7th and 8th graders from Stone Creek Charter School helped us to remove the beaver cages and paint the trees with a mixture of paint and sand. The beavers don’t like chewing on the sand, plus the paint is breathable and won’t hurt the trees as they continue to grow! Many thanks to Stone Creek Charter School for all their help!

More Eagle River watershed coverage here.


The latest “The Current” newsletter is hot off the presses from the Eagle River Watershed Council

November 5, 2014
Eagle River Basin

Eagle River Basin

Click here to read the newsletter. Here’s an excerpt:

Collaboration is Key for Water Solutions
by Kate Burchenal

Increasingly, water in Colorado (and around the West, for that matter) is becoming a fierce battleground with distinct lines drawn in the sand. We see environmentalists and recreationists squaring off against water suppliers; farmers duking it out with so-called “water grabbers”; and, unfortunately, the Front Range pitted against the Western Slope.

And it’s no wonder we see tension mounting with each passing year. We have a very finite amount of water at our disposal and seemingly innumerable ways in which we, as Coloradans, want to use that water. Drinking water, landscaping, agriculture, recreation, dust suppression, fire protection, industrial uses, snowmaking, power generation, environmental in-stream flows, and the list goes on. Each and every use is important in its own right, but finding the balance between these uses has proven to be extremely difficult.

Watersheds Conference

So one would think that when water professionals with various backgrounds get together in a room it would be all-out war, right? Wrong, actually. The Eagle River Watershed Council staff recently attended the Sustaining Colorado Watersheds Conference, an assemblage of water professionals from around the state, where that notion is shattered every year.

This was the ninth annual conference hosted by three nonprofit organizations: the Colorado Foundation for Water Education, the Colorado Riparian Association and the Colorado Watershed Assembly. Each of these organizations has a mission to better, in some way, the responsible use of water resources in the state of Colorado.

With nearly 55 speakers covering as many topics, there was no shortage of interesting subject matter to capture the attention of the 300 water professionals attending the conference. During the course of three days, we learned about groundwater, flood recovery, wildfires, resiliency, water quality, stream assessments and much more.

Collaborative Management

The session that most caught my attention was the one entitled “Collaborative Water Management.” Representatives from a municipality, a water utility and a nonprofit came together to speak about their experiences working with other entities to use water in non-traditional ways. One example was from the Front Range, others from the Western Slope, but the unifying factor was that these collaborations relied upon the strengths of various groups to use water in ways that benefited more than just the individual organizations.

Collaboration between entities, organizations and individuals on both sides of the Continental Divide is the answer to Colorado’s complex water issues. The conference highlighted this, perhaps unintentionally. People from around the state came together to learn from one another’s successes and failures, to network and to create partnerships that will help us to solve our problems, both locally and statewide.

Cooperative Agreement

There is always talk about the battle in the water world, but innovation and collaboration are abundant here, too, and it isn’t hard to find examples. Just look at the Colorado River Cooperative Agreement, which brought Denver Water together with 42 Western Slope groups to draft a historic agreement that benefits water quality, the environment, recreation and water supplies on the Front Range and the Western Slope.

Or, for example, the Minute 319 agreement in which the U.S. and Mexico came together in an effort to reconnect the Colorado River with the Gulf of California, where river waters hadn’t flowed since the 1990s. This experiment also paid for infrastructure maintenance and ecosystem restoration in the mighty delta of the Colorado River; a great example of wide-ranging benefits stemming from one bilateral agreement.

As the same folks that attended the conference continue to draft a state water plan that protects their own water interests, it is important to reflect on these past successes in collaboration. Solutions most often lie in collective effort rather than in disparate fighting.

More Eagle River watershed coverage here.


The latest newsletter “The Current” is hot off the presses from the Eagle River Watershed Council

October 8, 2014
Eagle River Basin

Eagle River Basin

Click here to read the news letter. Here’s an excerpt:

In 2014-15, the Watershed Council is working to put the finishing touches on the Edwards Eagle River Restoration Project.

We were thrilled to have a group of Vail Mountain School 7th & 8th graders help us out for their service learning day. Together we planted 34 narrowleaf cottonwood trees and installed cages around each to protect them from busy beavers. It was a gorgeous and productive day by the river. Many thanks to Ms. Littman, Ms. Zimmer, Mr. Felser and their wonderful students!

Thanks to the work of the VMS students and the Colorado Alpines professional planting crew, all that’s left to round out the $4 million, 6-year project is to continue with weed mitigation. To learn more about the project, click here.

More Eagle River watershed coverage here.


At head gate atop pass, Western Slope, Front Range interests meet — The Grand Junction Daily Sentinel

October 7, 2014

From The Grand Junction Daily Sentinel (Dennis Webb):

A water-measuring flume on a ditch sitting exactly astride this pass outside Leadville might be as good a place as any to bring Western and Eastern Slope interests together to talk about water.

Those interests met in the middle here last week, at this point where the Ewing Ditch crosses the Continental Divide, on a transbasin diversion tour presented by the Colorado Foundation for Water Education. It was a chance to consider the past of water development in Colorado while also pondering its future. And where better to look back at the history of transbasin diversions than at Ewing Ditch, the oldest diversion of Western Slope water to the Eastern Slope?

This straightforward, unassuming dirt conduit seemingly defies gravity, diverting water from Eagle River tributary Piney Gulch just a short walk from Tennessee Pass, and just high enough up the gulch that the water can follow a contoured course crossing basins and head into the Arkansas River Valley.

“It’s simple, but I love simplicity. It fits my mind,” Alan Ward, water resources manager with the Pueblo Board of Water Works, joked about the ditch, which the utility bought in 1955.

Buried in snow

It was built in 1880 and also is called the Ewing Placer Ditch, which Ward believes suggests early use of the water in mining.

As transbasin diversions go, it’s a minuscule one, delivering up to 18.5 cubic feet per second, or an average of about 1,000 acre-feet in a year. It diverts about five square miles of melt-off from snowpack that can leave the ditch buried beneath 10 to 20 feet of snow in the winter. David Curtis is in charge of clearing that snow and maintaining and operating the ditch during the seven months out of each year that he works out of Leadville as a ditch rider for the utility.

The utility says Ewing Ditch is about three-quarters of a mile long.

“I think it’s a little longer,” Curtis said, adding that at least it seems that way when he and others are busy clearing spring snow.

A chartered bus delivered more than two dozen tour participants to view the ditch, including Boulder County resident Joe Stepanek. He found last week’s two-day tour to be highly informative. He’s interested in Colorado’s history of water development, and is retired from a U.S. Agency for International Development career that had him traveling abroad.

“I come back and join this water tour and learn a lot about Colorado,” he said.

Sonja Reiser, an engineer with CH2M HILL in Denver, likewise was finding the tour to be eye-opening.

“I’m learning so much about how complicated Colorado water law is,” she said as the tour bus moved on from this tiny diversion point to the outlet of the five-mile-long Homestake Tunnel, which goes under the Continental Divide from Homestake Reservoir in Eagle County and is capable of delivering a much more massive 800 cubic feet per second to help meet municipal needs in Colorado Springs and Aurora.

Before getting to those cities, that water also is put to use at another tour stop, the Mount Elbert Power Plant just above Twin Lakes. There, the water goes through hydropower turbines that can be reversed to pull water back up from the lakes to a reservoir above the plant, helping ensure the water is available to create on-demand power to meet grid shortages at times when renewable energy from wind and solar sources wane.

While traveling to the tunnel, the busload heard Pitkin County Attorney John Ely discuss legal means that county has to at least weigh in on transbasin diversion proposals, even if it can’t outright stop them.

He then opined that Pitkin County has more in common with some Front Range counties than it does with some counties on the Western Slope.

“I think that at the end of the day everybody appreciates that we’re in this together,” he said.

More water

Such thinking is helping drive an ongoing effort to develop a state water plan in Colorado. Ely said the priority is always going to be providing water for human consumption, but beyond that, decisions must be made about how to distribute it among competing uses such as agriculture, watering lawns, generating hydropower and maintaining streamflows.

“The only way you can get at that is to invite the public to participate,” he said.

Since 1880, many others have followed the lead taken with the Ewing Ditch and diverted Western Slope water for use on the populous Front Range. As a result, a big challenge facing the state water planning process is reconciling the Front Range’s desire to be able to access yet more of that water with the feeling of many on the Western Slope that they’ve given up enough of it. Although tours like last week’s can’t be expected to lead to breakthroughs on such difficult issues, they at least help to put faces behind the entities involved.

“We’re not three-headed monsters on the Eastern Slope,” Kevin Lusk, who works with Colorado Springs Utilities, said during a windy lunch break alongside Turquoise Lake, which stores water delivered by the Homestake Tunnel.

Front Range lawns

Fielding questions from a few Western Slope residents as they ate, Lusk and some other Front Range utility officials found themselves defending the amount of water conservation they’ve already undertaken, and questioning the Western Slope frustration about water being used to keep Front Range lawns green. Brett Gracely, also with Colorado Springs Utilities, said that watering accounts for just 3 percent of state water use.

“I don’t get it — why do people hate grass?” Lusk wondered.

But as Lusk later described Colorado Springs’ efforts to better shore up its diversion infrastructure to reduce leakage far up the Roaring Fork Valley in Pitkin County, it engendered a frustrated sigh from Lisa Tasker, a member of Pitkin County’s Healthy River Board. She has hiked around that infrastructure, and what has leaked from it has helped vegetation in the same pristine mountain basins from where that water originates, rather than irrigating Front Range lawns.

Still, Tasker bit her lip during Lusk’s presentation. She was on the tour to look and listen, and said earlier it was a chance to see diversion infrastructure firsthand and hear not just the perspectives but the passions of people from the Front Range.

“I’m strictly in learning mode,” she said.

Chris Treese, external affairs manager of the Colorado River Water Conservation District, based in Glenwood Springs, sits on the board of the Colorado Foundation for Water Education, which uses tours and other means to provide unbiased information on water resources and issues. Treese, who also was a presenter during last week’s tour, said he believes such events help foster dialogue about water in the state and get new voices involved in the state’s water future.

“If it’s going to be a state water plan, it can’t just be water buffaloes’ state water plan,” Treese said, referring to the more traditional participants in water issues on both sides of the divide.

“It’s good for us to get outside of our box and look at the bigger picture,” said tour participant Joe Burtard, who works in external affairs for the Ute Water Conservancy District utility in Mesa County. “… It’s good for us to be exposed to the Front Range and Eastern Slope perspectives as well.”

More Colorado Foundation for Water Education coverage here.


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