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.


2015 Colorado legislation: Rainwater 
bill (HB15-1016) includes 
incentives — The Grand Junction Daily Sentinel

February 27, 2015

cistern

From The Grand Junction Daily Sentinel (Charles Ashby):

A 2009 pilot program designed to encourage the use of capturing rooftop rainwater in new developments to augment water supplies has never quite gotten off the ground.

As a result, a House panel Wednesday approved a bill designed to increase incentives for more such projects, to see if it is a good way to use non-potable water for such things as landscaping, and conserve water that is meant for actual drinking.

The measure, HB1016 [Promote Precipitation Harvesting Pilot Projects], lessens some of the requirements to qualify to be a pilot. To date, only one project has been approved, that in a small development on Denver’s south side.

The measure heads to the House Appropriations Committee for more debate.


2015 Colorado legislation: HB15-1038 (Flexible Water Markets), “It still looks like there’s still a speculation issue” — Jay Winner

February 27, 2015
Rocky Ford Ditch

Rocky Ford Ditch

From The Pueblo Chieftain (Chris Woodka):

Legislation purporting to offer more options for farmers appears to be just another way to dry up more farms in the eyes of a district set up to protect Arkansas Valley water.

The bill, House Bill 1038, would create a flexible water market right that would allow farmers to lease half their water to cities, recreation activities or even other farms. While it says it would keep water in farming, the district thinks it might do just the opposite.

“The way it was introduced, we just weren’t that interested,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District. “But to me, it looks like another form of buy-and-dry. We don’t understand the need for it.”

Winner said the legislation, backed by water interests in the South Platte, would harm the Arkansas River basin by allowing 10 consecutive years of the entire consumptive use from a farm to be moved to other uses. The Arkansas Valley Super Ditch plans a pilot program this year that limits leases to just three years in 10.

“It still looks like there’s still a speculation issue,” Winner added. “We’re right back where we were last year on this same issue.”

The legislation passed the state House by a 42-22 vote on Feb. 10 and is now in the Senate.

The measure was substantially modified in the House agriculture committee and now includes a 10-year pilot program which would allow the Colorado Water Conservation Board and state engineer to evaluate the need and effectiveness of flex marketing.

The bill limits the number of flex use water rights in any given basin to 10 water court applications and 10 substitute water supply plans for the pilot program’s first 10 years.

It also allows for drying up farmland five years in every 10 in order to move the consumptive use portion of the water for uses other than irrigation of the property served by the water right.

Winner thinks there is a potential to “stack” the court and administrative routes, since nothing in the law prevents it.

The bill still prohibits transfers from one basin to another and includes a provision for fixed points of delivery — an attempt to comply with the state’s anti-speculation doctrine. However, Winner is concerned one point, such as Lake Pueblo, could still open use of the water to multiple users.

The fiscal note by Legislative Council attached to the bill indicates there could be increased water court caseload over time because water rights holders would be able to more easily sell water rights to other users and the number of change-inuse applications would increase.

More 2015 Colorado legislation coverage here


Republican River Basin: Supreme Court finds Nebraska liable for ‘reckless’ water use — The Kansas City Kansan

February 25, 2015
Republican River Basin by District

Republican River Basin by District

From the Kansas City Kansan:

In a 28-page majority opinion, the court unanimous agreed that Nebraska “knowingly” violated the Republican River Compact and took water that belonged to Kansas.

As a remedy, the Supreme Court ordered by a 6-3 vote that Nebraska not only must pay Kansas’ actual damages from loss of water during those two dry years but also must “disgorge” a portion of the economic gain Nebraska received from higher yields from irrigating crops with water that should have been sent downstream to Kansas.

“Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its actions would deprive Kansas of the water to which it was entitled,” Justice Elena Kagan wrote for the court’s majority. “That is nearly a recipe for breach [of the Compact that governs sharing of Republican River water]—for an upstream State to refuse to deliver to its downstream neighbor the water to which the latter is entitled. And through 2006, Nebraska took full advantage of its favorable position, eschewing steps that would effectively control groundwater pumping and thus exceeding its allotment. In such circumstances, a disgorgement award appropriately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact’s successful administration.

”Schmidt noted that the Supreme Court never before had ordered disgorgement of an upstream state’s unjust gains as a remedy in an interstate water dispute.

“Legally, this is a groundbreaking case that vindicates Kansas’s rights as a downstream state,” Schmidt said. “We brought this lawsuit to encourage our neighbors to live up to their obligations in future dry periods. I’m hopeful this strong and clear Supreme Court order will have that effect.”

The Supreme Court ordered Nebraska to repay Kansas $3.7 million to compensate for Kansas’s actual economic losses during 2005-06 and another $1.8 million as partial disgorgement of Nebraska’s unjust gains from illegally using Kansas water.

That $5.5 million recovery will be used to fully reimburse the attorney general’s office for its roughly $4.5 million in bringing the lawsuit and defending Kansas water rights, making the State of Kansas whole for its cost of litigation. The remainder will be available to the legislature to designate for other purposes as provided by law.

The Supreme Court also ordered technical changes to the calculation of future water flows from the Platte River basin into the Republican River basin as requested by Nebraska. The decision to order that reformation of the accounting procedure was 5-4.

More Republican River Basin coverage here.


A look at the art of water board governance from The Greeley Tribune #ColoradoRiver

February 15, 2015

Here’s an in-depth look at the Greeley Water and Sewer Board from Sherrie Peif writing for The Greeley Tribune. Click through to read the whole article and for the sidebar with the details about the current board along with some historic notes:

Most anyone who works closely with the water industry agrees the commodity is taken for granted by consumers, except for in a couple of instances.

“When water doesn’t come out of the faucet,” said Harold Evans with a laugh. “And when they get their bill.”

Evans, the chairman of the Greeley Water and Sewer Board, said it is unlikely that most know where their water comes from or how it gets to their faucets.

It is a complicated process involving more than a dozen lakes, ponds, rivers and reservoirs across Colorado. And in Greeley, seven men oversee it all.

It is so complicated, in fact, that fellow board member Robert Ruyle said it takes several years on the board before a member really understands it.

“Water board members serve 10-15 years before they really know what to do,” Ruyle said. “Even if they come to the board with water experience. Our system is unique, and it takes a while to understand it.”

It is also why, Evans said, the water board needs the absolute power it currently enjoys.

“The primary reason for establishing it this way was to provide for long-term needs in a non-political way,” Evans said.

Not everyone agrees, however, including a former top Greeley official who may take a proposal to the voters to put the power back into the hands of the Greeley City Council.

Many argue the Greeley water board has too much power, and its authority to set rates, development fees and the cost to bring raw water to a new development are all too high and there is no one that can reverse its decisions.

Members of the water board say what most don’t realize is how far ahead of the game Greeley is compared to other communities and water districts in northern Colorado.

And that — they say — is because of the way the Greeley Home Rule Charter is set up, giving board members the power to set rates and fees, acquire water and manage the system that cleans and transports it.

“When you think about what you pay for a cup of coffee, we supply a gallon of safe drinking water for four-tenths of one penny,” Evans said.

Board members all believe they are assuring many more generations to come plenty of the precious resource.

But has the original intention of Greeley’s forefathers outlived its usefulness?

Should voters change the way water has been managed for nearly six decades?

It all depends on who you ask.

WHICH WAY DID IT GO?

From as far away as Lake Granby on the Western Slope, into the Colorado-Big Thompson system, and eventually the South Platte River; or from as far away as Cameron Pass and the Poudre River, spring snow melt from the mountains flows through 500 miles of pipeline into two water treatment plants and into homes and business in Greeley.

It didn’t take long after Greeley was founded in 1869 for its forefathers to realize they needed to secure the rights to the water coming out of the mountains.

W.D. Farr, known to many as Mr. Water, and former Greeley Tribune publisher Charles Hansen are credited for bringing water from the Colorado River across the Continental Divide and to the Front Range. The Greeley water system is among the most elaborate and most rich in the nation, everyone close to the situation says.

Many say that’s thanks to the authority granted the Greeley Water Board when it was formed in the 1958 charter to manage the system.

Norman Dean, who was a member of the charter committee and one of those responsible for the Water Board’s authority, said it was a battle over who to put in charge.

“It was a very contentious subject,” Dean said. “Some guys wanted it to be a department of the city.”

But in the end, a University of Northern Colorado professor convinced the majority, including Dean, that it needed to be separate.

“Water and sewer generates a lot of money,” Dean said. “He did not want it to flow into the general fund for city council to use it as they wanted.”

Technically, it is a department of the city, but it is run by the water board.

The other option, said Leonard Wiest, former Greeley city manager who is now a consultant, would be to make the board an advisory board. Let them continue to do what they do, but leave the final decision to the Greeley City Council.

“We get a chance to vote on the city council,” Wiest said. “If we don’t like what they do, we can vote them out. The only thing the council can do right now to the water board is cut the budget. But they never do that either.”

The seven members of the water board are appointed by city council to serve a five-year term and cannot be recalled by voters. At the end of that term, they must be reappointed to serve again. However, no one can recall a time when the council did not reappoint someone.

“If at anytime they came to one of us and said, ‘We don’t think you’re doing your job,’ we would step down,” Evans said. “We may make decisions that some may not like, but we have to do what is best for the whole big picture.”

Additionally, there are no limits to the number of terms a water board member can serve. New members are recommended to the city council by the current board, leaving some to refer to it as a “good ol’ boys club.”

Many members have served for decades. Dean, who served 15 years on the board from 1989-1994, said that, too, was thought out by the charter committee.

“It seemed a shame to put term limits on them,” Dean said. “They finally get to understand it all and then they have to leave the board.”

The board controls a $26 million budget. Although city council ultimately has to approve any loans the water board requests, the water board has the authority to borrow money and sell bonds without going to voters, Wiest said.

“It’s taxation without representation,” Wiest said. “The water and sewer board is entirely independent. They do whatever they want.”

The board is responsible for setting water and sewer rates, plant investment fees (which are fees paid by a developer when a new home or business is constructed) and cash-in-lieu charges to get water to a new development.

Council can raise the rates and fees, but has no authority to lower the rates below a minimum formula set by the charter, which includes things such as depreciation and maintenance.

City Manager Roy Otto equates it to buying a car. You have to pay a minimum amount for a basic car, but all the bells and whistles are additional. If the water and sewer board wanted to raise the rates above what the formula says is needed to pay the bills, council could deny that.

“I have never since I’ve been city manager had a disagreement over the budget,” Otto said of the recommended budget versus what the council wants. “We all understand the importance of our rate structure. We have a sound system, I would put our system up against any in the area because the charter language considers depreciation and maintenance.”

Developers, however, have recently threatened to stop building in Greeley because development fees, especially for water and sewer, are too high, they say.

Many developers in the area have asked Wiest to lead an effort to ask voters to amend the Home Rule Charter in November, to make it an advisory board.

Wiest isn’t sure yet if he will, but he’s leaning toward leading the effort.

WHO PAYS THE WAY FOR GROWTH?

Greeley City Council has long charged its staff with the directive that growth pays its own way. In other words, fees should be charged to handle improvements or expansions when new developments come in.

Water and sewer is no different. New developments require the developer to supply the water rights to service the area, and new residential and commercial development must pay plant investment fees to help with maintenance and expansion to the system when it is needed because of growth.

However, the fees set by the water board are the source of disagreement.

At several recent meetings held by the city to discuss increased development fees that go in effect March 1, real estate brokers and contractors expressed concern that development was about to stop in Greeley because they can’t afford to build here compared to other communities. In particular, many believe the water and sewer fees charged against developers are too excessive.

Their contention is the increased fees drive up the cost of new homes in an area continuing to battle with poverty.

A recent attempt to lower those fees failed on a 4-3 city council vote. The argument against lowering the fees is that it puts the burden of paying for growth in the water system on the current users.

“It’s a philosophical belief,” Evans said. “Because on the other hand, you can say new development benefits everyone.”

Wiest said the water and sewer board are more concerned about someone who may move here in 50 years than they are those who live here now.

“The growth factor flies in our face,” Wiest said. “The person who moves here in 50 years will still have to bring their own water. But we are spending hundreds of thousands of dollars for water for the future.”

WHAT THE FUTURE HOLDS

Water board members say they are only trying to continue the logic of Farr, which has made Greeley the envy of many in Colorado for its long-term planning and vision in acquiring water rights.

“When you think about the previous boards and what they’ve done, we have the chance to stand on the shoulders of giants,” Evans said.

He added the land around northern Colorado is drying up, and people need to remember where they live.

“We are an arid landscape, but we want to look like the Midwest,” Evans said. “We have had water restrictions in place since 1905 for a reason.”

Ruyle agreed, adding it is getting more and more difficult every day to acquire water.

“It is a challenge to be able to acquire enough raw water to supply new growth for the city,” Ruyle said. “It is a limited resource in the area we live.”

In fact, 80 percent to 85 percent of the water used in Colorado is still used for agricultural purposes. That is a real challenge, both men said, because changing water use from ag to domestic in water court is a complicated process.

So what happens when Greeley’s economy moves away from agriculture? Evans asked.

“It is predicted we will have more than double our population by 2050,” Evans said. “Where is the water going to come from? What is it going to look like in 2050? Who knows? We’ll figure it out, but it’s going to look different.

“But we are fortunate to have the system we have. It allows us to do things others can’t do. When 2100 rolls around, I hope people look back on us and say, ‘Those guys in 2015 did a great job for us.’ ”

More Greeley coverage here.


2015 Colorado legislation: House approves ‘flex-use’ water bill [HB15-1038] — The Grand Junction Daily Sentinel

February 13, 2015
Sprawl

Sprawl

From The Grand Junction Daily Sentinel (Charles Ashby):

Several Western Slope lawmakers didn’t get their way Tuesday on a bill that is designed to prevent so-called buy-and-dry tactics on water rights for farms and ranches.

While supporters of the measure, HB1038, say it gives water rights owners more flexibility in selling a portion of their water for other beneficial uses, opponents said it forgets water rights owners who aren’t parties in those sales.

The bill, which cleared the Colorado House on a bipartisan 42-22 vote, creates a “flex use” change in water decrees, which supporters say is designed to create a different option for water suppliers from buying agricultural water rights and then diverting that water from a farm or ranch.

But opponents said it has the potential to impact other water users, and would force them into water court to resolve issues created by those new flex decrees.

“The way water law works right now is, if you want to change the use then you go to water court and you prove that it’s not going to damage any other water right,” said Rep. J. Paul Brown, R-Ignacio. “What this bill does is, it does away with that process and bypasses the water courts. It will force legitimate water rights owners to go to water court if they feel like their water rights have been devalued.”

Rep. Don Coram, R-Montrose, said the bill will end up doing the opposite of what it’s intended, saying that such decrees will increase the value of water and spur more sales for municipal uses, leading more farms and ranches to stop producing and dry up their lands as a result.

At the same time, it will harm farmers and ranchers who want to continue in agriculture but aren’t parties to those flex agreements because it will force them to go to court to protect their water rights.

“They don’t know if they’re going to have enough money to farm the next year, and if they are damaged they certainly don’t have the resources to bring it to water court,” Coram said.

Rep. Jeni Arndt, D-Fort Collins, said that’s not going to happen because water owners still have to carve out agreements that keep the water for beneficial uses. At the same time, the bill will help address the growing need for municipal water in growing Front Range communities without drying up nearby farms and ranches, she said.

“We’re helping preserve agriculture and rural Colorado, addressing the state’s water needs and conserving our more precious natural resource,” she said.

The measure heads to the Senate for more debate.

More 2015 Colorado legislation coverage here.


2015 Colorado legislation: HB15-1038 (Flexible Water Markets) moves out of committee

February 11, 2015
Colorado Capitol building

Colorado Capitol building

From Colorado Public Radio (Megan Verlee):

The state House moved forward Tuesday with a bill [HB15-1038] intended to make Colorado’s water markets more flexible.

The measure would make it easier for some farmers and ranchers to transfer part of their water rights to other uses. If they found ways to conserve water in their agricultural operations, they’d be able to sell the excess to cities or other users.

“Currently you have to use your entire water right or you stand a chance of losing it. So there’s no incentive to conserve,” said Democratic Representative Jeni Arndt of Fort Collins.

Arndt said the goal is to find new ways to address the state’s growing need to for water.

The bill would limit the number of flexible water rights available statewide. The House approved it with bipartisan support. Western slope lawmakers, though, are concerned about its potential impact on water markets.

The measure now heads to the state Senate, which rejected a similar proposal last year.

More 2015 Colorado legislation coverage here.


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