Supreme Court Decision on TMDs

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Press Release
Colorado River District
December 9, 2016

West Slope wins important transmountain diversion case at the Colorado Supreme Court

The Colorado River District and its allies prevailed in an important Colorado Supreme Court decision issued on Dec. 5, 2016 involving the change of a transmountain water right from agricultural to municipal use.

At issue was a 2014 water court ruling involving the City of Aurora’s one-half interest in the Busk-Ivanhoe Transmountain Diversion Project in the headwaters of the Fryingpan River in Pitkin County. The Supreme Court held that the Division 2 Water Court erred in determining that storage of West Slope water on the Front Range is an inherent component of a transmountain water right, that an adjudicated water right is required just as it is with all other storage under Colorado water law.

The Supreme Court further determined that the water court erred when it excluded 22 years of non-decreed municipal use in determining the lawful historical use of the water rights that could be changed from irrigation use to municipal use by Aurora. The result is a likely reduction in the amount of water that Aurora can divert from the West Slope to the Front Range.

The Colorado River District is very pleased with the Supreme Court’s well-reasoned opinion in which it reversed the Division 2 water court. In particular, the River District is pleased with the court’s recognition that transmountain water rights are subject to the same legal principles as all other water rights in the state.

“As stated by the court, ‘Junior users in the basin of export have a right to divert and use water not lawfully diverted in the first place under a senior right, regardless of whether that water is diverted for transmountain use,’” the Colorado River District said in a statement on the case.

The case has been remanded to the Division 2 Water Court in Pueblo for determinations consistent with the Supreme Court’s opinion and final quantification.

The Busk-Ivanhoe Project dates back to 1928 when it was appropriated to supply supplemental irrigation water to farmlands in the Arkansas Valley of eastern Colorado. The annual average yield is about 5,400 acre-feet with an acre-foot containing 325,851 gallons of water. Busk-Ivanhoe is relatively small when compared to Pitkin County’s other two transmountain diversions, the Independence Pass Transmountain Diversion Project (Twin Lakes), with about 38,000 acre-feet of annual diversions and the Fryingpan-Arkansas Project with about 57,000 acre-feet of annual diversions.

Over time, the Front Range cities of Pueblo and Aurora each acquired a one-half interest in Busk-Ivanhoe Project to use for municipal purposes. While Pueblo changed its portion of the water rights in the 1990s, Aurora did not file its change of water rights application until 2009 at the behest of the Division Engineer for Water Division 2, who oversees water administration in the Arkansas Valley. Pueblo’s interests were not at issue in the current case.

Entities representing western Colorado interests included the Colorado River District, Pitkin County, the Grand Valley Waters Users Association, the Orchard Mesa Irrigation District, the Ute Water Conservancy District, the Basalt Water Conservancy District and Eagle County. The Colorado State Engineer’s Office also took part in the case to contest the consumptive use calculation issue.

View the full 53-page decision and read recent and past news coverage by visiting West Slope Wins Important Transmountain Diversion Case at the Colorado Supreme Court 

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