Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc.
2016 CO 75
| Colo. | 2016Background
- Busk-Ivanhoe owns a one-half interest in 1928 Busk-Ivanhoe System water rights (2621 Decree) diverting Colorado River Basin water through Ivanhoe Tunnel for supplemental irrigation in the Arkansas River Basin; the 2621 Decree expressly authorized 1,200 acre-feet storage in Ivanhoe Reservoir (western slope) but is silent about eastern-slope storage.
- Historically, owners stored exported water in eastern‑slope reservoirs (Sugarloaf, later Turquoise) and paid storage fees in water volumes; Busk‑Ivanhoe (later owned by Aurora) used its share for municipal purposes from 1987–2009 without a change decree.
- In 2009 Busk‑Ivanhoe applied to change the decreed use to municipal/domestic; the Water Division 2 court (May & Aug 2014 orders) approved the change and quantified historic consumptive use including eastern‑slope stored volumes, storage‑fee volumes, and excluded the 1987–2009 undecreed municipal period from the study period.
- Western‑slope opposers and State/Division Engineers appealed, arguing eastern‑slope storage and storage‑fee volumes were undecreed enlargements and that the 22 years of non‑irrigation should be treated as zero‑use years or otherwise considered in the representative study period.
- The Colorado Supreme Court reversed: holding eastern‑slope pre‑use storage is not an automatic incident of transmountain rights and must be decreed or clearly implied; unlawful storage (and storage‑fee volumes) cannot be included in historic consumptive‑use quantification; the court also held the 22‑year period of undecreed municipal use reflects non‑use of the decreed irrigation right and the water court must determine whether those years were unjustified and, if so, include them as zero‑use years in the representative period.
Issues
| Issue | Plaintiff's Argument (Busk‑Ivanhoe) | Defendant's Argument (Opposers/Engineers) | Held |
|---|---|---|---|
| Whether eastern‑slope storage prior to use was lawful / may be included in historic consumptive use | Transmountain rights need not show separate eastern‑slope storage authorization; storage is an incident of imported water and may be implied in 2621 Decree | 2621 Decree contains no eastern‑slope storage right; such storage is an undecreed enlargement and cannot be counted | Reversed: storage in basin of import before use is not automatic; must be decreed or clearly implied; here decree silent and record insufficient to imply eastern‑slope storage, so unlawful storage cannot be included |
| Whether volumes of exported water paid as storage fees can be included in quantification | Storage‑fee water is functionally like evaporation/transit loss and part of beneficial use, so should be included | If eastern‑slope storage was unlawful, storage‑fee volumes are also unlawful and cannot be credited | Reversed: because eastern‑slope storage was unlawful, storage‑fee volumes may not be included in historic consumptive‑use quantification |
| Whether undecreed municipal use (1987–2009) must be excluded from the representative study period | Years of undecreed use must be excluded; undecreed use cannot form basis of quantification and excluding them is required | The period reflects non‑use of the decreed irrigation right and should be considered (potentially as zero‑use years) when quantifying historic consumptive use | Reversed in part: court erred in requiring exclusion; water court must determine if the non‑use was unjustified and, if so, may include those years as zero‑use years in the representative period |
| Remedial instruction on remand | — | — | Remand for requantification: (1) determine unlawful expansion (if any) from eastern‑slope storage and exclude those amounts; (2) exclude storage‑fee volumes tied to unlawful storage; (3) decide whether the 1987–2009 non‑use years were unjustified and, if so, include them as zero‑use years when selecting representative period |
Key Cases Cited
- Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645 (Colo. 2011) (water‑court factual findings reviewed for clear error; unlawful expansion cannot be included in quantification)
- Southern Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226 (Colo. 2011) (adjudication confirms pre‑existing rights; courts may construe prior decrees)
- Widefield Water & Sanitation Dist. v. Witte, 340 P.3d 1118 (Colo. 2014) (change right limited to amount actually used beneficially under the decree)
- Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46 (Colo. 1999) (change limited to historic beneficial consumptive use; applicant must prove actual usage)
- City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996) (distinguishes storage and direct flow rights; imported water reuse rules)
- City of Florence v. Bd. of Waterworks of Pueblo, 793 P.2d 148 (Colo. 1990) (importers of foreign water have broad latitude for reuse/disposal in basin of import)
- Ready Mixed Concrete Co. v. Farmers Reservoir & Irrigation Co., 115 P.3d 638 (Colo. 2005) (representative historical period defines transferable yield in a change proceeding)
- State Engineer v. Bradley, 53 P.3d 1165 (Colo. 2002) (change cannot enlarge the original appropriative right)