Pitkin County has spent $50,000 since 2010 to prevent a Front Range city from expanding a water right it owns to divert 2,600 acre-feet of water a year from four creeks high in the Fryingpan River basin.
Aurora applied in December 2009 in state water court to change its decreed right for the water. Pitkin County hired Boulder law firm Moses, Wittemyer, Harrison and Woodruff to file a statement of opposition against Aurora’s application.
Instead of using the water for irrigation in the Arkansas River basin, Aurora wants to use it for broad municipal and industrial uses in the South Platte River basin, where the city sits just east of Denver.
If the water court judge hearing the case rules against the county and the other entities opposing Aurora, Pitkin County Attorney John Ely said the local government is almost certain to appeal to the Colorado Supreme Court, which directly hears water court appeals.
“I can’t imagine that we wouldn’t,” Ely said. “It’s now a Colorado issue.”
Pitkin County officials are concerned that Aurora’s proposed change might allow it to expand the number of days it can divert water — from 183 days during irrigation season to 365 days for municipal use.
“The river could be depleted more,” said Ely.
At issue is whether Aurora has to determine its historic consumptive use of the water right it is seeking to change, and whether Aurora should get credit in such a calculation for water it has been using for un-decreed purposes.
Aurora is seeking a way around both of those “bedrock principles” of Colorado water law, the county and other opposing interests have told the court.
Division 2 water court judge Larry Schwartz is expected to rule by February on a motion by Aurora regarding the legal issues raised in the case, which has been filed by Aurora’s only wholly-owned entity, Busk-Ivanhoe, Inc.
Oral arguments on the motion were held on Dec. 7 in Pueblo. The case has been set for an eight-day trial starting on July 23.
Today, 41 percent of the water in the Fryingpan River basin is sent east through tunnels. The extensive Fry-Ark project diverts about 54,800 acre-feet a year, including some water from the Roaring Fork River basin, to be used for agricultural and municipal use on the Front Range. On top of that, the Busk-Ivanhoe system diverts about 5,200 acre feet a year.
While the Fry-Ark is a clearly bigger drain on the river, Pitkin County does not want to see either system divert more water.
Ely is opposing Aurora’s efforts at the direction of the county commissioners and the county’s Healthy Rivers and Streams board, which oversees $1 million in annual property tax revenue dedicated to keeping more water in local rivers.
And Pitkin County is not alone in its opposition to Aurora. Eagle County, the Colorado River District, the Basalt Water Conservancy District, Trout Unlimited, the State Water Engineer’s Office and other entities also are opposing Aurora’s proposal.
Greg Long, manger of public relations for Aurora’s water utility, Aurora Water, said via email that “since we are still in litigation on this change case, we are unable to comment on the specifics.”
Half of the water diverted into the Busk-Ivanhoe system is owned by Aurora, and the other half is owned by Pueblo Board of Water Works, which typically leases its half back to Aurora to use.
The water is diverted from Lyle, Ivanhoe, Hidden Lake and Pan creeks, tributaries of the main stem of the upper Fryingpan River.
It is then collected in Ivanhoe Reservoir near the top of the basin and sent through a 30-inch concrete pipe on the floor of the 1.3 mile-long Busk-Ivanhoe tunnel, which originally opened in 1893 as a railway tunnel near Hagerman Pass and is now partially collapsed.
The water leaves the tunnel and spills down Busk Creek into Turquoise Reservoir located 4 miles west of Leadville, and then to points south and east.
Aurora pumps its water up and over a ridge near Buena Vista, and then sends it into a system of pipes and reservoirs in the South Platte River basin.
Key to Aurora’s claim in water court is a 1993 decree that Pueblo obtained for its half of the Busk-Ivanhoe water.
The court allowed Pueblo to change its use of the water from irrigation to municipal, but it limited Pueblo’s diversions both seasonally and by how much it can divert over a 60-year period.
During that process, the court ruled that an average of 5,187 acre-feet of water had historically flowed each year through the Busk-Ivanhoe tunnel and therefore Pueblo had a right to half of that amount — 2,593 acre-feet a year.
Aurora now says that when the court defined Pueblo’s half of the Busk-Ivanhoe water, it also defined the historic use of Aurora’s half of the water. Therefore, no new analysis is necessary.
Pitkin County and the other opposing entities disagree. They argue that the 1993 decree only applied to Pueblo’s half of the water, and that Aurora’s half may have been ultimately consumed in different ways.
And they say Aurora still has a fundamental legal duty to calculate its own historic use.
“We are arguing the black letter of the law,” Ely said.
Aurora also makes the case that because the water is transported from one river basin into another, it can legally be used “to extinction.”
So, the city contends, it does not, and should not, matter to Western Slope interests how it ultimately uses the water it diverts from the Fryinpan River basin — as none of it is coming back in any event.
“So far as appropriators of water from the Colorado River and its tributaries are concerned, use of water from the Busk-Ivanhoe System by Aurora … is 100 percent consumptive,” Aurora told the court.
Aurora further argues — should it lose on its main point — that its un-decreed use of the water for municipal purposes shouldn’t count against it in determining the size and scope of its requested decree.
The opposing parties disagree, especially as Aurora has acknowledged it’s been using its Fryingpan River water for municipal purposes in the South Platte River basin for at least 20 years without a decreed right to do so.
If those years were counted as “zero-years” and included in an averaged historical tally, it could mean that Aurora ends up with less Fryingpan River water for its municipal uses. If someone is trying to determine the value of their water right — to either sell or change it — a year of no use counts against them and ends up meaning they have less water to sell or change.
Pitkin County and other Western Slope interests also have broader concerns with Aurora’s proposal to change its water rights.
According to a 2011 study by Elk Mountain Consulting for the Ruedi Water and Power Authority, if Aurora successfully changes its water right to municipal uses, it may then seek to enlarge the Busk-Ivanhoe infrastructure.
That would allow the city to divert more water during spring run-off and store it in a series of new reservoirs it is planning, including one on Box Creek, which drains the east flank of Mount Elbert.
Editor’s note: Brent Gardner-Smith of Aspen Journalism is collaborating with the Aspen Daily News on coverage of Pitkin County.