Colorado’s Supreme Court has upheld a state water court’s decree in the heavily-contested Burlington Ditch water case — a bellwether decision that limits a suburban Denver water provider’s effort to use the agricultural water rights it owns.
The case reflects the increasingly close scrutiny — driven by scarcity and rising water prices — given to deals that transfer ownership of water from farmers to expanding suburbs.
In the 77-page decision released today, Supreme Court Justice Greg Hobbs wrote that “in order to prevent an unlawful enlargement” of agricultural water rights the municipal entities had purchased, those water rights must be limited to the 200 cubic feet per second historically diverted from the South Platte River and used for irrigation above Barr Lake.
A state water court decree “contains appropriate conditions to prevent injury to other water rights resulting from the change of water rights,” Hobbs wrote.
The case arose from a 2003 deal between the East Cherry Creek Valley Water and Sanitation District (ECCV), the Farmers Reservoir and Irrigation Company (FRICO), Burlington Ditch Land and Reservoir Company, Henrylyn Irrigation District, and the United Water and Sanitation District.
Under the deal, United was to acquire agricultural water from Burlington and FRICO and then petition the water court to convert it for municipal use by ECCV’s suburban clients.
Aurora-based ECCV was keen to obtain new water supplies to sustain the growing suburbs it serves. Like many suburban water suppliers in the Denver area, ECCV has been scrambling to reduce its dependence on finite underground aquifers.
ECCV built a 31-mile pipeline that in 2006 began moving water from Barr Lake to southeast metro households in Centennial and unincorporated Arapahoe County. More than 55,000 people depend on ECCV water.
ECCV plans to move as much as 6,000 acre-feet per year through the pipeline. The decision issued today pertains to about 800 acre-feet of that water.
The decision “won’t affect us at all,” ECCV manager David Kaunisto said. “We have an agreement with United that calls for a certain volume of water to be delivered every year.
“Obviously, we all would have liked to see a better decision,” he said. “You deal with it, and you move on. We are very comfortable that they (United) are going to perform.”
The case consolidated several disputes involved in the water dealings – and resolved an appeal that following a 16-day trial in 2008. The state water court had issued a 154-page order that sharply reduced the historical “consumptive use” of the water rights — a key calculation used in the conversion of agricultural water rights to municipal rights.
“The issue in these cases is what the historical use of water is. That’s a very difficult thing to prove. Old decrees were imprecise. Measurement was imprecise. As the value of water increases, the challenge of finding just how much a person’s or district’s water right might have been in the past is very difficult,” said University of Colorado Law School Dean David Getches, a water law expert and former director of natural resources for the state.
“Water transfers (away from farmers) are the primary way we are going to get water for expanding cities,” Getches said. “So the court has to take its doctrine of historical use and apply it with this kind of modern scrutiny that peels back the imprecision of old decrees and understandings and measurement facilities.”
Bruce Finley: 303-954-1700 or bfinley@denverpost.com
