December 2016: Summaries of Published Opinions, 0217 COBJ, Vol. 46 No. 2 Pg. 119
Colorado Supreme Court
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December 5, 2016
2016 CO 75. No. 14SA303. Grand Valley Water Users Ass'n v. Busk-Ivanhoe, Inc. Change of Water Right Application-Historic Consumptive Use Analysis-Transmountain Diversion.
This appeal from the water court in Water Division 2 concerns certain rulings relevant to the historic consumptive use quantification of transmountain water rights that are the subject of a change application The Supreme Court held that the water court erred when it concluded that storage of the water rights on the eastern slope prior to use for their decreed purpose was lawful. The Court concluded that the right to store water in the basin of import prior to use is not an automatic incident of transmountain water rights, but rather, must be reflected, or at least implied, in the decree. Here, the decree is silent with respect to storage of the water on the eastern slope prior to use for supplemental irrigation and, on the facts of this case, the record does not support the water court's finding of an implied right in the decree for such storage. To the extent that unlawful water storage on the eastern slope expanded the decreed rights, such amounts cannot be included in the quantification of those rights.
Because storage of the subject water rights in the basin of import prior to use was unlawful, the water court erred in including the volumes of exported water paid as rental fees for storage on the eastern slope in its historic consumptive use quantification of the water rights.
Finally, the water court erred in concluding that it was required to exclude the 22 years of undecreed municipal use of the subject water rights from the representative study period. The undecreed use did not represent...
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