Concerning the Application of Busk-Ivanhoe, Inc., a Colorado Corporation in Adams, Arapahoe, Chaffee, Douglas…

Summary

The court reversed the water court’s approval of a change application because the water court improperly included unlawfully stored transmountain water and related storage-fee volumes in its historic consumptive-use calculation. It held that storage in the basin of import before the water’s decreed beneficial use is not automatic and was not implied by the decree on this record. The court also held that the period of undecreed municipal use could not be categorically excluded because it may represent unjustified non-use of the decreed irrigation right and may need to be treated as zero-use years. Chief Justice Rice, dissenting in part and concurring in part, would have upheld the eastern-slope storage and related fee volumes but agreed that unjustified non-use should be considered.