District Court, Water Division No. 2, Colorado

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Published Saturday, October 19, 2019

DISTRICT COURT, WATER DIVISION NO. 2, COLORADO

 

TO: ALL INTERESTED PARTIES

 

Pursuant to C.R.S.37-92-302, you are hereby notified that the following case is a portion of the resume of applications and amendments filed and/or ordered published during the month of September 2019, in Water Division No. 2. The Water Judge ordered this case be published in Kiowa County Press in Kiowa County, Colorado.

 

The name(s) and address(es) of applicant(s), description of water rights or conditional water rights and description of ruling sought as reflected by said application, or amendment, are as follows.

 

CASE NO. 2019CW3036 - LOWER ARKANSAS WATER MANAGEMENT ASSOCIATION ("LAWMA") (c/o Donald Higbee, Manager), 310 South 6thStreet, P.O. Box 1161, Lamar, CO 81052, (Please address all pleadings and inquiries regarding this matter to Applicant's attorneys: Richard J. Mehren, Jennifer M. DiLalla, William D. Davidson, John E. Peckler, Moses, Wittemyer, Harrison and Woodruff, P.C., 2595 Canyon Blvd., Suite 300, Boulder, Colorado 80302, 303-443-8782)

Amended Application for Change of Water Rights and Addition of Augmentation and Replacement Supplies to Plan for Augmentation

BENT, CHAFFEE, CROWLEY, EL PASO, FREMONT, KIOWA, LAKE, OTERO, PROWERS, PUEBLO, AND TELLER COUNTIES

2. Overview of application: LAWMA is a non-profit corporation organized for the purposes of replacing depletions caused by the pumping of its members' wells, as required by law, and providing water to its members directly or by means of augmentation and replacement for all manner and types of uses. In 2017, LAWMA acquired 6,080 shares of stock ("Phase I Shares") in the Fort Lyon Canal Company ("FLCC") from Arkansas River Farms, LLC ("ARF"). As described in the letter of intent, see Exhibit A attached to the application. (All exhibits mentioned herein are incorporated by reference and may be inspected at the office of the clerk of this Court.) ("LOI"), LAWMA intends to acquire 1,429 additional shares of FLCC stock ("Phase II Shares") from ARF in 2019.The Phase I Shares and Phase II Shares are referred to collectively in this Application as the "FLCC Shares." In 2018, the City of Colorado Springs, acting through its enterprise, Colorado Springs Utilities ("CS-U"), acquired 2,500 shares of LAWMA common stock from ARF ("CS-U LAWMA Shares"), and LAWMA and CS-U entered into a Water Sharing Agreement under which, as part of an alternative transfer method ("ATM"), LAWMA will use water available to 3,303 of the Phase I Shares ("ATM Shares") to make an allocation to the CS-U LAWMA Shares that will be shared by LAWMA and CS-U consistent with the Water Sharing Agreement. The ATM Shares are a subset of the Phase I Shares. The purposes of this Application are as follows: (i) to change the decreed type and place of use of the water rights associated with the FLCC Shares so that water available to those water rights may be used, both directly and after storage, for augmentation and replacement purposes within LAWMA's various augmentation and replacement plans ("Comprehensive Change"); (ii) to add the water rights changed by the Comprehensive Change to LAWMA's plan for augmentation decreed on March 8, 2007, in Division 2 Case No. 02CW181 ("02CW181 Decree") as a permanent source of augmentation and replacement supply; and (iii) to further change the decreed type and place of use of the water rights associated with the ATM Shares, so that in addition to the changed uses under the Comprehensive Change, water available to those water rights may be used directly, by exchange, and after storage for all beneficial uses within CS-U'sexisting and future service area ("ATM-Limited Change"). In years that CS-U takes delivery of water available under the CS-U LAWMA Shares, CS-U will seek to exchange the fully consumable water upstream into CS-U's municipal system, including without limitation into the storage components of that system. This Application does not seek confirmation of appropriative rights of exchange. 3. Purpose of amendment: The purposes of this amendment to the original application are as follows: (i) to correct the PLSS legal description and the UTM coordinates for the Farm 63 Recharge Site, as required by the Court's Order to File Amended Application entered on August 29, 2019; and (ii) to supplementand correct the original application's descriptions of the water rights owned or controlled by FLCC, as requested by FLCC. 4. Water rights to be changed: The water rights associated with the FLCC Shares are a pro-rata portion of those water rights owned or controlled by FLCC, including without limitation the water rights described in paragraphs 4.1 through 4.6 below ("FLCC Water Rights"). Under the Comprehensive Change, LAWMA seeks to change the water rightsassociated with the 7,509 FLCC Shares, which amount to 7.99% of the 93,989.4166 shares outstanding of the capital stock of the FLCC. Under the ATM-Limited Change, LAWMA seeks an additional change in the water rights associated with the 3,303 ATM Shares, which amount to 3.51% of theoutstanding capital stock of the FLCC. The 3.51% interest representedby theATM Shares is included within and is not in addition to the 7.99% interestrepresented by the FLCC Shares. Ownership of the Phase I Shares (LAWMA)and Phase II Shares (ARF) is evidenced by the FLCC certificates identified on Exhibit 8, which certificates represent LAWMA's and ARF's pro-rata interest inthe water rights, ditches, canals, and other facilities for the delivery and use of water, and all other assets of the FLCC. The ARF LOI attached as Exhibit A authorizes LAWMA to change the Phase II Shares. CS-U does not own any of the FLCC Shares that are the subject of this Application.The decreed locations of the structures associated with the FLCC Water Rights are described in paragraph 5 below and shown on Exhibits C-1, C-2, and G. In accordancewith SS37-92-302(2)(a),C.R.S., Exhibits C-1 and C-2 show the approximate location of the lands historically irrigated with the FLCC Shares ("Historically Irrigated Lands"), and Exhibits D-1 through D-5 summarize records of actual diversions of each water right described in paragraphs 4.1 through 4.6 below, to the extent such records exist. For all water rights described in paragraphs 4.1 through 4.6 below, the pro-rata interest represented bythe ATM Shares is part of and not inaddition to the pro-rata interest represented by the FLCC Shares. 4.1 Direct-flow water rights: The direct-flow water rights decreed to the Fort Lyon Canal in the Adjudication of Priorities of Right to the Use of Water for Irrigation in Water District Number 17, dated April 8, 1905, in the District Court for Bent County ("District 17 General Adjudication") and the pro-rata interest in those water rights being changed in this case are summarized in paragraphs 4.1.1 through 4.1.3 below. 4.1.1 164.64 cubic feet per second ("cfs") from the Arkansas River with an appropriation date of April 15, 1884. Pro-rata interest being changed inthis case: 13.15 cfs (FLCC Shares); 5.79 cfs (ATM Shares). 4.1.2 597.16 cfs from the Arkansas River with an appropriation date of March 1, 1887. Pro-rata interest being changed in this case: 47.71 cfs (FLCC Shares); 20.99 ds(ATM Shares). 4.1.3 171.20 cfs from the Arkansas River with an appropriation date of August 31, 1893. Pro-rata interest being changedin this case: 13.68 cfs (FLCC Shares); 6.02 cfs (ATM Shares). 4.2 Horse Creek Reservoir and Adobe Creek Reservoir: Storage water rights were decreed to Horse Creek Reservoir and Adobe Creek Reservoir by the decree entered by the Bent County District Court in the Adjudication of Priorities of Right to the Use of Waterfor Domestic and Irrigation Purposes in Water District Number 17, Colorado, on February 3, 1927, as modified on November 8, 1928, and allow FLCC to divert from the Arkansas River (via the Fort Lyon Storage Canal) and Horse Creek (via the Horse Creek Feeder Ditch or Supply Canal) for storage in Horse Creek Reservoir, and to divert from the Arkansas River (via the Fort Lyon Storage Canal) and Adobe Creek (via the Adobe Creek Feeder Ditch or Supply Canal) for storage in Adobe Creek Reservoir. The Horse Creek Reservoir and Adobe Creek Reservoir water rights and the pro-rata interest being changedin this case are summarized in Table 1below.

Table 1

Storage Rights - Horse Creek Reservoir and Adobe Creek Reservoir

Water right

Amount, source, and appropriation date

Pro-rata interest being changed - FLCC Shares

Pro rata interest being changed - ATM Shares

Horse Creek Reservoir - Original Construction Original Construction

2,000 cfs - Horse Creek (Aug. 15, 1900)

159.78 cfs

70.28 cfs

840 cfs - Arkansas River (Jan. 25, 1906)

67.1-1 cfs

29.52 cfs

1,466 cfs -Arkansas River (Mar. 1, 1910)

117.12 cfs

51.52 cfs

Total volume: 11,400 acre-feet ("af ')

910.77 af

400.62 af

Horse Creek Reservoir 1st Enlargement

840 cfs - Arkansas River (Jan. 25, 1906)

67.11 cfs

29.52 cfs

5,000 cfs - Horse Creek (Dec. 20, 1907)

399.46 cfs

175.71 cfs

1,466 cfs - Arkansas River (Mar. 1, 1910)

117.12 cfs

51.52 cfs

Total volume : 15,487 af

1,237.29 af

544.25 af

Horse Creek Reservoir 2nd Enlargement

5,000 cfs - Horse Creek (June 12, 1908)

399.46 cfs

175.71 cfs

840 cfs - Arkansas River (June 12, 1908)

67.11cfs

29.52 cfs

1,466 cfs - Arkansas River (Mar. 1, 19'10)

117:12 cfs

51.52 cfs

Total volume: 1,113af

88.92 af

39.11 af

Adobe Creek Reservoir Original Construction

8,631 cfs - Adobe Creek (Jan. 25, 1906)

689.55 cfs

303.31 cfs

840 cfs - Arkansas River (Jan. 25, 1906)

67.11 cfs

29.52 cfs

1,466 cfs - Arkansas River (Mar. 1, 1910)

117.12 cfs

51.52 cfs

Total volume: 61,575 af

4,919.35 af

2,163.88 af

Adobe Creek Reservoir Enlargement

8,631 cfs - Adobe Creek (Dec. 29, 1908)

689.55 cfs

303.31 cfs

840 cfs - Arkansas River (Dec. 29, 1908)

67.11 cfs

29,52 cfs

1,466 cfs - Arkansas River (Mar. 1, 1910)

117.12cfs

51.52 cfs

Total volume: 25,425 af

2,031.25 af

893.49 af

 

4.3 Thurston Reservoir, a/k/a Thurston Lake: The storage water right decreed to Prince Reservoir in the District 17 Original Adjudication, with an appropriation date of August 12, 1889, was conditionally transferred to Thurston Reservoir by the decree entered on November 20, 1972, in Division 2 Case No. W-27 ("W-27 Decree") and made absolute by the decree enteredon January 11, 1980,in Division 2 Case No. 79CW085. This water right is decreed for diversion from the Arkansas River via the Fort Lyon Canal at a rate of 355.2 cfs, for storage of up to 1,515 af. Pro-rata interest being changed in this case: 28.38 cfs and121.04 af (FLCC Shares); 12.48 cfs and 53.24 af (ATM Shares). 4.4 Thurston Pipeline: A direct-flow water right was conditionally decreed to the Thurston Pipeline by the W-27 Decree, made partially absolute by the decree entered on March 4, 1986, in Case No. 83CW119, and made fully absolute by the decree entered on November 15, 2011, in Case No. 10CW069, all in Water DivisionNo. 2. Thurston Pipeline is decreed for diversion of 25 cfs from Thurston Reservoirinto the Fort Lyon Canal, with an appropriation date of July 15, 1969. The source of water is Thurston Lake, a/k/a Thurston Reservoir, with such water accumulated from springsin said lake, seepage flowing into the lake from all sides thereof, waste water from a canal of the FLCC, rainfall, and waste waterflowing in the lake from land of owners adjoining the lake; said water is not tributary to any natural stream of the State of Colorado. Pro-rata interest beingchanged in this case: 2.0 cfs (FLCC Shares); 0.88 cfs (ATM Shares). 4.5 Subsequent decrees: The water rights described in paragraphs 4.1 through 4.4are the subject of the following subsequent decrees entered by this Court:

Table 2

Subsequent Decrees Affecting FLCC Water Rights

Case number and decree date

Effect

Amount

Source

Pro-rata interest being charged - FLCC Shares

Pro-rata interest being changed - ATM Shares

79CW160 (5/8/1987) 79CW161 (5/8/1987)

Allow use of John Martin Res. ("JMR") as alternate place of storage for Horse Creek Res. and Adobe Creek Res. water rights and use of those rights in JMR for recreation and a permanent pool for fishery and wildlife

5,000 af cumulative under 79CW160, 79CW161, and 80CW51 decrees

Arkansas River

399.46 af

399.46 af

79CW178 (9/1/1987)

Allows diversion of direct-flow water rights at Fort Lyon Storage Canal and storage of same in Horse Creek, Adobe Creek, and Neeskah (Queens) reservoirs

933 cfs

Arkansas River

74.54 cfs

74.54 cfs

84CW179 (11/10/1987)

Winter Water Storage Program

38,160 af of first 100,000 af; 38.16% of all over 103,106 af

Arkansas River

3,048.68 af of first 100,000 af; 3.05% of all over 103,106 af

1,341.03 af of first 100,000 af; first 100,000 af; over 103,106 af

 

4.6 Additional water rights: In addition to its direct-flow and storage water rightsdescribed in paragraphs 4.1through 4.5above, FLCC owns, controls, and /oroperates the water rights and water supply agreements summarized in Table 3 below. LAWMA does not seek to change the water rights associated with water FLCC purchases on the spot market or obtains under the Fryingpan-Arkansas Project; however, LAWMA will use its pro-rata share of such water for all lawful purposes.

Table 3

FLCC - Other Water Rights and Water Supply Agreements

Water right

Case number (Water Div. 2 unless otherwise specified) and decree date

Amount and appropriation date (if applicable)

Source

Use

Pro-rata interest being changed - FLCC Shares

Pro-rata interest being changed - ATM Shares

FLCC's interest in Great Plains Res. storage water right

Decree of Feb. 3, 1927, Bent County Dist. Ct.; 80CW019 (8/19/1983; amended 1/20/1984 and 6/15/1987); 80CW51 (5/8/1987); 89CW076 (9/5/2000)

1,150 cfs (Aug. 1, 1896). Total volume: 5,483 af

Arkansas River

Agricultural irrigation, either directly or after storage; when stored in JMR, use for recreation and a permanent pool for a fishery and wildlife

91.88 cfs 438.05 af

40.41 cfs 192.68 af

JMR Exchange

90CW047 (9/5/2000; amended 10/18/2000)

Abs.: 544 cfs, 15,288.95 af; cond.: 606 cfs, 4,711.05 af (Apr. 24, 1980)

Arkansas Rive

Agricultural irrigation

Abs . 43.46 cfs, 1,221.46 af; cond. 48.41cfs, 376.38 af

None

FLCC JMR. Storage Account

JMR Operating Plan (adopted 4/24/1980; revised 5/10/1984, 12/11/1984, 2/11/2010)

20,000 af

Arkansas River

Agricultural purposes

1,597.84 af

None

Fryingpan Arkansas Project

 

Varies

   

None

None

Water purchased on spot market

 

Varies

   

None

None

 

5. Decreed locations and UTM coordinates of points of diversion andlocations of storage of FLCC Water Rights: All UTM coordinates are NAD 83, Zone 13. LAWMA does not seek any change in the points of diversion for the water rights represented by the FLCC Shares. 5.1 Fort Lyon Canal (WDID1700553): On the north bank of the Arkansas River in the NE1/4 of Section 32,T23S, R55W of the 6th P.M., in Otero County, Colorado. UTM 623873.7 E, 4207975.0 N. 5.2 Fort Lyon Storage Canal (WDID 1700648): A point in thecounty of Crowley, state of Colorado, on the north bank of the Arkansas River, in the NW1/4 SE1/4 of Section 20, T22S, R57W of the 6th P.M., whence the northeast corner of said Section 20 bears north 34deg 10' east 3,770 feet. UTM 604443.0 E, 4219543.8 N. 5.3 Horse Creek Supply Canal (WDID 1700673): Apoint on the east bank of Horse Creek,, on the line between Sections 6 and 7, T22S, R54W of the 6th P.M., whence *the southeast corner of said Section 6 bears south 87deg 4' east 1,972 feet. UTM 631616.9 E, 4224394.0 N. 5.4 HorseCreek Reservoir (WDID 1703545): In T21S and T22S, R53W and R54W of the6th P.M. UTM coordinates for dam: 640267.0 E, 4224384.0 N. 5.5 Adobe Creek Supply Canal (WDID 1700674): On Adobe Creek, at a point in the NW1/4of Section 26, T20S, R53W of the 6th P.M., in Kiowa County, Colorado, whencethe southeast corner of said Section 26 bears south 54deg 52' east 5,013 feet. UTM 647655.0 E, 4238959.0 N. 5.6 Adobe Creek Reservoir (WDID 1703546): In T20S and T21S, R52W of the 6th P.M. UTM coordinates for dam: 650655.6 E,4233245.9 N. 5.7 ThurstonReservoir (WDID 6703882): ln Section 13, T21S,R47, and Section 18, T21S, R46, all west of the 6th P.M., Prowers County,Colorado. UTM 707708.0 E, 4233253.0 N. 5.8 Thurston Pipeline (WDID 6702500): A point whence the section corner common to Sections 7 and 18, T21S, R46 and Sections 12 and 13, T21S, R47, all west of the 6th P.M., ProwersCounty, Colorado, bears north 0deg41' west a distance of 1,680 feet. UTM707247.6 E, 4234032.7 N. 5.9 Neeskah Reservoir (a/k/a Queens Reservoir) (WDID 6703513): In T20S, R46W and R47W of the 6th P.M., Kiowa County, Colorado. UTM 706860.0 E, 4238570.0 N. 5.10 John Martin Reservoir (WDID6703512): The reservoir is located in all or portions of Sections 24, 25, 26, 27, 33, 34, 35, and 36, T22S, R51W; Sections 28, 29, 30, 31, 32, 33, 34, and 35, T22S, R50W; Sections 5, 6, 7, 8, 17, and 18, T23S, R49W; Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, and 30, T23S, R50W; Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 17, and 18, T23S, R51W; and Sections 1, 12,and 13, T23S, R52W; all of the 6th P.M.,in Bent County, Colorado. The damislocated in Sections 5, 8, and 17 of T23S, R49W of the 6th P.M., in Bent County, Colorado. UTM coordinates for dam: 680795.0 E, 4215646.0 N. 5.11 Winter Water Storage Program ("WWSP") structures. FLCC uses the following structures solely for operation of FLCC's interest in the WWSP: 5.11.1 Colorado Canal (WDID 1700540): On the north bank of the Arkansas River in the NE1/4 NE1/4 of Section 10, T21S, R62W, bearing S. 0deg 58' W. 426 feet from theS.W. corner of Section 2, T21S, R62W, in Pueblo County, Colorado. UTM 56024 1.3 E, 4233243.3 N. 5.11.2 Lake Meredith Reservoir (WDID 1403525): In Sections 15, 16, 20, 21, 22, 27, 28, 30, 31, 32, 33, in T21S, R57 W of the 6th P.M., Sections 25, 36, T21S, R57W of the 6th P.M., Section 6 T22S, R57W of the 6th P.M., Section 1 T21S, R57W of the 6th P.M., in Crowley County, Colorado.UTM 609899.2 E, 4222978.1 N. 5.11.3 Lake Henry Reservoir (WDID 1403524):In Sections 31 and 32, T20S, R56W, and Sections 5 and 6, T21S, R56W. UTM 612088.0 E, 4234275.1 N. 5.11.4 Holbrook Canal (WDID 1700554): Onthe north bank of the Arkansas River in the NE1/4 of Section 24, T22S, R58W of the 6thP.M. in Otero County, Colorado. UTM 601202.8 E, 4220086.1 N. 5.11.5 Holbrook Reservoir No. 1 (WDID 1703511): In Sections ,5, 6, 7, and 8, T23S, R55W of the 6th P.M. And in Section 1 and 12, T23S, R56W of the 6th P.M., Otero County, Colorado. UTM 62261q.2 E, 4213416.8 N. 5.11.6 Dye LakeReservoir (WDID 1703510): In Sections 4 and 5, T23S, R56W of the 6th P.M. And Sections 32 and 33, T22S, R56W of the 6th P.M., in Otero County, Colorado. UTM 614523.9 E, 4215331.6 N. 5.11.7 Pueblo Reservoir (WDID 1403526): A point at the intersection of Pueblo Dam axis and the Arkansas River whence the NE corner of Section 36, T20S, R66W of the 6th P.M. bears north 61deg21'20" east a distance of 2,511.05 feet. Said reservoir inundates all or portions of Sections 7, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36, T20S, R66W; Sections 1, 2, 3, 4, 5, 9, 10, and 11, T21S, R66W; and Sections 5, 8, 9,13, 14, 15, 16, 22, 23, 24, and 25, T20S, R67W; all of the 6th P.M. UTM coordinates for dam: 524076.0 E, 4235362.0 N. The locations of the above-described structures are shown on Exhibits C-1, C-2, and G. 6. Detailed description of Comprehensive Change: LAWMA will quantify the historical consumptive use of the water rights associated with the FLCC Shares and will determine the amount, timing, and location of return flows resulting from the historical use of those water rights.* 6.1 Comprehensive Change in type of use: LAWMA seeks to change the water rights associated with the FLCC Shares such that they may be used both directly and after storage for the new purposes described in paragraphs 6.1.1 through 6.1.5 below in addition to their currently decreed uses. 6.1.1 Augmentation or replacement of out-of-priority depletions to the Arkansas River or its tributaries caused by the "LAWMA Structures" included in LAWMA's plan for augmentation decreed on March 8, 2007, in Case No. 02CW181, Water Division No. 2, as that plan for augmentation has been expanded and modified by the decrees entered in Case Nos. 05CW52, 08CW18, 10CW85, 10CW91, 12CW37, 13CW3004 , 13CW3065, 14CW3004, 15CW3014, 15CW3067, 16CW3018, 17CW3000, 17CW3001, and 17CW3035, and as it may be expanded or modified in pending Case Nos. 17CW3068, 17CW3069, and 18CW3072 and in other future cases ("Augmentation Plan"); 6.1.2 Augmentation or replacement of out-of-priority depletions caused by the wells included in LAWMA's annual Arkansas River Replacement Plan pursuant to Rule 14 of the Amended Rules and Regulations Governing the Diversion and Use of Tributary Ground Water in the Arkansas River Basin ("Rule 14 Plan"); 6.1.3 Replacement of historical seepage losses and/or return flows under any LAWMA-operated Compact Compliance Plan pursuant to Rule 10 of the Compact Rules Governing Improvements to Surface Water Irrigation Systems in the Arkansas River Basin in Colorado ("Rule 10 Plan"); 6.1.4 Replacement of historical return flows under the decree to be entered in this case, the decrees entered in Case Nos. 02CW181, 05CW52, 10CW85, and 15CW3067 ("Previous LAWMA Change Decrees"), and any future change of water rights decree that LAWMA obtains in this Court. 6.1.5 Provided that LAWMA replaces historical return flows associated with the FLCC Shares as described in paragraph 8 below, LAWMA will fully consume and use to extinction all water available to the FLCC Shares. 6.1.6 The new uses described in paragraphs 6.1.1 through 6.1.5 above are referred to collectively in this Application as "LAWMA's New Uses." Any use of the FLCC Shares for continuing agricultural irrigation purposes will be for the purpose of revegetating the Historically Irrigated Lands. The LAWMA Structures included the Augmentation Plan and the wells included in the Rule 14 Plan generally are used for irrigation; domesticand household purposes; commercial, municipal, and industrial purposes; generation of electric power and power generally; and fire protection, recreation, fish and wildlife preservation and propagation, agricultural uses, livestock watering, aquaculture, replacement of evaporation, maintenance of wetlands, and groundwater recharge. 6.2 Comprehensive Change in place of use: LAWMA seeks: to change the water rights associated with the FLCC Shares such that in addition to potential revegetation use on the Historically Irrigated Lands, they may be put to LAWMA's New Uses at the locations at which LAWMA delivers augmentation or replacement water to the Arkansas River or its tributaries as required by the Augmentation Plan, Rule 14 Plan, any LAWMA-operated Rule 10 Plan, or the Previous LAWMA Change Decrees. 613 Comprehensive Change in places of storage: LAWMA seeks to change the' water rights associated with the FLCC Shares such that they may be put to LAWMA's New Uses both directly and after storage in the locations described in paragraphs 6.3.1 through 6.3.4 below. All UTM coordinates are NAO 83, Zone 13. 6.3.West Farm Gravel Pit (WDID TBD), located in the S1/2 of the SE1/4 of Section 28 and in the NE1/4 and the NE1/4 of the NW1/4 of Section 33, T22S, R46W of the 6th P.M., in Prowers, County, Colorado, as shown on Exhibit E. UTM 711697.4 E, 4219729.0 N. 6.3.2 Farm110 Recharge Site (WDID TBD), located in the NE1/4 SE1/4 of Section 11, T21S, R48W of the 6th P.M. in Bent County, Colorado, as shown on Exhibit E. UTM 695662.5 E, 4234446.6 N. The Farm 110 Recharge Site will be operated both as a recharge pond augmentation station and as a storage vessel under this Application. 6.3.3 Farm 114 Recharge Site (WDID TBD), located in the NE1/4 NW1/4 of Section 11, T21S, R48W of the 6th P.M. in Bent County, Colorado, as shown on Exhibit E. UTM 695084.4 E,4235009.6 N. The Farm 114 Recharge Site will be operated both as a recharge pond augmentation station and as a storage vessel under this Application. 6.3.4 The following recharge sites, which will operate as storage vessels solely to the extent that the infiltration rate may result in water residing in the ponds for more than 72 hours before it is recharged, and the locations of which are shown on Exhibit E: (1) Farm60 Recharge Site (WDID 1701Q01), located in the NW1/4 NW1/4 of Section 14, T23S, R54W of the 6th P.M., in Otero County, Colorado. UTM 637628.5 E, 4212801.7 N. (2) Farm 63 Recharge Site (WDID TBD), located in the NE1/4 SE1/4 of Section 10, T22S,R47W of the 6th P.M., in Prowers County, Colorado. UTM 704013.5 E, 4224976.0 N. (3) Farm 65 Recharge Site (WDID 6701009), located in the SW1/4 SE1/4 of Section 25, T22S, R49W of the 6th P.M., in Bent County, Colorado. UTM 687650.9 E, 4219293.4 N. (4) Farm 132/133 Recharge Site (WDID6701005), located in the NW1/4 NW1/4 of Section 36, T22S, R50W of the 6th P.M., in Bent County, Colorado. UTM 678319.1 E, 4217322.9 N. 6.3.5 Accounts available in John Martin Reservoir for storage of the FLCC Shares, including without limitation the Offset Account. The location of John Martin Reservoir is described in paragraph 5.10 above and shown on Exhibit E. 7. Detailed Description of ATM-Limited Change: 7.1 ATM Limited Change in type of use: LAWMA seeks to change the water rights associated with the ATM Shares such that they may be used, reused, successively used, and used to extinction by CS-U directly, after storage, and/or by exchange, using any structure now existing or hereafter constructed that is lawfully available for use by CS-U, for all beneficial uses, including without limitation municipal, industrial, domestic, agricultural, commercial, irrigation, stock watering, fire protection, recreation, in-reservoir fish and wildlife preservation and propagation, recharge of aquifers, exchange purposes, replacement of historical return flows, replacement of depletions resulting from the use of water from other sources, relinquishment pursuant to SS 37-90-137(9)(6), C.R.S., and all augmentation purposes ("CS-U's New Uses"). CS-U's New Uses under the ATM-Limited Change are in addition to and not in place of the New Uses under the Comprehensive Change. In addition to the structures identifiedin paragraphs 5.5, 5.11, and 5.16 above, CS-U may store water attributable to the ATM Shares in or exchange such water to the structures identified in Exhibit H, and any other point of storage or diversion now existing or hereafter constructed and available for use by CS-U. Any such exchange will be made pursuant to the decrees entered in Division 2 Case Nos. 05CW96 and 07CW122, the decree pending in Division 2 Case No. 16CW3056, or future administratively or judicially approved plans for substitution and exchange. 7.2 ATM-Limited Change in placeof use: LAWMA seeks to change the water rights associated with the ATM Shares such that they may be used for CS-U's New Uses within CS-U's service area as it exists now and as it may exist in the future, including any areas served by CS-U by extraterritorial agreement or other contract; for replacement of depletions on Fountain Creek accruing between the City of Colorado Springs and the confluence of Fountain Creek and the Arkansas River; and in any location within the Arkansas River Basin for which water may be delivered by CS-U for augmentation, sale, or lease, and for such other uses as may be allowed by law. CS-U's current service area is located as shown on Exhibit F. The new place of use under the ATM-Limited Change is in addition to and not in place of the new places of use under the Comprehensive Change, as described in paragraph 6.2 above. 8. Replacement of historical returnflows: LAWMA will replace to the Arkansas River system, in the amounts, times, andlocations necessary to prevent injury to Colorado water rights and violation of the Arkansas River Compact, the historical return flows associated with the FLCC Shares. LAWMA will replace the historical return flows with water available to the FLCC Shares or with any other fully consumable water legally available to LAWMA for that purpose. 9. FLCC approvals: As required by the FLCC's Bylaws, LAWMA applied to the FLCC Board of Directors ("FLCC Board") for approval of LAWMA's proposed changes of use of the FLCC Shares and additional changes of use of the ATM Shares. With respect to the Comprehensive Change, the FLCC Board issued its Amended Decision on December 20, 2016 ("2016 FLCC Approval"), approving the proposed changes of use and authorizing LAWMA's filing of this Application on the terms and conditions given in that decision. With respect to the ATM-Limited Change, the FLCC Board issued its Decision on November 14, 2018 ("2018 FLCC Approval"), approving the additional proposed changes of use and authorizing LAWMA's filing of this Application on the terms and conditions given in that decision. A copy of the 2016 FLCC Approval is attached as Exhibit I, and a copy of the 2018 FLCC Approval is attached as Exhibit J. In both FLCC approvals, the FLCC Board reserved the right to participate in this case as an objector, consistent with the approvals.10. Revegetation terms and conditions of Bent County 1041 Permit: In compliance with the Bent County 1041 Permit issued to LAWMA and ARF on April 11, 2018, nunc pro tunc April 3, 2018, LAWMA requests that the revegetation terms and conditions included in Exhibit C to that permit be incorporated into any decree entered in this case. Exhibit C to the Bent County 1041 Permit is attached as ExhibitK. 11. Addition of FLCC Shares to Augmentation Plan: Paragraph 41.A of the 02CW181 Decree provides that LAWMA may add permanent sources of augmentation and replacement water to the Augmentation Plan by filing an application with this Court. By this Application, LAWMA seeks to add the FLCC Shares to the Augmentation Plan as a permanent source of augmentation and replacement water. 12. Augmentation stations: The maps attached as Exhibits L-1and L-2 show the locations of the augmentation stations that LAWMA will use to measure water delivered to the FLCC Shares for return to the river. LAWMA may develop other augmentation stations for that purpose and seeks the court's approval to add such new augmentation stations under the decree to be entered in this case. 13. Names and addresses of owners orreputed owners of land upon which any new diversion or storage structure,or modification to any existing diversion or storage structure, is or will be constructed or upon which water is or will bestored, including any modification to the existing storage pool: 13.1 West Farm Gravel Pit: GP Aggregates, LLC, c/o Karl Nyquist, 7991 Shaffer Pkwy., Ste. 200, Littleton, CO 80127. 13.2 Horse Creek Reservoir: U.S. Department of Interior, Bureau of Land Management, Colorado State Office, 2850 Youngfield St., Lakewood, CO 80215; Colorado State Land Board, 1127 Sherman St., Ste. 300, Denver, CO80203; Timberlake Grazing Association, P.O. Box 151 Cheraw, CO 81030; FLCC, 750 Bent Ave., Las Animas, CO, 81054; Minnie Glasnapp et al, c/o John F. Knipp, 709 St. Andrews, Wichita, KS 67230. 13.3 Adobe Creek Reservoir: U.S. Department of Interior, Bureau of Land Management, Colorado State Office, 2850 Youngfield St., Lakewood, CO 80215; Colorado State Land Board, 1127Sherman St., Ste. 300, Denver,CO 80?03; Wyckoff Land & Cattle, 9990 Hwy. 96, Arlington, CO 81021; Beverly D. Spady, 517 Belleview, La Junta, CO 81050; CW Loveridge, 710 Vandehei Ave., Cheyenne, WY 82009; Elda E. Stavely, 200 Main St., Haswell, CO 81045, VB Ballard / Southern Family LLC, 2001 NorthMadison, Hutchinson, KS 67502; Leonard Ballard Schiff Trust & Ellen M. Schiff, P.O. Box 913, Hutchinson, KS 67504; Jeris A. Danielson, 517 Belleview Ave., La Junta, CO 81050; Michael Spady, 14265 Hwy. 50, Las Animas, CO 81054; William R. Dunlap, 1002 N Lyon, Santa Ana, CA 92701; J. B. Dean et al, c/o Mary Dean, 2 Westwood Rd., Santa Cruz, CA 95060; Bryan Borgus, 5659 S Scarlet Oak Ter., Homosassa Springs, FL 34446; Eldon Borgus, 203 Portageville Rd., Hunt, NY 14846; Mark R. Borgus, 970 Savage Rd., Churchville, NY 14428; Craig R. Borgus, 337 6th Way, Interlachen, FL 32148; Todd Borgus, 67 Stone Hill Ln., North Ferrisburgh, VT 05473; Glenda Chemelli, P.O. Box 418, Homosassa Springs, FL 34447; Charlotte Terrell et al, c/o Cheryl A. Griffith, 3506 Cardinal Dr. SW, Warren, OH 44481. 13.4 Thurston Reservoir: FLCC, 750 Bent Ave., Las Animas, CO 81054. 13.5 Neeskah (Queens) Reservoir: U.S. Department of Interior, Bureau of Land Management, Colorado State Office, 2850 Youngfield St., Lakewood, CO 80215; Colorado Parks and Wildlife, 1313 Sherman St., 6th Floor, Denver, CO 80203; Colorado State Land Board, 1127 Sherman St., Ste. 300, Denver, CO 80203; Ellenberger Limited Partnership LLLP, 36106 CR 11.5, Lamar, CO 81052; Gagnon Family Limited Partnership,325 Ivanhoe St., Denver, CO 80220; Greg S. Spitzer, P.O. Box 246, Wiley, CO81092; Wootten Investments LTD, P.O. Box 1258, Lamar, CO 81052. 13.6 Pueblo Reservoir: U.S. Department of Interior, Bureau of Reclamation, Great Plains Region, P.O. Box 36900, Billings, MT 59107-6900. 13.7 John Martin Reservoir: U.S. Army Corps of Engineers, Reservoir Manager, 29955 County Road 25.75, Hasty, CO 81044; Caddoa Sands LLC, 2010 Fox Mountain Point, Colorado Springs, CO 80906. 13.8 Recharge Sites described in paragraphs 6.3.2, 6.3.3, and 6.3.4: ARF, 1530 16th St., Suite 300, Denver, CO 80202. 13.9 Structures identified in Exhibit H: 13.9.1 Structures identified in Exhibit H paragraphs A-K: The City of Colorado Springs, 30 S. Nevada Ave., Colorado Springs, CO80903. 13.9.2 Structures identified in Exhibit H paragraphs L-N: U.S. Department of Interior, Bureau of Reclamation, Great Plains Region, P.O.Box 36900, Billings, MT 59107-6900. 13.9.3 Structures identified in Exhibit H paragraphs O and P: The City of Colorado Springs, '30 S. Nevada Ave.,Colorado Springs, CO 80903; and the City of Aurora, 15151 E. Alameda Pkwy.,Aurora, CO 80012. 13.9.4 Structure identified in Exhibit H paragraph Q: Lake Meredith Reservoir Company, P.O. Box 8, Ordway, CO 81063. 13.9.5 Structure identified in Exhibit H paragraph R: City of Pueblo, 1 City Hall Place, Pueblo, CO 81003; U.S. Bureau of Land Management, Royal Gorge Field Office, 3028 East Main St., Canon City, CO 81212; United States Forest Service, Pike and San Isabel National Forest, 2849 Kachina Dr., Pueblo, CO 81008; and Circle A of Colorado, LLC, 33 N. Central Ave., Phoenix, AZ 85004. 13.9.6 Structuresidentifiedin Exhibit H paragraphs S, Y, and CC: Holbrook Mutual Irrigating Company, P.O. Box 34, Cheraw, CO 81030; William Stewart Carle, 3 Mirada Rd., Colorado Springs, CO 80906; State of Colorado, Colorado Attorney General, Colorado Department of Law, Ralph L. Carr Judicial Building, 1300 Broadway, 10th Floor, Denver, CO 80203; Holbrook Drainage District, P.O. Box 228, La Junta, CO 81050; Colorado Water Protective and Development Association, 1220 E. 3rd St., La Junta, CO 81050; Dale L. and Muriel M. McClelland, 14102 E. Linvale Pl., Apt. 112, Aurora,CO 80014-3710; Larry N. and Nancy A. McElroy, P.O. Box 471, Swink, CO 81077. 13.9.7 Structures identifiedin Exhibit H paragraphs T and X: Holbrook Mutual Irrigating Company, P.O. Box 34, Cheraw, CO 81030; Quarter Circle LT, Inc., 2475 Ln. 16, Ordway, CO 81063; Raymond E. and Frances A. Carter, 1724B County Rd. HH.50, Rocky Ford, CO 81067; Frank Minor Blackford, P.O. Box 293, La Junta, CO 81050. 13.9.8 Structure identified in Exhibit H paragraph U: Steven L. Fossel, 708 Soda Creek Dr., Evergreen, CO 80439; Glenda L. Wright, 1521 State Hwy. 209, Boone, CO 81025-9735; Timothy J. Sigler and Vestal V. Sigler, 2660 Nepesta Rd, Fowler, CO 81039-9619. 13.9.9 Structure identified in Exhibit H paragraph V: Martin Marietta Materials, Inc., P.O. Box 8040, Ft. Wayne, IN 46898-8040. 13.9.10 Structure identified in Exhibit H paragraph W: Colorado Canal Company,331 Main St, Ordway, CO 81063. 13.9.11 Structure identified in Exhibit Hparagraph Z: James H. and Mary E. Kirkland, P.O. Box 354, Rye, CO 81069. 13.9.12 Structure identified in Exhibit H paragraph AA: Lake Henry Reservoir Company, 331 Main St., Ordway, CO 81063. 13.9.13 Structure identified in Exhibit H paragraph BB: Lake Meredith Reservoir Company, 331 Main St., Ordway, CO 81063. 13.9.14 Structure identified in Exhibit H paragraph DD: Stonewall Springs Quarry, LLC, 3707 Parkmoor Village Dr., Ste 103, Colorado Springs, CO 80917. WHEREFORE, LAWMA respectfully requests that this Court enter a decree approving this Amended Application for Change of Water Rights and Addition of Augmentation and Replacement Supplies to Plan for Augmentation, and granting all such other and further relief, whether legal or equitable, as the Court may determine necessary or desirable.

 

THE WATER RIGHTS CLAIMED BY THE FOREGOING APPLICATION(S) MAY AFFECT IN PRIORITY ANY WATER RIGHTS CLAIMED OR HERETOFORE ADJUDICATED WITHIN THIS DIVISION AND OWNERS OF AFFECTED RIGHTS MUST APPEAR TO OBJECT AND PROTEST WITHIN THE TIME PROVIDED BY STATUTE, OR BE FOREVER BARRED.

 

YOU ARE HEREBY NOTIFIED that: any party who wishes to oppose an application, or application as amended, may file with the Water Clerk a verified statement of opposition setting forth facts as to why the application should not be granted, or why it should be granted only in part or on certain conditions, such statement of opposition must be filed by the last day of November 2019, (forms available at Clerk's office or at www.courts.state.co.us, must be served on parties and certificate of service must be completed; filing fee $192.00). The foregoing are resumes and the entire application, amendments, exhibits, maps and any other attachments filed in each case may be examined in the office of the Clerk for Water Division No. 2, at the address shown below.

 

Witness my hand and the seal of this Court this 15th day of October 2019.

 

/s/ Michele M. Santistevan

Michele M. Santistevan, Clerk District Court Water Div.2

501 N. Elizabeth Street, Suite 116

Pueblo, CO 81003

(719) 404-8832

 

(Court seal)

Published October 25, 2019

In The Kiowa County Press

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