08-05-2010 MEMO RE PROPOSED AGREEMENT FOR 06CW264 AND 07CW225 08-05-201140 Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Managers✓
Sally Vecchio, Asst. Town Manager, Director of Community Development
From: Justin Hildreth, P.E., Town Engineer it
Date: August 5, 2010
Re: Proposed Stipulation and Agreement for. Water Court Case Nos. 06CW264 and 07CW225 (Town of
Minturn and Ginn /Battle Mountain Applications for Conditional Surface and Water Storage Rights)
Summary: Previously, the Town of Avon (TOA) entered the above mentioned water court cases as an opposer but
later agreed to let the Eagle River Water and Sanitation District ( ERWSD) and the Upper Eagle Regional Water
Authority ( UERWA) take the lead in negotiating a settlement. The ERWSD and the UERWA settled their claims several
months ago regarding these cases with the Town of Minturn and Battle Mountain entities. Since that time, Jay
Montgomery, the Town's water attorney, has negotiated agreements for the cases on behalf of the TOA. Jay
Montgomery is recommending that the TOA agree to the attached stipulation and agreements for water court case
Nos. 06CW264 and 07CW225.
Recommendation: Approve the Stipulation and Agreement, Town of Avon Opposition to Case No. 06CW264 and Case
No. 07CW225 (Town of Minturn and Ginn /Battle Mountain Applications for Conditional Surface and Water Storage
Rights).
Proposed Motion: Move to Approve the Stipulation and Agreement, Town of Avon Opposition to Case No.
•06CW264 and Case No. 07CW225 (Town of Minturn and Ginn /Battle Mountain Applications for Conditional Surface
and Water Storage Rights).
Attachment A — Stipulation and Agreement, Town of Avon Opposition to Case No. 06CW264 (Town of Minturn and
Ginn /Battle Mountain entities application for conditional surface rights and water storage rights)
Attachment B - Stipulation and Agreement, Town of Avon Opposition to Case No. 07CW225 (Town of Minturn and
Ginn /Battle Mountain entities application for conditional surface rights and water storage rights)
•
ATTACHMENT A.
Provided for settlement negotiations
Subject to Rule 408 - Colorado Rules of Evidence
DISTRICT COURT, GARFIELD COUNTY, COLORADO
WATER DIVISION NO. 5
Garfield County Courthouse
109 Eighth Street, Suite 104
Glenwood Springs, CO 81601 -3303
CONCERNING THE APPLICATION FOR WATER
RIGHTS OF:
Applicants: Ginn Battle South, LLC, Ginn Battle North,
LLC, Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle
One A, LLC and Ginn Development Company, LLC
In Eagle County, Colorado
♦COURT USE ONLY
Attorneys for Applicants:
Bennett W. Raley, #13429
Lisa M. Thompson, #35923
Case No.: 06CW264
Trout, Raley, Montano, Witwer & Freeman, P.C.
1120 Lincoln Street, Suite 1600
Denver, Colorado 80203
Telephone: (303) 861 -1963
Facsimile: (303) 832 -4465
Email: bwraley_@mac.com
Ithompson@troutlaw.com
PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,
JUDGMENT AND DECREE IN CASE NO. 06CW264
This matter comes before the Court upon the Application by Ginn Battle South, LLC,
Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC ; and,
Ginn Development Company, LLC (collectively "Applicants" or "Battle Mountain Entities ") for
conditional surface water rights and water storage rights. Having considered the Application and
other evidence, and being fully advised in this matter, the Court finds and rules as follows:
I. FINDINGS OF FACT
Name and address of the Applicants:
is
•
Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP;
Ginn -LA Battle One A, LLC. and, Ginn Development Company, LLC
P.O Box 56 •
06CW264 Ginn Proposed Decree
Version: 711612010
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
• Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 2 of 12
164 Railroad Ave., Suite 150
Minturn, CO 81645
2. The above captioned Application for Conditional Surface Rights and Water Storage
Rights was filed on December 28, 2006, and amended on October 3, 2007 and December 19,
2007 (together, the "Application "). The Application was consolidated on September 28, 2009
with the Application for New Water Rights, for Approval of Plan for Augmentation Including
Exchange, and for Conditional Appropriative Rights of Exchange filed by the Town of Minturn
( "Minturn ") on December 20, 2007 in Case No. 07CW225.
3. The Application was properly published in the water resume for Water Division No. 5.
Timely and adequate notice of the filing of this Application was given as required by law. The
Court has jurisdiction over the subject matter of this Application and over all of the parties in this
case.
4. None of the water rights or sources thereof involved in this Application are located within
a designated ground water basin.
5. The following Objectors filed timely Statements of Opposition or motions to intervene to
the Application: Homestake Partners: the Cities of Aurora and Colorado Springs acting through
• the Homestake Steering Committee, Eagle River Water & Sanitation District, Upper Eagle
Regional Water Authority, Eagle Park Reservoir Company, Vail Associates, Inc., Colorado
Water Conservation Board, Town of Avon, Town of Minturn, Eagle County Board of County
Commissioners, Town of Gypsum, Colorado River Water Conservation District, United States of
America c/o U.S.D.A. Forest Service, Battle Mountain Corporation, Battle Mountain Limited
Liability Company, Town of Red Cliff, and the Eagle County School District RE -50.1,
Arrowhead Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan
District, Colorado Division of Wildlife, Eagle -Vail Metropolitan District, Edwards Metropolitan
District, Holland Creek Metropolitan District, Public Service of Colorado, Red Sky Metropolitan
District, Sensible Housing Company, Inc., State and Division Engineers, and State Board of
Land Commissioners. No other Statements of Opposition were filed, and the time for filing such
statements has expired.
•
6. Battle Mountain Entities have reached stipulations with the following parties for entry of
the decree herein: Town of Minturn, Arrowhead Metropolitan District, Beaver Creek
Metropolitan District, Berry Creek Metropolitan District, Eagle Park Reservoir Company, Eagle
River Water & Sanitation District, Eagle -Vail Metropolitan District, Edwards Metropolitan
District, Holland Creek Metropolitan District, Red Sky Ranch Metropolitan District, Upper
Eagle Regional Water Authority and Vail Associates, Inc.
7. General Description of Application: -The Application in this matter sought confirmation
of conditional surface and water storage water rights. Applicants purchased approximately 5,300
2
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court •
Page 3 of 12
acres in December 2004 ( "Battle Mountain Property "). Approximately 4,300 acres of the Battle
Mountain Property was subsequently annexed into the Town of Minturn.
A. The conditional surface water rights and water storage rights listed below are each
component parts of an integrated water supply system for the Battle Mountain Project.
The place of use for the conditional water rights is the existing and future water service
area of Minturn, which necessarily includes without limitation, the existing or future
annexed portion of the Battle Mountain Property. A map showing all points of diversion
and places of storage is attached as Exhibit A hereto and is hereby incorporated.
B. Applicants withdrew the application for conditional water rights for the following
points of diversion: Ginn Eagle River Diversion No.1 (near Red Cliff); Ginn Turkey
Creek Diversion; Ginn Willow Creek Diversion No.l; Ginn Willow Creek Diversion
No.2; Bolts Ditch Pumpstation; and Arminda Ditch.
C. Applicants also withdrew the application for the following places of storage:
Cross Creek Reservoir; Battle Mountain Reservoir No. 1; Battle Mountain Reservoir
No.2; Battle Mountain Reservoir No.3; Willow Creek Reservoir No.]; Willow Creek
Reservoir No.2; Turkey Creek Reservoir No.l (Off - Channel); Turkey Creek Reservoir
No.2 (On- Channel); and Highlands Reservoir.
CONDITIONAL SURFACE WATER RIGHTS •
8. Conditional water rights are confirmed for the following points of diversion:
A. Name of Structure: Bolts Ditch Headgate:
i) Legal Description: The decreed point of diversion is located at a point on
Cross Creek from whence the SW corner of Section 35, Township 5
South, Range 81 West of the 6th P.M. bears North 28 degrees West 6,350
feet. The GPS coordinates for the point of diversion have been confirmed
to be Lat 39.550483 N, Long 106.421317 W. In the future, reference to
the GPS coordinates shall be the applicable legal description.
ii) Source: Cross Creek, a tributary of the Eagle River.
iii) Date of initiation of appropriation: December 28, 2006
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application. •
3
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
• Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 4 of 12
V) Date water applied to beneficial use: Not applicable, conditional water
rights.
vi) Amount: 30 cfs, conditional.
B. Name of Structure: Minturn Water System Ditch:
i) Legal Description: an existing intake located on the bank of Cross Creek
from whence the section corner common to Sections 35 and 36 of
Township 5 South, Range 81 West of the 6th P.M. Eagle County,
Colorado, bears North 38° 43' 20" East 2,531.38 feet.
ii) Source: Cross Creek, a tributary of the Eagle River.
iii) Date of initiation of appropriation: December 28, 2006
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent' sufficient to
put third parties on notice, including but not limited to: site investigations,
• engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application.
V) Date water applied to beneficial use: Not applicable, conditional water
rights.
vi) Amount: 30 cfs, conditional.
C. Name of Structure: Ginn Eagle River Diversion No. 2 (near Bolts Lake):
i) Legal Description: a proposed diversion to be located on or adjacent to the
Eagle River in an unsurveyed portion of Eagle County that, when
surveyed, will likely be in the NE 1/4 of NE 1/4 of Section 11 of
Township 6 South, Range 81 West, of the 6th P.M. Eagle County,
Colorado, at a point 5465 feet West of the line common to Range 80 and
81 West, and 7265 feet South of the line common to Townships 5 and 6
South.
ii) Source: Eagle River.
iii) Date of initiation of appropriation: October 13, 2006
4
1]
E.
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court •
Page 5 of 12
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application.
V) Date water applied to beneficial use: Not applicable, conditional water
rights.
vi) Amount: 50 cfs, conditional.
Name of Structure: Ginn Eagle River Diversion No. 3 (near Bolts Lake):
i) Legal Description: a proposed diversion to be located on or adjacent to the
Eagle River in an unsurveyed portion of Eagle County that, when
surveyed, will likely be in the NW 1/4 of SW 1/4 of Section 1 of
Township 6 South, Range 81 West, of the 6th P.M. Eagle County,
Colorado, at a point 4000 feet from the North section line and 4465 feet
from the East section line.
ii) Source: Eagle River. •
iii) Date of initiation of appropriation: October 13, 2006.
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application.
V) Date water applied to beneficial use: Not applicable, conditional water
rights.
vi) Amount: 50 cfs, conditional.
Name of Structure: Minturn Water System Ditch Diversion Structure No. 2:
i) Legal Description: The Minturn Water System Ditch diverts water from
the left (west) bank of Cross Creek at a point whence the section corner
common to Sections 35 and 36, Township 5 South, Range 81 West, 6th
P.M. bears North 38° 43' 20" East a distance of 2,531.38 feet. Applicants
proposes to construct an additional diversion structure at this location on •
Wi
C7
•
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 6 of 12
the right (east) bank of Cross Creek at a point approximately 9,748 feet
west of the line common to Range 80 and 81 West and 1,967 feet South of
the line common to Townships 5 and 6 South of the 6th P.M.
ii) Source: Cross Creek, tributary to Eagle River.
iii) Date of initiation of appropriation: December 19, 2007
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application.
V) Date water applied to beneficial use: Not applicable, conditional water
rights.
vi) Amount: 30 cfs, conditional.
F. Name of Structure: Maloit Park Diversion Structure:
i) Legal Description: A diversion structure to be located within 500 feet
upstream or downstream of a point on the right bank of Cross Creek that is
approximately 9,131 feet west of the line common to Range 80 and 81
West and 1,238 feet south of the line common to Townships 5 and 6 South
of the 6th P.M in Eagle County.
ii) Source: Cross Creek, tributary to Eagle River.
iii) Date of initiation of appropriation: December 19, 2007.
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application.
V) Date water applied to beneficial use: Not applicable, conditional water
rights.
vi) Amount: 30 cfs, conditional.
rel
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court •
Page 7 of 12
G. Name of Structure: Lower Cross Creek Diversion Structure:
i) Legal Description: A diversion structure to be located within 500 feet
upstream or downstream of a point on the right bank of Cross Creek that is
approximately 357 feet east of the west section line and 93 feet north of
the south section line of Section 36, Township 5 South, Range 81 West of
the 6th P.M in Eagle County.
ii) Source: Cross Creek, tributary to Eagle River.
iii) Date of initiation of appropriation: December 19, 2007
iv) How appropriation was made: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed diversions, posting of
public notice of appropriation signs at or near the proposed diversion
points, adoption of a resolution, and the filing of the Application.
V) Date water applied to beneficial use: Not applicable, conditional water
rights. •
vi) Amount: 50 cfs, conditional.
CONDITIONAL WATER STORAGE RIGHTS
9. A conditional water storage right is confirmed for the following reservoir:
A. Bolts Lake:
i) Legal Description: the existing off - channel reservoir is located in
Homestead Entry Survey No. 40, Homestead Entry No. 021, containing a
portion of the W '/2 of Section 1 and the E %2 of Section 2, Township 6
South, Range 81 West of the 6th P.M. Eagle County, Colorado, and in
Homestead Entry Survey No. 41, Homestead Entry No. 022, containing a
portion of the SW '/4 of Section 1, S '/2 of Section 2, N '/2 of Section 11 and
NW '/4 of Section 12, Township 6 South, Range 81 West of the 6th P.M.,
Eagle County, Colorado. The enlarged Bolts Lake will be located in the E
%2 of Section 2, Township 6 South, Range 81 West and the W '/2 of Section
1, Township 6 South, Range 81 West of the 6th P.M., Eagle County,
Colorado. All section and portions are projected, as this area is
unsurveyed.
•
7
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
• Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 8 of 12
ii) If off - channel reservoir, name and capacity of ditch or ditches used to fill
reservoir and legal description: Water will be diverted at the following
alternate points of diversion and rates of diversion to fill Bolts Lake:
a. Bolts Ditch Headgate: surface water right decreed herein for 30
cfs, conditional. Source: Cross Creek tributary to Eagle River.
b. Minturn Water System Ditch: surface water right decreed herein
for 30 cfs, conditional. Source: Cross Creek tributary to Eagle
River.
C. Ginn Eagle River Diversion No.2 (near'Bolts Lake): surface water
right decreed here for 50 cfs, conditional. Source: Eagle River
tributary to Colorado River.
d. Ginn Eagle River Diversion No.3 (near Bolts Lake): surface water
right decreed herein for 50 cfs, conditional. Source: Eagle River
tributary to Colorado River.
e. Minturn Water System Ditch Diversion Structure No. 2: surface
• water right decreed herein for 30 cfs, conditional. Source: Cross
Creek tributary to Eagle River.
f. Maloit Park Diversion Structure: surface water right decreed herein
for 30 cfs, conditional. Source: Cross Creek tributary to Eagle
River.
g. Lower Cross Creek Diversion Structure: surface water right
decreed herein for 50 cfs, conditional. Source: Cross Creek
tributary to Eagle River.
iii) Date of Appropriation: December 28, 2006 for Applicants' original 100
acre -feet, conditional; December 19, 2007 for the Applicants' enlarged
790 acre -feet, which when combined with the previously decreed 320
acre -feet, conditional for the Town of Minturn (Case No. 96CW324) will
result in a total reservoir capacity of 1,210 acre -feet.
iv) How appropriation was initiated: By formation of requisite intent to
appropriate coupled with actions manifesting such an intent sufficient to
put third parties on notice, including but not limited to: site investigations,
engineering and other work related to the proposed reservoir, posting of
public notice of appropriation signs at or near the proposed reservoir-site,
adoption of a resolution, and the filing of the Application.
8
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court •
Page 9 of 12
V) Date water applied to beneficial use: not applicable, conditional water
right.
vi) Amount: 890 acre -feet, conditional: (100 acre -feet, conditional with an
appropriation date of December 28, 2006 for a right to fill and re -fill in
priority; 790 acre -feet, conditional with an appropriation date of December
19, 2007 for a right to fill and re -fill in priority). The 890 acre -feet
claimed herein combined with the previously decreed 320 acre -feet,
conditional for the Town of Minturn (Case No. 96CW324) will result in a
total reservoir capacity of 1,210 acre -feet.
10. Decreed uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and
habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire
protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement,
substitution and exchange, including use by storage for later release to meet return flow
obligations and for all other beneficial uses including reuse and successive use to extinction.
11. Integrated Water Supply: Bolts Lake and each of the points of diversion listed above are
part of an integrated water supply project. Some or all of these water rights may be dedicated to
the Town of Minturn and used in conjunction with, but not limited to, the plan for augmentation
in Case No. 07CW225. •
12. Water Service to Battle Mountain Project: All Battle Mountain Project water service will
be provided by any of the water rights decreed in Case Nos. 05CW263, 06CW264, and
07CW225 or such other decreed water rights diverted either in priority or pursuant to a court -
approved plan for augmentation and such water rights may be used as sources of supply for the
water service for Battle Mountain Project, subject to the provisions herein and terms and
conditions of the decrees set forth in the above referenced cases.
13. Bolts Lake: Upon construction, Bolts Lake shall be filled to 320 of under the decree in
Case No. 96CW324 when in priority, and filled and refilled when in priority under its decree in
Case No. 06CW264 and unless otherwise specifically augmented, the reservoir levels shall be
reduced to account for evaporation losses. The Bolts Lake water right decreed in Case No.
96CW324 may also be used to provide water service to the Battle Mountain Project.
14. Irrigation and Snowmaking: The Battle Mountain Project will be limited to no more than
50 acres of landscape irrigation demand, and water for snowmaking as available using the water
rights decreed in 06CW264 and 07CW225 (snowmaking will be interruptible if and to the extent
needed to provide water to remainder of development; current estimate is for approx 100 of per
year of snowmaking capacity). No full scale golf (9 or 18 holes) or and any other golf will be
included within 50 acres of landscaping (may be minor putting green etc); provided, however,
that there shall be no irrigation over the CTP other than as required to establish and maintain.
native vegetation, and perform the CERCLA remedial actions. The functional integrity of the
cap shall not be jeopardized by the establishment of native vegetation. 1 •
9
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
• Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 10 of 12
15. Bolts Ditch: Applicants and Minturn agrees that Bolts Lake cannot be filled under the
priority of the Bolts Ditch decreed in Eagle County District Court in Civil Action No. 572, as
amended in Civil Action Nos. 970 and 1344. Unless all depletions are fully augmented, said
Bolts Ditch water right may only be used to maintain adjacent historical wetlands if required by a
federal regulatory agency.
II. CONCLUSIONS OF LAW
16. The foregoing findings of fact are fully incorporated herein.
17. All notices required by law have been properly made, including as required under C.R.S.
§ 37 -92- 302(2) and (3).
18. The Court has jurisdiction over the Application and over all persons or entities who had
standing to appear, even though they did not do so.
19. The Application is complete, in accordance with Colorado law, and covers all applicable
matters required pursuant to the Water Right Determination and Administration Act of 1969,
C.R.S. §§ 37 -92 -101 through -602.
• 20. Applicants have fulfilled all legal requirements for a decree for the subject conditional
water rights, including but not limited to C.R.S. §§ 37 -92 -301, 37 -92 -302 and 37 -92 -305.
21. The Court has given due consideration to the Division Engineer's summary of
consultation. See C.R.S. §37 -92- 302(4). A copy of the summary of consultation was properly
served on all parties to the case.
22. The Court hereby concludes the Applicants have established that water can and will be
diverted and beneficially used under the subject conditional water rights, and that the subject
conditional water rights can and will be completed with diligence and within a reasonable time.
23. The subject conditional water rights are individual components of Applicants' integrated
water supply system, thus in subsequent diligence proceedings work on any one feature of the
conditional water rights shall be considered in finding that reasonable diligence has been shown
in the development for all features of the water project, see C.R.S. § 37- 92- 301(4)(b).
24. The subject Application is in accordance with Colorado law. Applicants have fulfilled all
legal requirements for entry of a decree in this case.
JUDGMENT AND DECREE
25. The foregoing findings of fact and conclusions of law are fully incorporated herein by
• this reference.
10
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court •
Page 11 of 12
26. The conditional water rights described above are hereby confirmed. If the Battle
Mountain Entities desire to maintain the conditional water rights decreed herein, it shall file an
application for a finding of reasonable diligence or to make such rights absolute on or before the
last day of the month and year specified below.
27. The priorities for the conditional water rights confirmed herein were filed in the Court in
the year of 2006 and 2007 as noted above for each conditional water right. These priorities shall
be administered as having been fled in that year, and shall be junior to all priorities filed in
previous years. As between all rights filed in the same calendar year, priorities shall be
determined by historical dates of appropriation and not affected by the date of entry of decree.
28. Nothing in this decree shall be construed to create any right of the Battle Mountain
Entities to utilize land or structures owned by parties other than Battle Mountain Entities for the
diversion, storage, carriage or exchange of water.
29. In connection with the diversion of water under the junior priorities decreed herein, the
following terms and conditions shall apply. In order to satisfy a senior call downstream on the
Eagle River or to satisfy the Colorado Water Conservation Board's water rights on Cross Creek,
decreed in Case No. W -3795, and on the Eagle River, decreed in Case Nos. W -3788, W -3796,
80CW134, 80CW126 and 80CW124 as determined by the Water Commissioner or the Division
Engineer, Applicants agrees to either curtail its diversions, or replace the depletions, in accord •
with a court approved plan for augmentation, in time and amount, upstream from the place where
the depletions impact the river system.
A. All references in this decree to "instream flow" shall be the instream
flows that are decreed to and held by the CWCB.
30. Applicants shall install and maintain such water measuring devices, implement such
accounting procedures, and provide such calculations as may be required by the State or Division
Engineer to administer the terms of this decree. The CWCB shall have access to any such
measuring device(s) at reasonable times in order to make readings therefrom.
31. Applicants shall provide monthly accounting to the Division Engineer on an accounting
form approved by the Division Engineer, which shall include the name of the water right, the
location of the water right, the amount of water diverted or stored, and if augmented pursuant to
a court approved plan for augmentation, the source and location of water for augmentation or
substitution by exchange. Accounting forms acceptable to the Division Engineer will be
maintained and submitted on a monthly basis. Those forms will contain information required by
the Division Engineer and shall be consistent with the accounting forms approved and
maintained in Water Division No. 5 Case No. 07CW225.
•
Consolidated Case Nos. 06CW264 and 07CW225
Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC;
Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC
• Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 12 of 12
32. Upon the sale or transfer of a conditional water right, the transferee shall file with the
water court a notice of transfer pursuant to Rule 9 of the Uniform Local Rules for All State
Water Court Divisions.
33. In the event groundwater is exposed, such ponds will be backfilled so as not to expose
groundwater until such time as (1) a well permit has been obtained for the groundwater pond
pursuant to C.R.S. § 37 -90 -137, or (2) the ponds are lined in accordance with the State
Engineer's guidelines dated August 1999.
Accordingly it is ordered that this judgment and decree shall be filed with the Water
Clerk and shall become effective upon such filing, subject to judicial review pursuant to C.R.S. §
37 -92 -304, as amended.
Further it is ordered that a copy of this judgment and decree shall be filed with the State
Engineer and the Division Engineer for Water Division No. 5.
Done at the City of Colorado, this day of
, 2010.
• THE MONTH FOR FILING AN APPLICATION FOR A FINDING OF
REASONABLE DILIGENCE SHALL BE , 20 .
BY THE COURT:
Thomas W. Ossola
Water Judge
Water Division No. 5
12
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e Proposed in06CW264 Battle Mountain Project
♦ Proposed in07CW2225 Case No. 06CW264 s
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•
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ATTACHMENT B
DISTRICT COURT, GARFIELD COUNTY,
COLORADO
WATER DIVISION NO. 5
Garfield County Courthouse
109 Eighth Street, Suite 104
Glenwood Springs, CO 81601 -3303
CONCERNING THE APPLICATION FOR
WATER RIGHTS OF: Ginn Battle South, LLC,
Ginn Battle North, LLC, Ginn -LA Battle One,
LTD., LLLP, Ginn -LA Battle One A, LLC and
Ginn Development Company, LLC
♦ COURT USE ONLY
Case No.: 06CW264 and
In Eagle County, Colorado
07CW225 (Consolidated)
CONCERNING THE APPLICATION FOR
WATER RIGHTS OF: Town of Minturn
In Eagle, Grand and Pitkin Counties, Colorado
Name: Arthur B. Ferguson, Jr., #6041
Mark E. Hamilton #24585
Address: HOLLAND & HART LLP
600 Main Street, Ste. 104
Aspen, CO 81611 -1991
Telephone: (970) 925 -3416
Facsimile: (970) 925 -9367
E -mail: aferguson @hollandhart.com
mehamilton@hollandhart.com
Name: Meghan N. Winokur, #35973
Kylie J. Crandall #41159
Address: HOLLAND & HART LLP
555 Seventeenth Street, Suite 3200
Post Office Box 8749
Denver, Colorado 80201 -8749
Telephone: (303) 295 -8000
Facsimile: (303) 295 -8261
Email: mwinokur @hollandhart.com
kjcrandall@hollandhart.com
FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF
WATER COURT IN CASE NO. 07CW225
Consolidated Case Nos. 06CW264 and 07CW225 •
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 2
This matter came before the Court upon the Application of the Town of Minturn
( "Applicant" or the "Town ") for new water rights, for approval of a plan for
augmentation including exchange, and for conditional appropriative rights of exchange
(hereinafter, the "Application. ")
The Water Judge referred this Application to the Water Referee for Water
Division No. 5, State of Colorado, in accordance with Article 92 of Chapter 37,
Colorado Revised Statutes 1973, known as the Water Rights Determination and
Administration Act of 1969. By Order entered December 31, 2008, this Application
was rereferred from the Water Referee to the Water Judge. Having considered this
Application and other evidence, and being fully advised in this matter, the Court finds
and rules as follows:
I. FINDINGS OF FACT
Name and address of the Town:
The Town of Minturn
c/o General Counsel •
302 Pine Street
Minturn, CO 81645
2. The Town filed the Application on December 20, 2007. The Application
was consolidated on September 28, 2009 with the Application for Conditional Surface
and Water Storage Rights filed by the Ginn Battle South, LLC, Ginn Battle North, LLC,
Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC and Ginn Battle
Development Company ( "Battle Mountain Entities ") on December 28, 2006, and
amended on October 3, 2007 and December 19, 2007 in Case No. 06CW264.
3. The Application was properly published in the resume for Water Division
No. 5. Timely and adequate notice of the filing of this Application was given as
required by law. The Court has jurisdiction over the subject matter of this Application
and over all of the parties in this case.
4. None of the water rights or sources thereof involved in this Application
are located within a designated ground water basin.
5. The following parties filed Statements of Opposition to the Application
either timely or in connection with a motion to intervene: City of Aurora, Colorado
Water Conservation Board ( "CWCB "), Battle Mountain Limited Liability Company,
Sensible Housing Co., Inc., Battle Mountain Corporation, State Board of Land
•
• Consolidated Case Nos. 06CW264 and 07CW225
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 3
Commissioners, Eagle County Board of County Commissioners, Eagle County School
District RE -50J, Colorado River Water Conservation District ( "River District "), Town
of Red Cliff, Town of Avon, Town of Gypsum, Homestake Partners, Public Service
Company of Colorado, Arrowhead Metropolitan District, Beaver Creek Metropolitan
District, Berry Creek Metropolitan District, Colorado Division of Wildlife and the
Wildlife Commission ( "DOW "), Eagle Park Reservoir Company, Eagle River Water &
Sanitation District ( "ERWSD "), Eagle -Vail Metropolitan District, Edwards
Metropolitan District, State and Division Engineers, Battle Mountain Entities, Holland
Creek Metropolitan District, Red Sky Ranch Metropolitan District, United States Forest
Service, Upper Eagle Regional Water Authority (the "Authority "), and Vail Associates,
Inc. No other statements of opposition were filed, and the time for filing such
statements has expired.
6. Stipulations: The Town has reached stipulations with the following
parties for entry of the decree herein: Ginn Battle South, LLC, Ginn Battle North, LLC,
Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC, Arrowhead
Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan
District, Eagle Park Reservoir Company, ERWSD, Eagle -Vail Metropolitan District,
• Edwards Metropolitan District, Holland Creek Metropolitan District, Red Sky Ranch
Metropolitan District, the Authority and Vail Associates, Inc.
FIRST CLAIM: SURFACE WATER RIGHT
7. Minturn Eagle River Pumpback ( "Pumpback "):
A. Legal description: The Pumpback may divert from any of the
following alternate points of diversion:
i. Eagle River Pumpback: Located within a reach of the Eagle
River within 1000 feet downstream of a point described as located in the SEA /4 of the
SWt /4 of Section 36, Township 5 South, Range 81 West of the 6th P.M., at a point 1,328
feet from the South section line and 2,193 feet from the West section line.
ii. Dowd Junction Pumpback: Located within a reach of the Eagle
River within 1000 feet downstream or upstream of a point described as located in the
NWt /4 of the NWt /4 of Section 22, Township 5 South, Range 81 West of the 6th P.M., at
a point 1,415 feet from the North section line and 2,011 feet from the West section line.
B. Source: Eagle River, tributary to Colorado River.
C. Appropriation Information:
Consolidated Case Nos. 06CW264 and 07CW225 •
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 4
i. Appropriation Date: December 19, 2007.
ii. How Appropriation Was Initiated: By formation of requisite
intent to appropriate coupled with actions manifesting such an intent sufficient to put
third parties on notice, including but not limited to: site investigations and water
supply planning by water resources consultants; development of a water supply master
plan for the Town, based upon the projected future water requirements to serve the
Town at full build -out; posting of appropriation; and filing of the Application.
iii. Date Water Applied to Beneficial Use: N /A.
D. Amount: 12 cubic feet per second ( "cfs "), conditional, from any one
or combination of the Pumpback alternate points of diversion.
E. Use: Aesthetics, piscatorial, recreational, augmentation and exchange,
domestic, irrigation, commercial, industrial, and municipal. The place of use shall be
within the Town's current and anticipated water service area including, without
limitation, the Town's annexed areas and other lands within the Town's 2003 Three
Mile Plan and including, without limitation, those lands that are the subject of the
project known as the Battle Mountain Project. •
i. Nonconsumptive use: Diversions of the Pumpback may be
delivered via a closed pipeline system to the Eagle River above the points of diversion
of the Augmented Water Rights described herein and /or the Eagle River near the Cross
Creek and Eagle River confluence. Such diversions may be used to enhance stream
flows in the Eagle River, including without limitation to ensure that minimum instream
flows decreed by the CWCB on the Eagle River in the reaches where the Town may
divert water are not injured. Augmentation of such nonconsumptive diversions by the
Pumpback is not required.
ii. Consumptive use: Diversions of the Pumpback may also be
placed to beneficial consumptive use directly, or stored in priority or by exchange in
Bolts Lake from Case No. 96CW324 or Case No. 06CW264 described herein for
subsequent release for beneficial consumptive use (including without limitation
domestic, irrigation, commercial, industrial, municipal, augmentation and exchange
uses). To the extent that the depletions from any such consumptive use are out of
priority, then such depletions will be accounted for and augmented under the plan for
augmentation described herein.
iii. Fully consumable return flows: The Pumpback may also divert
any decreed fully consumable (reusable) water, including without limitation any such,..
water made available under contract with the River District or ERWSD. Such
•
• Consolidated Case Nos. 06CW264 and 07CW225
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 5
diversions of fully consumable water may be released for re- diversion by the
Augmented Water Rights, and /or may be diverted into storage directly or by exchange
in any of the storage facilities described herein.
F. DOW Property. The parties acknowledge that one possible alignment
for the Dowd Junction Pumpback may be across DOW property located on the east side
of the Eagle River. Applicant does not have any current authorization from the DOW to
cross such property. Accordingly, in the event that Applicant determines that the most
appropriate alignment for the Pumpback is across the DOW property, it will consult
with and seek appropriate authorization from the DOW which the DOW will process in
accordance with applicable laws, rules, and regulations.
SECOND CLAIM: SURFACE WATER RIGHT
8. Minturn Cross Creek Diversion ( "CC Diversion "):
A. Legal description: The CC Diversion may divert from any of the
following alternate points of diversion:
• i. Minturn Water System Ditch: The existing point of diversion
for the Minturn Water System Ditch is decreed at a point on the Westerly bank of Cross
Creek from whence the section corner common to Sections 35 and 36 of Township 5
South, Range 81 West of the 6th P.M. bears North 3843'20" East a distance of 2531.38
feet
ii. Minturn Water System Ditch Diversion Structure No. 2:
Located on the right (east) bank of Cross Creek at a point approximately 9,748 feet west
of the line common to Range 80 and 81 West and 1,967 feet South of the line common
to Townships 5 and 6 South of the 6th P.M.
iii. Bolts Ditch Headgate: The decreed point of diversion is located
at a point on Cross Creek from whence the SW corner of Section 35, Township 5 South,
Range 81 West of the 6th P.M. bears North 28 degrees West 6,350 feet. The GPS
coordinates for the point of diversion have been confirmed to be Lat 39.550483 N,
Long 106.421317 W. In the future, reference to the GPS coordinates shall be the
applicable legal description.
iv. Maloit Park Diversion Structure: Located within 500 feet
upstream or downstream of a point on the right bank of Cross Creek that is
approximately 9,131 feet west of the line common to Range 80 and 81 West and 1,238
feet south of the line common to Townships 5 and 6 South of the 6th P.M.
Consolidated Case Nos. 06CW264 and 07CW225 •
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 6
v. Lower Cross Creek Diversion Structure: Located within 500
feet upstream or downstream of a point on the right bank of Cross Creek that is
approximately 357 feet east of the West section line and 93 feet north of the South
section line, Township 5 South, Range 81 West of the 6th P.M.
River.
B. Source: Cross Creek, tributary to Eagle River, tributary to Colorado
C. Appropriation information:
i. Appropriation Date: December 19, 2007.
ii. How Appropriation Was Initiated: By formation of requisite
intent to appropriate coupled with actions manifesting such an intent sufficient to put
third parties on notice, including but not limited to: site investigations and water
supply planning by water resources consultants; development of a water supply master
plan for the Town, based upon the projected future water requirements to serve the
Town at full build -out; posting of appropriation; and filing of the Application.
iii. Date Water Applied to Beneficial Use: N /A. •
D. Amount: 12 cfs, conditional, at any one or combination of the
alternate points described above.
E. Use: Aesthetics, piscatorial, recreational, augmentation and exchange,
domestic, irrigation, commercial, industrial, and municipal. Diversions of the CC
Diversion may be placed to beneficial consumptive use directly, or stored in priority or
by exchange in any of the storage facilities described herein for subsequent release for
beneficial consumptive use (including without limitation domestic, irrigation,
commercial, industrial, municipal, augmentation and exchange uses). To the extent that
the depletions from any such consumptive use are out of priority, then such depletions
will be accounted for and augmented under the plan for augmentation described herein.
The place of use shall be within the Town's current and anticipated water service area
including, without limitation, the Town's annexed areas and other lands within the
Town's 2003 Three Mile Plan and including, without limitation, those lands that are the
subject of the project known as the Battle Mountain Project.
THIRD CLAIM: GROUND WATER RIGHT
9. Minturn Well No. 3 Enlargement and Minturn Well No. 4 Enlargement
(collectively, "Minturn Well Nos. 3 and 4 Enlargements "):
is
• Consolidated Case Nos. 06CW264 and 07CW225
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 7
A. Minturn Well No. 3 Enlargement Legal Description: Located in the
NW1 /4 of the NW1/4, Section 2, Township 6 South, Range 81 West of the 6th P.M., at
a point 950 feet from the North line and 1200 feet from the West line. Well No. 3 is
currently in existence and permitted as Well Permit No. 47794 -F.
B. Minturn Well No. 4 Enlargement Legal Description: Located in the
SE1 /4 of the SE1 /4, Section 35, Township 5 South, Range 81 West of the 6th P.M., at a
point 66 feet from the South line and 430 feet from the East line. Well No. 4 is
currently in existence and permitted as Well Permit No. 13700 -F -R.
River.
C. Source: Cross Creek, tributary to Eagle River, tributary to Colorado
D. Appropriation information:
i. Appropriation Date: December 19, 2007.
ii. How Appropriation Was Initiated: By formation of requisite
intent to appropriate coupled with actions manifesting such an intent sufficient to put
• third parties on notice, including but not limited to: site investigations and water
supply planning by water resources consultants; development of a water supply master
plan for the Town, based upon the projected future water requirements to serve the
Town at full build -out; posting of appropriation; and filing of the Application.
iii. Date Water Applied to Beneficial Use: N /A.
E. Amount: 225 gpm, conditional, for each of the Minturn Well Nos. 3
and 4 Enlargements.
F. Use: Aesthetics, piscatorial, recreational, augmentation and exchange,
domestic, irrigation, commercial, industrial, and municipal. Diversions of the Minturn
Well Nos. 3 and 4 Enlargements may be placed to beneficial consumptive use directly,
or stored in priority or by exchange in any of the storage facilities described herein for
subsequent release for beneficial consumptive use (including without limitation
domestic, irrigation, commercial, industrial, municipal, augmentation and exchange
uses). To the extent that the depletions from any such consumptive use are out of
priority, then such depletions will be. accounted for and augmented under the plan for
augmentation described herein. The place of use shall be within the Town's current and
anticipated water service area including, without limitation, the Town's annexed areas
and other lands within the Town's 2003 Three Mile Plan and including, without
limitation, those lands that are the subject of the project known -as the Battle Mountain
Project. Pr
Consolidated Case Nos. 06CW264 and 07CW225 •
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 8
G. Map: A map generally depicting the locations of the water rights
described in the First, Second and Third Claims above is attached as Exhibit A hereto
and is hereby incorporated.
FOURTH CLAIM: FOR APPROVAL OF PLAN FOR AUGMENTATION,
INCLUDING EXCHANGE
10. Introduction: The subject plan for augmentation, including exchange, is
to provide for a long term reliable and dependable source of supply of municipal water
for the Town in addition to the water provided by the Town's senior water rights. The
Minturn Water System Ditch water right decreed in CA 671 on June 5, 1916, at its
original and relocated point of diversion decreed in CA 1137 and CA 1333 and alternate
point of diversion decreed in Case No. 94CW355 (the "Minturn Ditch Water Right ")
together with the Minturn Well Nos. 1 and 2 water rights decreed in W -1100 and W-
1101, with alternate points of diversion decreed in Case No. 05CW262 at Minturn Well
Nos. 3 and 4 and Well Field No. 1 (the "Minturn Well Nos. 1 and 2 Water Rights ") will
be used for the continued municipal service needs of the Town up to an annual
consumptive use of 38 acre feet as provided herein. This plan for augmentation is to
provide the necessary municipal water supplies for a reasonable expectancy of
expanded municipal water service over time. All out of priority depletions of the •
Augmented Water Rights as described below will be augmented in time, place and
amount as provided herein in order to prevent injury to vested water rights.
11. Name of structures to be augmented (collectively referred to herein as
"Augmented Water Rights "):
A. Minturn Eagle River Pumpback ( "Pumpback ") described above,
augmentation for consumptive purposes only.
B. Minturn Cross Creek Diversion ( "CC Diversion ") described above.
C. Minturn Well Nos. 3 and 4 Enlargements described above.
D. Minturn Well Field Nos. 1 and 2 decreed in Case No. 05CW263, Water
Division 5 (collectively, "Minturn Well Fields ").
Division 5):
E. The following water rights decreed in Case No. 06CW264 (Water
i. Bolts Ditch Headgate.
ii. Minturn Water System Ditch (06CW264).
• Consolidated Case Nos. 06CW264 and 07CW225
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 9
iii. Minturn Water System Ditch Diversion Structure No. 2.
iv. Maloit Park Diversion Structure.
v. Lower Cross Creek Diversion Structure.
vi. Ginn Eagle River Diversion Nos. 2 and 3.
These water rights from Case No. 06CW264 are generally depicted on Exhibit A
hereto and incorporated herein.
12. Description of Augmented Water Rights:
A. The descriptions for the Pumpback, CC Diversion, and Minturn Well
Nos. 3 and 4 Enlargements water rights are set forth above.
B. Minturn Well Fields are described and decreed in Case No. 05CW263:
i. Legal description: The Minturn Well Fields are depicted
is generally on Exhibit B hereto and incorporated herein. Portions of the Minturn Well
Fields are in areas where the section lines, township and range have not been mapped
by the United States Geological Survey. Any new wells in the Minturn Well Fields will
be constructed in the alluvium within 100 feet of Cross Creek (Minturn Well Field No.
1) or the Eagle River (Minturn Well Field No. 2) within the following stream reaches,
which are described using the Universal Transverse Mercator ( "UTM ") coordinate
system, NAD83 datum.
(1) Location of Minturn Well Field No. 1: in the alluvium
within 100 feet on either side of a reach of Cross Creek commencing at a point
described as 1,177 feet south and 1,440 feet west of the southwest corner of Section 36,
Township 5 South, Ranch 81 West and continuing downstream along Cross Creek (100
feet on. either side), to a point near the confluence of Cross Creek and the Eagle River
described as 1,174 feet north and 1,965 feet east of the southwest corner of Section 36,
Township 5 South, Range 81 West. Minturn Well Field No. 1 is located in areas where
the Section lines, Township and Range have not been mapped by the United States
Geological Service ( "USGS "). Thus, the location of Well Field No. 1 is described
above in terms of distances from the nearest mapped Section lines on the USGS
Minturn Quadrangle map dated 1987. The Well Field No. 1 may also be described as
beginning at a point with UTM coordinates approximately 378118 Easting and 4380283
Northing, and continuing downstream along Cross Creek to the confluence with the
ty, Eagle River with UTM coordinates approximately 379172 Easting and 4381014
Northing.
Consolidated Case Nos. 06CW264 and 07CW225 •
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 10
(2) Location of Minturn Well Field No. 2: in the alluvium
within 100 feet on either side of a reach of the Eagle River commencing at a point
described as 1,580 feet south and 1,727 feet west of the southeast corner of Section 36,
Township 5 South, Range 81 West and continuing downstream along the Eagle River
(100 feet on either side), to a point 7,325 feet south and 2,677 feet west of the southeast
corner of Section 36, Township 5 South, Range 81 West. Minturn Well Field No. 2 is
located in areas where the Section lines, Township and Range have not been mapped by
the USGS. Thus, the location of Well Field No. 2 is described above in terms of
distances from the nearest mapped Section lines on the USGS Minturn Quadrangle map
dated 1987. The Well Field No. 2 may also be described as beginning at a point with
UTM coordinates approximately 379329 Easting and 4378407 Northing, and continuing
downstream along the Eagle River to a point with UTM coordinates approximately
379652 Easting and 4380103 Northing. .
River.
ii. Source: Ground water tributary to Cross Creek and /or the Eagle
iii. Appropriation date: December 20, 2005. •
iv. Amount: 2.5 cfs, conditional. The Town proposes to develop
only as many wells as are necessary in the Minturn Well Fields for cumulative
maximum diversions of 2.5 cfs under the 2005 priority decreed in Case No. 05CW263.
So long as the Town complies with the terms and conditions of the decree in Case No.
05CW263 and obtains a well permit, amendment of the decree in Case No. 05CW263
will not be required each time a new well location is determined. The Town is entitled
to have as many wells as are necessary to divert a cumulative maximum diversion of 2.5
cfs under the 2005 priority of the underground water right for the Minturn Well Fields,
and to be issued well permits by the State Engineer to construct and use ground water
under the priority of the Minturn Well Fields, so long as the well permit applications
confirm that operation of the wells will be subject to the terms and conditions of,the
decree in Case No. 05CW263.
v. Use: Municipal. The Minturn Well Fields may be used for
municipal purposes consistent with these terms and conditions, including the irrigation
of plants, parks, cemeteries and gardens; provided, however, such water rights may not
be used for snowmaking. Diversions may be used directly or stored within municipal
system storage tanks for subsequent release and use.
C. Bolts Ditch Headgate; described and decreed in Case No. 06CW264:
•
• Consolidated Case Nos. 06CW264 and 07CW225
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 1 1
i. Legal description: See Paragraph 8.A.iii. above.
ii. Source: Cross Creek.
iii. Appropriation date: December 28, 2006.
iv. Amount: 30 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage,
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
D. Minturn Water System Ditch (06CW264); described and decreed in
Case No. 06CW264:
i. Legal description: See Paragraph 8.A.i. above. The Minturn
is Water System Ditch is an alternate point of diversion to the Bolts Ditch Headgate under
the priority to be decreed in Case No. 06CW264.
ii. Source: Cross Creek.
iii. Appropriation date: December 28, 2006.
iv. Amount: 30 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage,
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
E. Minturn Water System Ditch Diversion Structure No. 2 described and
decreed in Case No. 06CW264:
i. Legal description: See Paragraph 8.A.ii. above.
ii. Source: Cross Creek.
iii. Appropriation date: December 19, 2007.
•
Consolidated Case Nos. 06CW264 and 07CW225 •
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iv. Amount: 30 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage,
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
06CW264:
F. Maloit Park Diversion Structure described and decreed in Case No.
i. Legal description: See Paragraph 8.A.iv. above.
ii. Source: Cross Creek.
iii. Appropriation date: December 19, 2007.
iv. Amount: 30 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage, •
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
G. Lower Cross Creek Diversion Structure described and decreed Case
No. 06CW264:
i. Legal description: See Paragraph 8.A.v. above.
ii. Source: Cross Creek.
iii. Appropriation date: December 19, 2007.
iv. Amount: 50 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage,
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
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storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
H. Ginn Eagle River Diversion No. 2 (near Bolts Lake) described and
decreed in Case No. 06CW264:
i. Legal description: A diversion to be located on or adjacent to
the Eagle River in an unsurveyed portion of Eagle County that, when surveyed, will
likely be in the NEt /4 of NEt /4 of Section 11 of Township 6 South, Range 81 West, of the
6th P.M., at a point 5465 West of the line common to Range 80 and 81 West, and 7,265
feet South of the line common to Townships 5 and 6 South.
ii. Source: Eagle River.
iii. Appropriation date: October 13, 2006.
iv. Amount: 50 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage,
• wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
I. Ginn Eagle River Diversion No. 3 (near Bolts Lake) described and
decreed in Case No. 06CW264:
i. Legal description: Located on or adjacent to the Eagle River in
an unsurveyed portion of Eagle County that, when surveyed, will likely be in the NWI /4
of SW' /4 of Section 1 of Township 6 South, Range 81 West, of the 6th P.M., at a point
4,000 feet from the North section line and 4,465 feet from the East section line.
ii. Source: Eagle River.
iii. Appropriation date: October 13, 2006.
iv. Amount: 50 cfs, conditional.
v. Uses: Domestic, municipal, irrigation, snowmaking, storage,
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial;.
aesthetic, augmentation, replacement, substitution and exchange, including use by
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storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
J. The Augmented Water Rights may also divert, by exchange, releases
from storage of the Augmented Water Rights described herein.
13. Names of structures to be used for augmentation (collectively referred to
herein as "Augmentation Water Rights "):
A. Bolts Lake, decreed in Case No. 96CW324, Water Division No. 5.
B. Bolts Lake, decreed in Case No. 06CW264, Water Division No. 5.
The location of the Augmentation Water Rights from the decree in Case
No. 96CW324 and Case No. 06CW264 are generally depicted on Exhibit
C hereto and incorporated herein.
-C. Fully consumable water from the Colorado River supply sources
(Wolford Mountain Reservoir and Ruedi Reservoir) that may be made available
pursuant to a contract with the River District. The Town will enter into an appropriate •
agreement with the River District before such water rights may be utilized under any
decree entered herein.
D. Water from the Eagle Park Reservoir Project or other fully consumable
water rights located in the headwaters of the Eagle River that can be delivered to the
Eagle River at or upstream of the point of any valid senior call against the affected
Augmented Water Rights. The Town has agreed to enter into a lease with ERWSD for
the use of 50 acre feet per year from Eagle Park Reservoir or Homestake Reservoir or
both under terms and conditions set forth therein. The Town's ability to use additional
water from the Eagle Park Reservoir Project has been or will be derived from an
appropriate agreement with an owner of such water rights, including without limitation
the River District or ERWSD. Any water that may be delivered from the Eagle Park
Reservoir Project pursuant to a lease with ERWSD is derived from the Eagle Park
Reservoir or Homestake Reservoir as specifically described below. Any water that may
be delivered from the Eagle Park Reservoir Project pursuant to a contract with the River
District is derived from the River District's Eagle River supply sources as specifically
described below.
14. Description of Augmentation Water Rights:
A. Bolts Lake (decreed in Case No. 96CW324):
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i. Legal description:
(1) Location of dam: Bolts Lake is located in Homestead
Entry Survey No. 40, Homestead Entry No. 021, containing a portion of the WI/2 of
Section 1, and the E' /s of Section 2, Township 6 South, Range 81 West of the 6th P.M.,
and in Homestead Entry Survey No. 41, Homestead Entry No. 022, containing a portion
of the SW' /4 of Section 1, S' /z of Section 2, N' /z of Section 11, and NW' /4 of Section 12,
Township 6 South, Range 81 West of the 6th P.M. All sections and portions of sections
are projected, as this area is unsurveyed.
(2) Legal description of point of diversion: Two alternate
points of diversion decreed for filling of Bolts Lake are as follows:
above.
•
(Water Division 5)).
conditional.
(a) Bolts Ditch Headgate: See above.
(b) Minturn Water System Ditch (96CW324): See
ii. Source: Cross Creek.
iii. Appropriation date: September 14, 1995.
iv. Date of original decree: July 28, 1999 (Case No. 96CW324
v. Amount:
(1) Capacity of Reservoir: 320 acre feet ( "af "), conditional.
(2) Rate of diversion for filling of Reservoir: 30.0 cfs,
vi. Decreed use: Domestic, irrigation, fire protection, stock
watering, commercial, industrial, municipal, power, recreation, fish and wildlife, and all
other purposes related to the provision of a water supply within the now existing and
future service area of the Town, for all beneficial uses by and for the benefit of the
Town, and for reuse, successive use, right of disposition, substitution, exchange and
augmentation purposes.
vii.Physical description of Reservoir:
(1) Surface area of high water line: 22 acres. tt
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(2) Maximum height of dam in feet: 30 feet.
(3) Length of dam in feet: 485 feet.
viii. Reservoir capacity:
(1) Total capacity: 320 af.
(2) Active capacity: 316 af.
(3) Dead storage: 4 af.
B. Bolts Lake (see Case 06CW264):
i. Legal description: The existing off - channel reservoir is located
in Homestead Entry Survey No. 40, Homestead Entry No. 021, containing a portion of
the Wl /z of Section 1 and the E'h of Section 2, Township 6 South, Range 81 West of the
6th P.M., and in Homestead Entry Survey No. 41, Homestead Entry No. 022, containing
a portion of the SW1 /4 of Section 1, S'h of Section 2, NI/2 of Section 11 and NW1 /4 of
Section 12, Township 6 South, Range 81 West of the 6th P.M. The enlarged Bolts Lake •
will be located in the E'h of Section 2, Township 6 South, Range 81 West and the WI/2
of Section 1, Township 6 South, Range 81 West of the 6th P.M. All section and
portions are projected, as this area is unsurveyed.
ii. Legal description of points of diversion: Alternate points of
diversion to fill Bolts Lake under the priorities decreed herein for the Eagle River
Pumpback and CC Diversion described above and under the priorities to be decreed in
Case No. 06CW264 are as follows:
above.
above.
See above.
(1) Bolts Ditch Headgate: See above.
(2) Minturn Water System Ditch (06CW264): See above.
(3) Ginn Eagle River Diversion No. 2 (near Bolts Lake): See
(4) Ginn Eagle River Diversion No. 3 (near Bolts Lake): See
(5) Minturn Water System Ditch Diversion Structure No. 2:
Ir
(6) Maloit Park Diversion Structure: See above.
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(7) Lower Cross Creek Diversion Structure: See above.
iii. Appropriation date: December 28, 2006 for Battle Mountain
Entities' original 100 acre -feet, conditional; December 19, 2007 for Battle Mountain
Entities' enlarged 790 acre -feet, which when combined with the previously decreed 320
acre -feet, conditional for the Town (Case No. 96CW324) will result in a total reservoir
capacity of 1,210 acre -feet.
iv. Amount: 890 total af, conditional: 100 of conditional under
original appropriation, and 790 af, conditional, under enlarged appropriation, both with
the right to fill and re -fill when in priority.
v. Use: Domestic, municipal, irrigation, snowmaking, storage,
wetlands and habitat purposes, recreation, watering of lawns, parks and grounds,
industrial, commercial, fire protection, construction, street sprinkling, piscatorial,
aesthetic, augmentation, replacement, substitution and exchange, including use by
storage for later release to meet return flow obligations and for all other beneficial uses
including reuse and successive use to extinction.
• vi. Physical description of reservoir (when enlarged):
(1) Surface area of high water line: 55 acres.
(2) Maximum height of dam in feet: 40 feet.
(3) Length of dam in feet: 1,000 feet.
(4) Reservoir capacity:
(a) Total capacity: 1,210 of (including the 320 of
decreed in Case No. 96CW324, and the 890 of claimed in Case No. 06CW264).
C. Wolford Mountain Reservoir: The River District owns and operates
Wolford Mountain Reservoir (f /k /a Gunsight Pass Reservoir) which has the following
water right:
i. Legal description of place of storage: The dam is located in
Grand County in the SW t/4 of the NE 1/4 of Section 25, T. 2 N., R. 81 W., 6th P.M. The
intersection of the dam axis (Sta. D19 +35.61) with the West Access Road (Sta.
WR50 +55.05) occurs at a point which bears S. 53 °24'56" E. a distance of 3,395.51 feet
from the NW corner of said Section 25; the bearing of said dam axis from Sta. 19 +35.61
1• to Sta. 0 +00 being S. 75° 28' 29" E.
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ii. Source: Muddy Creek and its tributaries.
iii. Previous storage decrees:
Case No. 87CW283:
Decree Date: November 20, 1989.
Court: District Court, Water Div. No. 5.
Amount: 59,993 acre feet
Appropriation Date: December 14, 1987
Use: All beneficial uses, including but not limited to
domestic, municipal, agricultural and recreational uses.
Case No. 95CW281:
Decree Date: August 26, 1997.
Court: District Court, Water Div. No. 5.
Amount: 6,000 acre feet (enlargement).
Appropriation Date: Jan. 16, 1995.
Use: All beneficial uses by and for the benefit of the
inhabitants of the River District, including but not limited to
domestic, municipal, industrial, irrigation, agricultural, •
piscatorial, recreational and environmental mitigation.
Case No. 98CW237:
Decree Date: July 6, 2000.
Court: District Court, Water Div. No. 5.
Amount: 30,000 a.f. (refill).
Appropriation Date: Nov. 17, 1998.
Use: Certain of the beneficial uses previously adjudicated
for Wolford Mountain Reservoir in Cases No. 87CW283 and
95CW281.
D. Ruedi Reservoir: The River District is entitled to deliveries of water
from Ruedi Reservoir pursuant to contract with the U.S. Bureau of Reclamation:
i. Legal description of place of storage: Ruedi Reservoir is
located in Sections 7, 8, 9, 11 and 14 through 18, T. 8 S., R. 84 W., 6th P.M., in Eagle
and Pitkin Counties. The dam axis intersects the right abutment at a point whence the
SW corner of Section 7, T. 8 S., R. 84 W. of the 6th P.M., bears N. 82° 10'W. a distance
of 1,285 feet.
ii. Source: Frying Pan River
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•
L\
iii. Previous storage decrees:
Civil Action No. 4613:
Decree Date: June 20, 1958.
Court: Garfield County District Court.
Amount: 140,697.3 acre feet, reduced to 102,369 acre feet
pursuant to order of the District Court, Water Div. No. 5 in
Case No. W- 789 -76.
Appropriation Date: July 29, 1957.
Use: Domestic, municipal, irrigation, industrial, generation
of electrical energy, stock watering and piscatorial.
Case No. 81CW34:
Decree Date: April 8, 1985.
Court: District Court, Water Div. No. 5.
Amount: 101,280 acre feet (refill).
Appropriation Date: Jan. 22, 1981.
Use: Irrigation, domestic, municipal, generation of
electrical energy, stock watering, industrial, piscatorial,
recreation and maintenance of sufficient storage reserves to
fulfill contractual obligations and provide stored water for
recreation in times of drought.
E. Eagle Park Reservoir Proiect. The Town has entered into a lease with
ERWSD for the use of 50 acre feet per year from Eagle Park Reservoir or Homestake
Reservoir or both under terms and conditions set forth therein. The Town's ability to
use additional water from the Eagle Park Reservoir Project will be derived from an
appropriate agreement with an owner of such water right, including without limitation
the River District. Eagle Park Reservoir Project water is more particularly described as
follows:
i. Eagle Park Reservoir is decreed by the District Court in and for
Water Division No.5 in Case Nos. 92CW340 and 93CW301, for a combined total capacity
of 27,600 acre feet, with an appropriation date of March 16, 1991, for 5300 acre feet, and May
18, 1993, for 22,300 acre feet, together with the right to divert at the rate of 80 cfs under the
August 10, 1956 appropriation date of the Pando Feeder Canal pursuant to the decree of the
Water Court in Case No. 97CW288, for mining, milling, industrial, snowmaking, municipal,
domestic, stock watering, recreation, fish and wildlife, irrigation, agricultural, exchange,
replacement, augmentation and all other beneficial purposes. The north abutment of the dam
crest is located approximately 160 feet north of the south section line and 650 feet east of the
west section line of Section 28, T. 7 S., R. 79 W., 6th P.M., Eagle County, Colorado. The source
of Eagle Park Reservoir is the East Fork of the Eagle River including,rbnoff, surface flow and
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Applicant in 07CW225: Town of Minturn
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seepage from the area above the reservoir and tributary thereto, and water tributary to Tenmile
Creek a tributary of the Blue River. In addition to the tributary area upstream of the reservoir, the
specific points of diversion into storage for Eagle Park Reservoir are as follows:
(1) The East Fork Interceptor Ditch, which has a capacity of
48 cfs and diverts from unnamed tributaries of the East Fork of the Eagle River at the
following points, all of which are located in Eagle County, Colorado:
(a) 900 feet south of the north section line and 1100
feet west of the east section line of Section 5, T. 8 S., R. 79 W., 6th P.M.
(b) 1250 feet south of the north section line and 700
feet east of the west section line of Section 4, T. 8 S., R. 79 W., 6th P.M.
(c) 1200 feet north of the south section line and 800
feet east of the west section line of Section 33, T. 7 S., R. 79 W., 6th P.M.
(d) Runoff, surface flow, and seepage from the area
above the East Fork Interceptor Ditch as it runs between the above - described points of
diversion and Eagle Park Reservoir. •
(2) The Chalk Mountain Interceptor Ditch, which has a
capacity of 12 cfs and diverts runoff and seepage as it runs a distance of approximately
3.4 miles from Fremont Pass, located in the W1/2 of Section 11, T. 8 S., R. 79 W., 6th P.M.,
northwesterly along State Highway 91 and the south side of Robinson Tailing Pond, thence
westerly to the south of Chalk Mountain Reservoir and Robinson Reservoir, thence
northwesterly to Eagle Park Reservoir. The Chalk Mountain Interceptor Ditch diverts water
from the headwaters of Tenmile Creek in Summit County and from the headwaters of the East
Fork of the Eagle River in Eagle County.
(3) The East Interceptor Ditch, which has a capacity of 20
cfs and runs northeasterly from a point whence the northeast corner of Section 2, T. 8
S., R. 79 W., 6th P.M. bears North 77 °20' East a distance of850 feet at the north fork of
McNulty Creek, thence along the east side of Robinson and Tenmile Tailing Ponds into Supply
Canal No. I described below. The East Interceptor Ditch diverts water from the north fork of
McNulty Creek and surface flow, seepage, and runoff from watersheds above it that are tributary
to Tenmile Creek.
(4) The Supply Canal No. 1, which has a capacity of 10 cfs
and diverts water from the following tributaries of Tenmile Creek at the following points:
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(a) On the west bank of Humbug Creek at a point
whence the southwest corner of Section 18, T. 7 S., R. 78 W. bears South 71 °35' West
a distance of 3250 feet.
(b) On the south bank of Mayflower Creek at a point
whence the northeast corner of Section 24, T. 7 S., R. 79 W., 6th P.M. bears North
16 °55' East a distance of 2250 feet.
(c) Runoff, surface flow, and seepage from the area
above the Supply Canal No.1 as it runs between the above - described points of diversion and
the Climax Mill.
(5) The Supply Canal No.2, which has a capacity of 10 cfs
and diverts water from the following tributaries of Tenmile Creek at the following points:
(a) On the west bank of Searle Creek at a point
whence U.S.L.M. Kokomo bears South 45 °58' East 3740 feet (located in the NW1 /4 of
the SE1 /4 of Section 13, T. 7 S., R. 79 W., 6th P.M.).
• (b) On the south bank of Kokomo Creek at a point
whence U.S.L.M. Kokomo bears North 39 °36' east 2635 feet (located in the SE114 of
Section 22, T. 7 S., R. 79 W., 6th P.M.).
(c) Runoff, surface flow, and seepage from the area
above the Supply Canal No.2 as it runs between the above - described points of diversion and
the Climax Mill.
(6) The East Fork Pumping Plant, which has a capacity of 6
cfs and diverts from the East Fork of the Eagle River at a point in the SE1 /4 NE1 /4 of
Section 32, T. 7 S., R. 79 W., 6th P.M. at a point whence the NE corner of said Section 32
bears N. 31 '53'E. a distance of 2414 feet.
Eagle Park Reservoir is augmented by exchange by decree of the Water Court in
Case No. 95CW348 and the East Fork Pumping Plant is augmented by exchange by
decree of the Water Court in Case No. 03CW211.
ii. Exchange Supply. Pursuant to a Memorandum of
Understanding dated effective as of April 21, 1998 (the "MOU ") among the City of
Aurora, the City of Colorado Springs, the River District, Climax Molybdenum
Company, Vail Associates, Inc., the Authority, and the ERWSD; and the Water
Exchange Agreement dated June 17, 1998 among Aurora, Colorado Springs, and the
Eagle Park Reservoir Company, Aurora and Colorado Springs agreed to make up to 500
•
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acre feet of water available for West Slope use from facilities owned and operated by
Aurora and Colorado Springs in exchange for up to 800 acre feet of replacement water
from the West Slope participants. The River District's 100 shares of Class B stock in
the Eagle Park Reservoir Company entitle the River District to up to 100 acre feet per
year of consumptive beneficial use water to be derived from fully consumable water
annually diverted by and /or stored in the following structures owned and controlled by
Aurora and Colorado Springs:
(1) Homestake Project. Homestake Reservoir, also known as
Elliott -Weers Reservoir, was decreed by the.Eagle County District Court in Civil
Action No. 1193 for 83,338.98 acre feet conditional, 43,504.7 acre feet of which is now
absolute. This reservoir is located on Homestake Creek with a dam being located
whence the NW Corner of Section 31, T.7 S., R. 80 W., 6th P.M. bears N. 58 °30.6' E.
24,659 feet from the East dam abutment and N. 62 °25.8' E. 25,746 feet from the West
dam abutment. The sources of supply of said Reservoir are the East Fork of Homestake
Creek, the Middle Fork of Homestake Creek and Homestake Creek. The right to the
annual release of this Homestake Reservoir water is obtained pursuant to (1) the 2004
Water Exchange Agreement dated June 21, 2004, among the City of Aurora, the Eagle
Park Reservoir Company, the River District, ERWSD, the Authority and Vail
Associates, Inc., and the Water Exchange Agreement dated June 17, 1998, among the •
foregoing parties and the City of Colorado Springs, as all such agreements are modified
by the Consolidated Water Exchange Agreement dated January 5, 2010, among the
foregoing parties and the City of Colorado Springs; and (2) the 2004 Homestake
Reservoir Agreement dated July 22, 2004, among the Eagle Park Reservoir Company,
the River District, ERWSD, the Authority and Vail Associates, Inc., and the April 21,
1998 Homestake Reservoir Agreement between these same parties.
(2) Camp Hale Project. Aurora and Colorado Springs may
provide to the River District water released from those surface and ground water
storage rights sought by Aurora and Colorado Springs in Cases No. 88CW449 and
95CW272, District Court for Colorado Water Division No. 5.
River District Contractors' use of augmentation water from
Homestake Reservoir made available through contract or
other arrangement with the Eagle Park Reservoir Company
shall be dependent upon the continued existence of, and
conditions set forth in, the Water Exchange Agreement dated
June 17, 1998 between the Cities of Aurora and Colorado
Springs and the Eagle Park Reservoir Company, together
with any modifications thereto, or constraints thereon, as
may be necessitated by the decree entered in Case No.
98CW270, Water Division No. 5.
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Additional Information for Homestake Project. The detailed
descriptions of the structures decreed by the Eagle County
District Court in Civil Action No. 1193 for the Homestake
Project are set forth below.
Structure
Amount
French Creek Intake. 60.1 cfs
S. 82 018.3' E. 20988 ft to NW corner Sec. 31,
T. 7 S., R. 80 W.
Fancy Creek Intake. 38.6 cfs
N85 010.5' E. 25280 ft. to NW corner Sec. 31,
T. 7 S., R. 80 W.
Missouri Creek Intake. 39.8 cfs
N. 77 012.4' E. 28800 ft. to NW corner Sec. 31,
T. 7 S., R. 80 W.
Sopris Creek Intake.
N. 74 07.6' E. 29848 ft
T. 7 S., R. 80 W.
to NW corner Sec. 31
41.3 cfs
East Fork Conduit. The East Fork Conduit diverts water from the
East Fork of Homestake Creek pursuant to its appropriation of 70.8
cubic feet per second of time absolute and 189.2 cubic feet per
second of time conditional therefrom and conveys these waters to
Homestake Reservoir for conveyance to Homestake Tunnel or
storage in the reservoir, said East Fork Conduit having a capacity
of 260 cubic feet per second of time and total length of
approximately 3093 feet. The point of diversion of said conduit is
on East Fork Homestake Creek at a point whence the Northwest
corner of Section 31, T. 7 S., R. 80 W. bears N. 55 °40.5' E., 22,917
feet.
Homestake Tunnel. Homestake Tunnel under the Continental
Divide for the conveyance of water into the Arkansas River Basin
with its intake located at a point under Homestake Reservoir
whence the Northwest corner of Section 10, T. 9 S., R. 81 W., 6th
P.M. bears S. 15 °27'08" E. 26,173.03 feet appropriates a maximum
amount of 10 cubic feet per second of time conditional of water
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seeping and percolating into Homestake tunnel from former Water
District No. 37 areas and 300 cubic feet per second of time absolute
from Middle Fork of Homestake Creek, at its said Northerly portal,
its point of diversion; said tunnel has a length of 27,400 feet and a
capacity of 700 cubic feet per second of time. The tunnel will
convey out of former Water District No. 37 up to 700 cubic feet per
second of time of waters appropriated by the tunnel from the
Middle Fork of Homestake Creek, together with water appropriated
by the tunnel from the Homestake Creek and East Fork Conduits
and Homestake Reservoir, to an outlet at a point from where the
Northwest corner of Section 10, T. 9 S., R. 81 W., 6th P.M. bears
N. 6 °40'52" E., a distance of 2,173.54 feet.
Homestake Reservoir. Homestake Reservoir, also known as Elliott -
Weers Reservoir, has capacity of 83,338.98 acre feet conditional, is
located on Homestake Creek with a dam whence Homestake Peak
_bears S. 73 °26' E. 10,477 feet from the easterly end thereof and S.
74 °57' E. 13,347 feet from the westerly end thereof, said dam
having a maximum height of 411.5 feet and a length of 3,380 feet.
The sources of supply of said reservoir are Homestake Conduit (the •
sources of this conduit as herein above set forth), East Fork
Conduit (the source of this conduit as herein above set forth), the
Middle Fork of Homestake Creek and Homestake Creek, and said
reservoir has appropriated for storage 83,338.98 acre feet annually
from said sources. Homestake Reservoir also conveys water from
Homestake Conduit and East Fork Conduit to Homestake Tunnel.
Existing Homestake Reservoir has a storage capacity of 43,504.7
acre feet absolute and is located on Homestake Creek with a dam
whence the NW Corner of Section 31 T. 7 S., R. 80 W., 6th P.M.
bears No. 58 030.6' E. 24,659 feet from the East dam abutment and
N. 62 025.8' E. 25,746 feet from the West dam abutment, said dam
has a maximum height of 265.0 feet and a length of 1996 feet.
The sources of supply of said existing Homestake Reservoir are
Homestake Conduit, East Fork Conduit, the Middle Fork of
Homestake Creek and Homestake Creek. Existing Homestake
Reservoir has appropriated 43,504.7 acre feet annually from said
sources and also conveys water from Homestake Conduit and East
Fork Conduit to Homestake Tunnel.
15. Statement of Plan for,Augmentation:
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Applicant in 07CW225: Town of Minturn
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A. Provision of Municipal Water Service: The Town has requested
approval of this plan for augmentation, including exchange, to replace all out -of-
priority depletions associated with the provision of municipal water service by the
Town. Such water service is anticipated to include a reasonable expectancy of
expanded municipal water service in the future within the Town's current and
anticipated water service area, including, without limitation, the Town's annexed areas
and other lands within the Town's 2003 Three Mile Plan and including, without
limitation, those lands that are the subject of the project known as the Battle Mountain
Project, subject to the terms and conditions set forth herein. Under this plan for
augmentation, any out -of- priority depletions associated with the Augmented Water
Rights will be replaced in time, place and amount by the provision of augmentation
supplies from any one or combination of the Augmentation Water Rights.
Augmentation is required only in the event of a valid senior call against the Augmented
Water Rights. For purposes of determining the level of consumptive use depletions, the
factors set forth in Paragraph 15.F. shall apply. The specific administration and
operation of the determination of the time, place and amount of augmentation supplies
necessary to replace out -of priority depletions (after calculating appropriate credits for
wastewater, system loss and other return flows) shall be made in accordance with the
• accounting forms established in accordance with Paragraph 42 and such other
applicable terms and conditions set forth herein. With respect to the senior water rights
of the Town decreed to the Minturn Water System Ditch and Minturn Well Nos. 1 and
2, as described herein, the provisions of Paragraphs 15.13. through 15.J. shall
specifically apply in addition to such other applicable terms and conditions set forth
herein.
B. Consumptive Use Limitation. The Minturn Water System Ditch water
right decreed in CA 671 on June 5, 1916, at its original and relocated point of diversion
decreed in CA 1137 and 1333 and alternate point of diversion decreed in 94CW355 (the
"Minturn Ditch Water Right ") and the Minturn Well Nos. 1 and 2 water rights decreed
in W -1100 and W -1101, with alternate points of diversion decreed in Case No.
05CW262 at Minturn Well Nos. 3 and 4 and Well Field No.1 (the "Minturn Well Nos. 1
and 2 Water Rights ") may be exercised when in priority without offset or replacement
up to a maximum consumptive use of 38 acre feet per year. Included within such 38
acre feet of consumptive use, Minturn Well No. 1 (as diverted at the Minturn Well No.
3) may be exercised when in priority without offset or replacement up to a maximum
consumptive use of 9.6 consumptive acre feet per year and Minturn Well No. 2 (as
diverted at the Minturn Well No.4) may be exercised when in priority without offset or
replacement up to a maximum consumptive use of 2.48 consumptive acre feet per year.
The consumptive use limitation in this paragraph shall apply to the Minturn Ditch
Water Right and the Minturn Well Nos. 1 and 2 Water Rights at any future alternate
point of diversion for said water rights.
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i. As described in Paragraph 15.G, the Minturn Ditch Water Right
and the Minturn Well Nos. 1 and 2 Water Rights benefit from releases of Green
Mountain Reservoir, and are allowed to divert by exchange under the Operating Policy
for Green Mountain Reservoir, Colorado -Big Thompson Project, Colorado as set forth
in the Federal Register, Vol. 48, No. 247, pp. 56657 -58 and under the exchange
priorities approved in Case No. 88CW382, District court, Water Division No. 5. Under
Case No. 88CW382, the exchange priority for the Minturn Ditch Water Right is August
1, 1935; and the exchange priority for both Minturn Well Nos. 1 and 2 Water Rights is
August 31, 1962.
(1) References in this Paragraph 15.B to the exercise of the
Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 being "in priority" shall
include being in priority by exchange from Green Mountain Reservoir. Releases from
Green Mountain Reservoir technically constitute "an offset or replacement" for
consumptive use for the Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 but
shall be restricted for credit hereunder up to 38 acre feet per year as provided herein.
(2) It is understood that the 38 acre feet per year is an
absolute maximum irrespective of whether it is used in priority or in priority by
exchange from Green Mountain Reservoir. •
ii. The rate of exchange for Minturn Well Nos. 1 and 2 Water
Rights shall be limited to 0.056 cfs each during the irrigation season and 0.005 cfs
during the non - irrigation season.
iii. Notwithstanding the foregoing provisions of this Paragraph
15.13, the maximum consumptive use of 9.6 consumptive acre feet per year associated
with Minturn Well No. 1 (as diverted at the Minturn Well No. 3) shall be limited to 9.0
consumptive acre feet per year and the maximum consumptive use of 2.48 consumptive
acre feet per year associated with Minturn Well No. 2 (as diverted at the Minturn Well
No. 4). shall be limited to 2.31 consumptive acre feet per year.
iv. The exchange for the Minturn Well Nos. 1 and 2 Water Rights
shall not operate at any time the Town's wastewater returns are made downstream of
the current point of wastewater returns at the Town of Avon.
v. The rate of exchange limitations in this paragraph shall also
apply to the Minturn Well Nos. 1 and 2 Water Rights at any future alternate point of
diversion for said water rights.
vi. The consumptive use and rate of exchange limitations in this
paragraph shall not be exceeded at any future alternate point of diversion for said water
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rights, but may be subject to a further reduction based on changed circumstances in any
future change case.
C. Monthly Maximum Limitations. Collectively, the diversion of the 38
consumptive acre feet per year from the Minturn Ditch Water Right and Minturn Well
Nos. 1 and 2 Water Rights shall be limited to the following monthly maximum amounts:
i. A maximum of 0.75 consumptive acre feet per month during
months of November through March.
ii. A maximum of 1.5 consumptive acre feet during April.
iii. A maximum of 5.0 consumptive acre feet per month during the
months of May and June.
iv. A maximum of 10.0 consumptive acre feet per month during the
months of July and August; provided, however, that the maximum amount during June,
July and August shall not exceed 22.5 consumptive acre feet".
• v. A maximum of 7.0 consumptive acre feet during September.
vi. A maximum of 4.0 consumptive acre feet during October.
D. Monthly Accounting. The Town shall maintain monthly accounting
forms to reflect the limitations set forth in Paragraphs 15.13 and 15.0 above. The
accounting year shall begin November 1 of each year and end October 31 the following
year.
E. Minturn Wells. Use of the Minturn Well Nos. 1 and 2 Water Rights
shall be in conformance with the additional terms and conditions contained in the
decree in Case No. 05CW262.
F. Consumptive Use Factors. For purposes of calculating the annual and
monthly maximum consumptive use limits, the Town will measure all diversions from
the Minturn Ditch Water Right and Minturn Wells Nos. I and 2 Water Rights at all
points of diversion. Total metered use (the total of the individual meters) during the
months of November through March shall be considered inhouse uses with a
consumptive use factor of 5 %. The portion of the total metered use during the months
of April through October that exceeds the average of the preceding November through
March monthly metered use shall be considered irrigation water use with a consumptive
use factor of 85 %. These factors will be allocated to each of the Minturn Well Nos. 1
and 2 Water Rights and Minturn Ditch Water Right based upon the measured production
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of the Minturn Well Nos. 1 and 2 Water Rights which will be a total determined
percentage of the total production of treated water (inclusive of the water produced by
the Minturn Well Nos. 1 and 2 Water Rights) that will then provide the percentage for
each well and the Minturn Ditch Water Right for accounting purposes.
i. The difference between total measured diversions and total
metered use through individual user meters shall be considered system loss.
ii. The determination of the method of accounting for the
consumptive use associated with irrigation herein is based on the historical actual use of
Applicant that was calculated at a 75% consumptive use factor in light of the nature of
the irrigation within the Town. The 85% consumptive use factor decreed herein is to be
applied upon the entry of the decree as provided for in this paragraph and as accounted
for in connection with the accounting forms approved and maintained in this case. In
the event water stored in Bolts Lake is available to the Town as contemplated in this
case, the Town agrees that the measure of its irrigation use within the place of use
described in Paragraph 15.H below, subject to the consumptive use factor of 85% shall
be the greater of either: (1) the method set forth above; or (2) the average monthly crop
irrigation requirement on a per -acre basis applicable at that time as approved by the
Division Engineer and as applied to the total irrigated acreage to be reported in the •
Town's monthly accounting.
G. Historic Users' Pool Protection. The amounts set forth in Paragraph
15.B associated with the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2
Water Rights shall be deemed to continue to receive full "Historic Users' Pool"
protection with annual releases from Green Mountain Reservoir, subject to the
exchange limitations for Minturn Well Nos. 1 and 2 Water Rights in Paragraph 15.B.
The Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights shall
not be entitled to any Historic Users' Pool protection from Green Mountain Reservoir
for any diversions that result in an excess of the 38 consumptive acre feet per year as
limited and determined by the provisions of this decree.
H. Place of Use. The place of use of the Minturn Ditch Water Right and
the Minturn Well Nos. 1 and 2 Water Rights shall be limited to the Town's pre -2008
water service area (the Town, school district lands known as Maloit Park, and the
Pierson property) and the Palmateer, Burnett, Two Elk Creek (open space) and Kings
Ranch aka West Minturn areas of the 2003 Three Mile Plan as shown in Exhibit D
attached hereto, subject to the limitations set forth above. Any water service provided
by the Town within the Town outside of the foregoing areas must be with other decreed
water rights diverted either in priority or pursuant to this or another court - approved
plan for augmentation.
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I. Municipal Use. The Minturn Ditch Water Right and the Minturn Well
Nos. 1 and 2 Water Rights may be used for municipal purposes consistent with these
terms and conditions, including the irrigation of plants, parks, cemeteries and gardens;
provided, however, such water rights may not be used for golf course irrigation or
snowmaking.
J. Augmentation of Diversions. Any diversions from the structures
decreed to the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water
Rights that result in an excess of the 38 consumptive acre feet annual limitation and the
monthly maximum limitations shall be allocated to the junior water rights decreed in
Water Division No. 5, Case No. 06CW264 and this case, Case No. 07CW225 (the
"06CW264 and 07CW225 Priorities "), and must be fully replaced and augmented under
the plan for augmentation set forth herein. During times when diversions from such
structures result in the consumptive use limitations being exceeded and are operating
under either or both the 06CW264 and 07CW225 Priorities, and (a) there is a call
placed by a senior water right (including a senior exchange right or an exchange to
which these priorities have subordinated) that is within the reach of the Eagle River
between the confluence of the Eagle River and Cross Creek and the point of discharge
• of the Town's municipal effluent, or (b) the Eagle River instream flow water rights
within that reach are not being met, then the Town will augment its diversions with
augmentation water that is upstream of the confluence of the Eagle River and Cross
Creek. The amount of such augmentation water shall be that amount required to meet
the decreed instream flow and meet the senior call or call to which it has subordinated,
up to the maximum amount of the Town's out of priority diversions, reduced by
applicable return flow credits (wastewater, system loss and return flows) derived from
the 06CW264 and 07CW225 Priorities and junior priorities decreed in Case No.
05CW263.
i. The reference to wastewater in this Paragraph 15.J is not
intended to provide credit for municipal effluent returns at the regional wastewater
treatment plant at Avon to reduce any obligation of the Town to provide augmentation
water to a calling water right located upstream of said point of effluent discharge.
K. Other Augmentation of Out -of- Priority Depletions: Under this plan for
augmentation, out -of- priority depletions will be replaced in time, place and amount by
the provision of augmentation supplies from any one or combination of the
Augmentation Water Rights. Augmentation is required only in the event of a valid
senior call against the Augmented Water Rights.
L. Augmentation by Exchange: As part of the Conditional Rights of
Exchange described in the Fifth Claim below, the Town requests approv -M,of a plan to
augment by exchange out -of- priority depletions resulting from diversions at any one or
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combination of the Augmented Water Rights. The exchange reaches will vary,
depending on which of the Augmentation Water Rights is providing water for
augmentation by exchange, and which of the Augmented Water Rights is augmented by
the exchange. The maximum rate of exchange is 8 cfs, conditional, for any combination
of Augmented Water Rights augmented by exchange by releases from any combination
of the Augmentation Water Rights. The priority date of the exchange is December 19,
2007, subject to the provisions of Paragraph 16.1).
M. Water Quality: The water to be provided for augmentation is of a
quality and quantity in order to meet the requirements for which the water has been
used by senior downstream appropriators, and therefore meets the requirements of
C.R.S. § 37 -92- 305(5).
N. Sufficient Augmentation: Consistent with the requirements of the
Minturn Municipal Code, Minturn agrees that, prior to the authorization of the sale of
any lot in any phase of any development of the Battle Mountain Planned Unit
Development or other project on Battle Mountain Annexation Parcels Nos. 1 through 9
and any other Battle Mountain Property annexed into Minturn, the source for
augmentation, including without limitation Bolts Lake, will be physically and legally
available or otherwise constructed to and be operable with a capacity sufficient to •
provide augmentation water to support the water service for such phase pursuant to the
provisions of this decree.
O. Non - Injury: The plan for augmentation, including, exchange, will
prevent injury to vested or decreed conditional water rights. The Town will provide
adequate replacement water necessary to meet the lawful requirements of a senior
diverter at the time and location and to the extent that the senior would be deprived of
his or her lawful entitlement by the Town's diversions.
FIFTH CLAIM: FOR CONDITIONAL RIGHTS OF EXCHANGE
16. The Town seeks approval to operate the following conditional rights of
exchange with a date of appropriation of December 19, 2007:
A. Augmentation Exchange: The Augmentation Exchange is comprised
of both the exchange described in Paragraph 15.L above, and the Effluent Exchange (up
to a maximum of 5 cfs), for a projected maximum exchange rate of 8 cfs combined.
The Effluent Exchange will exchange treated water released from the wastewater
treatment plant or plants that provide treatment service for water distributed in the
Town's municipal water system to the points of diversion for the Pumpback, the
Augmented Water Rights, and /or the Augmentation Water Rights. The most r
downstream terminus of the Effluent Exchange is the outfall of the wastewater
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• Consolidated Case Nos. 06CW264 and 07CW225
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treatment plant operated by the ERWSD in Avon, located in the NW 1/4 of Section 12,
Township 5 South, Range 82 West, 6th P.M. ( "Avon WWTP "), and /or any other
upstream wastewater treatment plant utilized by the Town for treatment of municipal
wastewater and located upstream from the Avon WWTP (including without limitation
any wastewater treatment plant permitted and located in the future at the previously
identified Dowd Junction site, a Cross Creek site or other site within the Battle
Mountain annexation lands). The upstream termini of the Effluent Exchange are the
points of diversion of the Pumpback, the Augmented Water Rights, and /or the
Augmentation Water Rights previously identified herein. To the extent that the Town
has augmentation credits in excess of the need for actual augmentation under this plan,
the Town may exchange such unused augmentation credits upstream into Bolts Lake.
B. Eagle River Contract Exchange: The Eagle River Contract Exchange
will exchange fully- consumable water made available by lease with ERWSD or contract
with the River District or other appropriate entity from the Eagle Park Reservoir
Project, into storage in Bolts Lake. For the exchange to Bolts Lake, the downstream
terminus of the exchange is the confluence of the Eagle River and Cross Creek, and the
upstream termini are the points of diversion into storage at Bolts Lake. The maximutn
• rate of the Eagle River Contract Exchange is 20 cfs, conditional. This Eagle River
Contract Exchange is separate from the Augmentation Exchange using water from the
Eagle Park Reservoir Project.
C. Colorado River Contract Exchange: The Colorado River Contract
Exchange will exchange fully - consumable water made available by contract with the
River District from Wolford Mountain Reservoir, Ruedi Reservoir or both into storage
in Bolts Lake. The downstream terminus for the exchange of Wolford Mountain
Reservoir releases is the confluence of the Eagle River and the Colorado River. The
downstream terminus for the exchange of Ruedi Reservoir releases is the confluence of
the Roaring Fork River and Colorado River. The upstream termini of the Colorado
River Contract Exchange are Bolts Ditch Headgate on Cross Creek and Ginn Eagle
River Diversion No. 2 on the Eagle River. The maximum rate of the Colorado River
Contract Exchange is 20 cfs, conditional. This Colorado River Contract Exchange is
separate from the Augmentation Exchange using water from Wolford Mountain
Reservoir and /or Ruedi Reservoir.
D. Exchange Subordination. The exchanges decreed herein shall
subordinate to and shall operate as junior in priority to any exchanges that may be
subsequently decreed in Water Division No. 5 Case Nos. 06CW96, 06CW97, 09CW28,
09CW 191 and 09CW 192. To the extent that either the instream flow or the senior
exchanges in the approximately 8100 foot reach of the Eagle River upstream of the
Avon wastewater treatment plant are being adversely affected by the Town's diversions,
the Town and the affected parties agree to discuss, in good faith, alternatives to address
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such effects, including without limitation, releases from Minturn's allocated storage in
Eagle Park or Homestake Reservoirs, releases from Bolts Lake, or the Town paying the
pumping costs otherwise incurred by the Authority by operating its raw water booster to
divert the amount of water at the Metcalf Ditch headgate that is reduced due to the
Town's upstream out of priority depletion. In its sole discretion, the Authority shall
determine which alternative to implement.
II. CONCLUSIONS OF LAW
17. The foregoing findings of fact are fully incorporated herein.
18. All notices required by law have been properly made, including as
required under C.R.S. § 37 -92- 302(2) and (3).
19. The Court has jurisdiction over the Application and over all persons or
entities who had standing to appear, even though they did not do so.
20. The Application is complete, covering all applicable matters required
pursuant to the Water Right Determination and Administration Act of 1969, C.R.S. §§
37 -92 -101 through -602. •
21. Applicant has fulfilled all legal requirements for a decree for the
requested water rights, including C.R.S. §§ 37 -92 -302 and 37 -92 -305.
22. Applicant has fulfilled all legal requirements for a decree for the
requested plan for augmentation, including exchange, including without limitation
C.R.S. §§ 37 -92 -302 and 37 -92 -305.
23. Applicant has fulfilled all legal requirements for a decree approving and
confirming the requested conditional rights of exchange, including without limitation
C.R.S. §§ 37 -92 -302 and 37 -92 -305.
24. Pursuant to C.R.S. § 37 -92- 305(8), the plan for augmentation is sufficient
to permit the continuation of diversions when curtailment would otherwise be required
to meet a valid senior call for water, because Applicant will provide adequate
replacement water necessary to meet the lawful requirements of a senior diverter at the
time and location and to the extent that the senior would be deprived of his or her
lawful entitlement by Applicant's diversions.
25. The Court hereby concludes the Town has established that water can and
will be diverted under the subject conditional water rights decreed herein and will be
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beneficially used, and that this water supply project can and will be completed with
diligence and within a reasonable time.
26. The conditional water rights and conditional rights of exchange decreed
herein are individual components of the Town's integrated water supply system.
Consequently, in subsequent diligence proceedings, work on any one feature of the
Town's municipal supply system shall be considered in finding that reasonable
diligence has been shown in the development of water rights for all features of the
Town's water supply system, see C.R.S. § 37- 92- 301(4)(b).
27. If operated in accordance with the terms and conditions of this decree, the
plan for augmentation, including Augmentation Exchange, described herein will prevent
injury to senior vested or decreed conditional water rights.
28. The subject Application is in accordance with Colorado law. Applicant
has fulfilled all legal requirements for entry of a decree in this case.
- III. JUDGMENT AND DECREE
• 29. The foregoing findings of fact and conclusions of law are fully
incorporated herein.
30. The Court hereby approves and decrees the water rights to the Pumpback,
CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, and conditional rights of
exchange, subject to terms and conditions set forth herein.
31. The Court hereby orders the State Engineer to issue any required well
permits for the wells described herein upon application to the State Engineer. Within
60 days of completion of any well within the Minturn Well Field Nos. 1 and 2 pursuant
to a well permit, the Town shall notify both the Court and Division of Water Resources
of the precise location of the constructed well.
32. As provided in C.R.S. § 37 -92- 304(3.6), the Town shall not construct any
well on lands owned by another other than the Town unless the right to construct such a
well is obtained by consent of the landowner of the exercise of the power of eminent
domain by the Town.
33. This decree does not grant the Town any additional property interests in lands on
which structures are or will be located.
34. In connection with the diversion of water under the junior priorities
decreed herein, the following terms and conditions shall apply. In order to satisfy a
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Applicant in 07CW225: Town of Minturn
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senior call downstream on the Eagle River or to satisfy the Colorado Water
Conservation Board's water rights on Cross Creek, decreed in Case No. W -3795, and on
the Eagle River, decreed in Case Nos. W -3788, W -3796, 80CW 134, 80CW 126 and
80CW124 as determined by the Water Commissioner or the Division Engineer,
Applicant agrees to either curtail its diversions, or replace the depletions in time and
amount, upstream from the place where the depletions impact the river system.
A. In addition to the terms and conditions of this Paragraph 34, during
times when the structures decreed to the Minturn Ditch Water Right and the Minturn
Well Nos. 1 and 2 Water Rights result in the consumptive use limitations .being
exceeded and are operating under either or both the 06CW264 and 07CW225 Priorities,
and (a) there is a call placed by a senior water right (including a senior exchange right
or an exchange to which the Minturn Well Fields priorities have subordinated) that is
within the reach of the Eagle River between the confluence of the Eagle River and
Cross Creek and the point of discharge of the Town's municipal effluent, or (b) the
CWCB's Eagle River instream flow water rights within or downstream of that reach or
on Cross Creek are not being met, then the Town will augment its diversions with
augmentation water that is upstream of the points of diversion. The amount of such
augmentation water shall be that amount required to meet the decreed instream flow and
meet the senior call or call to which the Minturn Well Fields priorities have •
subordinated up to the maximum amount of the Town's out of priority diversions,
reduced by any applicable return flow credits (wastewater, system loss and return
flows) derived from the 06CW264 and 07CW225 Priorities and junior priorities decreed
in Case No. 05CW263.
i. The reference to wastewater in this Paragraph 33 is not intended
to provide credit for municipal effluent returns at the regional wastewater treatment
plant at Avon to reduce any obligation of the Town to provide augmentation water to a
calling water right located upstream of said point of effluent discharge.
B. All references in this decree to "instream flow" shall be the instream
flows that are decreed to and held by the CWCB.
35. The Court hereby decrees and approves the plan for augmentation,
including Augmentation Exchange, described herein.
36. Transit losses charged in the delivery of the augmentation water pursuant
to the augmentation plan may be modified by the Division Engineer subject to notice
thereof to the Town and Objectors and review of such modification by this Court upon
petition by the Applicant or any Objectors.
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37. In consideration of the specific findings and conclusions made herein, and
in conformance with C.R.S. § 37 -92- 304(6) (2005), as amended, the plan for
augmentation decreed herein shall be subject to reconsideration by the Water Judge on
the question of injury to the vested water rights of others for a period of five years from
the date of entry of this decree. With regard to the determination of consumptive use
for irrigation within the place of use described in Paragraph 15.H above or any
consumptive use of the Town's system losses described in Paragraph 15.17 above, the
retained jurisdiction period shall be ten years in order for the Applicant and State and
Division Engineers to re- evaluate whether the consumptive use determinations in
Paragraph 15.F continue to reflect and account for the actual consumptive use for the
irrigation. During this ten year period, the State and Division Engineers shall have the
right to: (1) present to the Court evidence concerning whether injury has occurred or is
likely to occur without new terms and conditions to preclude such injury, or (2) seek an
extension of this retained jurisdiction period until the absence of injury can be
conclusively established. If no petition for reconsideration is filed within the
applicable retained jurisdiction periods, retention of jurisdiction for this purpose shall
automatically expire. Any party who wants the Court to reconsider the question of
injury must file a verified petition with the Court, setting forth the facts that cause such
• injury and explaining the claimed injury. The party filing the petition shall have the
burden of going forward to establish the prima facie facts alleged in the petition. If the
Court finds those facts to be established, the Applicant shall thereupon bear the burden
of proof to show (a) that any modification sought by the Applicant will avoid injury to
other water rights, or (b) that any modification sought by the petitioner is not required
to avoid injury to other water rights, or (c) that any term or condition proposed by
Applicant in response to the petition does avoid injury to other water rights.
38. This Decree does not and cannot affect the finality of any decree
mentioned herein. Notwithstanding any retained jurisdiction provisions herein, this
decree is final and appealable upon entry. The Court expressly determines that there is
no just reason for delay and expressly-directs the entry of judgment.
39. In conformance with Colo. Rev. Stat. § 37 -92- 305(8) and in regard to the
plan for augmentation approved in this decree, the Court finds that replacement of
depletions pursuant to the plan so approved will prevent injury to vested water rights.
In the event Applicant at any time is not in compliance with such plan, the State
Engineer shall curtail all out -of- priority diversions, the depletions from which are not
so replaced as to prevent injury to vested water rights. However, the citation of this
statute shall not be considered as authority for the Division Engineer to disregard any
provision of this decree.
40. Eagle River Pumpback Augmentation or Exchange. The CWCB hereby
consents and agrees that the obligation to prevent injury to the instream flow will be
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satisfied in the event the outfall of the treated wastewater that is used to offset upstream
diversions is within 150 feet downstream of the point of diversion of an Eagle River
Pumpback diversion decreed herein.
41. Measuring Devices. In order to assure the operation of the augmentation
and exchange plan, Applicant will install and maintain such water measuring devices,
implement such accounting procedures, and provide such calculations as may be
required by the State or Division Engineer to administer the terms of this decree,
including the plan for augmentation. The CWCB shall have access to any such
measuring device(s) at reasonable times in order to make readings therefrom. Applicant
shall file an annual report consistent with the accounting forms provided for herein with
the Division Engineer by November 15 of each year summarizing diversions and
replacements made under this plan as provided herein.
42. Accounting Forms. The plan for augmentation and use of the subject
water rights and described water storage rights in the plan for augmentation can and
will be administered by the Division Engineer, consistent with these terms and
conditions, and in accordance with the accounting forms to be prepared and approved
by agreement with the Division Engineer. The accounting forms set forth in Section 9
of the Martin and Wood Revised Engineering Report on Minturn's Application in Case •
No. 07CW225 for Junior Water Rights and a Plan for Augmentation, dated July 14,
2010, as they may be modified, shall constitute the initial forms for consideration along
with such other accounting forms that may be developed and approved by the Division
Engineer that may be necessary and appropriate to implement this plan for
augmentation. The accounting forms shall be finalized within 90 days of the entry of
the decree herein.
43. The water to be provided for augmentation is of a quality and quantity so
as to meet the requirements for which the water has been used by senior downstream
appropriators, and therefore meets the requirements of C.R.S. § 37 -92- 305(5).
44. If the Town wishes to maintain the conditional water rights decreed
herein, it shall file an application for a finding of reasonable diligence on or before the
last day of the month and year specified below, or make a showing on or before then
that the conditional water rights have become absolute water rights by reason of the
completion of the appropriations.
45. The findings of fact, conclusions of law, judgment and decree were the
result of substantial discussions, negotiations and compromises between the applicant
and the objectors pertaining to many parts of the findings, conclusions, judgment and
decree. With respect to the Pumpback, CC Diversion, Minturn• Well Nos. 3 and 4
Enlargements, conditional rights of exchange and plan for augmentation described
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• Consolidated Case Nos. 06CW264 and 07CW225
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 37
herein, the findings of fact, conclusions of law and judgment and decree herein are
binding and define the decreed rights and limitations of those rights and they shall be
operated and administered in accordance with the provisions of this decree. With the
exception of the decreed rights and limitations of the Pumpback, CC Diversion, Minturn
Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for
augmentation as specifically decreed herein, it is specifically understood and agreed to
by the parties hereto, and found and concluded by the Court, that the acquiescence of
the parties to a stipulated decree under the specific factual and legal circumstances of
this contested matter and upon the numerous and interrelated compromises reached by
the parties will never give rise to any argument, claim, defense or theory of
acquiescence, waiver, bar, merger, stare decisis, res judicata, estoppel, laches, or to any
administrative or judicial practice or precedent, by or against any of the parties hereto
in any other matter, case or dispute not involving the Pumpback, CC Diversion, Minturn
Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for
augmentation decreed herein, nor shall testimony concerning such acquiescence of any
party to a stipulated decree herein be allowed in any other matter, case or dispute not
involving the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4- Enlargements,
conditional rights of exchange and plan for augmentation decreed herein. With the
• exception of the decreed rights and limitations of the Pumpback, CC Diversion, Minturn
Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for
augmentation as specifically set forth herein, all parties stipulate and agree that they do
not intend the findings, conclusions, judgment and decree to have the effect of
precedent or preclusion on any factual or legal issue in any other matter not involving
the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional
rights of exchange and plan for augmentation decreed herein. With the exception of the
decreed rights and limitations of the Pumpback, CC Diversion, Minturn Well Nos. 3 and
.4 Enlargements, conditional rights of exchange and plan for augmentation as
specifically set forth herein the parties further stipulate and agree that they each reserve
the right to propose or to challenge any legal or factual position in any other change of
water right, plan for augmentation or other matter filed in this or any other court
without limitation by these findings, conclusions, judgment and decree.
46. The Application, as decreed herein, is administrable by the State and
Division Engineers. Review of determinations made by the Division Engineer or the
State Engineer in administration of the subject water rights are "water matters" which
the Water Court may review under its exclusive jurisdiction.
Accordingly, it is ordered that this judgment and decree shall be filed with the
Water Clerk and shall become effective upon such filing, subject to judicial review
pursuant to C.R.S. § 37 -92 -304, as amended.
•
Consolidated Case Nos. 06CW264 and 07CW225 •
Applicant in 07CW225: Town of Minturn
Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court
Page 38
Further, it is ordered that a copy of this judgment and decree shall be filed with
the State Engineer and the Division Engineer for Water Division No. 5.
Done at the City of --- --------- , Colorado, this day of
-------- - - - - -- 2010.
THE MONTH FOR FILING AN APPLICATION FOR A FINDING OF REASONABLE
DILIGENCE SHALL BE .201
BY THE COURT:
Thomas W. Ossola
Water Judge
Water Division No. 5
3850760_14.DOC
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'!Diversion Structure,
Well No. 4 ,r
Enlargement
Well No. 3 Eagle River
Enlargement Pumpback
' Maloit'Park`
Minturn Wat r•System'Ditch 11 Diversion Structure
t (Ginn Eagle River
Diversion No. 3
Bolts Ditch Headgate
Gee Ginn Eagle River
5y Diversion No. 2
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tent Figuras%Figure 1 (Revised)- Alternate Points of uwersion,naro
N
® Eagle River Diversion Point
W +E
0 0.25 0.5 1
• Cross Creek Diversion Point
Miles - S
Job NO.: 649.1
Remaining Points of
602 Park Point Drive
Date: 18- May -2010
Town of Minturn
Diversion Applied for in
suite v5 it
Golden, Co 80401
Drawn: JPB
Case No. 07CW225
Case No. 07CW225
(303 ) 526 -2600
Checked: JTW
MARTIN AND WOOD
WalFr CON sta.,.rrts.ure.
www.martinandwood.com
r,-%Sdg - Town of Mlnturn\649.1 - Minturn
Master Water SupplytG1sW7CW225 Engineering Report Figs%
Copyright
2010 Martin and Wood
Water Consugant3 .Inc. All Rights Reserved.
tent Figuras%Figure 1 (Revised)- Alternate Points of uwersion,naro
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Exhibit B to Proposed Decree in Case No. 07CW225
R81 W
Well No 1f
Well No. 2 '
Well No. 4 j ..
Well No. 3 '
lV� -
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N
;' Well Field No. 1 (Cross Creek) 0 500 1,000 2,000 W E
® Well Field No. 2 (Eagle River) GiiiiOMMMMOMM Feet
S
Job No.: 649.1 Minturn Wells and 602 Park Point Drive
Date: 1- Mar -2010 Town of Minturn Well Fields Suite 275
Golden, CO 80401
Drawn: JPB Case No. 07CW225 (303) 526 -2600
Checked: JTW MARTIN AND WOOD www.martinandwood.com
WATER CONSULTANTS. INC
s tRag . Town of Mlntumt8 40.1 - FAnt— Master Water SuppMGIM7CW225 Engineering Report Figs\ COPY Ight 2010 Me min and mod water Consultants, Inc. All Rights Reserved.
.07CW225 MXD'slFigure2- WeIIFieIds.nad
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Ehibit C to Proposed Decree in Case No. 07CW225
co
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y �� Enlarged Bolts Lake
ion (11,210facre -feet)
Creeks and Rivers N
0 Enlarged Bolts Lake: 1,210 acre -feet 0 1,000 2,000 4,000 W�E
Feet
S
Job No.: 649.1 602 Park Point Drive
Town of Minturn Golden, Date: 15 -Apr -2010 Enlarged Bolts Lake
g Golden, CO 80401 h%JV Drawn: JPB Case No. 07CW225 MARTIN AND WOOD twww.marrt nandwood.COM
Checked: JT1/V WATER CONSULTANTS. INC.
S t9e9 - Town or Mintumt649.1 . Mntum Master Water Supp1y%Glst07CW225 Engineering Report FiastFiuure3•En1arued Botts Lake.mxd Copyright 2010 Martin and Wood Water Consultants, Inc. All Rights Reserved.
Exhibit D to Proposed Decree in Case No. 07CW225
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RO 1 YY ROV YY
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Oran Palmateer Property
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,
Minturn Municipal Boundary*,"
Burnett Property
mint�!
King Ranch / West M inturnl
/ TWo ElkjArea1
Malolt Park
Pierson
a
Property *'
O�n� 1Wo Elk Area
Maloit Park Area*-1
Bolts Lake
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Gilman Area
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®*Pre -2008 Water Service Area 1 Denotes an Area that Minturn "
(red outline indicates Minturn Municipal Boundary) Plans to Serve with Water from w +e
Its Senior Water Rights S
Minturn 3 -Mile Plan Inclusion Areas 0 1,250 2,500 5,000
Feet
Job No.: 649.1
Pre -2008 Water Service 602 Park Point Drive
Date: 24- Jun -2010 Town of Minturn Areas and 2003 3 -mile Plan Golte n,
Golden, CO 80401
Drawn: JPB Inclusion Areas NV (303) 526 -2600
MARTIN AND WOOD www.martinandwood.com
Checked: JTW WAra COn AUITANTa, WC.
Copyright 2010 Martin end Wood Water Consultants, Inc. All Rights Reserved.
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