DISTRICT COURT, WATER DIVISION NO. 2, COLORADO
TO: ALL INTERESTED PARTIES
Pursuant to C.R.S. 37-92-302, you are hereby notified that the following case is a portion of the resume of applications and amendments filed and/or ordered published during the month of May 2021, in Water Division No. 2. The Water Judge ordered this case be published in The Herald Democrat in Lake County, Colorado. This publication can be viewed in its entirety on the state court website at: www.courts.state.co.us.
The name(s) and address(es) of applicant(s), description of water rights or conditional water rights and description of ruling sought as reflected by said application, or amendment, are as follows.
CASE NO. 2021CW3030; Previous Case Nos. 05CW51, 96CW17, 13CW3036. THE UPPER ARKANSAS WATER CONSERVANCY DISTRICT, (“UAWCD”) P.O. Box 1090, Salida, CO 81201; TOWN OF BUENA VISTA, (“Buena Vista”) P.O. Box 2002, Buena Vista, CO 81211; SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, (“SECWCD”) 31717 United Ave. Pueblo, CO 81001 (Please address all pleadings and inquiries regarding this matter to Applicant’s attorneys: UAWCD: Law of the Rockies, Kendall K. Burgemeister, Atty. Reg. #41593, 525 North Main Street, Gunnison, CO 81230, 970-641-1903; SECWCD: BURNS, FIGA & WILL, P.C., Stephen H. Leonhardt, Atty. Reg. #15122, April D. Hendricks, Atty. Reg. #45546, 6400 S. Fiddlers Green Circle, Suite 1000, Greenwood Village, CO 80111, 303-796-2626; Buena Vista: Alperstein & Covell P.C., Cynthia F. Covell, Atty. Reg. #10169, Andrea L. Benson, Esq., Reg. No. 33176, Gilbert Y. Marchand, Jr., Esq., Reg. No. 19870, 1391 Speer Boulevard Suite 730, Denver, CO 80204, 303-894-8191)
Application for Finding of Reasonable Diligence and to Make Absolute in Part
Applicants seek a finding of reasonable diligence for the following conditional appropriative right of exchange, and a finding that a portion of the exchange has been made absolute: Name of right: Cottonwood Creek Exchange. Original Decree: Case No. 96CW17, entered July 12, 1999, by the District Court, Water Division No. 2, Colorado. Subsequent decrees: Case No. 05CW51 (District Court, Water Division 2, August 7, 2007): 5.0 cfs of the 10 cfs appropriative right of exchange for UAWCD made absolute, the balance continued. Case No. 13CW3036 (District Court, Water Division 2, May 7, 2015): Additional 4.98 cfs appropriative right of exchange for UAWCD made absolute, for a total of 9.98 cfs, the balance continued. Exchange Reach (all in Chaffee County, Colorado): Lower Terminus: The confluence of the Arkansas River and Cottonwood Creek. Upper Termini: Rainbow Lake located in the S½ Sec. 19 and N½ Sec. 30, T.14S., R.79W., 6th P.M.; Cottonwood Reservoir located in Sec. 36, T.14S., R.80W., 6th P.M.; Buena Vista Town Intake located at a point whence the NE corner of Sec. 13, T.14S., R.79W., 6th P.M. bears N.32º03’33” E. 2944.64 feet; Buena Vista Infiltration Gallery located in SW¼NE¼ and the NW¼SE¼ Sec. 13, T.14S., R.79W., 6th P.M. Source of exchange water: Fryingpan-Arkansas Project (“Fry-Ark Project”) water (“Project Water”) that is legally available to Applicants, up to 75 acre-feet per year for UAWCD and 75 acre-feet per year for Buena Vista. SECWCD’s water rights for the Fry-Ark Project’s West Slope Decrees and East Slope Decrees are described in the above-referenced Decree in Case No. 96CW17. See general location map attached to the application. (General location map or Exhibits mentioned herein are incorporated by reference and may be inspected at the office of the clerk of this Court). Appropriation Date: February 10, 1939. Amount: 20 c.f.s. and 150 acre-feet per year, allocated as follows: UAWCD: 10 c.f.s (9.98 cfs absolute, 0.02 cfs conditional).; 75 acre-feet per year Buena Vista: 10 c.f.s. (conditional), 75 acre-feet per year Uses: UAWCD: use within the SECWCD boundaries as a supplemental supply for augmentation, municipal, industrial, and irrigation uses. The augmentation use is only to augment depletions from structures located within SECWCD boundaries, the water from which is applied to beneficial use within SECWCD boundaries; and Buena Vista: use within the Town of Buena Vista service area as a supplemental supply for municipal purposes; augmentation as provided in Case Nos. 98CW38 and 17CW3022. Project Water Allocations: UAWCD and Buena Vista are eligible to receive annual allocations of Project Water, which they may purchase and use after it is allocated to them by SECWCD. SECWCD allocates Project Water annually based on its principles, policies, rules and regulations, as they may be amended. Pursuant to the decree in Case No. 96CW17, UAWCD may exchange up to 75 acre-feet per year of Project Water when such water is allocated to it by SECWCD, and Buena Vista may exchange up to 75 acre-feet per year of Project Water when such water is allocated to it by SECWCD. Any and all use of Project Water in these exchanges is pursuant to and subject to the above-referenced Decrees for the Fry-Ark Project, and to all lawful rules, regulations, policies, and contract obligations of SECWCD. Project Water shall be used only to supply water to or replace depletions from structures and uses within SECWCD boundaries, and to replace evaporation losses on Project Water stored in Cottonwood Reservoir and Rainbow Lake pursuant to the decree in Case No. 96CW17. Any decree entered in this case will not give UAWCD and Buena Vista any rights to use Fry-Ark Project structures, or any rights of ownership or rights to purchase or receive allocations of Project Water or return flows therefrom, but will not alter any existing rights they may otherwise have. UAWCD and Buena Vista may use and exchange Project Water only if, when, and to the extent they have purchased such water after it is allocated to them by SECWCD. Any decree herein does not in any way modify SECWCD’s decrees for Project Water. The description of or reference to the structures and water rights herein, other than the proposed exchanges described herein, does not in any way seek to amend or limit the decrees for those structures and water rights, and omissions in such descriptions and references shall in no way prejudice the owners of those structures and water rights. Detailed outline of what has been done toward completion or for completion of the appropriation and application of water to a beneficial use as conditionally decreed, including expenditures: UAWCD has developed its rights in the Cottonwood Creek Exchange as part of its integrated augmentation system. Pursuant to C.R.S. § 37-92-301(4)(b), when an integrated system is composed of several features, as is the case here, work on one feature of the system is considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire system. UAWCD uses water stored in Rainbow Lake and Cottonwood Lake pursuant to the Cottonwood Creek Exchange as part of this system. UAWCD frequently receives allocations of Fryingpan-Arkansas Project water, which, along with various other water rights, it uses to replace depletions to wells and reservoirs pursuant to augmentation plans approved in Case Nos. 92CW84, 94CW5, 94CW41, 94CW42, 03CW55 and 06CW32, Rule 14 replacement plans, and other plans for augmentation, substitute water supply plans, and replacement plans through leases to third parties. UAWCD performed, inter alia, the following activities since the entry of the decree in Case No. 13CW3036: Exercised its rights in the Cottonwood Creek Exchange. UAWCD operated an exchange of Project water to Rainbow Lake at a rate of 14 cfs on May 17 and 18, 2020, including UAWCD’s entire 10 cfs share of the 96CW17 exchange. The maximum annual volume was 75 acre-feet in 2020. UAWCD also stored water in Cottonwood Lake and Rainbow Lake pursuant to this exchange in each year from 2015 through 2019. Enrolled additional structures in its plans for augmentation, including the plan for augmentation on Cottonwood Creek (94CW5/06CW32); Actively engaged in replacement of depletions by wells and ponds for participants in its augmentation plans; Routinely performed inspection, maintenance, and operation activities at its facilities, such as internal inspections, channel and spillway clearing, installation, maintenance, and operation of measurement and recording devices and systems; Obtained approval of, and operated, annual Rule 14 Replacement plans each year; Pursued and completed purchases or other agreements for the use of water resources, including but not limited to purchase of annual allocations of Fryingpan-Arkansas Project Water; Obtained approval from the U.S. Forest Service of special use permits for North Fork Reservoir and O'Haver Reservoir; Applied for a new special use permit for Cottonwood Lake; Defended UAWCD’s and its constituents’ water rights by participation as an opposer in water court applications filed by others; UAWCD, including its water activity enterprise, made expenditures of approximately $1,291,210 in 2015; $1,194,970 in 2016; $1,428,374 in 2017; $1,677,111 in 2018; $1,645,515 in 2019; and $1,716,831 in 2020 to directly and indirectly support the development and operation of its water system, including operation of this exchange and the facilities used therein. Town of Buena Vista. The Cottonwood Creek Exchange is part of Buena Vista’s integrated water supply and distribution system. Pursuant to C.R.S. § 37-92-301(4)(b), when an integrated system is composed of several features, as is the case here, work on one feature of the system is considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire system. During this diligence period Buena Vista has: Exercised its rights in the Cottonwood Creek Exchange to Cottonwood Lake in 2017, 2018, 2019 and 2021, with the maximum rate of exchange being 5.0 cfs on May 21, 2019. The maximum amount stored in one year in Cottonwood Lake was 10 acre-feet, stored in May 2019. The amount of storage capacity available to Buena Vista in Cottonwood Lake is currently limited by agreements with UAWCD due to operational constraints. Operated its Well No. 2 and the exchange and augmentation plan decreed in Case No. 98CW38, including making absolute a portion of its Well No. 2 exchange in Case No. 19CW3074. Water stored in Cottonwood Lake and/or Rainbow Lake pursuant to the Cottonwood Creek Exchange decreed in Case No. 96CW17 is an integral part of the augmentation plan decreed in Case No. 98CW38; Obtained decrees in Case No. 16CW3101 (decreeing a conditional storage right for McPhelemy Pond) and Case No. 17CW3022 (decreeing an augmentation plan and conditional exchange of Project Water to McPhelemy Pond). Water stored in Cottonwood Lake pursuant to the Cottonwood Creek Exchange in Case No. 96CW17 is an integral part of the augmentation plan decreed in Case No. 17CW3022; Finalized an Agreement Regarding Cottonwood Lake with UAWCD to evaluate additional usable storage space in Cottonwood Lake to enable both parties to more fully and effectively use Cottonwood Lake pursuant to the Cottonwood Creek Exchange decreed in Case No. 96CW17, to facilitate pursuit of a new or renewed Special Use Permit with the United States Forest Service, with terms that specifically recognize Buena Vista’s right to store water in Cottonwood Lake, and to set forth the parties’ agreements regarding Cottonwood Lake operations and protocols; Continued to acquire annual allocations of Fryingpan-Arkansas Project water to be used for augmentation and exchanges, including this one; Performed regular routine maintenance, repairs and upgrades on its water system infrastructure, and constructed Well No. 3, tributary to the Arkansas River.; Committed to provide water service to new developments within the Buena Vista service area, and negotiated terms on which such service would be provided; Defended Buena Vista’s water rights by participation as an opposer in water court applications filed by others, and undertook efforts to protect the quality of Buena Vista’s water supply; Expended legal fees in excess of $61,000 during this diligence period in connection with general water rights and water supply matters, including review of resumes and relevant water court applications, prosecuting the Buena Vista’s water court applications, defending Buena Vista’s water rights in opposition to water court applications of others, protecting its right to demonstrate dry up of historically irrigated lands, investigation of storage options, negotiations, and other matters related to Buena Vista’s water rights and water supplies, including review of water rights opportunities and assistance with acquisition agreements; and participating in presentations to the Town Board of Trustees; and Expended engineering fees in excess of $313,000 during the last diligence period for general water rights consulting, review of resumes and Cottonwood Creek applications, assistance with monthly water rights accounting; planning, design and construction services for an Arkansas Well; planning for a second Arkansas well, augmentation for Buena Vista’s McPhelemy Pond; review of various water rights opportunities for Buena Vista; review of water rights applications and opposition to some applications; and presentations to the Town Trustees. SECWCD: As this Court has previously found, the Fry-Ark Project, which is the source of the exchange water involved in this application, is part of an integrated water supply and delivery system that is operated by the United States Bureau of Reclamation and co-applicant SECWCD, such that reasonable diligence in the construction, operation and maintenance of the Fry-Ark Project constitutes reasonable diligence for the development of the Cottonwood Creek Exchange. See, e.g., Decree in Case No. 13CW3036, at 7, 10.c. Work in connection with the Fry-Ark Project and its decreed diversions has been prosecuted with reasonable diligence. See Decree, Case No. 18CW3063 (August 4, 2019, Water Division No. 5); and Decree, Case No. 16CW3079 (November 14, 2018, Water Division No. 2). West Slope components of the Fry-Ark Project have been operated to divert water through the Boustead Tunnel to the East Slope reservoirs of the Fry-Ark Project, and thereafter to decreed beneficial uses for Fry-Ark Project constituents, including for exchange by UAWCD and Buena Vista. SECWCD has contractual agreements with the United States Bureau of Reclamation for planning, construction, operation, maintenance and repayment of the Fry-Ark Project. The operation, maintenance, and repayment of the Fry-Ark Project systems and sub-systems, of which this exchange is a part, constitutes reasonable diligence for this exchange right. Relief Requested. UAWCD requests that the final 0.02 cfs of its rights in the Cottonwood Creek Exchange be made absolute in this case. That is, UAWCD requests that its rights in the Cottonwood Creek Exchange be made absolute in its entirety. Buena Vista requests that its rights in the Cottonwood Creek Exchange be made absolute in this case in the amount of 5.0 cfs, the greatest rate at which the exchange was operated during this diligence period, as shown in paragraph 3.b.i. Applicants request that all portions of the Cottonwood Creek Exchange not already made absolute or made absolute in this case be continued in full force and effect. Names and addresses of owners or reputed owners of the land upon which water is or will be stored or exchanged to: Cottonwood Reservoir is located on land owned by the United States Forest Service, 5575 Cleora Rd, Salida, CO 81201; Rainbow Lake is located on land owned by Rainbow Lake Resort, Inc., P.O. Box 17450, Oklahoma City, OK, 73136; and Buena Vista Town Intake, and Buena Vista Infiltration Gallery are owned by Applicant, Town of Buena Vista
THE WATER RIGHTS CLAIMED BY THE FOREGOING APPLICATION(S) MAY AFFECT IN PRIORITY ANY WATER RIGHTS CLAIMED OR HERETOFORE ADJUDICATED WITHIN THIS DIVISION AND OWNERS OF AFFECTED RIGHTS MUST APPEAR TO OBJECT AND PROTEST WITHIN THE TIME PROVIDED BY STATUTE, OR BE FOREVER BARRED.
YOU ARE HEREBY NOTIFIED that any party who wishes to oppose an application, or application as amended, may file with the Water Clerk a verified statement of opposition setting forth facts as to why the application should not be granted, or why it should be granted only in part or on certain conditions, such statement of opposition must be filed by the last day of July 2021, (forms available at Clerk’s office or at www.courts.state.co.us, must be served on parties and certificate of service must be completed; filing fee $192.00). The foregoing are resumes and the entire application, amendments, exhibits, maps and any other attachments filed in each case may be examined in the office of the Clerk for Water Division No. 2, at the address shown below.
Witness my hand and the seal of this Court this 15th day of June 2021.
/s/ Michele M. Santistevan
Michele M. Santistevan, Clerk
District Court Water Div. 2
501 N. Elizabeth Street, Suite 116
Pueblo, CO 81003
Published in the Herald Democrat June 24, 2021.