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. 2021CW3029; Previous Case No. 2017CW3009 – SILOAM WELL ASSOCIATION, 1965 Pope Valley Ranch Rd. Pueblo, CO 81005 (Please address all pleadings and inquiries regarding this matter to Applicant’s attorney: Steven L. Janssen, Esq.,410 Main St., Longmont, CO 80501, Telephone: 303-717-7667)
Amended Application to Amend Plan for Augmentation to Add Covered Well
2. Description of Applicant: Applicant, Siloam Well Association (“SWA”) is a Colorado Nonprofit Corporation organized exclusively for the nonprofit use of its members, a group of well users in the Siloam Road –Highway 96 area, southwest of Pueblo Reservoir (“Pueblo Complex Area”) in Pueblo County. SWA was established to develop technical hydro-geological reports regarding ground water flows in the Pueblo Complex Area, obtain replacement water through a group lease from the Board of Water Works of Pueblo, Colorado (Pueblo Water), pursue an Augmentation Plan Decree for member wells, seek additional long-term water augmentation sources and protect SWA member well supplies through continuing aquifer monitoring and reporting. 3. Prior Decrees: On July 20, 2018, in case no. 2017CW3009, this Court entered its Findings of Fact, Conclusions of Law, Amended Ruling of Referee, Judgment and Decree (“2017CW3009 Decree”) approving a Plan for Augmentation for SWA member wells. Paragraph 12.10 of the 2017CW3009 Decree provides, inter alia, as follows: “12.10. Addition of Covered Wells: If Applicant seeks to add a SWA member’s well as a Covered Well under this plan for augmentation, either as a new well, supplemental well or an alternate point of diversion for an existing well, Applicant or the well owner shall file an Application with the Water Court to add said well to this plan for augmentation. A SWA Member’s well may be added to this plan under such appropriation date and priority as the Court may determine, so long as the well is operated and used, and out-of-priority depletions are replaced, pursuant to terms and conditions at least as restrictive as those decreed herein. If said added well is located within Zones 1, 2 or 3 of the SWA Inclusion Area as shown on Exhibit A, (All exhibits mentioned herein are incorporated by reference and may be inspected at the office of the clerk of this Court.), attached hereto, and withdraws water from the Dakota aquifer, the lagged depletions to the Arkansas River shall be calculated based on the parameters set forth in Table 1 above. If said added well is outside Zones 1, 2 or 3 of the SWA Inclusion Area as shown on Exhibit A, attached to the application, or withdraws water from other than the Dakota aquifer, the Applicant shall submit its calculation of lagged depletions to the Arkansas River along with the Application to add said well to this plan of augmentation.” On June 9, 2020, in case no. 2019CW3063, and pursuant to paragraph to paragraph 12.10 of the 2017CW3009 Decree, this Court entered its Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree amending the 2017CW3009 Decree to approve the Gonzales Domestic Well AKA K & S Well #1 as an additional structure to be augmented as a “Covered Well” in the 2017CW3009 Decree. 4. Purpose of Application: Applicant has a new member whose name is Southern Flow Property Holdings, Consulting, and Management LLC (“Southern Flow”) also doing business as Newco Ventures. Southern Flow is the contract purchaser and authorized agent for Lynn and Kristina Armbruster (“Armbrusters”). The Armbrusters are the owners of the West 1/2 of East 1/2 of Southeast 1/4 of Section 2, Township 21 South, Range 68 West of the 6th P.M., and also own an existing well known as the Menely Well, DWR Permit #193140. The Menely Well is located within Zone 3 of the SWA Inclusion Area as shown on attached Exhibit A. The Menely Well is currently permitted and approved pursuant to C.R.S. sec. 37-92-602(3)(b)(II)(A) as the only well on a tract of land of 39.17 acres. The Applicant and its member, Southern Flow, seek to add the Menely Well as a “Covered Well” under the 2017CW3009 Decree and agree that thereafter this well shall be operated and used, and its out-of-priority depletions replaced, pursuant to the terms and conditions of the 2017CW3009 Decree. Upon approval of this Application, Southern Flow, as the contract purchaser and authorized agent for the Armbrusters, will seek to re-permit this well as a commercial irrigation well, to be deepened and improved to withdraw water from the Dakota aquifer, with its depletions to the Arkansas River calculated based on the parameters set forth in the 2017CW3009 Decree and to be augmented by Applicant pursuant to the terms and conditions of the 2017CW3009 Decree. 5. Name of Structure to be Augmented: Menely Well (WDID 1408324), DWR Permit #193140. 5.1. The Menely Well is not decreed. 5.2. The Menely Well is located within the West 1/2 of the East 1/2 of the Southeast 1/4 of Section 2, Township 21 South, Range 68 West of the 6th P.M., at a point 1,520 feet from the South section line and 980 feet from the East section line. Source of PLSS information is the approved well permit and CDSS Map Viewer. 5.3. The point of diversion of the Menely Well is located at UTM Coordinates (Meters, Zone:13, NAD83) Easting: 503406, Northing: 4233582. Source of UTM Coordinates is the approved well permit and GPS device. 5.4 The location of the Menely Well and the location of use of the Menely Well is as shown on attached Exhibit B. 6. Quantity of Depletions for Well Sought to be Added to Augmentation Plan: 10 acre feet per year. 7. Water right(s) to be used for Augmentation: 7.1. Pueblo Water Lease. Applicant has entered a Water Lease Agreement with Pueblo Water dated January 31, 2017 (“Lease”), amended February 21, 2017 (“First Amendment”), amended November 1, 2017 (“Second Amendment”) and supplemented by Letters dated September 11, 2017, October 2, 2017, September 4, 2018, September 6, 2019, and September 18, 2020 (collectively: “Pueblo Water Lease”). The Pueblo Water Lease, as amended and supplemented, is attached as Exhibit C. All replacement water supplied and delivered by Pueblo Water to Applicant is subject to the terms and conditions of the Pueblo Water Lease and consists of fully consumable decreed water for the augmentation of depletions from all SWA member wells authorized under the 2017CW3009 Decree, or any amendments thereto, including the Decree sought by this Application. 7.2. Amount of Augmentation Water. The Pueblo Water Lease is for a specific amount of fully consumable replacement water annually, however such amount may be modified annually upon request of SWA and in the discretion of Pueblo Water. This amount may be increased or decreased for subsequent water years, depending upon demand from SWA members and upon Pueblo Water’s approval. The amount of replacement water leased by Applicant from Pueblo Water is 65 acre feet for Water Year 2021. 7.3. Annual Water Report. Pursuant to the 2017CW3009 Decree, SWA files an Annual Water Report with the Water Court by October 1st of each year, which includes: the total amount of proposed SWA member withdrawals and depletions to occur in the following water year; the source and quantity of replacement water available to replace these depletions (attaching a current copy of the Pueblo Water Letter demonstrating the amount of water leased by SWA for the following water year); a current table of SWA’s members showing the amount of replacement water allocated to each SWA member for the following water year; the amount of allowable pumping for all SWA members based on the quantity and source of replacement water available to replace depletions for the following water year and lagged depletions resulting from all previous pumping; and the projected total stream depletions from projected pumping in the following water year and previously authorized pumping and identifying the entities responsible for replacement of said depletions. 7.4. Division Engineer Review: Pursuant to the 2017CW3009 Decree, the Division Engineer shall review the Annual Notice during the month of October so that approval will be complete before the following water year commences. In the event the Division Engineer does not approve the Annual Notice due to a determination that injury to other water rights will occur, then SWA members are not allowed to withdraw water from any SWA member wells during the following water year, until and unless acceptable modifications have been made. 7.5. Replacement of Depletions: Replacement of depletions from all SWA member wells, during pumping and post-pumping, is achieved by the delivery of fully consumable replacement water owned or controlled by Pueblo Water. All replacement water to be used by Applicant in the 2017CW3009 Decree, as amended by the 2019CW3063 Decree, including the Decree sought by this Application, must be decreed or otherwise legally available for augmentation purposes and deliverable upstream of the point of depletion. 7.6. Sources of Replacement Water: The sources of fully consumable replacement water provided to Applicant by Pueblo Water are unspecified in the Pueblo Water Lease, and such sources are at the option of Pueblo Water, as long as they are legally available for augmentation purposes at the point of replacement, but such sources do not currently include Fryingpan-Arkansas Project Water. Fully consumable replacement water provided by Pueblo Water and available for use under the 2017CW3009 Decree, as amended, including the Decree sought by this Application, may include, without limitation: 7.6.1. Water stored in Twin Lakes Reservoir located in all or portions of Sections 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 30 in T11S, R81W, 6th P.M., in Lake County, if allowed hereafter by the Bureau of Reclamation; 7.6.2. Water stored in Turquoise Reservoir located on Lake Fork Creek in Sections 7, 8, 17, 18, 19, and 20, T9S, R80W, 6th P.M. and Sections 10, 11, 12, 13, 14, and 15, T9S, R81W, 6th P.M., in Lake County, if allowed hereafter by the Bureau of Reclamation; 7.6.3. Water stored in Clear Creek Reservoir located in Sections 7 and 8, T12S, R79W, and Section 12, T12S, R80W, 6th P.M. in Chaffee County; 7.6.4. The sources of such replacement water may also include, but are not limited to, the water rights decreed in Case Nos.: 84-CW-177 & 84-CW-177(B), Water Div. 2, including the reusable return flows decreed therein; 90-CW-340, District Court, Water Div. 5; W-1901, District Court, Water Div. 5; 95-CW-321, District Court, Water Div. 5; 90-CW-55, District Court, Water Div. 2; and 04-CW-130, District Court, Water Div. 2. 8. Applicant does not intend to change a water right to provide a source of augmentation. 9. The plan for augmentation does not include an exchange of water right(s). 10. Complete Statement of Plan for Augmentation: 10.1. Purpose: This Application seeks to add the Menely Well as a Covered Well under the 2017CW3009 Decree and thereby augmenting the lagged stream depletions caused to the Arkansas River by the pumping of the Menely Well, including any replacement wells to be constructed for said Menely Well, in time, location and amount. 10.2. Diversions: The Menely Well will make out-of-priority withdrawals of ground water from the Dakota aquifer which is tributary to the Arkansas River. 10.3. Uses: The entirety of the diversions from the Menely Well will be used for supply of hemp or marijuana grow operations, including beneficial use for indoor and outdoor irrigation, greenhouse operations and cooling, processing facilities, and related commercial, drinking, sanitary, domestic or residential purposes. The location of such uses is shown on attached Exhibit B. 10.4. Depletions: Ground water diversions from the Menely Well will be considered one hundred percent (100%) consumptive. As such, Applicant is not claiming any return flows resulting from the diversion and uses of water withdrawn from the Menely Well. Applicant reserves the right to claim such return flows in the future through a Water Court proceeding to amend the 2017CW3009 Decree. 10.5. Point of Depletions: The pumping of the Menely Well, results in depletions to the Arkansas River in Section 36, Township 20 South, Range 66 West of the 6th P.M., Pueblo County, Colorado. A general area map depicting Zones 1, 2 and 3 of the SWA Augmentation Plan Area and lines from centroids to the point of depletion is shown on attached Exhibit A. 10.6. Timing of Depletions: The Menely Well is within Zone 3 of the SWA Member Inclusion Area as shown on attached Exhibit A. Replacement timing for all lagged depletions was based on a Glover method analysis which was used to create a unit response function (“URF”) for the centroid of each of Zones 1, 2 and 3 of the SWA Inclusion Area. Applicant retained Leonard Rice Engineers, Inc. to provide an engineering report, supporting figures and tables which calculate and describe such URFs for each of Zones 1, 2 and 3. Said engineering report is attached hereto as Exhibit D. 10.7. Point of Replacement: Replacement water is delivered to the Arkansas River at or above Section 36, Township 20 South, Range 66 West of the 6th P.M., Pueblo County, Colorado. Replacement water is provided by fully consumable water owned or controlled by Pueblo Water that is decreed or otherwise legally available for augmentation purposes and further described in paragraph 7.6 above. 10.8. Limitation of Pumping: Withdrawals from all SWA member wells, including the Menely Well, shall be limited so that monthly depletions do not exceed the replacement water delivered to the Arkansas River at or above the point of depletion, taking into account transit losses on deliveries of replacement water, and that the total amount of annual depletions of all SWA members, including Southern Flow, do not exceed the amount of replacement water available to Applicant under the Pueblo Water Lease.10.9. Transit Losses: Any replacement water that is released to the Arkansas River upstream of the point of depletion shall be subject to river transit losses on delivery to the point of depletions, as determined by the Division Engineer. Applicant shall account for transit losses on replacement water provided pursuant to the 2017CW3009 Decree at the time of such releases from storage or to the system and shall release to the river system additional amounts to make up for such transit losses, based on the most recent transit loss calculations accepted and used by the Division Engineer for the applicable reach of the Arkansas River, and estimated distances from the applicable structure to the point of depletion on the stream. 10.10. Credit for Replacement Water: Applicant will only claim credit for its fully consumable replacement water at the point of depletion, after assessment of all transit losses. Transit losses shall be assessed in accordance with the standard administrative procedures used by the Division Engineer. The Division Engineer’s Office and the State Engineer’s Office will administer the replacement water decreed herein from the point it enters the river system to the point of depletion, less the above transit losses. The replacement water will not be considered native water available for diversion by other water rights until it reaches the point of depletion. Applicant shall not seek any credits, off-sets, reductions in obligations, etc. for transit losses when Pueblo Water supplied replacement water is released from whatever source Pueblo Water determines it will release from. 10.11. Single Credit: Applicant shall only claim a single credit for the augmentation use of fully consumable replacement water made available under the 2017CW3009 Decree. 10.12. Measurement: Applicant requires all SWA members to install and maintain totalizing flow meters on all SWA member wells, including the Menely Well, or any additional or replacement wells associated therewith, and thereafter to maintain records and provide reports to the State Engineer or Division Engineer by the 10th day of the month following the month of pumping. 10.13. Accounting: Applicant prepares and provides accounting forms subject to approval and revision at the direction of the Division Engineer. Applicant has established an on-line data base (http://siloam-data.com/depletions_accounting) accessible to the State and Division Engineers and Opposers, containing all reporting information required by the 2017CW3009 Decree. These accounting forms and their format adhere to all applicable policy, guidelines, and protocol established by the State and Division Engineers for such accounting consistent with the terms of the 2017CW3009 Decree and Colorado law. All accounting shall be submitted monthly, unless required more often at the request of the Division Engineer or Water Commissioner. The accounting for the month shall be submitted to the Division Engineer and Water Commissioner no later than ten (10) days following the last day of any given month. Applicant shall provide to the Division Engineer proposed accounting for the upcoming plan year on or before October 1 of each year. 10.14. Administration: Applicant’s use of the fully consumable water provided by Pueblo Water under the Pueblo Water Lease, and amendment(s) and supplement(s) thereto, pursuant to the 2017CW3009 Decree, including the Decree sought by this Application, for replacement of depletions of the Menely Well will ensure that the Applicant has provided all replacement water necessary to meet the lawful requirements of senior diverters at the time and location and to the extent that seniors would be deprived of their lawful entitlement by the Applicant. 11. Names and address of owner land upon which structure is located: Lynn & Kristina Armbruster, 8440 W. State Hwy. 96, Pueblo, CO 81005.
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.