PUBLIC NOTICE

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 December 2020, 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. 2020CW3078; PETRA CONSTRUCTION COMPANY, c/o Norman Lewis, 26624 North Turkey Creek Road, Evergreen, CO 80439 (Please address all pleadings and inquiries regarding this matter to Applicant’s attorneys: Aaron Ladd, Esq. and Andrea Kehrl, Esq., Vranesh and Raisch, LLP, 5303 Spine Road, Suite 202, Boulder, CO 80301; Telephone: (303) 443-6151)

First Amended Application for Approval of Plan for Augmentation, Including Water Exchange Project Right

LAKE COUNTY

2. Description of Application: The Applicant owns the real property that is being developed into the Half Moon Estates subdivision in central Lake County, Colorado, in the SW1/4 SW1/4 of Section 5, the SE1/4 of Section 6, and the NW1/4 NW1/4 of Section 8, Township 10 South, Range 80 West of the 6th P.M. (“Half Moon Estates”), as depicted on the Exhibit A map attached to the application. (All exhibits mentioned herein are incorporated by reference and may be inspected at the office of the clerk of the Court.)  The Applicant intends to subdivide Half Moon Estates into fourteen (14) five-acre lots, located along Halfmoon Creek and depicted on Exhibit A. The water supply for Half Moon Estates will be obtained from fourteen (14) wells, with one (1) well on each lot; the well water will provide in-house domestic use as well as limited watering of horses/livestock or equivalent domestic animals and outdoor irrigation for the 14 lots at Half Moon Estates.  By this Application, the Applicant seeks approval of a plan for augmentation, including water exchange project, to replace the out-of-priority depletions from the 14 wells using the fully consumptive, transmountain portion of one share of capital stock in the Twin Lakes Reservoir and Canal Company (“Twin Lakes Company” or the “Company”) as replacement water.  This Application is amended primarily to provide additional location information for the wells, the associated point of depletions for the wells, and the water exchange project. CLAIM FOR APPROVAL OF A PLAN FOR AUGMENTATION, INCLUDING WATER EXCHANGE PROJECT 3. Structures to be Augmented: The Applicant seeks to augment out-of-priority depletions from the 14 wells that will be located on the 14 lots in Half Moon Estates, which are referred to herein as the “Half Moon Estates Wells” or the “Wells.” a. The Half Moon Estates Wells are not decreed structures.  Prior to constructing the Half Moon Estates Wells and following the adjudication of this plan for augmentation, the Applicant will apply to the State Engineer’s Office for well permits for the Half Moon Estates Wells.  b. The Half Moon Estates Wells will withdraw groundwater that is tributary to Halfmoon Creek at a maximum rate of 15 gallons per minute each.  c. Water pumped from the Half Moon Estates Wells will be used for in-house domestic purposes, watering of horses/livestock or equivalent domestic animals, and outdoor irrigation, as further specified below in Paragraphs 5(b) and (c). d. Half Moon Estates is located in Lake County, Colorado and is depicted, with the locations of the 14 lots, on the map attached hereto as Exhibit A. The lot lines depicted on Exhibit A represent the current development concept; Applicant reserves the right to modify individual lot lines at its own request or as required by the Lake County development approval process. As allowed by Policy Memo No. 99-1 of the State Engineer’s Office, the exact locations of the Wells will not be confirmed until the subdivision of Half Moon Estates is approved by Lake County and the individual Wells are drilled.  However, Applicant intends to construct one Well on each lot, at the locations specified in the table below, with reasonable variation (< 200’) within each lot as may be dictated by local conditions at the time of drilling, and to construct all 14 Wells at least 600 feet from any existing well:

Lot/Well

Township, Range

Section, 1/4, 1/4 (Lot

Location)

Well
Location UTM

x, y 

Lot 1 Well

T 10S, R 80W, 6th P.M.

Sec. 6, SW1/4, SE1/4

381,430.0, 4,340,304.3

Lot 2 Well

T 10S, R 80W, 6th P.M.

Sec. 6, SW1/4, SE1/4 and Sec. 6, SE1/4, SE1/4

381,548.8, 4,340,330.3

Lot 3 Well

T 10S, R 80W, 6th P.M.

Sec. 6, SW1/4, SE1/4

381,559.9, 4,340,170.1

Lot 4 Well

T 10S, R 80W, 6th P.M.

Sec. 6, SW1/4, SE1/4 and Sec. 6, SE1/4, SE1/4

381,653.8, 4,340,239.8

Lot 5 Well

T 10S, R 80W, 6th P.M.

Sec. 6, SE1/4, SE1/4

381,766.4, 4,340,331.2

Lot 6 Well

T 10S, R 80W, 6th P.M.

Sec. 6, SE1/4, SE1/4 and Sec. 5, SW1/4, SW1/4

381,960.1, 4,340,320.8

Lot 7 Well

T 10S, R 80W, 6th P.M.

Sec. 5, SW1/4, SW1/4

382,228.1, 4,340,314.2

Lot 8 Well

T 10S, R 80W, 6th P.M.

Sec. 5, SW1/4, SW1/4

382,168.4, 4,340,192.8

Lot 9 Well

T 10S, R 80W, 6th P.M.

Sec. 5, SW1/4, SW1/4

382,239.1, 4,340,100.2

Lot 10 Well

T 10S, R 80W, 6th P.M.

Sec. 5, SW1/4, SW1/4

382,339.4, 4,340,175.8

Lot 11 Well

T 10S, R 80W, 6th P.M.

Sec. 5, SW1/4, SW1/4 and Sec. 8, NW1/4, NW1/4

382,337.5, 4,339,990.9

Lot 12 Well

T 10S, R 80W, 6th P.M.

Sec. 8, NW1/4, NW1/4

382,371.8, 4,339,850.2

Lot 13 Well

T 10S, R 80W, 6th P.M.

Sec. 5, SW1/4, SW1/4 and Sec. 8, NW1/4, NW1/4

382,210.4, 4,339,931.2

Lot 14 Well

T 10S, R 80W, 6th P.M.

Sec. 8, NW1/4, NW1/4

382,247.9, 4,339,776.7

 

 

e. Based on the locations of the Wells as described above in Paragraph 3.d, the Applicant’s engineer has identified the following point of depletions from the Wells (“Point of Depletions”):  the SW1/4 SE1/4 of Section 6, Township 10 South, Range 80 West, 6th P.M., at a location 228 feet north of the south section line and 1,330 feet west of the east section line; provided, however, while no depletions from the Wells will occur upstream of the Point of Depletions, due to local surface and groundwater conditions, some or all of the depletions from the Wells may occur downstream of it. 4. Water Rights to be Used for Augmentation: a. Applicant proposes to augment depletions from the Half Moon Estates Wells utilizing the fully consumptive, transmountain portion of the water available to one (1.0) share of capital stock in Twin Lakes Reservoir and Canal Company (“Twin Lakes”). The Applicant does not request a change of the fully consumptive, transmountain portion of the Twin Lakes water by this Application. b. The Twin Lakes water rights are more particularly described as follows: i. Colorado River Water Rights:  The Independence Pass Transmountain Diversion System (the “System”) diverts water from the headwaters of Roaring Fork Creek and its tributaries in Pitkin County. The System was decreed by the District Court for Garfield County in Civil Action No. 3082, on August 25, 1936, with a date of appropriation of August 23, 1930, for direct irrigation and storage in Twin Lakes Reservoir.  The original Decree for the System was modified by the Decree entered by the District Court for Water Division 5 in Case No. W-1901, on May 12, 1976, which provides that water gathered and collected from the System is decreed for the following purposes: direct flow and storage for irrigation, domestic, commercial, industrial, municipal, and all beneficial uses. Water is carried through the Continental Divide for delivery to Lake Creek, a tributary of the Arkansas River, at a decreed rate of 625 cubic feet per second (“cfs”), with an annual limit of 68,000 acre-feet, a running ten-year limit of 570,000 acre-feet, and other limitations set forth in the aforementioned Decrees. ii. Arkansas River Water Rights:  Water in Lake Creek, a tributary of the Arkansas River, is stored in Twin Lakes Reservoir pursuant to the Decree entered by the District Court for Chaffee County in Civil Action No. 2346, on July 14, 1913, with dates of appropriation of December 15, 1896, for 20,645.3 acre-feet, and March 29, 1897, for 33,806.7 acre-feet. The original Decree was modified by the District Court for Water Division 2 in Case No. W-3965, dated April 19, 1974. Twin Lakes Reservoir is an on-stream reservoir, comprised of Lower Twin Lake and Upper Twin Lake, located in all or portions of Sections 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 30 of Township 11 South, Range 80 West, 6th P.M. The water is decreed for storage for irrigation, domestic, commercial, industrial, and municipal purposes on any sites in the Arkansas River basin of Colorado below Twin Lakes Reservoir which are capable of being served water by diversions from said Arkansas River. c. Twin Lakes Reservoir is depicted on the map attached hereto as Exhibit B. d. A Twin Lakes share represents a pro-rata interest in native Arkansas River diversions and the Independence Pass Transmountain Diversion System. Based on current information from the Division Engineer’s Office, each Twin Lakes share yields approximately one (1) acre-foot per year, with the fully consumptive, transmountain portion of the share conservatively yielding 0.73 acre-feet per year and the native portion of the share yielding approximately 0.27 acre-feet per year.  The water associated with the transmountain portion of a Twin Lakes share is available for one-hundred percent consumptive use and reuse, including augmentation purposes.  The Applicant seeks to utilize the 0.73 acre-foot conservative annual yield associated with the transmountain portion of its Twin Lakes share in the plan for augmentation claimed herein.  However, the Applicant intends to maintain, utilize, own, and control the native portion of its Twin Lakes share, and the Applicant seeks a Decree in this matter reserving the right to utilize the native portion of its Twin Lakes share for augmentation or other purposes, inter alia, to increase the allowable outdoor uses associated with this augmentation plan in the future, whether by separate Water Court Application or otherwise. 5. Complete Statement of Plan for Augmentation, Covering all Applicable Matters under C.R.S. § 37-92-103(9), § 302(1), § 305(5), § 305(8): a. Location of Use:  As described above, water withdrawn from the Half Moon Estates Wells will be used in the Half Moon Estates subdivision, as described in Paragraphs 2 and 3.d., and which is depicted on Exhibit A. b. In-house Domestic Water Usage and Depletions:  In-house domestic water usage is not anticipated to exceed 80 gallons per person per day.  With 3.5 persons per single-family dwelling and 14 single-family dwellings, the in-house domestic water demands equal 4.392 acre-feet per year.  Because wastewater from the dwellings will be treated utilizing non-evaporative individual sewage disposal systems, a ten percent (10%) consumption factor is appropriate, and the annual depletions associated with the in-house domestic use are 0.439 acre-feet per year.  Return flows will accrue to Halfmoon Creek.  c. Outdoor Water Uses and Depletions: In addition to in-house domestic use, the augmentation plan will also replace the out-of-priority depletions associated with outdoor irrigation and watering of horses/livestock or equivalent domestic animals. The total outdoor irrigation depletions are based on 1.574 acre-feet per acre of annual consumptive use, applying an 80% irrigation efficiency. Water requirements for horses/livestock or equivalent domestic animals are assumed to be 11 gallons per animal per day, with such use being 100% consumptive.  In order to provide flexibility in the outdoor uses ultimately selected by the residents of Half Moon Estates, the Applicant has evaluated a combination of outdoor irrigation and horse/livestock or equivalent domestic animal watering uses, ranging from (i) 580 square feet of irrigated area per lot (8,120 square feet total) and zero horses/livestock or equivalent domestic animals to (ii) 235 square feet of irrigated area per lot (3,290 square feet total) and 14 total horses/livestock or equivalent domestic animals in Half Moon Estates.  For each combination of outdoor uses, the total net depletions from outdoor water usage will not exceed 0.290 acre-feet per year.  Every contemplated combination of outdoor uses maintains enough yield available under the Twin Lakes share to replace the in-house domestic depletions.  The Applicant will install, maintain, and operate such water measurement and recording devices as necessary for administration of this plan for augmentation. Irrigation return flows will accrue to Halfmoon Creek. d. Maximum Stream Depletions: Maximum stream depletions associated with use of the Half Moon Estates Wells will not exceed 0.73 acre-feet per year. e. Augmentation Water: The required volume of augmentation water will be provided from the sources described in Paragraph 4, above.  Applicant reserves the right to retain and exclude from this augmentation plan any portion of a Twin Lakes share not needed to replace depletions from the Half Moon Estates Wells should a portion of the share go unutilized. Due to the small volume of annual stream depletions projected to occur under this plan, instantaneous stream depletions may be aggregated and replaced by one or more releases from storage of short duration. f. Water Exchange Project:  Because the Point of Depletions is on Halfmoon Creek, a side tributary of the Arkansas River, and Applicant’s substitute supply water will be provided downstream to the Arkansas River, Applicant asserts a water exchange project right pursuant to C.R.S. §§ 37-92-103(9), 37-92-302(5), 37-92-305(3)(a), and 37-92-305(5). The water exchange project reach is depicted on the map attached hereto as Exhibit B and is described as follows:  The reach of the stream dewatered by depletions from pumping of the Wells extends from the Point of Depletions, as described in paragraph 3.e., above, which is the upstream terminus of the depletion reach for the exchange project, down Halfmoon Creek to its confluence with Lake Fork Creek in the SW1/4 SE1/4 of Section 5, Township 10 South, Range 80 West, 6th P.M., down Lake Fork Creek to its confluence with the Arkansas River in the SW1/4 SE1/4 of Section 5, Township 10 South, Range 80 West, 6th P.M., and down the Arkansas River to its confluence with Lake Creek  in the NE1/4 SE1/4 of Section 24, Township 11 South, Range 80 West, 6th P.M., Lake County, at a location 2,630 feet north of the south section line and 1,775 feet west of the east section line, which point is the downstream terminus of the depletion reach for the exchange project. At this location, replacement of the Wells’ upstream depletions to the stream will occur under the exchange project with water released from Twin Lakes Reservoir carried in Lake Creek to the confluence of Lake Creek and the Arkansas River at the downstream terminus of the exchange project.  The exchange project will operate to replace depletions to the flow of water in Halfmoon Creek, tributary to Lake Fork, tributary to the Arkansas River, as the depletions occur. The water exchange project right will be administered with a priority date of the date of the filing of this Application, December 23, 2020, at a maximum flow rate of 0.001 cfs, conditional. g. No Injury and On-Site Storage:  It is not anticipated that any water right located on Halfmoon Creek, Lake Fork, or the Arkansas River upstream of the confluence of Lake Creek and the Arkansas River will be injured by the operation of the Half Moon Estates Wells. Should that turn out not to be the case, the Applicant reserves the right to include on-site storage as part of the plan for augmentation and to exchange Twin Lakes water into the on-site storage as needed. h. Twin Lakes Company Requirements:  The Applicant will comply with the applicable Bylaws of the Twin Lakes Company requiring the Applicant to submit the stock certificate for the share committed to this plan for augmentation, in order to allow the Company to legend the certificate with a notation regarding this plan for augmentation and directing that no transfer of the share shall be made by the Company, except as otherwise allowed under its Bylaws, without the prior approval of the Water Court.  In addition, in any proposed Decree in this case, the Applicant will include the terms and conditions required by the Twin Lakes Company’s Bylaws. i. Colorado Water Conservation Board Instream Flow Rights:  The Colorado Water Conservation Board (“CWCB”) holds an instream flow water right on Halfmoon Creek in the amount of 7.0 cfs, decreed in Case No. W-4645-77, and an instream flow water right on Lake Fork in the amount of 15.0 cfs, decreed in Case No. W-4654.  Applicant believes and asserts that depletions associated with the Half Moon Estates Wells will result in less than a one percent depletive effect on the aforementioned instream flow water rights on Halfmoon Creek and Lake Fork, and the maximum depletion rate of 0.001 cfs qualifies as a de minimis impact to the aforementioned in-stream flow water rights, under the CWCB’s Instream Flow De Minimis Rule, 2 C.C.R. § 408-2-8e.  Factoring in delayed pumping effects and lagged return flows, the maximum, steady-state depletion rate to Halfmoon Creek and Lake Fork will not exceed 0.001 cfs. j. Additional Sources of Augmentation Water:  The Applicant reserves the right to add additional sources of augmentation water to the plan for augmentation in the future, pursuant to the Decree ultimately entered in this matter. 6. Name(s) and address(es) of owner(s) or reputed owner(s) of the land upon which any new diversion or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool:  The Applicant owns the land where the new structures, the Half Moon Estates Wells, will be located. WHEREFORE, Applicant requests the entry of a Decree approving this Application, specifically granting the claims described in this Application, including but not limited to determining that the source and location of delivery of augmentation water are sufficient to prevent material injury to vested water rights. Applicant also requests a determination that the Half Moon Estates Wells described herein can be operated without curtailment so long as out-of-priority stream depletions are replaced as proposed herein. Applicant further requests the entry of an Order directing the State Engineer’s Office to issue well permits for the construction and use of the Half Moon Estates Wells.

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 February 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 13th day of January 2021.

/s/ Michele M. Santistevan

Michele M. Santistevan, Clerk

District Court Water Div. 2

501 N. Elizabeth Street, Suite 116

Pueblo, CO 81003

(719) 404-8832

(Court seal)

Published in the Herald Democrat Jan. 21, 2021.

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