Division 5 Water Court- August 2012 Resume

AUGUST 2012 RESUME

WATER DIVISION 5

PAGE1

DIVISION 5 WATER COURT- AUGUST 2012 RESUME

1.PURSUANT TO C.R.S., §37-92-302, AS AMENDED, YOU ARE NOTIFIED THAT THE FOLLOWING PAGES COMPRISE A RESUME OF THE APPLICATIONS AND AMENDED APPLICATIONS FILED WITH THE WATER CLERK FOR WATER DIVISION 5 DURING THE MONTH OF AUGUST 2012. The water right claimed by this application may affect in priority any water right 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.

12CW126 Eagle County; Application for Change of Water Rights;Applicant: Town of Eagle; Please direct all correspondence to Applicant’s attorneys: Sherry A. Caloia, LLC, 1204 Grand Ave., Glenwood Springs, CO 81601, (970) 945-6067, , . Description of Water Rights to be changed to be diverted at alternate points of diversion for municipal uses: Consumptive use credit quantified for the Hat Creek Ditch as decreed in Case No 07CW227, District Court in and for Water Division No. 5, a copy of which is attached. Name of structure: Hat Creek Ditch. Original Decree: July 17, 1916, Civil Action No. 673, by the District Court in and for Eagle County, Colorado. Change Decree: April 12, 2012, Case No. 07CW227 by the District Court in and for Water Division No. 5. Original Decreed Point of Diversion: On the south bank of Hat Creek at a point whence the Southwest ¼ corner of Section 22, Township 6 South, Range 83 West of the 6th P.M., bears South 67˚ 45’ East 1,200 ft., in Eagle County, Colorado. Actual Point of Diversion: UTM, Zone 13, NAD 83, Easting 354853, Northing 4374878 (meters) (as confirmed in Case No. 07CW227). Changed Point of Diversion: As decreed in Case No. 07CW227, District Court in and for Water Division No. 5:Hat Creek Instream Flow (ISF) Reach Upper terminus: Hat Creek Ditch diversion point on Hat Creek: SE ¼ SW ¼, Section 22, Township 6 South, Range 83 West of the 6th P.M., at a point 1275 feet east of the west section line and 149 feet north of the south section line.Hat Creek ISF Reach Lower Terminus: Hat Creek Confluence with East Brush Creek: NE ¼ SW ¼, Section 22, Township 6 South, Range 83 West of the 6th P.M., at a point 1748 feet east of the west section line and 2450 feet north of the south section line.East Brush Creek ISF Reach Upper Terminus: Hat Creek Confluence with East Brush Creek: NE ¼ SW ¼, Section 22, Township 6 South, Range 83 West of the 6th P.M., at a point 1748 feet east of the west section line and 2450 feet north of the south section line.East Brush Creek ISF Reach Lower Terminus: East Brush Creek Confluence with Brush Creek: SW ¼ SW ¼, Section 7, Township 6 south, Range 83 West of the 6th P.M., at a point 298 feet east of the west section line and 447 feet north of the south section line. Source: Hat Creek, tributary to East Brush Creek, tributary to Brush Creek, tributary to the Eagle River, tributary to the Colorado River. Appropriation Date: March 6, 1914. Amount: 2.0 c.f.s,, absolute, quantified by decree in Case No. 07CW227, District Court in and for Water Division No. 5, as 18.2 acre-feet of historic consumptive use (HCU) per year. Uses: originally decreed for irrigation, changed to instream flow use in Case No. 07CW227, District Court in and for Water Division No. 5. Names and descriptions of structures the water rights described in paragraph 2, above, are to be changed to: Three Alternate points of diversion for the Town of Eagle described as follows: Town of Eagle Gravity Water System or the Town of Eagle Brush Creek Intake: decreed point of diversion on the easterly bank of Brush Creek whence Corner No.4 of Tract86, Sections35 and 36, Township 5 South, Range84West of the 6th P.M. bears N2649’20”E 1,062.99feet; also described as a point in the SW1/4 NE1/4, Section 1, Township 6 South, Range 84 West, 6th P.M., 940 feet from the north section line and 2630 feet from the west section line. Town Lower Intake No. 1: the point of diversion will be located on Brush Creek in the SE1/4 NE1/4 Section 6, Township 5 South, Range 84 West of the 6th P.M. at a point 1735 feet from the North section line and 25 feet from the East section line of section 6. Town Lower Intake No. 2: the point of diversion will be located on the Eagle River in the SE1/4 NE1/4 of Section 6, Township 5 South, Range 84 West of the 6th P.M. at a point approximately 1665 Feet from the North section line and 195 feet from the East section line. Statement of Change of Water Right: Historical Use: The Hat Creek Ditch water right was historically diverted at the Hat Creek Ditch head gate for use to irrigate approximately 22 acres of land adjacent to East Brush Creek. By decree in Case No. 07CW227, this Court quantified the historical consumptive use associated with the Hat Creek Ditch water right as 18.2 acre feet per year, distributed as follows: Table 1: Hat Creek Ditch Historical Consumptive Use (in acre feet)

Month / HCU (AF)
May / 2.5
June / 5.8
July / 4.8
August / 2.7
September / 2.4

The use of the Hat Creek Ditch water right was changed from irrigation uses to in stream flow use exclusively by the CWCB, pursuant to C.R.S. section 37-92-102(3), in Hat Creek and East Brush Creek. Water under that change of use will be beneficially used to supplement existing decreed in stream flow water rights on Hat Creek and East Brush Creek up to their respective decreed amounts. The CWCB will continue to use the Hat Creek Ditch water right as summarized below and in Table 2 for in stream flow purposes on the following stream reaches, pursuant to the decree entered in Case No. 07CW227: Hat Creek: The reach of Hat Creek from the head gate of the Hat Creek Ditch, downstream approximately 0.48 miles to the confluence with East Brush Creek. East Brush Creek: The reach of East Brush Creek from the confluence with Hat Creek downstream approximately 4.7 miles to the confluence with Brush Creek. Table 2: Flow Amounts Claimed for Changed Water Right (in c.f.s)(as decreed in Case No. 07CW227)

Month / Hat Creek / East Brush Creek
Average / Maximum
May / 0.77 / 0.04 / 0.11
June / 2.0 / 0.10 / 0.20
July / 2.0 / 0.08 / 0.15
August / 2.0 / 0.04 / 0.10
September / 2.0 / 0.04 / 0.11

The Town purchased the historic consumptive use associated with the Hat Creek Ditch water that will remain in Brush Creek after the CWCB’s use for in stream flow purposes, which place of use is below the confluence of East Brush Creek and Brush Creek. The Town will divert the historic consumptive use of the Hat Creek Ditch water right described above at any of the three alternate points of diversion as described Paragraph 3, herein, to use through its municipal system for municipal, commercial, industrial, irrigation, augmentation and domestic uses. Names and addresses of the owners of land upon which the points of diversion are located: Hat Creek Ditch: Colorado Division of Parks and Outdoor Recreation, Colorado Department of Natural Resources, 1313 Sherman Street, Room 718, Denver, CO 80203. Town of Eagle Diversion Points: Applicant. Additional information: Applicant is a municipality and has a large portfolio of water rights acquired to provide municipal water service to its residents and to various out-of Town properties with associated irrigation within the Town of Eagle in Eagle County. The Town of Eagle is generally located in Sections 24-29 and 32-34 inclusive, Township 4 South, Range 84 West and Sections 8-10, 15,16, 21 and 22, Township 5 South, Range 84 West, 6th P.M. These boundaries may be expanded from time to time in the future. The Town will use the water for all municipal uses (including domestic, irrigation, commercial, industrial and augmentation purposes) within its service area as it currently exists and as it is expanded. A map of the Town’s service area, including potential expansion, is attached. The Town will make diversions, as set forth in Table 1 or Table 2, above, at the structures described in Paragraphs 3A, B, and C above into its water treatment plants in the amount of the historic consumptive use or changed flow amounts, as determined in Case No. 07CW227, District Court in and for Water Division No. 5, on a monthly basis for use for the Town’s water customers located in and around the Town of Eagle. The attached Figures 1 and 2 show the points of diversion and proposed places of use. (7 pages plus attachments).

YOU ARE HEREBY NOTIFIED THAT YOU HAVE until the last day of OCTOBER 2012 to file with the Water Clerk a verified Statement of Opposition setting forth facts as to why this application should not be granted or why it should be granted in part or on certain conditions. A copy of such statement of opposition must also be served upon the applicant or the applicant’s attorney and an affidavit or certificate of such service shall be filed with the Water Clerk, as prescribed by Rule 5, CRCP. (Filing Fee: $130.00) KATHY HALL, Water Clerk, Water Division 5; 109 8th Street, Suite 104 Glenwood Springs, CO 81601.

2.PURSUANT TO C.R.S., §37-92-302, AS AMENDED, YOU ARE NOTIFIED THAT THE FOLLOWING PAGES COMPRISE A RESUME OF THE APPLICATIONS AND AMENDED APPLICATIONS FILED WITH THE WATER CLERK FOR WATER DIVISION 5 DURING THE MONTH OF AUGUST 2012. The water right claimed by this application may affect in priority any water right 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.

12CW127(04CW234), Eagle County, Colorado – Application for Finding of Reasonable Diligence, Waterford Ranch Spring Sp8-3, Wigder Enlargement; Wigder Spring No. 2; and Waterford Ranch Pond P8-2, Wigder Enlargement. Applicants: Herb and Catherine Wigder, 541 Pamela Court, West Chicago, IL 60185 c/o Edward B. Olszewski, P.O. Box 916, 214 8th Street, Suite 210, Glenwood Springs, CO 81602. Names of Structures: Waterford Ranch Spring Sp8-3, Wigder Enlargement; Wigder Spring No. 2; and Waterford Ranch Pond P8-2, Wigder Enlargement. First Claim for Finding of Reasonable Diligence: Describe conditional water right: Waterford Ranch Spring Sp8-3, Wigder Enlargement; Date of Original Decree: August 3, 2006, Case No. 04CW234, Water Court, Water Division No. 5. Subsequent decrees awarding findings of diligence: N/A . Legal Description: The spring is located in the Northwest 1/4 of the Southwest 1/4 of Section 8, Township 3 South, Range 83 West of the 6th P.M., at a point 850 feet from the West section line and 2,090 feet from the South section line of said Section 8. Source of Water: An unnamed spring tributary to Alkali Creek, tributary to the Eagle River. Appropriation Date: September 25, 1997. Amount: 0.11 c.f.s decreed absolute for wildlife propagation and pond filling, and conditional for domestic (seasonal cabin), irrigation, stockwatering and fire protection purposes. Use: If irrigation, number of acres historically irrigated: 0 acres; proposed to be irrigated: 4 acres. Legal description of acreage: Lands located in the Northwest ¼ of the Southeast ¼ of Section 8, Township 3 South, Range 83 West of the 6th P.M. If non irrigation, describe purpose fully: Domestic (seasonal cabin), irrigation, stockwatering, wildlife propagation, pond filling and fire protection purposes. Second Claim for Finding of Reasonable Diligence: Wigder Spring No. 2; Date of Original Decree: August 3, 2006, Case No. 04CW234, Water Court, Water Division No. 5. Subsequent decrees awarding findings of diligence: N/A. Legal Description: The spring is located in the Northwest 1/4 of the Southwest 1/4 of Section 8, Township 3 South, Range 83 West of the 6th P.M., at a point 1,315 feet from the West section line and 2,110 feet from the South section line of said Section 8. Source of Water: An unnamed tributary to Alkali Creek, tributary to the Eagle River. Appropriation Date: September 25, 1997. Amount: 0.11 c.f.s absolute for wildlife propagation, and conditional for domestic (seasonal cabin), irrigation, stockwatering and fire protection purposes. Use: If irrigation, number of acres historically irrigated: 0 acres; proposed to be irrigated: 4 acres. Legal description of acreage: Lands located in the Northwest ¼ of the Southeast ¼ of Section 8, Township 3 South, Range 83 West of the 6th P.M. If non irrigation, describe purpose fully: Domestic (seasonal cabin), irrigation, stockwatering, wildlife propagation, and fire protection purposes. Third Claim for Finding of Reasonable Diligence. Waterford Ranch Pond P8-2, Wigder Enlargement. Date of Original Decree: August 3, 2006, Case No. 04CW234, Water Court, Water Division No. 5. Subsequent decrees awarding findings of diligence: N/A. Legal Description of dam: Northwest 1/4 of the Southwest 1/4 of Section 8, Township 3 South, Range 83 West of the 6th P.M., at a point 910 feet from the West section line and 2,000 feet from the South section line of said Section 8. Source of Water: An unnamed tributary, tributary to Alkali Creek, tributary to the Eagle River, and the Waterford Ranch Spring Sp8-3, Wigder Enlargement, identified above. Appropriation Date: September 25, 1997. Amount: 2.5 acre-feet, absolute for wildlife propagation, stockwatering and piscatorial uses, and conditional for irrigation and fire protection uses. Use: If irrigation, number of acres historically irrigated: 0 acres; proposed to be irrigated: 1 acres. Legal description of acreage: Lands located in the Northwest ¼ of the Southeast ¼ of Section 8, Township 3 South, Range 83 West of the 6th P.M. If non irrigation, describe purpose fully: Irrigation, stockwatering, wildlife propagation, piscatorial and fire protection purposes. Surface area of high water line: 0.5 acres; Maximum height of dam in feet: 9 feet. Length of dam in feet: 90 feet. Total capacity of reservoir in acre feet: 2.5 acre-feet; Active capacity: 2.5 acre-feet; Dead storage: 0 acre-feet. Provide a 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: For all of the structures listed above, Applicants retained an engineering firm to design a water collection and distribution system regarding the above water rights. Applicants participated as objectors in Water Court in order to protect the above water rights. Applicants have expended approximately $7,609.52 in the past six years towards the development of the above water rights. Names(s) and address(es) of owner(s) or reputed owners 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: Applicants. (6 pages, including 1 map)

3.PURSUANT TO C.R.S., §37-92-302, AS AMENDED, YOU ARE NOTIFIED THAT THE FOLLOWING PAGES COMPRISE A RESUME OF THE APPLICATIONS AND AMENDED APPLICATIONS FILED WITH THE WATER CLERK FOR WATER DIVISION 5 DURING THE MONTH OF AUGUST 2012. The water right claimed by this application may affect in priority any water right 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.

12CW128 Mesa County;Application for Findings of Reasonable Diligence;Name and address of Applicant:The Town of Palisade, please direct all correspondence to the Town’s attorney:Sherry A. Caloia, LLC,1204 Grand Ave., Glenwood Springs, CO 81601, (970) 945-6067; .Name of structure: Palisade Reservoir No. 4, First Enlargement and Refill Right.Original Decree: Case Number: 94CW360, District Court in and for Water Division No. 5, Date entered:November 1, 1999. Subsequent findings of reasonable diligence: Case No. 05CW226, District Court in and for Water Division No. 5.Legal description: Location of dam at a point whence the Southwest corner of Section 28, Township 11 South, Range 97 West of the 6th P.M. bears South 59 West a distance of 1,313 feet, also described as being 1180 feet from the west section line and 711 feet from the south section line of said Section 28, Mesa County, Colorado. Source: Cottonwood Creek, tributary to Rapid Creek, tributary to the Colorado River.Appropriation Date:September 8, 1994.Amount: Palisade Reservoir No. 4, First Enlargement: 40.6 acre feet, conditional; Palisade Reservoir No. 4, Refill Right: 85.6 acre feet, conditionalUses: Irrigation: Land within the present and future service area of the Applicant in or near Sections 3 through 10, Township 10 South, Range 97 West of the 6th P.M., and Section 1 through 4 and 9 through 12, Township 11 South, Range 97 West of the 6th P.M. Municipal, irrigation, domestic, industrial, agricultural, recreational, aquifer recharge and fire protection. Information on reservoir: Maximum height of dam in feet: 10 feet, Length of dam in feet: 750 feet, Total capacity of reservoir in acre-feet: 85.6 acre feet, Active capacity in acre feet: 85.6 acre feet. Name and address of owner of land on which structures are located (land where land is located and land within high water line): Applicant. Name of structure: Palisade Reservoir No. 5, First Enlargement and Refill Right. Original Decree: Case Number: 94CW360, District Court in and for Water Division No. 5, Date entered: November 1, 1999. Subsequent finding of reasonable diligence: Case No. 05CW226, District Court in and for Water Division No. 5. Legal description: dam is located at a point whence the South 1/4 corner of Section 28, Township 11 South, Range 97 West of the 6th P.M. bears South 5135’ West a distance of 583 feet, also described as being 2180 feet from the east section line and 376 feet from the south section line of said Section 28, Mesa County, Colorado. Source: Cottonwood Creek, tributary to Rapid Creek, tributary to the Colorado River. Appropriation date: September 8, 1994. Amount: Palisade Reservoir No. 5, First Enlargement: 8.3 acre feet, conditional, Palisade Reservoir No. 5, Refill Right: 173.3 acre feet, conditional. Uses: Irrigation: Land within the present and future service area of the Applicant in or near Sections 3 through 10, Township 10 South, Range 97 West of the 6th P.M., and Section 1 through 4 and 9 through 12, Township 11 South, Range 97 West of the 6th P.M. Municipal, irrigation, domestic, industrial, agricultural, recreational, aquifer recharge and fire protection. Information for reservoir: Maximum height of dam in feet: 10 feet, Length of dam in feet: 750 feet, Total capacity of reservoir in acre-feet: 173.3 acre feet, Active capacity in acre feet: 173.3 acre feet. Name and address of owner of land on which structures are located (land where land is located and land within high water line): Applicant. Name of structure: Granat Reservoir, 1st and 2nd Re-fill Rights. Original Decree: Case Number: 94CW361, District Court in and for Water Division No. 5, Date entered: November 9, 1999. Subsequent finding of reasonable diligence: Case No. 05CW226, District Court in and for Water Division No. 5.Legal description: The dam is located in the Northwest 1/4 Section 21, Township 11 South, Range 97 West of the 6th P.M., being 173 feet from the west section line and 1337 feet from the north section line of said Section 21. Source: Unnamed tributary of Rapid Creek, tributary to the Colorado River. Appropriation Date: June, 1992. Date water applied to beneficial use: N/A. Amount: 8 acre-feet, Refill--1st and 2nd Conditional. Uses: Irrigation: Land within the Town of Palisade as it now exists or may exist in the future, generally located in Sections 3, 4, 5, 8, 9, 10, 11, Township 11 South, Range 97 West, and Sections 1, 2, 3, 4, 9, 10, Township 1 South, Range 97 West of the 6th P.M. Municipal and domestic. Information for reservoir: Maximum height of dam in feet: 10 feet; Length of dam in feet: 150 feet; Total capacity of reservoir in acre-feet: 8 acre feet; Active capacity in acre feet: 7.5 acre feet; Dead storage in acre feet: 0.5 acre feet. Name and address of owner of land on which structures are located (land where land is located and land within high water line): Applicant. Name of Structure: Denison Reservoir, 1st and 2nd Re-Fill Rights. Original Decree: Case Number: 94CW361, District Court in and for Water Division No. 5, Date entered: November 9, 1999. Subsequent decree finding reasonable diligence: Case No. 05CW226, District Court in and for Water Division No. 5. Legal Description: The dam is located in the Northwest 1/4 Section 21, Township 11 South, Range 97 West of the 6th P.M., 164 feet from the west section line and 1018 feet from the north section line of said Section 21. Source: Unnamed tributary of Rapid Creek, tributary to the Colorado River. Appropriation Date: June, 1992. Date applied to beneficial use: N/A. Amount: 12 acre-feet refill, 1st and 2nd Refill Conditional. Uses: Irrigation:Land within the Town of Palisade as it now exists or may exist in the future, generally located in Sections 3, 4, 5, 8, 9, 10, 11, Township 11 South, Range 97 West, and Sections 1, 2, 3, 4, 9, 10, Township 1 South, Range 97 West of the 6th P.M. Municipal and domestic. Information for reservoir: Maximum height of dam in feet: 15 feet. Length of dam in feet: 200 feet. Total capacity of reservoir in acre-feet: 12 acre feet. Active capacity in acre feet: 11.0 acre feet. Dead storage in acre feet: 1.0 acre feet. Name and address of owner of land on which structures are located (land where land is located and land within high water line): Applicant. The Application contains a detailed outline of what has been done toward completion of these appropriations and application of water to beneficial use as conditionally decreed.(9 pages plus maps).