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HomeMy WebLinkAbout1.18 Judgement and decree, case no. 82CW107\. DISTRlCT COURT, WATER DIVISION 5, COLORADO Case No. 87CW256 (S2CW107) ORDER ATTACHf1ENT j~. IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF BATTLEMENT MESA, INC. IN THE COLORADO RIVER OR ITS TRIBUTARIES IN GARFIELD COUNTY The court, having reviewed the Motion for Substitution of Party and Amendment of caption, and being fully advised in the ,premises, DOTH HEREBY FIND: • Battlement Mesa Metropolitan District shall be substituted as applicant in this matter and shall be entitled to receive all notices permitted or required to pe filed herein. And further, that the caption ~erein be amended to read as ------4'fol-l-ows-: IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF BATTLEMENT MESA METROPOLITAN DISTRICT, A QUASI-MUNICIPAL CORPORATION OF THE STATE OF COLORADO IN THE COLORADO RIVER OR ITS 'l'RIBUTARIES . IN GARFIELD COUNTY Dated this ~ay of ~t-.m lV1. <' 1990. :., :.' ~.I·l:l." .\ I, •• By the Court: GavIn D. Utwiller Gavin J. Litwiler Water Judge water Division 5 RECEIVED SEP I 7 mg -'--.. ---. . . ~ "._ .l ~fo ".. ' , .... , DISTRICT COURT, WATER DIVISION 5, COLORADO Case No. 87CW256 (82CW107) MOTION FOR SUBSTITUTION OF PARTY AND AMENDMENT OF CAPTION IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF BATTLEMENT MESA, INCORPOR~TED IN THE COLORADO RIVER OR ITS TRIBUTARIES IN GARFIELD COUNTY Battlement Mesa Metropolitan District, a quasi-municipal corporation of the State of Colorado, successor in interest to Battlement Mesa, Inc. with respect to the subject water rights, hereby moves the court for an order substituting it for Battlement Mesa, Inc. as applicant herein and amending the caption, and for its motion states as, follows: --------1'. Pursuant-to-a-Bargain and Sa:i-e-De-ed-da:t.m-Dece:mberJ.:g-,--1989 and an Assignment as of the same date, copies of which are attached hereto and incorporated herein by this reference, Battlement Mesa, Inc. conveyed all its right, title and interest in the subject water rights to Battlement Mesa Metropolitan District. 2. As owner of the subj ect water rights, Battlement Mesa Metropolitan District is entitled to receive all nqtices required or permitted to be given in 'this matter. All correspondence, pleadings and communications should be sent to the attention of: Stephen T. Williamson P. O. Box 850 Louisville, CO 80027 Telephone: (303) 666-4060 • Case No. 87CW256 (82CW107) Page 2 3. In order to indicate the proper applicant in this matter, the caption should be amended to read: IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF BATTLEMENT MESA METROPOLITAN DISTRICT, A QUASI-MUNICIPAL CORPORATION OF THE STATE OF COLORADO IN THE COLORADO RIVER OR ITS TRIBUTARIES IN GARFIELD COUNTY WHEREFORE, Battlement Mesa Metropolitan District hereby moves the court for an Order recognizing it as the proper applicant herein and amending the caption to read as described above. 1990. Respectfully subm~. tte d th.~s.~ ,~ ~_ _ day of ~ • williamson, #596 '; artlett, #14919 P. O. Box 850 Louisville, CO 80027 Telephone: (303) 666-4060 Attorneys for Battlement Mesa Metropolitan District ., DISTRICT COURT, WATER DIVISION NO.5, STATE OF COLORADO Case No. 82CWl07 JUDGMENT AND DECREE IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF BATTLEMENT MESA, INC., IN GARFIELD COUNTY This matter having come before the Court upon the application of Battlement Mesa, Inc. for water rights, change of water rights and approval of a plan for augmentation,. and the Court having considered the pleadings, the files herein, the stipulations submitted by the parties, and the evidence introduced at the hearing in this case, does find as follows: 1. Application. An application for water rights, change of water rights and approval of a plan for augmentation was filed by Battlement Mesa, Inc., a Delaware corporation (hereinafter the "Applicant"), on May 13, 1982. 2. Jurisdiction. All notices required by law have been fulfilled, and the Court has jurisdi~tion over this application. 3. Objectors and Entrants. Statements of opposition to the application were timely filed by Union Oil Company of California ("Union"), the Colorado River Water Conservation District (the "River District"), the State Engineer, John W. Savage ("Savage"), Middle Park Water Conservancy District ("Middle Park") and the City and County of Denver acting by and through its Board of Water Commissioners ("Denver"). In addition, entries of appearance were filed by Pitkin County and the ~ity of Aspen. No other statements of opposition or entries of appearance were filed herein and the time for filing such statements or entries has now expired. 4. Augmented Water Rights. Applicant is the owner of the following described water rights and conditional water rights to be augmented (collectively hereinafter the "Augmented Water Rights"): (a) 20 cfs of the Dow Pumping Plant and Pipeline decreed in the District Court in and for the County of Garfield, State of Colorado, in Civil Action No. 4914 for a total of 178 cfs. The decreed source of this conditional water right is the Colorado River (and Green Mountain Reservoir) with a January 24,' 1955 appropriation date, and a November 10, 1966 adjudication date. By decree of the District Court in and for Water Division No. 5 (hereinafter \. the "Water Court"), entered in Case No. 79CW350, the uses of this water right were changed to include municipal, domestic, industrial, commercial, irrigation, sewage treatment and other beneficial uses in connection with the Battlement Mesa Planned Unit Development. The original decreed point of diversion for the Dow Pumping Plant and Pipeline is located at a point on the Northerly bank of the Colorado River, whence the East quarter corner of Section 6, Township 7 South, Range 95 West, 6th P.M. bears North 13° 17' East 753 feet. In addition to the original decreed diversion point, the Dow Pumping Plant and Pipeline has various alternate points of diversion pursuant to decrees of the Water Court entered in Case Nos. W-2786, W-2560 and 79CW350. Moreover, by terms of the instrument whereby Applicant obtained title to the subject 20 cfs of the Dow Pumping Plant and Pipeline, Applicant's interest therein is subordinate in priority to the balance of the 178 cfs dec·reed to said water right. The effect of this conveyance was to sever into two distinct priorities the Dow Pumping Plant and Pipeline. The subject matter of this application is the subordinate, or most junior 20 cfs decreed to said water right. Nothing herein affects the 158 cfs not the subject of this conveyance. (b) The following described conditional water rights decreed by the Water court in Case No. W-2560 for 0.22 cfs (100 gpm) each for municipal, domestic, irrigation and industrial purposes, with an appropriation date of March 1, ----------------r974, arl-of-w~ieh-d~ve-th~±r-souree-o£-water-£rorn-the,-----Colorado River alluvium: (1) Atlantic Richfield Well No. lA, State Engineer Permit No. 20065-F, located in the SE~ NE~ of Section 13, Township 7 South, Range 96 West, 6th P.M., at a point 2300 feet South of the North line and 800 feet West of the East line of said Section 13. (2) Atlantic Richfield Well No. 2A, State Engineer Permit No. 20066-F, located in the SE~ NE~ of Section 13, Township 7 South, Range 96 West, 6th P.M., at a point 2300 feet South of the North line and 600 feet West of the East Line of said Section 13. (3) Atlantic Richfield Well No. 3A, State Engineer Permit No. 20067-F,' located in the SE~ NE~ of Section 13, Township 7 South, Range 96 West, 6th P.M., at a point 2300 feet South of the North line and 1000 feet West of the East line of said Section 13. (4) Atlantic Richfield \ve11 No. 4A, State Engineer Permit No. 20068-F, located in the SE~ NE~ of Section 13, Township 7 South, Range 96 West, 6th P.M., at a point 2400 feet South of the North line and 1250 -2-.. '. feet west of the East line of said Section 13. (5) Atlantic Richfield Well No. SA, State Engineer Permit No. 20069-F, located in the SW~ NE~ of Section 13, Township 7 South, Range 96 West, 6th P.M., at a point 2600 feet South of the North line and 1450 feet West of the East line of said Section 13. (c) Atlantic Richfield Well B, State Engineer Permit No. 18746-F, decreed by the Water Court in Case No. W-2560 for 1.10 cfs (500 gpm) conditional for municipal, domestic, irrigation and industrial purposes, with an appropriation date of March 1, 1974. The decreed location of this well is in the NE~ SW~ of Section 7, Township 7 South, Range 95 West, 6th P.M., at a point 2200 feet North of the South line and 2500 feet East of the West line of said Section 7, and its source is the Colorado River alluvium. On April 20, 1981 the State Engineer cancelled the well permit for this undrilled well, and in its place issued well permits granting Applicant the right to divert the water right associated with the Atlantic Richfield Well B at the following new wells: (1) Battlement Hesa Well No. Bl, State Engineer Permit No. 25264-F, permitted for 100 gpm, located in the NE~ SW~ of Section 7, Township 7 South, Range 95 ________ West-,-6-th-P--.-M.,---a-1o-a-peim-1960---reet-North of eheS ouEJ1-line and 2200 feet East of the West line of said Section 7. (2) Battlement Mesa Well No. B2,~State Engineer Permit No. 25265-F, permitted for 200 gpm, located in the NE~ SW~ of Section 7, Township 1 South, Range 95 West, 6th P.M., at a point 1745 feet North of the South line and 2165 feet East of the West line .of said Section 7. (3) Battlement Mesa Well No. B3, State Engineer Permit No. 25266-F, permitted for 200 gpm, located in the NE~ SW~ of Section 7, Township 7 South, Range 95 West, 6th P.M., at a point 1720 feet North of the South line and 2360 feet' East of the West line of said Section 7. (d) Battlement l1esa Well No. B4, located in the NE~ SW~ of Section 7, Township 7 South, Range 95 West, 6th P.M., at a point 1465 feet North of the South line and 2185 feet East of the West line of said Section 7. The source of this well is the Colorado River alluvium. The amount claimed is 300 gpm conditional for municipal (including fire protection), domestic, commercial, irrigation, industrial, sewage treatment, recreation and all other beneficial uses, with an appropriation date of May II, 1981. -3-" . . " .. (e) Battlement Mesa Well No. B5, located in the SE~ SW~ of Section 7, Township 7 South, Range 95 West, 6th P.M., at a point 1180 feet North of the South line and 2100 feet East of the West line of said Section 7. The source of this well is the Colorado River alluvium. The amount claimed is 300 gpm conditional for municipal (including fire protection), domestic, commercial, irrigation, industrial, sewage treatement, recreation and all other beneficial uses, with an appropriation date of November 11, 1981. (f) Battlement Mesa Well No. B6, located in the NE~ SW~ of Section 7, Township 7 South, Range 95 West, 6th P.M., at a point 1440 feet North of the South line and 2475 feet East of the West line of said Section 7. The source of this well is the Colorado River alluvium. The amount claimed is 300 gpm conditional for municipal (including fire protection), domestic, commercial, irrigation, industrial, sewage treatment, recreation and all other beneficial uses, with an appropriation date of November 11, 1981. (g) Battlement Mesa Well No. B7, located in the NW~ SE~ of Section 7, Township 7 South, Range 95 west, 6th P.M., at a point 1735 feet North of the South line and 2700 feet East of the West line of said Section 7. The source of this well is the Colorado River alluvium. The amount claimed is 300 gpm conditional for municip~l (including~re-p~te~c~-~----------eion),-aomestic, commercial, irrigation, industrial, sewage treatment, recreation and all other beneficial uses, with an appropriation date of November 11, 1981. (h) Eaton Pipeline No.2, decreed in the District Court in and for the County of Garfield, . State of Colorado, •. in Civil Action No. 4954 for 10 cfs for irrigation, manufacturing, industrial and domestic uses, with a December 18, 1956 appropriation date. By supplemental dectee entered in Civil Action No. 4954, 4,25 cfs of this water right was made absolute while the remaining 5.75 cfs was continued as a conditional right. The decreed point of diversion of the Eaton Pipeline No. 2 is located at a point on the left bank of the Colorado River, whence the West quarter corner of Section 7, Township 7 South, Range 95 West, 6th P.M. bears North 40· 44' West 3711.5 feet, and derives its source from the Colorado River. 5. Permit Applications. Applications for permits to construct the Battlement Mesa Wells Nos. B4, B5, B6 and B7 have been filed with the Colorado Division of Water Resources, Office of the State Engineer. The permit application for Well B4 was . filed with the State Engineer's office on or about August 11, 1981, and the permit applications for Wells B5, B6 and B7 were filed on or about June 23, 1982. All well permit applications are currently pending and have yet to be acted upon by the State -4- · . ) Enginee r. Since over s ix months have elapsed since these permit apD lications were filed with the State Engineer, pursuant to C.R.S. 1973, § 37-92-302(2) this matter is now ripe for decision. 6. Auamentation Contract Rights. To augment the water ri ghts de scribed in paragraph 4 above, Applicant proposes to utilize the following described water rights: (a) Ruedi Reservoir, decreed in the District Court in and for the County of Garfield, State of Colorado, in Civil · Action NO. 4613, for domestic, municipal, irrigation, industrial, generation of electrical energy, stockwatering and piscatorial uses, with an appropriation date of July 29, 1957. By subsequent order of the Water Court entered in Case No. W-789-76 the decreed amount of this reservoir has been fixed at 102,369 acre feet. Ruedi Reservoir is located in Sections 7, 8, 9, 11 and 14 thru 18, Township 8 South, Range 84 West, 6th P.M., in Eagle and Pitkin Counties, and derives its water supply from the Fryingpan River. By Water Service Agreement dated May 13, 1982, between Applicant and the United States Bureau of Reclamation, Applicant has the right to call for the release of up to 1250 acre feet per year from Ruedi Reservoir for augmentation and other purposes. The term of this Water Service Agreement extends until September 30, 2019, and may be extended at Applicant's option for an additional forty xears. (b) Wildcat Reservoir, decreed by the Water Court in Case No. W-2l for 1140 acre feet for municipal, recreation, irrigation and in'dustrial uses, with an appropriation date of September 28, 1968. The left dam abutment for this reservoir is located at a point whence the SW corner of Section 30, Township 9 South, Range 85 West·, 6th P.I1. bears " South 53° 31' East, 6800 feet, Pitkin County, Colorado, and the reservoir derives its source from Wildcat,and East Snowmass Creeks. By Lease with reservoir owner Robert Mosbacher dated January 1, 1980, Applicant has the right to call for the delivery of up to 200 acre feet annually from Wildcat Reservoir. The term of this lease extends until December 31, 1984, and may be extended at Applicant's option for an additional three years. 7. Augmentation Water Rights., the following additional water rights mentation purposes: Applicant is the owner of which may be used for aug-(a) Mesa Lakes Nos. 1, 2, 3, 4, 5, 6, 7 and 8, decreed by the Water Court in Case No. 79CW349 for a total of 103.7 acre feet conditional, all with an appropriation date of December 26, 1979. These lakes are located in Sections 7 and 18, Township 7 South, Range 95 West, and Section 13, Township 7 South, Range 96 West, 6th P.M., Garfield County, -5- colorado, and all derive their source of water supply from the Colorado River, Monument Creek (a/k/a Monument Gulch) and unnamed gulches which flow into the eight lakes. (b) Monument Reservoir No.3, decreed by the Water Court in Case No. W-2013 for 500 acre feet conditional for irrigation, piscatorial, municipal, and domestic uses, with an appropriation date of July 24, 1973. This reservoir is located in Section 20, Township 7 South, Range 95 West, 6th P.M., Garfield County, Colorado, and derives its source from Battlement Creek and Monument Gulch. In addition, this reservoir is also entitled to be supplied from the Huntley Ditch -l10nument Reservoir Enlargement decreed by the Water Court in Case No. W-2012 for 15 cfs conditional, with an appropriation date of July 24, 1973. This ditch derives its supply from Battlement Creek. (c) Battlement Mesa Augmentation Reservoir, decreed by the Water Court in Case No. 8lCW302 for 240 acre feet conditional for municipal, irrigation, domestic, and recreation uses, with a September 22, 1981 appropriation date. This reservoir is to be located in Sections 18 and 19, Township 7 South, Range 95 West, 6th P.M., Garfield County, Colorado and derives its supply from Battlement Creek, Monument Gulch and the Colorado River. _____--'8"-,. Application for \'later Right;;' By the sll~j~ct---appli .-.. __ cation, Applicant seeks to adjudicate the conditional water rights for the Battlement Mesa Wells Nos. B4, B5, B6 and B7, more particularly described in paragraphs 4(d), 4(e), 4(f) and 4(g) above. Pursuant to the Pretrial Order entered in the abovecaptioned case on December 28, 1982, the court determined that the parties had admitted and stipulated to the fact that, among other matters, the Applicant was entitled to a decree for these wells. Accordingly, the court finds that Applicant should be granted conditional water rigpts for the Battlement! l1esa Wells Nos. B4, BS, B6 and B7 as described herein. 9. Change of Water Rights. By this application, Applicant seeks the following changes with respect to its water rights: (a) A change in use of all of the previously adjudicated water rights to be augmented and more particularly described in paragraph 4 above to include municipal (including fire protection), domestic, commercial, irrigation, industrial, sewage treatment, recreation and all other beneficial uses. While additional purposes are sought in connection with this change, the uses originally decreed to these water rights contemplates a level of consumptive use that precludes any notion that any greater demand on the stream will occur by reason of this change. Accordingly, injury to the vested water rights of other appropriators will not occur by virtue of this requested change in use. -6- ,-. (b) A readjudication of and correction of the clerical error made regarding the Mesa Lakes Nos. 1 through 8, more particularly described in paragraph 7(a) above, to include the right to store and use water from these lakes for municiDal (including fire protection), domestic, commercial, i~rigation, industrial, sewage treatment, augmentation, exchange, recreation and all other beneficial uses, with an appropriation date of December 26, 1979. This correction is sought inasmuch as the decree of the Water Court entered in Case No. 79CW349 which originally adjudicated the eight Mesa Lakes mistakenly omitted the decreed uses and date of appropriation for these water rights. This omission was the result of a clerical error, and thus no injury will occur by reason of this.. c.h, ange. (c) The right to use the Battlement Mesa Wells Nos. Bl, B2 and B3 as alternate diversion points for the Atlanti= Richfield Well B, and the right to use the Battlement Mesa Wells Nos. BI through B7 as alternate diversion points for Applicant's Dow Pumping Plant and Pipeline up to the decreed and/or permitted capacity of such wells. As this change involves the movement of points of diversion relatively short distances, with usage and returns to the stream remaining the same, no injury will occur to the vested water rights of other appropriators by virtue of this requested change. ---------'(a)-THe right to store water diverted under Applicant's Dow pumping plant and Pipeline and the Eaton Pipeline No. 2 in the Mesa Lakes NOs. 1 through 8, the Monument Reservoir No. 3 and the Battlement Mesa Augmentation Reservoir. Given the level of consumptive use contemplated by and decreed to these direct flow water rights, no injury will occur to the vested water rights of other appropriators by virtue of the request to store such water in the aforementioned reservoirs. \ (e) A change in name of the Atlantic Richfield Wells Nos. lA through SA, more particularly described in paragraph 4(b) above, to the Battlement Mesa Wells Nos. 1A through SA. This change is strictly a clerical matter which will not occasion any injury. In view of the lack of injury resulting from any of the requested changes, the Court finds that' all of the foregoing changes of water rights should be granted. 10. Plan for Augmentation. By Decree of the Water Court dated March 20, 1981, entered in Case No. 79CW3SI, Applicant obtained approval of a plan for augmentation regarding certain water rights to be used in connection with the new community of Battlement Mesa which is located on the south side of the Colorado River near the Town of Parachute. Among other aspects of the -7-" , . Court approved augmentation plan, Applicant was awarded the right to make otherwise out-of-priority diversions of its Dow pumping Plant and Pipeline priority up to the amount of 6 cfs. By the present application Applicant seeks the right to make out-ofpriority diversions from the Dow Pumping Plant and Pipeline at all of its alternate points of diversion up to the full 20 cfs owned by Applicant. Moreover, Applicant seeks the right to make out-of-priority diversions from its Atlantic Richfield and Battlement Mesa Wells at such times as said wells are not being used as alternate diversion points for the Dow Pumping Plant and p'ipeline. Finally, Applicant seeks the right to make out-ofpriority diversions from the Eaton Pipeline No.2. To permit such otherwise out-of-priority diversions, Applicant proposes to make contemporaneous replacement of resulting depletions from the water storage rights described in paragraphs 6 and 7 above. 11. Depletions. Depletions resulting from diversions and use of water from the Augmented Water Rights consist of the water actually consumed in the course of operating the Battlement Mesa central water and sewer system for municipal, domestic, commercial, irrigation, industrial, sewage treatment, recreation and all other beneficial uses occurring under the system. This depletion will be measured as the difference between raw water diversions from·the Augmented Water Rights (all of which will be metered) and return flows discharged to the Colorado River after use. Return flows shall include metered qischarges from Battlement Mesa I s wastewater treatment plan:t_(_ol:-a_faG-i_l_~toy_whteh_by_con _ --tract provides such treatment and metering of discharges) and irrigation return flows from lawns, gardens, parklands, golf courses and other identifiable return flows. 12. Depletion Formula. So as to assure the replacement of all out-of-priority depletions, the method of measuring water consumption and the formula for calculating required replacements of depletions approved by the Water Court in Case ~o. 79CW351 shall be employed in connection with the present augmentation plan. This depletion formula'is as follows: D=Q-P-.2(om_l-HUm_l) Where: D equals depletion of water to Colorado River system on any given day expressed in acre feet. Q equals rate of diversion in acre feet per day of the Augmented Water Rights. P equals discharge in acre feet per day from the Battlement Mesa wastewater treatment plant. ., HU equals the acre feet per day of water delivered to residences, office buildings, schools, and other structures -8- for internal domestic and sanitary purposes, which, for purposes of this plan, is calculated as equalling the measured discharge of the Battlement Mesa wastewater treatment plant divided by 0.95, plus water delivered for industrial or other non-irrigation uses. Qm-l equals the average daily rate of diversion in acre feeE per day of the Augmented Water Rights one month prior to the date for which the formula is being applied. Imposition of this delay factor is designed to account for the lag time from application of water until its return to the stream. HU -1 equals the average daily delivery of water, in ac~e feet, of water delivered to residences, offices, buildings, schools, and other structures for internal domestic and sanitary purposes which is calculated in the same way as provided above for HU but for one month prior to the date for which the formula is being applied, plus water delivered for industrial or other non-irrigation uses one month prior to the date for which the formula is being applied. 0.20 equals the increment of applied irrigation water which returns to the Colorado River by ground water percolation or tailwater. , It represents the appli-_________ ~ca_tion-G_f_i_:H"_i~~n-water-over and above eVapo-transpiration. In addition to the foregoing depletion formula, Applicant shall account for any water introduced into_the Battlement Mesa central water and sewer system which does not originate from the points of diversion described herein. 13. Stream Carriage Losses. By the subject 'application, Applicant seeks to fix the stream carriage charge imposed on releases of its Ruedi Reservoir contract water for augmentation purposes. In support of this request, Applicant submitted an extensive engineering report which calculated the extent of stream carriage losses reSUlting from the release of Ruedi Reservoir water for Applicant's augmentation purposes. In addition, Applicant entered into stipulations with the state Engineer, Middle Park, Savage, Union and the River District, the terms of which are more particularly described in paragraph 15 below, in which it was agreed that such stream carriage charges on Applicant's Ruedi Reservoir contract water should be fixed at a constant rate of 9.5% for the first 14 days of release after call initiation, and 0.4% for each day thereafter through termination of the augmentation release. The parties further stipulated that releases of augmentation water from lvildcat Reservoir and the water storage rights described in paragraph 7 above should be subject to such stream carriage charges as may reasonably be imposed by the Division Engineer for I'later Division No.5. In -9-., view of the foregoing, the Court finds that releases of reservoir water for augmentation purposes shall be subject to such stream carriage charges as agreed to by the parties and set forth in the aforementioned settlement stipulations. Furthermore, such augmentation water shall be released at the direction of the Division Engineer for Water Division No. 5 so that releases can be effected in the most practicable way to fulfill the purposes of this augmentation plan. 14. supplemental and Replacement Wells. In the event Applicant requires supplemental or replucement wells to provide an adequate water supply for those being supplied by the Battlement Mesa water system, the Court finds that such wells may be incorporated in the plan for augmentation subject to the same terms and conditions provided for in this decree; provided, however, that Applicant obtains the requisite replacement or supplemental well permit and a change of water right for any supplemental well. 15. Stipulations. Applicant entered into stipulations with the State Engineer, Middle Park, Savage, the River District and Union, in which the parties agreed to the following: (a) The stream carriage charges imposed on the use of Applicant's Ruedi Reservoir contract water for augmentation purposes shall be fixed at a constant rate of 9.5% for the first 14 days of release after call initiatiort, and 0.4% for each day thereafter through term1nat10n of the augmentat10n release. (b) Releases of augmentation water from Wildcat Reservoir, the Mesa Lakes, Monument Reservoir No. 3 and the Battlement Mesa Augmentation Reservoir shall be subject to such stream carriage charges as may reasonably be imposed by the Division Engineer for Water Division No, 5. (c) On or before December 31 of each year during the period of the Court's retained jurisdiction, Applicant will provide the State Engineer with monthly estimates of application rates for irrigation within the service area of the Battlement Mesa central water system (service area) during the previous irrigation season. In a typical year, such irrigation season shall extend from April 15 until October 31; provided, however, the actual irrigation season in any given year may be longer or shorter depending on conditions. Su·ch estimates shall be made available to each of the various objectors upon request, and shall be based upon and shall itemize the following information: (1) Total monthly treated water, produced by the Battlement Mesa Treatment Plant both during the irrigation and non-irrigation seasons. (2) Monthly estimate of treated water applied for irrigation based on a comparison of the irrigation and nonirrigation season treatment plant amounts (the estimate .. shall be calculated by subtracting the average monthly nonirrigation season treated amount from the average monthly irrigation season treated amount). (3) Honthly diversion records of any untreated water used for irrigation purposes. (4) Estimate of acreage irrigated within the Battlement Mesa service area. (5) The monthly consumptive use of irrigation water will be estimated using the Modified Blaney-Criddle method using the growth state coefficient curve for bluegrass for Denver attached hereto as Exhibit A. An additional loss of 5 percent of the applied irrigation water will be assessed for spray evaporation losses. (6) A comparison on a monthly basis shall be made to determine if the amount of water applied for irrigation ascertained by adding the amounts calculated in paragraphs 15 (c) (2) and 15 (c) (3) above, exceeds by 20 percent the amount of water consumptively used as calculated in paragraph 15 (c) (5) above. (d) The Applicant shall make the reporting set forth in paragraph lS(c) above regardless 'of the amount of out-of---------prrority-d-iversron-s-it---±s-ma-king, or in ot:fier words, regardless of whether it is still operating within the limits of the Plan for Augmentation decreed in water Court Case Nos. 79CW3S0 and 351. Furthermore, regardless of the time of entry of a decree in this matter, the Applicant shall make a reporting required by paragraph lS(c) above for the 1983 irrigation season. (e) If in any given month during the period of retained jurisdiction the amount of water applied far irrigation each month does not equal or exceed 120 percent of the consumptive use estimated in paragraph lS(c) (5), then any party may file a notice with the Court during said period of retained jurisdiction and set a hearing on the issue of the amount of return flow from irrigation within the service area and whether any injury results to other water rights. Unless the Court modifies the decree pursuant to its retained jurisdiction, the amount of irrigation return flow shall be calculated by multiplying the monthly estimate of treated water applied for irrigation specified in paragraph lS(c) (2) above times 20 percent. This amount of water is assumed to reach the Colorado River thirty days after application, subject to the other provisions of this stipulation. (f) It is the intent of the parties to preserve their present position on the issues set forth in the pretrial order paragraphs 3(a), 3(d), 3(e), 3(f), 4(a), 4(b), and 4(c) only insofar as they relate to the question of the extent and timing -11-" · . of Eattlement Mesa irrigation return flows. Therefore, in the event any party files a notice pursuant to paragraph lS(e) above, the issues specified above as set forth in the pretrial order as limited herein shall be litigated in the same manner and procedure and with the same burdens as if they were litigated prior to any decree being entered in this case. It is not the intent of any party to waive any claim or defense or to shift any burden of proof on the issues set forth above by entering into this stipulation. Moreover, the consumptive use methodology employed in paragraph 15 (c) (5) above shall have no precedential value in the event any party files a notice pursuant to paragraph IS(e) above. (g) The period of the Court's retained jurisdiction in connection with the above-captioned case shall be no less than S years from the date of entry of any decree in this case. (h) Any decree entered in this case shall contain the following or similar language: The stipulations between the Applicant and the various objectors are entered into on the basis of the facts of this case only, and are not controlling in any other case. Accordingly, the decree shall not by the operation of any of the doctrines of bar, merger, res judicata or collateral estoppel, prevent any party from litigating or contesting in another case any issue addressed in the stipulations between Applicant and the various objectors. '\ (i) The objectors agree to inclusion of the above provisions or those more restrictive to the Applicant in a consent decree or ruling of referee. In addition, Applicant and Denver entered into a stipulation which differed from the above stipulations only insofar as Denver took the position that the State Engineer or his designated representative determines stream losses pursuant t? C.R.S. 1973, § 37-83-101. Accordingly, pa~agraph l5(a) above was deleted from its stipulation with the Applicant. 16. Operation of Augmentation Plan. Since the operation of the subject plan for augmentation depends on a contemporaneous replacement of water to satisfy the actual depletions occasioned by any out-of-priority diVersions, the Court finds that the Colorado River system will be made whole and that no injury to the water rights of others will be caused by operation of the plan for augmentation in accordance with this decree; provided, however, that this finding shall not limit the Court in making any subsequent revisions pursuant to paragraphs 19 and 20 below. 17. Out-of-Priority Diversions. On any day that a valid call upon the Augmented Water Rights exists, as determined by the Division Engineer for Water Division No.5, the Applicant as a condition of this decree shall cause there to be made available to the Colorado River a full replacement of depletions associated -12- with any out-of-priority diversions from the Augmented Water Rights. Applicant shall be entitled to make such out-of-priority diversions, without curtailment for the benefit of more senior priorities, only when the sources of augmentation water identified above are released to the Colorado River system in satisfaction of depletions determined in accordance with this augmentation plan. lB. Weekly Accounting. In order to assure that the vested water rights of others are protected from injury and to assure proper administration of this decree, whenever the Augmented water Rights are diverting out-of-priority Applicant shall provide the following information to the Division Engineer by a weekly accounting: (al The daily amount of water diverted from the Augmented Water Rights at the various alternate points of diversion; (bl A daily calculation of depletions in accordance with the depletion formula set forth in paragraph 12 above; and (cl The daily amount of water released from the reservoirs described in paragraphs 6 and 7 above to replace depletions. ~ Applicant, upon written request, will provide objectors with copies of such weekly accounting, provided that the requesting objector shall reimburse Applicant for any copying and mailing costs reasonably incurred. In addition to the foregoing accounting, Applicant shall comply with the accounting requirements stipulated between the parties and more particularly described in paragraphs 15(cl and 15(dl above. \ 19. Retained Jurisdiction. In order to assure that the vested water rights of others 'are not injured by change of water rights provided for herein and or by implementation of this plan for augmentation, the Court retains jurisdiction in this matter and upon proper petition the Court will reconsider its approval of the changes of water rights and the plan for augmentation. In the event the Applicant or any person or party petitions the Court for reconsideration on any of the changes or elements of the plan, the Court shall order appropri'ate notice to be given to all the parties hereto. Such petition shall be made in good faith, under oath, and shall set forth with particularity the factual basis upon which the requested reconsideration is premised, together with proposed decretal language to effect the petition. The party lodging 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 (al that any -13-\, \ modification sought by Applicant will avoid injury to other appropriators, or (b) that modification sought by any other Party or person is not required to avoid injury tc other appropriators, or (c) that any term or condition proposed by Applicant in response to the petition does avoid injury to other appropriators. In the event any party files a petition with regard to the question of the extent and timing of Battlement Mesa irrigation return flows, then the provisions of the parties' stipulations with regard to this issue, more particularly described in paragraphs 15(e) and 15(f) above, shall control. 20. Period of Retained Jurisdiction. The Court determines that a period of five years will suffice to determine whether injury is in fact precluded or needs to be further remedied. The five-year period of retained jurisdiction shall begin to run,on the date of this decree. If no petition for reconsideration is filed within five years from the date of this decree, the retention of jurisdiction for this purpose shall automatically expire. It is therefore ORDERED, ADJUDGED and DECREED by the Court that (i) the application for conditional water rights for the Battlement Mesa Wells Nos. B4, B5, B6 and B7, more particularly described in paragraphs 4(d), 4(e), 4(f) and 4(g) above, and the application for change of water rights, more particularly described in paragraph 9 above, are hereby granted; and (ii) the plan for augmentation and stream ca~riage charges described herein are hereby approved ,~bjec-t----'t;,G-tohe-terms---uf the sti'-cp~u~-----~~ions between the parties more particularly described in paragraph 15 above. _ It is further ORDERED, ADJUDGED and DECREED that well permits for the Battlement Hesa Wells Nos. B4, B5, B6 and B7 be issued by the office of the state Engineer, and that an application forl.qu~drennial finding 01zreaLonable diligence shall be filed inAtII .. ..,l,/rof 1987 and in .'I1 ..... .t6f every fourth calendar year thereafter so long as the Applicant desires to maintain the conditional water rights decreed herein, or until a determination has been made that said conditional water rights have become absolute by reason of the completion of the respective appropriations. It is accordingly ORDERED that this judgment and decree shall be filed with the Water Clerk-and shall become effective upon such filing, subject to judicial r'eview pursuant to C.R.S. 1973, § 37-92-304, as amended, and the provisions of paragraphs 19 and 20 above. It is further ORDERED that a copy of the judgment and decree -14-• shall be filed with the State Engineer and the Division Engineer for Water Division No.5. day Don~t the City of Glenwood of V,..,bl-r-, 1983. -15-Springs, Colorado this BY THE COURT: o '-water')Udge .j " \, ,.' .. .. -APPROVED AS TO FORM AND CONTENT: HOLME ROBERTS & OWEN ~enn E. Porzak #2793) Attorneys for Applicant Battlement Mesa, Inc. 1700 Broadway, Suite 1800 Denver, CO 80290 CAZIER WAYNE D. WILLIAMS (H152) MICHAEL L. WALKER (#2828) HENRY C. TEIGEN (#5936) ANNE R. MCGEE (19092) CASEY S. FUNK (il1638~ W. savage, Jr. (#9946) torneys for John \. Savage P. O. Box 1926 Rifle, CO 81650 -16-Donald H.f HaJllbur General Counsel, Col Water Conservatio P. O. Box 1120 Glenwood Springs, CO ) rado River District 81602 FOR THE ATTORNEY GENERAL e State Engineer ~L~'Lant At ney General Natural Resources Section 1525 Sherman St., 3rd Floor Denver, CO 80202 MOSES, WITTEMYER, HARRISON AND .~ WOODRUFF, P. C. ames R. 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