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HomeMy WebLinkAbout1993 Resolution No. 037• RES~LUTION NO .!fl_ SERIES OF 1993 "'RESOLUTION AUTHORIZING THE CITY TO ENGAGE IN WATER COURT PROCEEDINGS. WHEREAS, the City of Englewood has extensive water rights; and WH EREAS, it is necessary to protect these water rights; an~ WHEREAS , after review the Englewood Water and Sewe, Board has made re co mmendation that the City of Englewood engage in certai11 water rights cases, KOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF E:,GLEWOOD, COLORADO , AS FOLLOWS: 5.eJ:l.i.lm..l. That the City Atto rney shall represent the interests of the City of Engl ewood in the following water rights pr oc eedings : 92 .r,w.1.io No rthern Colorado Water Conservancy District in Division 1. 92-CW-144 The Town of Castle Rock in Divisi on I. 92 -CW-152 Roderick J . and Syh •ia H. McDonald io Division I. 92-CW-1 56 The City of Aurora in Divisio n I. 92-CW-164 The City of Thornton in Division 1. 92-CW-166 The South Suburban Pork and Rec reation District in Di,;sion I. 92 -CW-336 Climax )l oly bdenum Company in Di,ois io n 5. 92-CW-305 Grand County Water and Sanitation District No . 1 in Divi sion 5. 92-CW-332 Wi nter Park Recreatio nal Associatio n in Division 5. ADOPTED A.'-ID APPROVED this 5th day of April , 1993 . A EST : x;awc:<tl ., W, ~ Patricia H. C1ow, City Clerk I, Patricia H. Crow, City Clerk for the Ci ty ofEnglewood, Colorado, hereby certify the above is a true copy of Resolu tion No.J:/.. Series of 1993. -;J /) :Uuc,1 ,1...Aj/ (A .. k-<-1 Patri cia H. Crow MEMORANDUM TO : Mayor Wiggins Sheri Gulley, Council Member Rita Hathaway, Mayor Pro Tern Tim Bullock, Council Member Al ex Habenicht , Cc•undl Member Orri s Saunders, Council Member Ke lls Waggoner , Cc•uncil Member F ROM: Rick DeWitt. City Ati.omey DATE : 1 1a rch 3 1, 1993 REGARDI NG: W.:ter Rights Litigation . We r ece ive on a regular baS1 s from Martin and Wood , our water engineer s recommend a t i on s conc erning certain new filings that are mad e in th e various Water Court Divisions . Attached is his February· 1, 1993 Me mo on the applications that &re currently pending in the various di visions where the City of Englewood has Water Rights . These are primarily in Division s No . 1 and No . 5. The poin t that Ma rti n and Wood makes is that the City of Englewood has a number of int erests to protect in the following cases: 92-CW-140 Northern Colorado Water Conservancy District, 92-CW-144 The Town of Castle Rock , 92-CW -152 Roderick J. and Sylvia H . McDonald , 92-CW-15 6 The City of Aurora, 92-CW-164 The City of Thornton, 92-CW -166 The South Suburban Park and Recr ea ti on District, 92 -CW-336 Climax Mol ybdenum Company, 92 -CW-305 Grand County Water and Sanitation District No . 1, 92-CW-33 2 Winter Park Recrea t ional Association . At tached is a February 1, 1993 Letter out!" · engaging in each case. (Jui-wa te r att orney's would enter Attachm ent cc : R oge r Fra s er RD /nf -• • Mr. Mike Wo ika City of Englewood Utilities Departm ent 3400 So . Elati Street Englewood , Colorado 80ll0 Dear Mike : Febru ary 1, 1993 60'2 Fbrk Jbint D r. c5uite 276 Golde;J, Colorado ~040! FAX (JIA.V 626-2624 (JOJ) 626-2600 Re: Re sume Review for December, 1992 Job No . 159 .6 The Dec ember resumes are not unexpectedly voluminous -Division 1 is 173 pages long and Division 5 is 76 pages long . Here are our though ts. lli\i~ Case No . 92-CW-140 · Nonhem Co!or,,~r Conservancv District Th is c:ase concerns an applicati on for an augme ntation plan to cover depletio ns due to pumping as much as 160 cfs from the South Platte into storage in the shallow alluvial aquifer underlying Greeley, through four sets of wells (re ferred to as "batteries" in lhe app lication). The rights to be used for augmentation consist of numerous rights owned by lhe District. As no appropriation dat es are listed and since lhe quantity of water under co nsideration is quite large , we recommend lhat Englewood object to this , if onl y to obtain further information and to ensure that no possible impacts on Englewood could result from the oper:i.tion of lhe proposed plan. Case No . 92-CW-144 : Town of Cast)e Rock Castle Rock seeks new water rights at Den ve r's Str\mtia Sprin gs Dam on lhe Sou lh Pl ane Ri ver upstream from Englewood 's Union Avenue Intake . The Town ·..Jso seeks a wide-ranging plan for augmentation for its East Plum Creek wells and its West Plum Creek wells. The application for new , conditional rights from th e South Plane River raises little concern , ex cept for the needs 10 provide proper accounting and to provide for ~ proper Mr . Mike Woika Page 2 Fe bruary 1, 1993 priorit y date . The plan for augmenta tion represents an extension of both the Town 's currently dec reed plan fo r augmentation and the Town 's pending applicatio ns , and , as such. thi s case .1hould at least be mon itored by Englewood . There fo re , we recommend tha t Englewood object 10 th is appli cation . Case No 92-CW-152 · Roderick J and Syl via H McD onald The McD onalds ' applicati on seeks approval for a plan fo r augmen tati on and appro priative righ ts of exchange for a planned 613 -unit subdivi sio n located along Wes t Plu m Creek near Perry Park . Th e plan for augmentati on would aug ment ten trib utary well s, two ditches , and five reservoirs . Augme ntation water wou ld be pro vi de d by wells com pleted in the non - lributary Den ver Bas in aqu ifers . The appro priati ve ri ghts of ex change deal with local exchanges bet ween the tributary so urce.s and propeny bound aries . Bes ides the domes tic use for the 613 reside ntial uses , irriga ti on of up to 306 ac res an d st ock watering of up to A 500 horses are pla.1ned . • Due to the relatively large use of wat er, we recommend th at Englewood object to th is case . (Both Phil and I worked on water rig hts matters for the McDonalds and this parti cular property prior to the effec tive sp li t up of Jehn an d Wood , Inc. However, we have not worked 9n an y matte r of the McD onald s since the split up. We mu find oursel yes conflicted out of representin g Eng lewood in th is matter.) Case No 92-CW-15 6· City of Aurora Aurora seeks to chang e several Sou th Park irrigati on right s to muni ci pal use . Accor..ii ng to th e murr,e, the subject rights historical ly irrig ated some 800 acres . Th e rights are somewha t jun ior , rang ing from app rop riation dat es of 1875 to 1882 . Auro ra seeks 5~5 acre-feet per year of consumptiv e use from these right~. Although the subjec t rights are som ewhat juni or (particular ly in respect to Englewood's sen io r rights which di ven at Union Avenue), the quantity of wa ter in vo lved and the need 10 assure proper main tenance of hi storic retu rn flow s lead us 10 recommen d that Englewood file an objection in this case . -• Mr. Mike Woika Page 3 February I, 1993 ~...2, 92 -CW -161: Betty Knoebel Ms . K.1ocbel seeks a 1992 right to store 135 acre-feet on Nonh Turkey Creel:. Since Manin and Wood Water Cc,nsullants, Inc. is doing the water rights engineering for Ms . KnOf:bel , we won't be able to advise or represent ,tie City ~f Englewood in this matter. Case No 2"-CW-163: City of Thornton Thornton seeks ne ", ~onditional storage rights to 4,000 acre-feet in fil!I2Ill Sp inney Mountain Reservo i: in South Park . Thornton's app li ca ti on seeks fill and refill rights and use to extinction of native , South Platt e wa ter . The application states tha t Thornton has a perpetual easement to store 4.000 acre -feet oi wa ter in Spinne y Mountain Reservoir. Thornton also claims a 1979 date of appropria tion, based on an ordinance cited and on a settlement agreement with Aurora. dated 19 9. This application seems odd in a few respects. If Thornton is seeking a 4,000 acre-foot storage priority in Aurora 's reservo ir, should Aurora abando n 4,000 acre-feet of its right to ma.kc r00m for Thornton's new right? Also, if Thornton real ly initiated its intent to appropriate 4,000 ac re-feet in 1979 , why did Thornton wait until tl:e end of 1992 to file its application in Water Coun? Desp ite these misgivings we cannot envision any real, adverse effects on Englewood's water rights . Thus. we do not recommend an objection , but you should discuss this one with David Hill. Case No. 92 -CW-164 · City of Thornton Thornton see ks a ne w, conditional storage right for 4,500 acre-feet and a right to exchange waters released from either the new rese rvoir or from the Burlington Di tch to points on Clear Creek and the Sc nh Pla tte Ri ver. Add itionally, Thornton seeks to change pre viously changed So uth Pl atte rights lo storage in the new reservoir. Thornton ~eeks a date of appropriation of October 10, 1988. The only maft er about which we arc concerned involves Thornton's possible use of unchanged direct flow priorities to fill the reservoir. On balance , how ev er , we do not reco mm end an objection . Mr . Mike Woika Pa 6e 4 F•:bruary 1, 1993 ~-92 -CW-166-South Suburban Park and Recreation Pisnict So uth Suburban seeks four new direct flow rights and two storage rights from Big ;Jry Creek, the primary purpose of which is to irrigate Cherry Knolls Park, dcKovcnd Park, and Regional Park (the latter of which irlcludcs Progress Park). South Suburban also seeks approval for a plan for augmentation to augment thcst junior rights when they arc not in prjority. The fo ur diversion nghts from Big Dry Creek would diven. at a maximum, aggregate rate oi 5. 75 cfs . South Suburban plans to use return flo ws from non -tributary water decreed in Case No. 90-CW-003 and. 20 acre-feet of contractu al water from E'\GLEWOOD'S Arapahoe Aquiier well s, (N os . LA-8 and UA-8). decreed la st summer to E:-IGLEWOOD in Case No . 89 -CW-061. We recom mend that Englewood object to thi s application. First, since Englewood 's wa ter (dec reed to Englewood in Case No. 89-CW -061 1 is involve d , it makes sense 10 keep an eye on South Suburb an to make sure that th, '.!O acre -feet provided by Englewood to South Su burban are properl y used . Second , Englewood has water rights app'.,cati ons pend ing on Big Dry Cree k in Case No. 90-CW-22'.!. Englewood will need 10 make sure that the proposed augmentation plan is reasonab le and th at it will work so as not to deprive Englewood of water to which the City is en titled under Case No . 90-CW -222. Ca se No 92-CW -168· City of Central Central City see ks new rights fr om Clear Creek , a pla n for augmentation for the new rights . and a change of water rights to its interests in the !'armers High Line Canal. Plenty of dil igent cpposi tio n will probably arise from mun ici palities which depend on Cle:ir Creek. Therefore, it is prqbabl y not necessary for Englewood 10 object to this case . How ever , if Englew ood we re to object, the City shoul d utilize the previously decre--..d structure for ci ,~nging the Farmers High Line Canal rights. Englewood would also need to investigate the detail s of Central City's wate r use in order to assess the adeq uacy of the propos ed plan for augmentation. Du e to the likel ih ood oi stringent opposit ion from large municipal water users on Clear Cree k. we do not recommend an objection by Englewood. Mr. Mike Woika Page 5 February I, 199' ~ 86-CW-376 · _city of Wood)and Park Woodland Park seeks to augment numerous previously decreed water rights , \o adju dicate new rights , and ~<:> secure approval of a plan for augmentation . The resume indicates that ~.e,·e.ol sources of water will be used to augment the jun·or rights. These augmentation sources include some non-tributary water in the Upper Black Squirrel Designated Ground Water Basin and water imponed from Division 2. No r~ detail on the augmentation plan is given . We recommen d that Engle wood object to the applicatio n in order to get additional engineering inform ation upon which a dec isio n ma y be made as to Englewood's funher panicipation . Case No 9)-CW-)26 : City oiib;i r-•on The application seeks to change the names of lan downers upon whose land several large reservoirs would be constructed by Thornton. This is the same case by wh ich we previously expressed concern that Thornton might ill egally use numerous unchanged senior rtirect flow rights in Distri ct 2 to fill its lakes . We suspect that Engle wood is alread y a par,y to this case . If not, we recommend an ohjection . Division S Befor,: delving into a group of somewhat related cases, we 'll address an AMAX case (No. 92-CW-336). Case No 92-CW-336· C)jmax Molvbdenum Co CF.max (" AMAX") seeks to change numerous of its water rights originally decreed ior ar ,d used at its Climax mine and mill near Leadv ille . T1is application seeks to change numerous water rights associated with Al.\!AX's "Climax lipper Ten mile Creek Water Supply System ." Besides desiring to allow these rights to continue to be used for AMAX 's industrial uses, AMAX seeks to change the rights so as to allow their histo ric uses to be sold to others (IVG, near bottom of page 59) and to allow their historic uses to be delivered "to use rs in the Eagle, Colorado, Arkansas, and South Plane Ri ver ba sins ... "(lV H, near top of page 60). Mr. Mike Woika Page 6 February I, I 993 We believe that Englewood should object to this case for the following reasons . First, and generally , Englewood might use this case to obtain information from AMAX concerning its plans to ccntinue its operation at the H.~ mine and mill and its needs for water at the Henderson mill. Second, ii may be that AMAX plans to exchange the waters changed in this case for use at the Henderson mill. (In th is regard the resume notice states that AMAX plans to release waters "from the Climax Wat.er Suppl} System to serve as a substitute suppl y of water when out of priority diversions arc made by Climax water rights .• Docs this mean and/or docs this allow use of such changed water rights to be used as a substitute supply for Climax's Henderson mill? Third , the notice is conspicuous in its lack of inclus io n of Clinton Gulch Reservoir , believed to have been owned by AMAX until recently and the subject of a11emion in other mailers which follow in this letter. For these reasons we recomm end that Eng lewood object to this case . Case "\o. 92-CW-'.?0 2: Copper !l·lou n1a!n Inc case No 92-CW-294· Breckenrid•e Ski Cornoratjon Case No . 92 -CW--99 · Town of Breckenridge Case No . 92-CW-305 · Grand Co untv Water and Sanitation District No c .,se No 92-CW-331 · Kev s1one Rcsons Managemem Inc Case No . 92-CW-332· Wjmer Park Recreatio nal Association The above six cases interrelate with one another in that they ·involve the use of water from Denver's Williams Fork Reserv oir and /or water from Clinton Gulch Reservoir for augmentation purposes . The applicants generally appear to plan to use these waters wi th out going through a judicial change or use to allow them to be used for augmentation. Before getting into the details of each application, however, one must ask , "Why should Eng le wood care?" and "ls there ar.y injury to Englewood 's water rights if these applications are approved?" I cannot definitel y say that Englewood should care or that I i,c!;eve that injury wo ul d occur to Englewood's rights. But let me try to explain what I bel iev e is going on and ask you and Stu, the Water and Sewer Board, and Davi d Hill 10 think about these applications . As backg round 10 these cases , several West Slope panic s recently entered into agreements with Denve r whereby De nv er agreed to alleviate severe water shortages in th e Upper Fraser River Basin (Winter Park , Fraser, Granby) and in the Upper Blue River Basin (Breckenridge , Sil verthorne , and various ski resorts). Den ver will alleviate shortages by providing water from its Willia ms Fork Reservoir to replace out-of-priority depletions from these other parties ' uses of water . Den ver will also make bypasses of A water from certain of its diversion faci liti es. W • Mr . Mike Woika Page 7 February I, 1993 The agreement also provides for new uses of Clinton Gulch Reservoir and its water righ ts . A group of entities has recently formed the Clinton Ditch and Reservoir Compan y in order to acquire from AMAX and to use Clinton Gulch Reservoir and its wat er rights . As far as I can tell, the agreement provides for Denver's subordination of its Two Forks Reservoir and its Dillon Reservoir rights to allow Clinton Gulch to store wa ter more often. In some cases Denver will get the use of the yield from Cli nton Gulch Reservoir. Den ver will also allow ski areas to use waters tributar:; to Dillon, but somehow Denver will return dominion and control of these ini tial uses so that Denver will retain rights to subsequent melting of the artificial ;now. In any event, fi ve of the six above casts (all except No . 92-CW-299) plan to use waters irom Den ver 's Will iams Fork as an augmentation suppl y. All fi ve resume notices refer to lli'.ll Wi ll iams Fork Reservoir decrees . The senior decree is for 93 ,637 acre-feet for "al l rr.unic ipal us es , inc lu ding domestic use, fire protection , street sprinkling, watering of parks , lawns and grounds , mechan ical uses , and every other type of municipal use , and fo r maintain ing adequ ate storage reserves ." Its date of appropriation is 11 /10/1935 , stem ming from Case CA No. 657 (1937). Its historic use is described as "to provide rel eases by exchange to permit Denver to make diversions under other wa ,er rights whic h would otherwise be out of priority .• The junior decree is al so for 93,637 acre -feet fo r "all mun icipal uses , including domestic use, mechanical use , r.ianufacturing use, gene ra ti on of elec tric power, power generally , fire protec ti on , use for sewage treatment , street sprinkling , wate ri ng of parks, lawns and grounds , the maintaining of adequate storage re serv es, irri gatio n, replacement and the adju st me nt and regula tion of the units oi ch e Denver M•mi ci pal Water System ." Its date of appropriation is October 9, 1956, from the decree entered in Case No. CA -1430 (1974). Whe n one examines these two decrees for Williams Fork Reservoir , one notices that the jc ~i or decree ha s broader language and specifically that it includes 'replacement.• I wo, 'd generall y take the word "replacement ' to be equivalent with "augmentation,• so th at a. : •;ist this decree is, on its face, permissive as to augmentation uses . However, one must ~ -~ if a ~f.iig_ is necessary for either or both of the Williams Fork Re serv oir decrees , and, if s.1, on 11,hat basis . If a change of use is not necessary for the jun ior dec ree , then shouldn' ·. illl. .rep lacement water from Williams Fork Reservoir co rues from the junior decree , ur.lcss a ch an ge of use is adjud icated to allow the senior decree also 10 be used fo r augmentation? A similar iss ue pertains to th e planned use of the Clinton Gulch Reservoir water rights . Only Cases No . 92-CW -294 , 92-CW -i99, and 92-CW-331 involve Clinton Gulch Reserv oi r. All of the notices for the s,: three cases re fer to ~ Clinton Gulch Reservoir wa ter ri ghts. The fir st ri ght was decre<!d in 1975 to AMAX in Case No . W-2559 for 4,"5 0 acre-feet fo r "industri al , dom estic, irri gatio n, rec rea tio n, fi sh and wild life Mr . Mike Wo ika Page 8 February l , 1993 propagation ." Its historic use is stated to have been used by AMAX "as needr.d to provide for AMAX's industrial purposes." The description in 92-CW-294 for their existing decreed right goes on to say: "Un der the terms of the new decree , the application for wh ic h is pending in Water Division 5, Case No . 92CW065 , this water right will be utilized for purpo ses consistent with the within augmentation plan ." Docs this mean that the scope of the new decree (92-CW-065) for Clinton Gulch Re <r rvoir includes a change of use for the pre-existing (W-2559) Clinton Gulch Reservoir right ? The not ic e for Case No . 92-CW-065 , wh ich is the pending new Cl int on Gulc h Re servoir ri ght , in no wa y consti tutes effective notice of such a change of use for the right decreed in W-25 59 . A cop y of the notice for 92-CW -065 is enclosed: En gl ewood is not a part y to th is case . The no tice for 9c-CW -299 is even clearer in its characteriiation of th e scope of 92 -CW - 065. It states that water rights to be used for au;;;ncntatio11 and by exchange includ e: "Clinton Gulch Reservo ir , decreed by the Water Coun in Case No . W-2559 for 4250 acre feet for industrial. domestic, irrigation , recreation , fish and wildlife propagation , as A subsequentl v mod ifi ed in Case No . 92CW65 , as operated pursuant to and entitled to the W benefits of the Clin ton Reservoir -Fraser River Water Agreement da ted July 21, 1992, with the City and Cou nty of Denver, acting by and through its Board of Water Comm is sion ers ." We face the same problem here . Do the applicants intend to seek a pro:,cr change of use of the rights decreed to Clinton Gulch Reservo ir in W-2599 , or arc they simply seeking to use gross yield from the reservoir? If a chan ge of use is req uired, sho uldn't it be limited to histo ric use of this water right? Are the applicants Dml!. seeking to characterize 92 -CW -065 as a legitimate change of use of W-2559? Docs Denver's use of W-2559 , or evet1 its use of 92-CW-065, constitute another change of use requi red for Clinton Gulch Reservo ir? Al so, are an y of the uses decreed in W-2 559 to Clinton Gulch Reservoir augmented by Green Mountain Reservo ir, pursuant to Senate Document 80 and the U.S. Consolidated Case s. and , if so , will suc h future uses and au.~men t::tic,n thereof constitu te any illegal expans ion 1 How do the uses of the Will ia ms For k Reserv oi r decrees relate to the Henderson mill wa ter requirem '.n ts? For (he above reasons we suggrst that Englewood consider filing pbjections to these cases. Dave :-,ill can add his present persp<'c tive , and additional information to be had by filing objections would h~:p to define the neces sary extent of Englewood's participa tion . -• -• Mr. Mike Woika Page 9 February I, 1993 If Englewood decides to enter these cases , we suggest that Englewood also seek to fil e a late obj ection in 92-CW-065 , citing lack of adequate notice as the reason for the late filing , as indicated by the present cases' representation of a change of use for the rights decreed in W-2559. Please let us know what you think about all of these recommendations, and if you have an y questions or comments. ffiV/PLM :fb cc: Mr. Ri c k DeWitt w/en c s. Mr. David Hill w/encs . Very trul y yours, ~q.~ t0'~f a1?_ Phillippe L. Manin, C.P.G . Vice Presiden t Joe To~;_~ Presid°Pi;;t,',Y ;.E. -• MEMORANDUM TO: Mayor Wiggins Sheri Gulley, Coundl .il,krober Rita Hathaway, M.iyor Pro Tem Tim Bullock, Council Meml:er Alex Habenicht, Council M~mber Orris Saunders, Council Member Kells Waggoner, Council Member FRO:-.1 : Rick DeWitt, City Attome: DATE : March 31 , 1993 REGARD!. G: Water Rights Litigation. We receive on a regular basis from Martin and Wood, our water engineers recommendations concerning certain new filings that are made in the various Water Court Divisions . Attached is his February· 1, 1993 Mem o on the a pplications that are currently pending in the various divi sion s where the City of Englewood has Water Rights . These are p marily in Divi sio ns No. 1 and No. 5. The point that Martin and Wood m2kes is that the City of Englewood has a number of interests to protect in the following cases : 92 -C W-140 Northern Colorado Wau,r Conservancy District, 92-CW-144 The Town of Castle Rock, 92-CW-152 Roderick J. and Sylvia H . McDonald, 92-CW-156 The City of Aurora, 92 -CW-164 The City of Thornton , 92-CW-166 The South Suburban Park and Recreation District, 92-CW-336 Climax Molybdenum Company, 92-CW-305 Grand County Water and Sanitation District No . 1, 92-C\V-332 Winter Park Rec reational Association . At tached is a February 1, 1993 Letter out!" · engaging in each case. Our water attorney's would enter A 1ch m ent cc : Roger Fraser RD/nf REWLUTION NO . _ SERJl::S OF 1993 A RESOWTION AUTHORIZING THE CITY TO ENGAGE IN WATER COURT PROC:EEDINGS. WHEREAS, the City of Englewood has extensive wa tor rights; and WHEREAS , it is necessary to protect these water rights; and WH!:REAS , afler re,ie w the Engl ewood Water and Sewer Board has made rec ommendation th E,t the City of Engl e wood engage in certain water rights cases, . ·ow, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: ~-That the City Attorney shall represent the interests of the City of Engl ewood in th e follo wi ng water ri6hts pro ceedings: 92 -CW-l-t 0 No rt he rn Colorado \Veter Con se rvancy District in Dh•ision 1. 92 -CW-144 Th e Town of Ca stle Rock in Division 1. 92-CW-152 Roderick J . and Sylvi a H. McDonald in Di visi on 1. 92-CW-156 Th e City of Aurora in Division 1. 92 -CW-164 The City of Thornton in Division 1. 92-CW-166 Th e South Suburban Park and Recreatio n Di strict in Division 1. 92-CW-336 Cl ima x Mol y bd enum Com pany in Divi sion 5. 92-C W-305 Grand County Water and Sanitation District No . 1 in Division 5. 92 -CW-33 2 Winter Park Recreat ional Association in Divisio n 5. ADOPT ED AN D APPROVED this 5th day of April, 1993 . Clyde E. Wiggin s, Mayor ATTEST : Pat ricia H. Crow, City Clerk I, Patricia H. Crow , City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Res olution No._, Series of 1993 . Patri ci a H. Crow -• -• 602 Fbrk Fbint Dr. c5uite 276 Golden, Colorado 80401 FAX (JOJ} 626 -2624 (JOJ) 626-2600 February 1, 1993 Mr. Mike Woika City of Englewood Uti li ties Depanmcnt 34 00 So. Elati Stree t Eng lewood, Colorado 80110 Dear Mike: Re: Re su me Re view for December, 1992 Job No . 159 .6 The Dece mb er res umes are not unexpectedly voluminous -Di vision 1 is 173 pages long and Division 5 is 6 pages long . Herc are our thoughts . ~ ca se No. 21-cw-1.10 -Nonhem CoJ orado Water Conservancy District This ca se concerns an application for an augmentation plan to cover deple tions due to pump ing as much as 160 cfs from the South Platte into storage in the shallow allu vial aqu ifer underl ying Greeley, through four sets of wells (referred to as "batteries " in the application). The rights to be used for augmentation consist of nume rou s rights owned by the District. As no appropriation dates are listed and since r:,c quantity of water under consideration is quite large , we recommend that Englewood obj ec t to this , if onl y to obtain funhc r in formatio n an!l to ensure that no possible impacts on Englewood could res ult from the opera ti on of the proposed plan . Case No 92-CW-144 : Town of Castle Rock Castl e Rock seeks ne w water rights at Denver 's Strontia Spring s Dam on the Sout h Pl atte Ri ver upstream from En gl ewood 's Union Avenue Intake . The Town also seeks a wide -ranging plan for augm entation for its East Plum Creek wells and its West Plum Creek wells . The application for ne w, conditional rights fro m the Sou th Platte Ri ver raises little conc ern , exc ept for the needs to provide proper account ing and to provide for a proper Mr. Mike Weik.a Page 2 February I , 1993 priority date . The plan for augmentation represents an extension of both the Town 's currently decreed plan for augmentation and the Town's pending applications, and, as such, this case should at least be mon itored by Englewood . Therefore, we recommend th at Englewood object to this application. Case No 92-CW-152-Roderick J and Sylvia H McDonald The McDonalds ' application seeks approval for a plan for augmentation and appropriative rights of exchange for a planned 613-unit subdivision located along We;t Plum Creek ne.;r Perry Par k. The plan for augm entatio n would augment ten tributary wells , two ditches , and five reservoi rs . Augm entation water wo ul d oe provided by wells completed in the non- tributary Denver Basi n aquifers . The appropria ti ve rights of exchange deal with local ex ch anges between the tributary so urces and property boundaries . Besides the dome stic use for the 613 residential uses, irrig ation of up to 306 acres and stock watering of up to 500 horses are plan ned . Due to the re lativ el y large use of water, we recommend that En glewood object to this case . ffioth Phil and I worked on water rights mai:w for the McDonalds and this particular ['roperty prior to the effec tive split up of Je lm and Wood, Inc. Ho wever , we have not worked on an y matter of tJ-~ McDonalds since the split up . We .lIIU find ourselves conflicted out of representing Eng lew(.J<! in this ma•rer.) Case No 92-CW-156 · CiJY of Aurora Aurora seeks to change several So uth Park irrigation rights to mun icipal use. Ac cord ing to the resume, the subject nghts historically irrigated some 800 acres. The rights are somewha t junio r, ranging from apprnpriation date s of 187 5 to 1882. Aurora see ks 5~5 acre -feet per ye.;r of cons um pti ve 11se from these rights . Although the subject rights are somewhat junior (particularly in respect to Englewood's sen ior rights which divert at Union Avenue), the quantity of water involved and the need to assure proper maintenance of historic return flows lead us to recommend that En gl ewood file an objection in this case . -• -• Mr. Mike Woika Page 3 February I , I 993 Case No 92 -CW-161 · Belly Knoebel Ms. Knoebel seeks a 1992 right to store 135 acre-feet on North Turkey Creek . Since Martin and Wood Water Cons ul tants, Inc. is doing the water rights engineering for Ms. Knoebel , we won't be able to advise or represent the City of Englewood in this matter . Case No . 92-CW-!63· City of Thornton Thornton seeks new , conditional storage rights to 4,000 acre-feet in &uor.a:.s.. Spinne y ~!ountain Reservoir in South Park. Th ornton's application seeks fill and refill rights and use to extinctio n of native , South Pane water . The application states that Thornton has a perpetual casement to store 4.000 acre-feet of water in Spinne y !\-fountain Rese rvoir. Tlrornton also claims a 1979 da te of appropriation, based on an ord inanc e cited and on a settlement agreement with Auro ra . dat ed 1979. This appli cati on seems odd in a few respects . If Thornton is seeking a 4,000 acre-foot storage priorit y in Aurora's reservoir , should Aurora abandon 4,000acrc feet of its right to make room for Thornton's new right? Also, if Thorn ton really init iate,.' its intent to appropri ate 4,000 acre-feet in 1979, why did Thornton wai t until the end of 1992 to file its app li cation in Water Coun? D~sp ite these misgivings we cannot en vision any real , adverse effects on Englewood 's "ater rights . Thus , we do not recom mend an objection , but you should discuss this one "ith David Hill. Case No . 92-CW-164 : City of Thom1on Thornton seeks a new , conditional storage right for 4,500 acre-feet and a right to exc hange waters released from either the new reservoir or from the Burlington Ditch to po ints on Clear Cree k and the South Platte River. Additionally, Thornton seeks to cr.ange prev iously changed Sou th Platte rights to storage in the new reservoir. Thornton seeks a da te of appropriation of October 10 , 1988 . The only ma tte r about which we are concerned involves Thornton's pos si ble use of unc hanged direc t flow priorities to fill the reservoir. On balance , however , we do not recommend an objection . Mr . Mike Woika Page 4 Febru ary 1, 1993 Case No 92-CW-166 · SoYib Suburban Park and Recrca 1ion Pisuic1 So uth Suburban seeks four new direct flow rights and two storage rights from Big Dry Creek, the primary purpose of which is lO irrigate Cherry Knolls Park, deK ove nd Park , and Reg ional Park (th e lauer of which includes Progress Park). South Suburban also s~ks approval for a plan for augmentation lo augment these junior rights when they are not in priority. The four dive rsion rights from Big Dry Creek would div en , al a maximum, aggreg ate rate oi 5. 75 cfs. So•nh Suburban plans 10 use return flows from non-tributary water decreed in Case No . 90-CW-003 arul 20 acre -feel of contractual wattr from ENGLEWOO D'S ,.o.rapahoe Aqu ifer wells , (Nos. LA-8 and UA-8), decreed lasl summer to ENGLEWOOD in Case No. 89-CW-06 1. We recommend that Englewood object 10 th is applica tion . Firs1. sinci Eng lewood's water (decreed lo En glewood in Case No . 89-C W-061 ) is in volved, il makes sense lo keep an eye on So uth Suburban lo make sure that the _Q acre-feet provided by A Englewood to South Suburban are proper ly used. Second , Eng lewood has water rights • appli cations pend ing on Big Dry Creek in Case No. 90-CW-222 . Englewood will need lo make sure that the proposed augmentation plan is reasona ble anJ that il will work so as not to depri ve Eng lewood of waler to which the City is enti tl ed under Case No . 90-CW-222 . Case No . 9?-CW-) 68 · Cjtv of Central Central Cit y seeks new rights from Clear Creek, a plan for augmentation for the new rights , and a change oi waler rights to its interests in lhl! Farmers High Line Canal . Plenty of diligent opposition will probably arise from municipalities which depend on Clear Creek . Therefor~. il is probably nol necessary for Englewood lo obJ 0 t to th is case. Howeve r, if Englewood were to c,bjec t, the Cit y shou ld ut ilize the pre,iously dec reed structure for changing the Farmers High Line Can al right s. Englewood would also need to investig at e the details of Central City 's water use in order to asse ss the adeq uacy of the proposed plan for au gmentatio n. Due 10 the likelihood of stringent opposit io n from large municipal water users on Clear Cree k, we do not recommend an objection by Englewood . e • -• Mr . Mjke Woika Page 5 February I, 1993 Ca se No 86-CW-376' City of Woodland Park Wood land Park seeks to augment numerous previously decreed water rights, to adju dicate new rights , and to secure approval of a plan for augmentation. Tiie res ume ind icates that several sources of water will be used to augment the junior righ ts . These augmentation sources include some non-tributary water in the Upper Black Squirrel Designated Ground Water Basin and water imponed from Division 2. No real detail on the augmentation plan is given . We rec om me nd that Eng k ,.,°"-,,i objec t to the application in order to fet additional engin ee rin g informati on upcn whic h a decision may be made as to Englewood's funher panici pa tio n. Case No . 21 -CW -126 : Citv of Thorn1QJL The app lication see ks to change the names of landowner s upon whose land several large reservo irs woul d be con : ..• ucted by Thornton. This is the same case by whic h wt pre,~ousl y exp ressed con cern that Thornton might ill eg al ly use num ero us un ch anged sen ior direc t now rights in Distric t 2 to fill its lakes. We suspect that Englewood is alread y a pany to th is case. If not, we recommend :ui objecti on. ~ Befo re delvi ng into a group of so mewhat related cases , we 'll address an AMAX case (No . 92-CW -33 6). Case No 92 -CW -33 6· Cli max Molybdenum Co Climax (" AMAX ") seeks to ch ang e numerous ' of its wat er rig hts originally decreed for and used at its Cli ma, mine an d mill near Lead ville. Th is app li cation seeks to change numerous water 1·~hts associated with AMAX 's "Cli max Upper Ten mile Creek Water Supply System ." Besides de siring to allow these rights to con ti nue to be used for AMAX's industrial uses , AMAX seeks to change the rights so as to all ow th eir histori c uses to be sold to othm r:VG , near bonom of page 59) and to al low th eir historic uses to be de liv ered "n Jsers in the Ea gle , Colorado , Arkan sas , and Sou1h Plan e Rjvcr basins ... "(]VH, near top of page 60) . Mr . Mik e Woika Page 6 February l , 1993 We be li eve that Englewood should objec t to this case for the following reasons . First , and gencrn lly , Englew0<Jd might use this case to obtain information from AMAX concernin g its plans tct continue its operation at the lknckrn2IL mine and mill and its need s fo r water at the H~ mill. Second , it may be that AMAX plans to exchange the waters changed in this case for use at the Henderson mill . (In this regard the resume notice states that AMAX plans to release waters "from the Climax Water Supply System to serve as a substitute supply of w.!er when out of priority divenions are made by Climax water rights .· Does this mean and/or does this 9.llow use of such changed wa ter rig hts 10 be used as a substitute supply for Climax 's Henderson mill? Third, the notice is cons picuous in its lack of inclusion of Clinton Gulch Reservoir , believed to have hee :i owned by AMAX until rec en tl y and the subject of an enti on in other matters which fol !'l"' in this letter. For th ese reasons we reco mm end that Engle wood object to this case . Cas e :-:o. 21 -cw-2 9;· Coppe r Mou n ajn Inc Case No 2'-CW-294· Breckenridge Ski Coll'9ration Case !so . 2'-CW-299· To wn of Breckenridge Case r-:o. 92 -CW-30 5· Grand County Water and Sanitat io n Pistti~ Case No 92 -CW-331 · Ke vstone Resons Management Inc Case No 2'-CW -3 32· Winter Park Recreational A,~ The above six cases interrelate with one anoth e:: in that they involve the use of water from Denver 's Williams For k Reservoir and /or water from Clinton Gulch Resen,oir for augmentation purposes. The appli cants generall y a;,pear to plan to use these waters wit hout going thro ugh a ju dicial chan ge of use to all cw them to be used for augme nta ti on. Before gett in g into the details of each appli cation , however , one must ask , "Why should Engle wood care?" and "Is there an y injury to Englewood's water rights if these applica ti ons are approved?" I cannot definitel y say that Englewood should care or that I believe that injury would occ ur 10 Englewood's rights . But let me try to explain wh at I be li eve is going on and ask you and Stu, the Wat er and Sew,~r Board , and David Hill to th in k about the se app lic at ion s. As backg ro und to these case s. several W~st Slope panie s recently entered into agre ements with Denver where by De nv er agreed to alleviate sev ere water shortages in the Up pe r Fraser River Basin (Winter Park , Fraser , Granby) and in the Upper Blue River Bas in (Breckenridge , Sil verthorne , and various ski resons). Denver will alleviate shortages by pro·,idi ng wa ter from its Williams Fork Reservoir to replace ou t-of-priority depletions from thts<: other parties' uses of water . Denver will also make bypasses of water from certain of its di version fa i:il ities . -• Mr. Mike Woika Page 7 February I , I 993 The agreement also pro vid es for new uses of Clin lo n Gulch Reservoir ar,a its wa te r rights . A group of enti ties has recently for med the Clinton Dit ch and Reservoi r Company in order to acq uire from AMAX. and to use Clinton Gul ch R~.scrvoir and its wa1er rights . As far as I can te ll , the agseement pro vides for Den ver's subordination of its Two Forks Re servoir and its Dillon Reservoir rights 1 • all ow Clinton · Gulch to store water more of1en. In som cases Denver will get the use of the yield from Clinton Gulc h Reservoir. Den ver will also allow ski areas to use waters tributary to Dillon , but somehow De nver will retu rn dominion and control of these initial uses so that Denver will retain rights to subsequent melt ing of the artificial snow . Ir. an y even1, five of the six above case s (all except No. 92-CW-299) plan to use wa•.e rs fior., Denver's Williams Fork as an au gm entatio n supp ly. All fi ve resume notices refer 10 ill:ll. Willi ams Fork Reservoir decrees . The senior decree is for 93,63 7 ac re-fee t for "all mun icipal uses , includ ing domestic us , fire protection , street sprinkl ing, watering of parks, lawns and grounds , mechanical uses, and evuy other type of municipal use , and for maintaining adequat e stora ge reserves .· Its date of appropriation is 11 /10/1935 , stem ming from Case CA No. 657 (1937). Its historic use is described as 'to pro vi de releases by ex change to permit Den ver to make diversions un der other water rights which would otherwise be out of priority." The junior deer~ is also for 93,637 acre -feet for "all mun icipal uses , includi ng dom estic use, mechai .ical use, manu factu ring use , generation oi elec tri c power, power general ly, fire prote.:tio n, use for sewage treatme nt, street spri nkling, watering of parks, lawns and grounds , the maintai ning of adequ ate stora ge rese rves , irri gation , re placement and the adjustment and regulation of the un its of the Denv er Municipal Water Syste m." Its date of appropriati on is October 9, 1956 , fro m th e decree entered in Case No. CA -1430 (1974). When one exam in es these 1wo decrees for Williams Fork Res ervoir, one notices that the junior decree has broader language and spec ifically that it includes "replace ment.• I would generally take •.ile word "replacement " to be equi valent wi th "augmentation," so tha1 at least this decree is, on it s face , permissive as to augmentation uses . However , one must as k if a ch an ge of use is necessary for eithe r or both of the Williams Fork Reservo ir decrees, and , if so, on what bas is. If a change of use is not necessary for the junior decree , the n shouldn 't all. replacement water from Williams Fork Reservoir come s from the junior decree . unles s a chan ge of us~ is adjudicated to al low th e senior decree also 10 be used for augmentation? A simil ar issue pertains to the planned use of the Clinton Gulch Re serv oir water rig ht s. Only Cases No. 92-CW -294, 92-CW-299, and 92-CW-331 in vol ve Clinton Gulch Reservoir. All of the no tices for these three cases refer 10 lli'.Q. Cli nton Gulch Reservo ir water rights. The first right was decre ed in I 975 to AMAX in Case No . W-255 9 for 4,250 acre-fee t for "ind ustrial , domestic, irrigation , recreat io n, fish and wildlife Mr. Mike Wo ika Page 8 February 1, 1993 propa gatio n.· Its his toric use is stated to have been used by AMAX "as needed to provide for AMAX 's industrial purposes .• The description in 92 -CW-294 for their exi sting decreed right goe s on to say : "Un der rne terms of thr. new decree, the application for which is pe nding in Water !)ivision 5, Case No . 92CW065, this water right will be utilized fo . purposes con sisten t ·•ith the within au gmentat io n plan .• Doe s this n,ean that the scope of the nr.w decr~c ((;)..(. W-065) for Clinton Gulch Rese rvoir includes a change of use for the prc -~~:l ti~l (W-2559) Clinton Gulch Re serv oir ng ht? The not ice for Case No . 92-CW-06 5, wh1o:i1 1: tne pending ne w Cl int on Gulch Rese rvo ir right . in no way constitutes effective notire of such a cha nge of use fo r the right decreed in W-255 9. A co py of the not ice for 92-CW-065 is enclosed : Englewood is not a part y to this case. The notice for 91-CW -2 99 is even clearer in it s characteri za tion of the scope of 92-CW - 065 . It st.ates that water rights to be used for augment.ation and by exc hange includ e: e "Clinto n Gulch Re servoir, decreed by th e Water Coun in Case No . W-2 559 for 4250 ac re iee t for industri al , domestic, l:iigation , recreation , fish and wildlife propagation, as A subseguen1iv modified in Case N,;,. \1 2CW65 , as operated pursuan t to and entitled to the WI' benefit s of the Clinton Reservoir-t .iser Ri ver Water Agreement dated July 2!, 1992, with th e Ci ty and County of Denver , actin g by and through its Board of Water Commissioners.· We face the same problem here. Do th~ applicants intend to seek a proper change of use oi th e rights decreed to Clinton r .. _,ch Reservoir in W-2599, or are they simply seel-ing to use gross yield from the r ;,rvoir? If a change of use is required , shouldn 't it be limited to his toric use of th is water right? Are the applicants ~ seeking to characte 'ze 9c -CW-065 as a legitimate change of use of W-2559? Does Denver's use of W-2559 , or even its use of 92-CW-065 , cons ti tute another change of use required for Clinton Gulc h Re servoir? Also , arc any of the uses decreed in W-2559 to Clin ton Gu lc h Rese rvo ir augmented by Gree n Mo untain Reservoir , pursuant to Senate Docume nt 80 and the U.S. Conso lidated Cases. and . if •;o, will such future uses and au gmen ta tion th ereo f constitute any illegal e,pansion'.' How do the uses of the Willia ms Fo rk Re se rvoir decrees rela te to th e Hender son mill water requirements? For th e above reasons we suggest that Englewood consider filing objections to th ese cases. Dave Hill can add his present perspectiv e, and additional information to be had by filing objections wo uld help to define the neces sary extent of Englewood's pan .cipation . -• e -• Mr . Mike Woika Page 9 February I, 1993 If Englewood decides to enter these cases, we suggest that Englewood also seek to file a late objection in 92-CW-065 , citing lack of adequate notice as the rea son for the late filing , as indicated oy the present cases' representation of a change of use for the rights decreed in W-2559 . Please le t us know what you th ink about all of these recommendations, and if you have an y questions or commcms . ffi\1/PLM: fb cc: Mr. Ri ck DeWil! w/encs . Mr. David Hill w/encs . Very trul y yours, ~j f~ /Jlf ,v~ Phillippe L. Manin, C.P.G. Vice Pre si dent ioeTo ~~~ Pres idt~• 1 P.E.