7. PURSUANT TO C.R.S., §37-92-302,

81602 | 11/19/2020 | Ad id: 8-0000636404-01

OCTOBER 2020. 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.
20CW3123 GRAND COUNTY, COLORADO. APPLICATION FOR FINDING OF REASONABLE DILIGENCE (Wolford Mountain Reservoir, Second Enlargement). I. Name of Applicant
. Colorado River Water Conservation District acting by and through its Colorado River Water Projects Enterprise (the "Applicant"), c/o Andrew A. Mueller, Secretary/General Manager, P. O. Box 1120, Glenwood Springs, CO 81602, Telephone: (970) 945-8522, Facsimile: (970) 945-8799. Please direct all pleadings and correspondence in this case to: Peter C. Fleming and Jason V. Turner. II. Introduction. This Application is filed pursuant to C.R.S. § 37-92-301(4) and § 37-92-601. The Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise ("River District") is a political subdivision of the State of Colorado formed by the Colorado Legislature (See C.R.S. § 37-46-101, et seq.) in 1937 for the purpose of safeguarding that portion of the waters of the Colorado River apportioned to the state by interstate compact and of promoting the welfare of the inhabitants of the River District. Geographically, the River District encompasses an area of approximately 29,000 square miles, including all of twelve and parts of three western Colorado counties. Included in that area are the headwaters and tributaries of the Colorado River mainstem and its principal tributaries, the Gunnison, the White and the Yampa Rivers. The general powers of the River District, set forth in C.R.S. § 37-46-107, inter alia, direct the River District to make surveys and investigations to ascertain the best method of utilizing stream flows within the River District and to make appropriations "for the use and benefit of the ultimate appropriators . . . ." This statute further directs the River District "to perform all acts and things necessary or advisable to secure and ensure an adequate supply of water, present and future, for irrigation, mining, manufacturing, and domestic purposes within said districts [sic]." The conditional water right that is the subject of this Application was obtained in furtherance of these statutory directives. Wolford Mountain Reservoir has a current storage capacity of approximately 65,985 acre feet. The second enlargement will increase the storage capacity of the existing reservoir by approximately 9,775 acre feet, for a total capacity of approximately 75,760 acre feet. The second enlargement will be accomplished by conducting work that will allow the current high-water line to be increased approximately six feet, from 7,489 feet mean above sea level to 7,495 feet mean above sea level. The Board of Directors of the River District has maintained its intent to develop the conditional water right that is subject of this Application. The water right involved in this Application was decreed on October 19, 2014 in Case No. 03CW302, Water Division No. 5. III. Description of conditional water right. A. Name of Reservoir. Wolford Mountain Reservoir Second Enlargement ("WMR Second Enlargement"). 1. Date of Original Decree, Case Number and Court. October 19, 2014, Case No. 03CW302, Water Division 5. 2. Legal Description. a. As Decreed: The dam is located in the SW1/4 of the NE1/4 of Section 25, T. 2 N., R. 81 W., 6th P.M. The as-built intersection of the dam axis (Sta. D19+35.61) with the West Access Road (Sta. WR50+55.05), as shown on the Colorado River Water Conservation District, Wolford Mountain Project, Ritschard Dam construction drawing "Dimensional Dam Layout" sheet 8 of 94, occurs at a point which bears S. 53º24'56" East a distance of 3,395.51 feet from the NW Corner of said Section 25; the bearing of said dam axis from Sta. 19+35.61 to Sta. 0+00 being S. 75 º28' 29" East. b. PLSS: SW¼ of the NE¼ of Section 25, T.2N., R.81W. of the 6th P.M. at a point 1,940 feet south of the north section line and 2,760 feet east of the west section line. 3. Source. Muddy Creek and its tributaries, all tributary to the Colorado River. 4. Date of Appropriation. November 17, 2003. 5. Amount. 9,775 acre feet, conditional, with the right to fill and refill when in priority. 6. Use. The reservoir enlargement water right may be used for the purposes described herein which include assisting to satisfy the requirements of the Windy Gap Settlement made with the Municipal Subdistrict of the Northern Colorado Water Conservancy District; to meet the water requirements of the inhabitants of the River District for all uses; and assisting to meet the terms of a lease agreement executed March 3, 1987, between the River District and the City and County of Denver, as amended. This will involve all beneficial uses, including but not limited to municipal, commercial, industrial, domestic, irrigation, agricultural, livestock, hydro-power production, evaporation, piscatorial and recreational (including in-reservoir and in-river fish habitat and river flow maintenance and enhancement uses and uses in furtherance of the Upper Colorado River Basin Fishes Recovery Program) with the right to reuse and successively use the water to extinction; such uses will include environmental mitigation, including environmental mitigation requirements associated with the Wolford Mountain Reservoir Project; such uses will be made directly or by substitution, augmentation, replacement or exchange in Water Divisions 1, 2, and/or 5. Pursuant to the February 12, 2014, stipulation entered in this case between the River District and the Grand Valley Water Users Association ("GVWUA"), the Ute Water Conservancy District ("UWCD"), and the Orchard Mesa Irrigation District ("OMID"), the River District agrees that it will make water stored pursuant to the WMR Second Enlargement storage right available for uses within or to facilitate the diversion of water from Water Division No. 5 into Water Division No. 1 or Water Division 2 only pursuant to, and subject to the terms, of the express written consent of the GVWUA, the UWCD, and the OMID. Pursuant to paragraph III.E.19 of the CRCA, any use of the WMR Second Enlargement storage right for the benefit of Denver Water will require the prior approval of the Grand County Commissioners and the River District. IV. Integrated Project. Pursuant to C.R.S. 37-92-301(4)(b), "when a project or integrated system is comprised of several features, work on one feature of the project or system shall be considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire project or system." Where work on a component of a system is "necessary to the ultimate goal of putting the water to beneficial use," it is considered part of the integrated system. Metropolitan Suburban Water Users Ass'n v. Colorado River Water Cons. Dist., 365 P.2d 273, 289 (Colo. 1961). The WMR Second Enlargement is part of the larger Wolford Mountain Reservoir Project. Use of the WMR Second Enlargement cannot be achieved independent of the other components of Wolford Mountain Reservoir. In Case No. 03CW302 Water Division No. 5, the Court found that the WMR Second Enlargement was a feature of the Wolford Mountain Reservoir Project and that work on other features of the Wolford Mountain Project will be considered in determining whether reasonable diligence has been shown for the WMR Second Enlargement. V. Claim for finding of reasonable diligence. The River District seeks a finding of reasonable diligence for the Wolford Mountain Reservoir Second Enlargement, as decreed in Case No. 03CW302, Water Division 5. VI. Provide a detailed outline of what has been done toward completion or for completion of the appropriation and application of water to beneficial use as conditionally decreed including expenditures. During the Diligence Period, the River District conducted the activities identified below toward development of the conditional water right that is the subject of this Application. Unless otherwise noted, the expenditures listed herein do not include salaries of River District staff. The explanation of work accomplished is not all inclusive but is representative of the work accomplished. A. Declaration of Intent. The Board of Directors of the River District, by formal action on July 21, 2020, declared its continuing intent to develop the conditional water right that is the subject of this Application. B. Wolford Mountain Reservoir Operations. 1. The River District spent approximately $6.7 million on operations at Wolford Mountain Reservoir. These operational expenses include facilities maintenance and repair, utilities expenses, operation of the potable water system, weed control, water quality analysis, USGS water quality monitoring, USGS stream flow gauging, operation and maintenance expenses associated with the recreation area, road maintenance at the reservoir, surveying and mapping of the reservoir, mitigation area operation and maintenance and modeling in support of the River District's Water Marketing Program. These activities contribute to the development of the WMR Second Enlargement and demonstrate the River District's continuing intent to develop and maximize all components of Wolford Mountain Reservoir of which the WMR Second Enlargement is an integrated and necessary component for the River District's maximum use of the reservoir. 2. The River District negotiated and entered into approximately twenty-eight water marketing contracts pursuant to its Water Marketing Program for Colorado River Supplies which include Wolford Mountain Reservoir as a source of supply. The WMR Second Enlargement is integral to the continued maximization of the River District's Water Marketing Program. C. Endangered Species. Federal environmental legislation and related regulations on water development activities often make successful acquisition of needed federal permits one of the most predominant concerns regarding a water development project. A significant concern regarding the development of projects in Colorado Water Division No. 5 is the status of four native fish species which have been listed as "endangered" by the Fish and Wildlife Service pursuant to the federal Endangered Species Act. Because water depletions in the Colorado River basin are alleged to jeopardize the continued existence of those fish species, it is necessary for the River District and others who may need federal permit authorizations for their water projects to successfully address the alleged jeopardy of those species. The River District extensively participated and partially funded a multi-phase study to identify a source of the 10,825 acre feet of water necessary to satisfy the obligation of water users' within the State of Colorado to the recovery of the endangered fish. Due to these efforts the River District has obtained a contract with Bureau of reclamation for 5,412.5 acre feet of water in Ruedi Reservoir to satisfy the West Slope's obligation. During the diligence period the River District has maintained and administered that contract for the benefit of the endangered fish. These efforts are necessary and appropriate in order for the River District and other water users within its boundaries to secure permitting approvals for the construction and operation of water projects, including the projects that are the subject of this Application. D. Legislation. The River District annually participates actively in legislative processes regarding water-related matters before both the United States Congress and the Colorado General Assembly. The River District has monitored and lobbied concerning the activities of various committees of the United States Congress concerning environmental legislation, particularly the Endangered Species Act, Clean Water Act, and the National Environmental Policy Act ("NEPA") as such environmental acts relate to the construction of projects and utilization of water within Western Colorado. The River District also monitors and lobbies in the Colorado General Assembly on matters related to water rights and water project development. E. Salinity. The River District continues to participate and fund efforts to reduce the salinity of the Colorado River, as well as the operation of the Colorado River mainstem reservoirs, to ensure to the River District, as well as to the State of Colorado, an adequate supply of water from the Colorado River as provided by the Colorado River Compacts. F. USGS Gauging. The River District participates in the funding of the United States Geological Survey ("USGS") hydrology and water quality gauging stations throughout the District in order to better assess the availability of water for development pursuant to its various projects. G. Wild and Scenic Alternative Management Plan. The River District expended significant staff time and financial resources in developing a stakeholder driven alternative management plan to federal wild and scenic designation for the Colorado River mainstem. A federal wild and scenic designation may have impacted the development of the conditional water rights at issue in this Application. H. Weather Modification. Throughout the diligence period, the River District has been participating in, and is now administering, the Central Colorado Mountains River Basin Weather Modification Program. The program is designed to increase snow fall, and thus improve water supplies, over the central Colorado mountains including areas in the vicinity of the projects that are the subject of this Application. I. Water Court Activities. The River District filed many applications and prosecuted water court proceedings concerning absolute and conditional water rights owned by the River District in Water Division 5. In addition, the River District filed numerous Statements of Opposition to protect its water marketing supply from Wolford Mountain Reservoir. VII. Names and Addresses of Owners of Land upon which Structure for the Water Right is Located. The Wolford Mountain Reservoir Second Enlargement Dam and Reservoir will be located on and will inundate property owned by the following: a. Colorado River Water Conservation District (Applicant). b. Bureau of Land Management, 1116 Park Avenue, Kremmling, Colorado 80459. It is not possible to name all of the owners of land upon which water released from the Wolford Mountain Reservoir Second Enlargement may be put to beneficial use. VIII. Additional Information. The Applicant has appropriated the conditional water storage right described above and has exercised reasonable diligence to complete the appropriation. The Applicant can and will divert, store or otherwise capture, possess and control the claimed water right and will beneficially use such water. The water right can and will be completed with diligence and within a reasonable time. No injury to vested water rights will occur by the exercise of the claimed water right. The water right claimed herein, the existing Wolford Mountain Reservoir, and the existing water rights decreed thereto constitute an integrated water supply and distribution system. WHEREFORE, the Applicant requests that this Court enter a decree confirming the conditional water storage right claimed herein and recognizing and preserving the original priority date thereof. (9 pages)
YOU ARE HEREBY NOTIFIED THAT YOU HAVE until the last day of DECEMBER 2020 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: $192.00) KATHY POWERS, Water Clerk, Water Division 5; 109 8th Street, Suite 104 Glenwood Springs, CO 81601.