DISTRICT COURT, WATER DIVISION 3, STATE OF COLORADO



DISTRICT COURT, WATER DIVISION 3, STATE OF COLORADO

TO: ALL PERSONS INTERESTED IN WATER APPLICATIONS FILED IN WATER DIVISION 3.

Pursuant to C.R.S. 37-92-302(3), you are notified that the following is a resume in Water Division 3, containing notice of all applications and amended applications or requests for correction filed in the office of the Water Clerk during the month of January, 2009.

The names and addresses of applicants, description of water rights, or conditional water rights involved, and description of ruling sought, are as follows:

Case No. 2009CW1 Patrick J. McDermott and Kathleen M. McDermott, 207 Maple Court, Alamosa, CO 81101 (719) 589-8337 Application for Finding of Reasonable Diligence in Rio Grande County

Description of Conditional Water Right A. Name of structure: Raspberry Pipeline B. Prior Decree: Raspberry Pipeline was decreed on August 9, 2002 in Case No. 00CW1, Division 3 Water Court. C. Location: NW ¼ SE ¼, Section 4, T37N, R6E, NMPM at a point 2200 feet from the South section line and 1800 feet from the East section line in Rio Grande County, Colorado. D. Amount and Source: 0.50 cubic feet per second of time, conditional, being 0.99 acre feet in a twenty-four hour period from Rock Creek, which is tributary to the Rio Grande. E. Appropriation Date: January 3, 2000. F. Type of Beneficial Use: Hydroelectric power generation (non-consumptive). 3. Detailed outline of work and expenditures toward completion of the appropriation and application of water to beneficial use: Applicants completed purchase of the property on which the water right is located by retiring the loan with the San Luis Valley Savings and Loan during the diligence period. Applicants have diligently paid annual property taxes since 1996. Applicants have purchased reference materials for the construction and use of hydroelectric power generation units. Applicants have recently retained the services of an attorney for the purpose of protecting access and easement to the property, which is an inclusion within the Rio Grande National Forest. Applicants have contacted local specialists for advice in the installation and operation of a hydroelectric power generation facility. 4. If Claim to make absolute: N/A Applicants are owners of the land upon which structure is located.

(Two Pages)

Case No. 2009CW 2 Santa Maria Reservoir Company, c/o William A. Paddock, Reg. No. 9478, Mary Mead Hammond, Reg. No. 9851, and Beth Ann J. Parsons, Reg. No. 32128, Carlson, Hammond, & Paddock, L.L.C., 1700 Lincoln Street, Suite 3900, Denver, Colorado 80203, Telephone: (303) 861-9000 and San Luis Valley Irrigation District, c/o Tod J. Smith, Reg. No. 15417, Whiteing and Smith, 1136 Pearl Street, Suite 203, Boulder, Colorado, 80302, Telephone: (303) 444-2549. APPLICATION FOR WATER RIGHTS OF THE SANTA MARIA RESERVOIR COMPANY AND THE SAN LUIS VALLEY IRRIGATION DISTRICT IN HINSDALE AND MINERAL

COUNTIES.

Name, address, and telephone numbers of the Applicants: Santa Maria Reservoir Company, c/o Ron Peterson, P.O. Box 288, Monte Vista, Colorado, 81144, Telephone: (719) 852-3556; and San Luis Valley Irrigation District, P.O. Box 637, Center, Colorado, 81125, Telephone: (719) 754-2254. I. Name of structures: Rio Grande Reservoir; Santa Maria Reservoir; and Continental Reservoir. II. Description of conditional water right: A. Date of original decree: November 29, 1995, Case No. 90CW42, District Court, Water Division No. 3. B. Locations: (1) Rio Grande Reservoir: Located in Sections 5, 6, 7, 8, 9, 10, 13, 14, 15, and 16, Township 40 North, Range 4 West, and Sections 31 and 32 of Township 41 North, Range 4 West of the N.M.P.M. The approximate location of the outlet works is in the NW¼ SE¼ of Section 14, Township 40 North, Range 4 West, N.M.P.M., in Hinsdale County, Colorado, at a point whence the NE corner of said Section 14 bears North 3̊15' East a distance of 3,616 feet. (2) Santa Maria Reservoir: Located in Sections 16, 21, 22, and 27 of Township 41 North, Range 2 West of the N.M.P.M., with its outlet works located in the SW¼ of Section 16, Township 41 North, Range 2 West, N.M.P.M. in Mineral County, Colorado, at a point whence the SW corner of said Section 16 bears approximately South 79̊ West a distance of 800 feet. The inlet ditch to Santa Maria Reservoir from North Clear Creek diverts from North Clear Creek about 5,398.1 feet from the SE¼ of Section 1, Township 41 North, Range 3 West, N.M.P.M. (3) Continental Reservoir: Located in Sections 21, 28, and 29, of Township 42 North, Range 3 West of the N.M.P.M., with its outlet works located in the SW¼ of Section 21, Township 42 North, Range 3 West, N.M.P.M. in Hinsdale County, Colorado, at a point whence the SW corner of said Section 21 bears approximately South 48̊ West a distance of 1,500 feet. C. Source: Rio Grande Reservoir – Rio Grande; Santa Maria Reservoir – North Fork of Clear Creek and streams tributary to Santa Maria Reservoir; Continental Reservoir – North Fork of Clear Creek. D. Appropriative rights of substitution and exchange: 1. Exchanges into Santa Maria Reservoir: a. Exchange from Rio Grande Reservoir: (i) Water lawfully available for storage in Rio Grande Reservoir may be left in the river; or water already in storage in Rio Grande Reservoir may be released, and an equal amount of water may be diverted by exchange for storage in and subsequent release from Santa Maria Reservoir. (ii) Amount claimed: The Applicants may exchange from Rio Grande Reservoir to Santa Maria Reservoir 43,825 acre-feet per year at the maximum rate of 350 c.f.s., which is based on the capacity of the supply canal to Santa Maria Reservoir. 12,980 acre-feet annually is decreed absolute, and 30,845 acre-feet annually remains conditional. (iii) Appropriation date: August 1968. (iv) Affected stream reach: From the outlet of Rio Grande Reservoir described in paragraph II.B, above, downstream to the confluence of the Rio Grande and Clear Creek, thence upstream on Clear Creek and North Clear Creek to the inlet ditch for Santa Maria Reservoir described in paragraph II.B, above. b. Exchange from Continental Reservoir: (i) Water lawfully available for storage in Continental Reservoir may be left in the river; or water already in storage in Continental Reservoir may be released, and an equal amount of water may be diverted by exchange for storage in, and subsequent release from, Santa Maria Reservoir. (ii) Amount claimed: The Applicants may exchange from Continental Reservoir to Santa Maria Reservoir 22,679 acre-feet per year at the maximum rate of 250 c.f.s, which rate is based upon the channel capacity below Continental Reservoir. 9,388 acre-feet annually is decreed absolute, and 13,291 acre-feet annually decreed conditional. (iii) Appropriation date: July 1964. (iv) Affected stream reach: From the outlet of Continental Reservoir on North Clear Creek downstream to the headgate of the Santa Maria Reservoir inlet ditch on North Clear Creek as described in paragraph II.B, above. 2. Exchanges into Continental Reservoir: a. Exchange from Santa Maria Reservoir: (i) Water lawfully available for storage in Santa Maria Reservoir; or water already in storage in Santa Maria Reservoir may be released, and an equal amount of water may be diverted by exchange for storage in, and subsequent release from, Continental Reservoir. (ii) Amount claimed: The Applicants may exchange from Santa Maria Reservoir to Continental Reservoir 22,679 acre-feet per year at the maximum rate of 300 c.f.s., which rate is based upon the capacity of the outlet canal from Santa Maria Reservoir. 1,380 acre-feet annually is decreed absolute, and 21,299 acre-feet is decreed conditional. (iii) Appropriation date: July 1981. (iv) Affected stream reach: From the outlet of Santa Maria Reservoir described in paragraph II.B, above, downstream to where the outlet ditch for Santa Maria Reservoir delivers water into Boulder Creek in the SW1/4 of Section 17, Township 41 North, Range 2 West, N.M.P.M., thence down Boulder Creek to its confluence with North Clear Creek, thence upstream on Clear Creek and North Clear Creek to Continental Reservoir as described in paragraph II.B, above. b. Exchange from Rio Grande Reservoir: (i) Water lawfully available for storage in Rio Grande Reservoir may be left in the river; or water already in storage in Rio Grande Reservoir may be released, and an equal amount of water may be diverted by exchange for storage in, and subsequent release from, Continental Reservoir. (ii) Amount claimed: The maximum rate at which water may be exchanged from Rio Grande Reservoir to Continental Reservoir is limited to the available stream flow at either reservoir or the maximum outlet capacity of Rio Grande Reservoir of 2,500 c.f.s.,whichever amount is less. The Applicants may exchange up to 22,679 acre-feet per year at the maximum exchange rate possible. 6,795 acre-feet annually is decreed absolute,and 15,884 acre-feet annually is decreed conditional. (iii) Appropriation date: August 1968. (iv) Affected stream reach: From the outlet of Rio Grande Reservoir as described in paragraph II.B, above, downstream on the Rio Grande to its confluence with Clear Creek, thence upstream on Clear Creek and North Clear Creek to Continental Reservoir, as described in paragraph II.B, above. 3. Exchanges into Rio Grande Reservoir: a. Exchange from Santa Maria Reservoir: (i) Water lawfully available for storage in Santa Maria Reservoir may be left in the river; or water already in storage in Santa Maria Reservoir may be released, and an equal amount of water may be diverted by exchange for storage in and subsequent release from Rio Grande Reservoir. (ii) Amount claimed: The Applicants may exchange 43,825 acre-feet annually from Santa Maria Reservoir to Rio Grande Reservoir at the rate of 300 c.f.s., which rate is based upon the capacity of the outlet canal from Santa Maria Reservoir. 11,521 acre-feet annually is decreed absolute, and 32,304 acre-feet annually is decreed conditional. (iii) Appropriation date: April 1981. (iv) Affected stream reach: from the outlet of Santa Mario Reservoir described in paragraph II.B, above, downstream to where the outlet ditch for Santa Maria Reservoir delivers water into Boulder Creek in the SW1/4 of Section 17, Township 41 North, Range 2 West, N.M.P.M., thence down Boulder Creek to its confluence with Clear Creek, thence downstream on Clear Creek to its confluence with the Rio Grande, and thence upstream on the Rio Grande to Rio Grande Reservoir, as described in paragraph II.B, above. b. Exchange from Continental Reservoir: (i) Water lawfully available for storage in Continental Reservoir may be left in the river; or water already in storage in Continental Reservoir may be released, and an equal amount of water may be diverted by exchange for storage in and subsequent release from Rio Grande Reservoir. (ii) Amount claimed: The Applicants may exchange up to 22,679 acre-feet annually from Continental Reservoir to Rio Grande Reservoir at the maximum rate of 250 c.f.s., which rate is based upon the channel capacity below Continental Reservoir. 3,596 acre-feet per year is decreed absolute, and 19,083 acre-feet is decreed conditional. (iii) Appropriation date: July 1983. (iv) Affected stream reach: From the outlet of Continental Reservoir as described in paragraph II.B, above, thence downstream on North Clear Creek and Clear Creek to its confluence with the Rio Grande and thence upstream to Rio Grande Reservoir as described in paragraph II.B, above. E. Use: Decreed for all lawful uses for the water impounded in the reservoirs, including, but not limited to, irrigation of crops and aquifer recharge. 4. Detailed outline of what has been done toward completion or for completion of the appropriation and application of water to beneficial use, including expenditures: A. During the diligence period, the Applicants continued to carry out the exchanges that are the subject of this application. Applicants only exchanged water between Rio Grande Reservoir and Santa Maria Reservoir and only during the 2008 water year. During the month of April 2008, the Applicants exchanged a total of 2,147.93 acre-feet between Rio Grande Reservoir and Santa Maria Reservoir at a maximum flow rate of 151.2 c.f.s. During May of 2008, the Applicants exchanged a total of 3,017.9 acre-feet between Rio Grande Reservoir and Santa Maria Reservoir at a maximum flow rate of 266.7 c.f.s. And in October of 2008, the Applicants exchanged 13.09 acre-feet between Rio Grande Reservoir and Santa Maria Reservoir at a maximum flow rate of 6.6 c.f.s. The amounts exchanged were insufficient to enable the Applicants to make absolute any greater portion of the conditional water right than has already been decreed absolute. B. During the diligence period, the Santa Maria Reservoir Company spent approximately $813,464 to operate, maintain, and make needed repairs to the Santa Maria Reservoir and Continental Reservoir water diversion and transmission facilities used in the conduct of these exchanges. In addition, in 2008 the Santa Maria Reservoir Company requested from the Rio Grande Basin Roundtable, established pursuant to 37-75-101 et seq., a grant to study the rehabilitation of Continental and Santa Maria Reservoirs and the water diversion and delivery facilities serving the reservoirs. In the fall of 2008, the Company was awarded a grant in the amount of $191,000 for this purpose, and is now in the process of completing the contract to receive these funds. The funds will be used principally for engineering studies to determine what remedial measures need to be implemented at Continental Reservoir Dam to allow the State Engineer to lift the current storage restriction on the reservoir, to evaluate the diversions structures that serve Santa Maria Reservoir and make recommendations for their maintenance and improvement, and to evaluate the effectiveness of previous repair work to the Santa Maria Reservoir Dam. C. During the diligence period, the San Luis Valley Irrigation District initiated an on-going analysis of a rehabilitation and potential enlargement of Rio Grande Reservoir. First, the District retained Helton & Williamson to study whether additional water might be available for storage. While the consultants concluded that there was unlikely to be a reliable supply of unappropriated water available for appropriation and storage in an enlarged reservoir, they recognized that improving the outlet works, reducing the seepage from, and enlarging the reservoir, would provide significant opportunities to re-regulate the delivery of water in the San Luis Valley to assure that Colorado’s full Rio Grande Compact entitlement remained available for use in Colorado. The District spent approximately $5,000 on this report. The District then hired Camp Dresser McGee (CDM) to conduct a feasibility study of rehabilitating and enlarging Rio Grande Reservoir. At present, the reservoir is unable to continuously release water at flows greater than 1,500 c.f.s., which circumscribes the ability to exchange water at times of high flow when the outlet capacity is fully utilized passing natural flow through to meet downstream demand. CDM concluded that the reservoir’s outlet works should be replaced with a pressurized tunnel and new gates that would allow releases from 1.0 c.f.s. to 2,500 c.f.s., that grouting and lining the north abutment was needed to significantly reduce seepage, that the spillway needed to be repaired and enlarged, and that a ten foot raise of the dam would yield approximately 11,000 acre-feet of additional storage space. CDM also reviewed various operational and re-regulation scenarios for a rehabilitated and/or enlarged reservoir that would provide for better management and utilization of Colorado’s entitlement under the Rio Grande Compact and that would allow a variety of entities to store water in the reservoir and reregulate deliveries to better manage water and the river eco-system. With respect to exchange capability, CDM noted that the present restrictions on the ability to release water from the reservoir at times of high flow reduce the opportunities to exchange water both between Rio Grande, Santa Maria and Continental Reservoirs, and upstream into the Rio Grande Reservoir. New pressurized gates would facilitate exchanges at times of high releases from the reservoir. Also, seepage losses, which increase as the reservoir fills, reduce the amount of water that might be available for exchange. The District spent approximately $154,000 for this feasibility study. The feasibility study was followed by a preliminary design study which looked in more detail at the needed repairs, the impacts of raising the dam and increasing storage space and costs. As part of this effort, the District developed, and is continuing to refine, a reservoir operation model that will allow the water users on the Rio Grande to evaluate how best to use a rehabilitated reservoir for multiple purposes, including exchanges between the three Reservoirs to better control and utilize water in the Basin. The District spent approximately $295,000 on this study. In total, the District has spent approximately $454,000 studying the rehabilitation and reoperation of Rio Grande Reservoir during the diligence period. D. During the Diligence Period, the Santa Maria Reservoir Company and San Luis Valley Irrigation District paid assessments as members of the Rio Grande Water Users Association. During the Diligence Period, the Rio Grande Water Users acted to preserve and protect the water rights of its members, including the exchanges that are the subject of this application, by filing statements of opposition to applications for water rights, changes of water rights, and plans for augmentations filed in the Divisions No. 3 Water Court, and by participating in judicial review of the State Engineer’s regulations for groundwater measurement, new uses rules for the confined aquifer, and the approval of the Plan of Water Management for Subdistrict No. 1 of the Rio Grande Water Conservation District. The Water Users also participated in the development of the RGDSS, and the ongoing work to refine and improve the RGDSS groundwater model; and worked with the Division of Water Resources to improve the administration of water rights in Water District 20, including seeking ways to more accurately determine curtailments needed for compact purposes and ways to maximize the quantity of water available for diversion, including diversions by exchange. E. During the diligence period, the Applicants consulted with the State Engineer and the Division Engineer on river administration and compact administration in order to ensure maximum diversions under this conditional water right, and took other actions in furtherance of perfection of the conditional water right. F. The work performed and actions taken by Applicants during the Diligence Period demonstrate the Applicants’ continuing intent to develop the conditional water rights originally decreed in Case No. 90CW42. Applicants have shown that they can will and implement the conditional appropriative rights of exchange, and that the conditional water rights can and will be completed and exercised with diligence and within a reasonable time. 5. Names and addresses of owners or reputed owners of the land upon which any new diversion or storage structure, or modification of any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool. A. Santa Maria Reservoir: Santa Maria Reservoir Company, P.O. Box 288, Monte Vista, Colorado 81144. B. Rio Grande Reservoir: USDA Forest Service, Rocky Mountain Region, Rio Grande National Forest, 1803 West Highway 160, Monte Vista, Colorado 81144. C. Continental Reservoir: USDA Forest Service, Rocky Mountain Region, Rio Grande National Forest, 1803 West Highway 160, Monte Vista, Colorado 81144. WHEREFORE, the Applicants respectfully request that this Court enter an Order finding that the Applicants have exercised reasonable diligence in developing and implementing the conditional appropriative rights of exchange decreed in Case No. 90CW42 on November 29, 1995, and have demonstrated their continuing intent to put these conditional water rights to beneficial use and are entitled to a continuation of these conditional water rights pursuant to § 37-92-301(4), C.R.S.

(Application is 17 pages including resume)

Case No. 07CW54, ORIENT LAND TRUST, Neil Seitz, P. O. Box 65, Villa Grove, Colorado 81155-0065, (719) 256-4315, c/o Richard J. Mehren, #32231, Patricia M. DeChristopher, #36951, Moses, Wittemyer, Harrison and Woodruff, P.C., P. O. Box 1440, Boulder, Colorado 80306-1440, (303) 443-8782 AMENDED APPLICATION FOR WATER STORAGE RIGHT, SURFACE WATER RIGHT, CHANGE OF WATER RIGHT AND APPROVAL OF PLAN FOR AUGMENTATION IN SAGUACHE COUNTY

II. Application for Conditional Water Storage Right: A. Name of reservoir: Everson Ranch Pond. B. Location of dam: The dam for Everson Ranch Pond is located in the SW1/4 of the NE1/4, Section 4, Township 45 North, Range 10 East, N.M.P.M., Saguache County, Colorado, at a point 2,290 feet from the North section line and 2,110 feet from the East section line of said Section 4. C. Ditch to fill reservoir: Hot Springs Creek Ditch, with a capacity of 2.96 cfs and decreed point of diversion as described in part IV.A.3. below. D. Source: Hot Springs Creek. E. Appropriation: 1. Date of appropriation: September 1, 2006. 2. How appropriation was initiated: By rehabilitation of the Everson Ranch Pond. 3. Date water applied to beneficial use: N/A. F. Amount claimed: 20 acre-feet (or the actual as-built capacity), CONDITIONAL, with the right to fill and refill continuously when in-priority. The pond will be filled at a rate of 2.96 cfs. G. Use: Piscatorial, fish and wildlife uses in and around Everson Ranch Pond, recreation and aesthetic. The uses will be year-round. H. Surface area of high water line: Approximately 2.25 acres (or the actual as-built surface area). 1. Maximum height of dam: Approximately 10 feet. 2. Length of dam: Approximately 500 feet. I. Capacity of reservoir: 20 acre-feet (or the actual as-built capacity), active; 0 acre-feet dead storage. J. Remarks: Everson Ranch Pond is an off-channel pond that is filled by the Hot Springs Creek Ditch, which is also used by Applicant to irrigate 194 acres of Applicant’s Everson Ranch property as depicted on Exhibit A attached hereto. Everson Ranch Pond was originally constructed in the 1920s as part of the Ranch’s irrigation system and was historically used as a temporary storage structure for management of water diverted under the Applicant’s Hot Springs Creek Ditch water right for irrigation. Although the Everson Ranch Pond will be relocated by approximately 500 feet as shown on Exhibit D, Applicant intends to use Everson Ranch Pond to continue this historical irrigation practice, when Applicant’s Hot Spring Creek Ditch water right is in priority, in addition to the other uses described in this application. No change of water right is needed to allow that historical irrigation practice to continue. Any out-of-priority storage in, and out-of-priority evaporation from, Everson Ranch Pond will be replaced under the plan for augmentation described below. Everson Ranch Pond will be filled upon entry of a decree for this application or under a substitute water supply plan. Applicant may choose to dry-up additional historically irrigated land for one irrigation season so that it may use its Hot Springs Creek Ditch water right to fill Everson Ranch Pond. III. Application for Conditional Surface Water Right: A. Name of structure: Hot Springs Creek Ditch. B. Location of structure: A point on Hot Springs Creek in the NE1/4 of Section 4, Township 45 North, Range 10 East, N.M.P.M., Saguache County, Colorado, which is approximately 2400 feet South and 1100 feet West of the Northeast corner of said Section 4. C. Source: Hot Springs Creek. D. Appropriation: 1. Date of appropriation: September 1, 2006. 2. How appropriation was completed: By rehabilitation of the Everson Ranch Pond. 3. Date water applied to beneficial use: N/A. E. Amount claimed: 2.96 cfs, CONDITIONAL. F. Use: Piscatorial, fish and wildlife uses in and around Everson Ranch Pond, recreation and aesthetic. The uses will be year-round. G. Remarks: The subject surface water right to be decreed for diversion at the Hot Spring Creek Ditch will be diverted from Hot Springs Creek, delivered through Everson Ranch Pond, and returned to Hot Springs Creek and/or the groundwater system that is tributary to Hot Springs Creek by means of the Hot Springs Creek Ditch and associated lateral ditches that are located on the Ranch. Applicant’s diversion and use of the subject surface water right will be essentially non-consumptive. IV. Change of Water Right: A. Description of water right sought to be changed: 1. Name: Hot Springs Creek Ditch. 2. Original and related decrees: Original adjudication of water rights in former Water District 25, Saguache County, on March 28, 1890. Modified by Case No. 79CW36, District Court, Water Division No. 3, dated December 27, 1979, and Case No. 88CW8, District Court, Water Division No. 3, dated October 27, 1989. 3. Decreed point of diversion: A point on Hot Springs Creek in the NE1/4 of Section 4, Township 45 North, Range 10 East, N.M.P.M., Saguache County, Colorado, which is approximately 2400 feet South and 1100 feet West of the Northeast corner of said Section 4. 4. Source: Hot Springs Creek. 5. Appropriation date: May 1, 1871. 6. Amount: 3.96 cfs, of which the last 2.96 cfs is owned by Applicant. 7. Decreed use: Irrigation and non-consumptive recreational, commercial, municipal and power generation. B. Historical use: Applicant’s senior Hot Springs Creek Ditch water right described in part IV.A., above, has historically been used to irrigate 194 acres on Applicant’s property as generally depicted on Exhibit A attached hereto. Summaries of available diversion records for the senior Hot Springs Creek Ditch water right are shown on Exhibit B attached hereto. C. Proposed changes: Applicant has ceased, or will cease, irrigating approximately 7.4 acres that were historically irrigated on the Ranch with its senior Hot Springs Creek Ditch water right. Applicant estimates that the average annual historical consumptive use on such 7.4 acres was at least 7.4 acre-feet. If necessary, Applicant will remove additional land from irrigation as needed to make water available under its senior Hot Springs Creek Ditch water right to augment out-of-priority storage in, and out-of-priority evaporation from, operation of Everson Ranch Pond as described in the plan for augmentation below. Consequently, Applicant requests the Court to approve a change of type of use of a portion of its senior Hot Springs Creek Ditch water right to include piscatorial, fish and wildlife uses in and around the pond, recreation and aesthetic, either directly or by means of augmentation or replacement of depletions, as described in the plan for augmentation. Applicant also requests the Court to approve a change of the place of use of a portion of its senior Hot Springs Creek Ditch water right to allow use and/or storage of the water in Everson Ranch Pond, as described above, in addition to the previously decreed places of use. V. Plan for Augmentation: A. Structure to be augmented: Everson Ranch Pond, described in part II above. B. Water rights to be used for augmentation: A portion of Applicant’s senior Hot Springs Creek Ditch water right described in part IV above. C. Description of plan for augmentation: Applicant proposes to use a portion of the historical consumptive use credits available under its Hot Springs Creek Ditch water right, as described above, to replace out-of-priority storage in, and out-of-priority evaporation from, operation of Everson Ranch Pond. As described above, Applicant has removed, or will remove, 7.4 acres from irrigation to make at least 7.4 acre-feet of historical consumptive use credits under its senior Hot Springs Creek Ditch water right available to augment out-of-priority storage in, and out-of-priority evaporation from, operation of Everson Ranch Pond. Diversions and use under Applicant’s senior Hot Springs Creek Ditch water right will be reduced and a pro-rata portion of such water left in Hot Springs Creek to replace such out-of-priority depletions. If necessary, Applicant will remove such additional land from irrigation as needed to make water available under its senior Hot Springs Creek Ditch water right to augment out-of-priority depletions from operation of Everson Ranch Pond. After the initial fill, Everson Ranch Pond will be operated under the decree requested by this application by diverting up to 2.96 cfs year-round from Hot Springs Creek in-priority under the surface water right requested in part III above or out-of-priority from Hot Springs Creek into the Hot Springs Creek Ditch. The diverted water will be delivered through Everson Ranch Pond and returned to Hot Springs Creek and/or the groundwater system that is tributary to Hot Springs Creek by means of the Hot Springs Creek Ditch and associated laterals. The initial filling of Everson Ranch Pond will require approximately 20 acre-feet of water. Out-of-priority depletions may be caused by Everson Ranch Pond due to exposure of 2.25 acres of surface water to evaporation or due to out-of-priority storage in Everson Ranch Pond. Annual evaporation in the vicinity of Everson Ranch Pond is estimated to be approximately 3.3 feet. With a surface area of 2.25 acres, the annual evaporation from Everson Ranch Pond is estimated to be approximately 7.4 acre-feet per year.1 Assuming the Hot Springs Creek Ditch water right described in part III, above for Everson Ranch Pond is out-of-priority for the entire year and the initial fill of the pond has occurred, Applicant may need to replace to the stream system up to 7.4 acre-feet per year of out-of-priority evaporative depletions from the pond. If Applicant’s augmentation water is not available to replace out-of-priority pond depletions at any time, water will be released from Everson Ranch Pond as necessary to account for such depletions. Applicant will install such measuring devices and maintain such records as may reasonably be required to implement the proposed plan for augmentation. VI. Name(s) and address(es) of owner(s) or reported owner(s) of the land upon which any new diversion or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool: Applicant. WHEREFORE, Applicant requests the Court to enter a decree approving the conditional water storage right, the conditional surface water right, change of water right and plan for augmentation described in this application, and determining that such water right, change of water right and plan for augmentation will not cause injury to the vested or decreed conditional water rights of others.

_______________________

1 In Case No. 94CW62, this Court determined that the appropriate replacement equation for pond evaporation in the San Luis Valley is the pond surface area in acres multiplied by the appropriate value from Chart A (attached hereto as Exhibit C) in feet/year. Based on the Everson Ranch Pond’s approximate elevation of 7800 feet, the Chart A value is 3.3 feet/year.

Case No. 08CW10 Robert Gregg Sease, 10957 E. Bethany Drive, Denver, Colorado 80014 (303) 721-0579 (home) (303) 594-0050 (cell) (atty. Lester Sigmond Rooney & Schwiesow PO Box 1270 Alamosa, CO 81101 (719) 589-6626). Amended Application for Approval of Change of Water Rights and Plan for Augmentation in Saguache County,

Names of structures to be augmented: A.House Pond; B. Horseshoe Pond No. 1; C. Horseshoe Pond No. 2; D. Corral Ponds 1-6; E Northeast Pond No. 1; F. Northeast Pond No. 2; G. Ditch 2; H. Ditch 3; I. Ditch 5 from the last wastegate to the corral ponds; J. Ditch 6; K. Dams 1-30. Previous decree(s) for water right(s) to be changed for use for augmentation: Either of the following water rights, in combination: (1) SHEEP CREEK DITCH, as changed to carry water from the Lawrence Ditch No. 3 originally decreed May 1, 1872. Change Case July 29, 1929. Case No: 1148, Saguache County District Court. Point of diversion described as a point on the right bank of Sheep Creek lying North 3 degrees 15 minutes East 2450 feet from the southwest corner of Section 5, T45N, R5E, NMPM. Appropriation Date: November 23, 1889 for 1 c.f.s., decreed for irrigation of 160 acres. (2) TARBELL DITCH, originally decreed September 3, 1918 Case No 1602. Legal description of point of diversion: South bank of the Lake Fork, Cochetopa Creek, a tributary of Tomichi Creek, at a point whence the NW corner of Section 11, T. 43 N, R. 2 E., NMPM bears South 65 degree 36 minutes East 2418.4 feet. The location is almost certainly incorrectly decreed, the point of diversion is approximately located by GPS coordinates as Northing 4208664 Easting 340225.7. Appropriation Date: June 20, 1914 for 25 c.f.s. for irrigation of 1500 acres. Historic use of water rights to be changed for use for augmentation: Historically, the Sheep Creek Ditch water right has been used in conjunction with other surface water rights to irrigate approximately 160 acres of irrigated pasture and hay land located in the SW¼ of Section 5 and the West Half of Section 8, T45N, R5E, NMPM. The Tarbell Ditch, which constitutes transmountain water, has been used to irrigate 1500 acres of land. Applicant proposes to purchase or lease sufficient of the Tarbell water to augment depletions without necessarily acquiring an interest in the ditch itself. The annual diversion records for the past 20 years indicate an average annual diversion of 91.5 acre feet under the Sheep Creek Ditch. The annual diversion records for the past 10 years indicate an average annual diversion of 851 acre feet under the Tarbell Ditch. Proposed Change and Statement of plan for augmentation: Applicant proposes to augment depletions caused by evaporation and subirrigation from the above structures by permanently drying up an appropriate number of acres historically irrigated by Sheep Creek Ditch and changing the manner of use of a portion of the Sheep Creek Ditch from irrigation to augmentation, and/or by replacement or replacement by exchange with transmountain water from the Tarbell Ditch. The currently estimated annual depletion from the structures is estimated to be 13 acre feet, however, applicant has not completed the engineering work necessary to refine that number and will do so in the course of the application. The estimated first fill requirement for the structures is 6.5 acre-feet, which applicant intends to replace by one-time lease of transmountain water from the Tarbell Ditch. The dam structures will be augmented to the extent the dams represent an increase in depletions from pre-existing conditions. Applicant will provide augmentation to the stream in time to augment depletions by diverting either Sheep Creek Ditch or Tarbell Ditch water, when in priority, through the Sheep Creek Ditch headgate into an existing recharge pit located in the SW¼SW¼ of Section 5, near the northwest corner of applicant’s property as shown on the map, known as the “New Stock Pond.” The water shall be allowed to infiltrate into the ground and thereby offset, in time and amount, the evaporative depletions on a daily basis, without storing water. Names(s) and address(es) of owner(s) or reputed owners of the land upon which any new diversion or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored: Applicant is the owner of all land upon which all new or modified structures referenced in this application are located.

THE WATER RIGHTS CLAIMED BY THESE APPLICATIONS MAY AFFECT IN PRIORITY ANY WATER RIGHTS CLAIMED OR HERETOFORE ADJUDICATED WITHIN THIS DIVISION AND OWNERS OF AFFECTED RIGHTS MUST APPEAR TO OBJECT WITHIN THE TIME PROVIDED BY STATUTE OR BE FOREVER BARRED.

You are further notified that you have until the last day of March, 2009, to file with the Water Clerk, in quadruplicate, a verified statement of opposition setting forth facts as to why a certain application should not be granted or why it should be granted only in part or on certain conditions or a protest to the requested correction. A copy of such a statement of opposition or protest must also be served upon the Applicant or the Applicant’s attorney and an affidavit or certificate of such service must be filed with the Water Clerk. A $158.00 filing fee is required. PLEASE NOTE: WATER DIVISION 3 HAS MANDATORY E-FILING FOR ALL PARTIES REPRESENTED BY AN ATTORNEY.

You can review the complete applications or requests for correction in the office of the Alamosa Combined Court, 702 Fourth St., Alamosa, CO 81101.

Witness my hand and seal of this Court this 13th day of February, 2009.

______________________________________

Shirley Skinner, Clerk of the Court

Alamosa Combined Courts

Water Court, Water Division 3

702 Fourth Street, Alamosa, CO 81101

SEAL

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