CO Courts



DISTRICT COURT, WATER DIVISION 3, STATE OF COLORADOTO: ALL PERSONS INTERESTED IN WATER APPLICATIONS FILED INWATER 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 applications and amended applications or requests for correction filed in the office of the Water Clerk during the month of September 2019 in which the court ordered publication.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. 2017CW3021. John M. Baxter & Catherine A. Baxter, as Joint Tenants With Right of Survivorship and Not as Tenants in Common, PO Box 405, Saguache, CO 81149 (Attorney: Gordon J. Bosa, PO Box 58, Alamosa, CO 81101; 719-589-6603) Amended Application For Change of Water Rights in Saguache County Decreed water right for which change is sought: Name of structure: Well No. 26, Case No. W- 2218, Registration No. 06019. (WDID#: 2605789.) Date of original and all relevant subsequent decrees: Original Decree – 1/22/1976. Case No: W-2218. Court: Water Div. 3.Decreed Applicant was Key Development & Investment, Inc. Decreed legal description:NW1/4 NE1/4, S1, T43N, R7E, NMPM, at a point 310 ft. from the North Section Line & 2317 feet from the East Section Line, in Saguache Cty, CO. (Actual legal description: NW1/4 NE1/4, S12, T43N, R7E, NMPM, at a point approx. 300 ft. from the North Section Line & 2370 feet from the East Section Line, in Saguache Cty, CO. The GPS location of the well is UTM Zone 13S NAD83 398874 mE and 4205843 mN.) Decreed source of water: Unconfined aquifer. The depth of the well is 130' with 16" casing diameter, and is unperforated to a depth of 9 ft. and perforated from a depth of 9' to a depth of 130'. Decreed appropriation Date: 12/31/1931. Decreed Amount: 1200 gpm, being 2.67 cfs. Historic Use: Irrigation of approximately 20 acres. Detailed description of proposed change: A.) The applicants are seeking the proposed change to correct the legal description of the well which was incorrectly set forth in the Judgment and Decree entered in Case No. W-2218, Well No. 26, Registration No. 06019, on 1/22/1976. The location of the well was incorrectly stated on the Application for Underground Water Rights filed with the Court on 6/30/1972. There is no well at the decreed location. The decreed location is off by one mile. The corrected location of the actual well has been verified by photographs and a field inspection conducted by the Division of Water Resources. Furthermore, the names on the original registration where the owners of the land at the correct location. B.) The applicants are seeking a change in water right to include:1.) Commercial Use which includes a greenhouse, industrial use and retail use; 2.) Outdoor Irrigation Use; and 3.) Exempt use for domestic and stock watering purposes. New well permits will be obtained for the well pursuant to this change in water right. The new commercial permit will allow for year-round commercial use in a commercial greenhouse as well as year-round use for commercial industrial and retail purposes. The commercial well shall be allowed to pump 1200 gallons per minute. // Each separate use of the water that has a different consumptive use ratio (application efficiency) will be measured separately by totalizing flow meters. It is assumed that the consumptive use ratio for flood irrigation will be 60% and for the commercial use within a greenhouse facility will be 90%. // Each year the applicants will provide written notice to the Division Engineer of the acres that they intend to irrigate with Well No. 26, Case No. W-2218 prior to the irrigation season. The area that will be dried-up from irrigation that year shall be the difference between 14.88 acres (which were historically irrigated by Well No. 26, Case No. W-2218, Permit No. 6019-R) and the area that they intend to irrigate. // The applicants’ average annual consumptive use is 7.5 acre-feet, that leads to a five-year rolling account of 37.5 acre-feet with a maximum of 9.01 acre-feet in any one year. // The current year maximum allowable pumping for irrigation use will be calculated as the area of irrigation for the current year multiplied by the current year’s maximum allowable consumptive use divided by the historic area of irrigation and divided by the applicable irrigation use consumptive use ratio. The current year maximum allowable pumping for commercial use will be calculated as the area of dry-up in the current year multiplied by the current year’s maximum allowable consumptive use divided by the historic area of irrigation and divided by the applicable commercial use consumptive use ratio. // The assumed consumptive use ratios may be adjusted upon demonstration by the Applicants to the satisfaction of the Division Engineer that the Applicants’ irrigation system efficiency or commercial consumptive use efficiency is different from that described above or has changed. Absent agreement in writing by the Applicants and the Division Engineer, or an Order of the Water Court, the assumed consumptive use ratios described above shall apply. // Names and address of owners or reputed owners of the land upon which any new diversion or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool. You must notify these persons that you are applying for this water right, and certify to the Court that you have done so. Name of Owners: John M. Baxter & Catherine A. Baxter, PO Box 405, Saguache, CO 81149. Note: Copies of Decree and Ruling, well documentation, chain of title, and maps were attached and made a part of the original court application. Case No. 2018 CW 3012. City of Alamosa, P.O. Box 419, 300 Hunt Ave. Alamosa, CO 81101 (Erich Schwiesow, Alamosa City Attorney, PO Box 419, 300 Hunt Ave., Alamosa, CO 81101 (719) 587-2498). Amended Application for change of water right. In Alamosa and Conejos Counties. This amendment is filed to add 391 acre feet per year of production from Well No. 1, Case No. 2431 (the “Vercoles Well”) to the description of the amount of water Applicant intends to change from that well, pursuant to additional water rights acquired subsequent to the filing of the original application. Decreed water right for which change is sought: Well No. 1, Case No.2431 (“Vercoles Well”), and Well No. 1, Case No. 2233 (“Valley Land Well”). Details for Vercoles Well: Name of structure: Well No. 1, Case No. 2431 (“Vercoles Well”); Date of original and all relevant subsequent decrees: a) Case No. 2431, Water Court, Division 3, decree entered October 20, 1977; b) Case No. W-3951, Water Court, Division 3, decree entered February 17, 1981; c) Case No. 10 CW 13, Water Court, Division 3, decree entered March 17, 2017. Legal description of structure: NW1/4 SE1/4, Section 9, Township 38 North, Range 11East, NMPM, at a point of 2300 feet from the South section line and 1920 from the East section line in Alamosa County Colorado. Actual location as verified by the Colorado Division of Water Resources (DWR) with GPS: UTM NAD83, Zone 13S 431607 mE, 4156562 mN. Decreed source of water: confined aquifer. Appropriation date and amount: November 15, 1964 for1020 gpm. Decreed use or uses: irrigation and stock watering purposes within the SE1/4 SW1/4, the SW1/4 NE1/4, the SE1/4 of Section 9, and the W1/2 of Section 10, all in Township 38 North, Range 11 East, N.M.P.M. (560 acres) and the filling of ponds 3 through 8, as described in the decree for Case No. 10CW13, for livestock water, irrigation, piscatorial and aesthetic purposes. Amount of water that applicant intends to change: 641 acre-feet per year. Details of Valley Land Well: Name of structure: Well No. 1, Case No. 2233. Date of original and all relevant subsequent decrees: Case No. 2233, Water Court, Division 3, decree entered February 5, 1976. Legal description of structure: SW1/4 SW1/4, Section 1, Township 35 North, Range 10 East, NMPM, at a point of 100 feet from the South section line and 100 from the West section line in Conejos County Colorado. UTM coordinates NAD83, Zone 13S 425967.4 mE, 4128449.3 mN. Decreed source of water: Confined aquifer. Appropriation date and amount: January 6, 1959, 2400 gpm. Decreed use: irrigation Amount of water that applicant intends to change: 700 acre-feet per year. Detailed description of proposed change: The Vercoles Well has been used to irrigate no less than 367 acres in parts of Section 9, T38N, R11E, N.M.P.M. and the West half of Section 10, T38N, R11E, N.M.P.M. Since being decreed in the change of water right case 10CW13, the use of the Vercoles Well has been limited to irrigation and stock watering purposes within the SE1/4 SW1/4, the SW1/4 NE1/4, the SE1/4 of Section 9, and the W1/2 of Section 10, all in Township 38 North, Range 11 East, N.M.P.M. (560 acres) and the filling of ponds 3 through 8, as described in the decree for Case No. 10CW13, for livestock water, irrigation, piscatorial and aesthetic purposes. The Valley Land Well has been used for irrigation on 640 acres in Section 1,Township 35 North, Range 10 East, NMPM, Conejos County, Colorado. The Vercoles Well has diverted 641.5 acre feet per year on average during the period between 1978 and 2000. The Valley Land Well has diverted 1,100 acre feet per year on average during the period between 1978 and 2000. Applicant intends to curtail 641 acre feet per year of the average diversion of the Vercoles Well, and 700 acre feet per year of the average diversion of the Valley Land Well in order to credit that 1341 acre feet that were annually depleted by the wells to meet the sustainability requirements of a plan for augmentation that Applicant intends to file in water court, to augment depletions caused by pumping of its municipal wells, which are completed in the confined aquifer in the same hydrologic layer and response area as the subject wells. The intention is to meet the sustainability requirements of Rule 8.1 of the “Rules Governing the Withdrawal of Groundwater in Water Division 3. The wells will be restricted to future diversion of no more than 400 acre feet per year for the Valley Land Well, and the Vercoles Well will be limited to the stock water, piscatorial, and aesthetic uses decreed in case No. 10CW13. Name(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: Stephen J. Cole-Hatchard, Ann M. Cole-Hatchard, and Vercoles Realty, Inc., 315 Route 210, Stoney Point, NY 10980; Valley Land & Cattle, LLC, 22504 County Road 22, Sanford, CO 81151. 2019CW3011 Notice CONCERNING THE OFFICE OF THE STATE ENGINEER'S APPROVAL OF GROUND WATERMANAGEMENT PLAN FOR SPECIAL IMPROVEMENT DISTRICT NO. 6 OF THE RIO GRANDEWATER CONSERVATION DISTRICTPursuant to section 37-92-501(4)(c) C.R.S. (2017), the Office of the State Engineer hereby provides notice to interested persons that on September 25, 2019, the Office of the State Engineer approved the Groundwater Management Plan for Special Improvement District No. 6 of the Rio Grande Water Conservation District received by the Office of the State Engineer on September 10, 2019. Copies of Groundwater Management Plan for Special Improvement District No. 6 and the Office of the State Engineer's approval of the Plan are available free of charge to any owner of a water right from the Clerk of the Division 3 Water Court, 8955 Independence Way, Alamosa, CO 81101, and from the offices of the Rio Grande Water Conservation District, 8805Independence Way, Alamosa, CO 81101. Protests to the Office of the State Engineer's approval of the Plan must be filed with the Division 3 Water Court by the end of the month following the month in which this notice is published. Dated this 25th day of September 2019 By Michael Sullivan Deputy State Engineer 19CW3012, Colorado Water Conservation Board (“CWCB”), 1313 Sherman Street,Suite 718, Denver, CO 80203. Telephone: (303) 866-3441. Please direct communications regarding this case to JENNIFER MELE, First Assistant Attorney General, Natural Resources & Environment Section, Office of the Colorado Attorney General, 1300 Broadway, 7th Floor, Denver, CO 80203. Telephone: (720) 508-6282. Email: jennifer.mele@. APPLICATION FOR WATER RIGHTS TO PRESERVE THE NATURAL ENVIRONMENT TO A REASONABLE DEGREE IN SAGUACHE COUNTY, COLORADO. 2. Name of water right: Carnero Creek Instream Flow Water Right. 3. Legal Description: The Carnero Creek Instream Flow Water Right is located in the natural stream channel of Carnero Creek from the confluence of the South Fork & Middle Fork Carnero Creeks to the conflunce with the Mogotas Arroyo, a distance of approximately 9.81 miles. A map depicting the approximate location of the Carnero Creek Instream Flow Water Right reach is attached as Exhibit 1. A. Upstream Terminus: Confluence South Fork & Middle Fork Carnero Creeks at: 1. UTM: Northing: 4196212.69; Easting: 377513.93 (NAD 1983 Zone 13 North) 2. Lat/Long: Latitude 37° 54' 18.75"N; Longitude 106° 23' 35.79"W B. Downstream Terminus: Confluence Mogotas Arroyo at: 1. UTM: Northing: 4190411.28; Easting: 387851.17 (NAD 1983 Zone 13 North) 2. Lat/Long: Latitude 37° 51' 15.35"N; Longitude 106° 16' 29.34"W C. The Universal Transverse Mercator (UTM) of the upstream and downstream termini will be used as the legal description for the decree in this matter. The Lat/Long coordinates are provided as cross-reference locations only. The UTM and Lat/Long locations for the upstream and downstream termini were derived from CWCB GIS using the National Hydrography Dataset (NHD). 4. Source: Carnero Creek. 5. A. Date of initiation of appropriation: January 29, 2019. B. How appropriation was initiated: Appropriation and beneficial use occurred on January 29, 2019, by the action of the CWCB pursuant to sections 37-92-102(3) and (4) and 37-92-103(3), (4) and (10), C.R.S. (2019). C. Date applied to beneficial use: January 29, 2019. 6. Amount of water claimed: Instream flow of 2.2 (12/01 - 02/29), and 2.6 (03/01 - 11/30), absolute. 7. Proposed Uses: Instream flow to preserve the natural environment to a reasonable degree. 8. Terms and Conditions - S&T Farms, LLC (“S&T”) a. S&T owns water rights in the Omnibus Ditch, decreed in Case No. 1110, District Court, County of Saguache, that it diverts at a headgate located approximately at UTM North: 4190387 UTM East: 388140, which is below the lower terminus of the Carnero Creek instream flow (“Carnero Creek ISF”) right. S&T may subsequently desire to change water rights in the Omnibus Ditch to allow diversion at an upstream location(s) within the Carnero Creek ISF reach on the S&T property, including, without limitation, the Holland Ditch, Biehl Ditch, Cascias Ditch, Wilson Ditch, or Suzanna Ditch. b. If S&T files a change of water right to allow for diversion of the Omnibus Ditch water right at upstream alternate points within the Carnero Creek ISF reach, including, without limitation, at the Holland, Biehl, Cascias, Wilson, or Suzanna Ditches, the CWCB may file a statement of opposition solely for the purpose of ensuring compliance with this stipulation, as long as the change of water right claim and resulting decree: (1) requires S&T to maintain at least 5 cfs of the Omnibus Ditch water right in Carnero Creek that can solely be diverted at the Omnibus Ditch headgate and not at any upstream alternate points within the Carnero Creek ISF reach, including, without limitation, at the Holland, Biehl, Cascias, Wilson, or Suzanna Ditches, (2) requires the foregoing 5 cfs to be measured at the Omnibus Ditch headgate or in Carnero Creek at the location of the Omnibus Ditch headgate, depending on whether S&T is diverting the 5 cfs at the Omnibus Ditch headgate, and (3) prohibits S&T from calling for the changed water right at any point of diversion except the Omnibus Ditch headgate when 5 cfs or less is present in Carnero Creek as measured at the Omnibus Ditch headgate or in Carnero Creek at the location of the Omnibus Ditch headgate, in order to ensure there is at least 5 cfs in Carnero Creek. c. In the event S&T files for a change of water right for the Omnibus Ditch, or the Water Court enters a ruling or decree, that is not consistent with the terms and conditions referenced above, the CWCB may file a statement of opposition, protest, or motion to amend the decree, as applicable, without the above referenced limitation in paragraph 8.b. herein which restricts the CWCB to filing solely for the purpose of ensuring compliance with the stipulation. d. CWCB shall not assert the Carnero Creek ISF as a basis for opposing any relocation by S&T of any existing headgate on Carnero Creek, provided such relocation is consistent with § 37-86-111, C.R.S. 9. Names and addresses of owners or reputed owners of the land upon which any new or existing diversion structure will be located: The notice required by section 37-92-302(2)(b), C.R.S. (2019), to the owners or reputed owners of the land upon which any new or existing diversion or storage structure is or will be constructed is not applicable in this case. This Application is for instream flow water rights, exclusive to the CWCB under the provisions of section 37-92-102(3), C.R.S. (2019). As an instream flow water right, the CWCB’s appropriation does not require diversion structures or storage. See Colo. River Water Conservation Dist. V. Colo. Water Conservation Bd., 594 P.2d 570, 574 (Colo. 1979); § 37-92-103(4)(c), C.R.S. (2019). As a surface water right, the CWCB’s appropriation of instream flow water rights does not involve construction of a well. 10. Remarks: This appropriation by the CWCB, on behalf of the people of the State of Colorado, is made pursuant to sections 37-92-102(3) and (4) and 37-92-103(3), (4) and (10), C.R.S. (2019). The purpose of the CWCB’s appropriation is to preserve the natural environment to a reasonable degree. At its regular meeting on September 18, 2019, the CWCB determined, pursuant to section 37-92-102(3)(c), C.R.S. (2019), that the natural environment of Carnero Creek will be preserved to a reasonable degree by the water available for the appropriations to be made; that there is a natural environment that can be preserved to a reasonable degree with the CWCB’s water rights herein, if granted; and that such environment can exist without material injury to water rights. 19CW3013. Application for Change of Water Rights re: Season of Use of Kiana Holdings II, LLC. I. NAME, ADDRESS AND TELEPHONE NUMBER OF APPLICANTKiana Holdings II, LLC, c/o Michael Slattery, 1054 S. Perry Park Rd., Sedalia, CO 80135, (303) 660-6592. NAME, ADDRESS, & TELEPHONE NUMBER OF APPLICANTS’ ATTORNEYS: MONSON, CUMMINS & SHOHET, LLC, Chris D. Cummins, #35154, Emilie B. Polley, #51296, 13511 Northgate Estates Dr., Suite 250, Colorado Springs, CO 80921, (719) 471-1212. II.CONFIRMATION IN SEASON OF USE FOR SURFACE WATER RIGHTS. 1. Description of Decreed Interest, Point of Diversion, and Season of Use for Applicant’s Cotton Creek Water Rights, as utilized on the Cotton Creek Ranch: A. Decree Information: Applicant is the owner of multiple water rights diverting from Cotton Creek, as more particularly described in Paragraph 1.B., below (the “Cotton Creek Water Rights”). Each of the Cotton Creek Water Rights were decreed in 1980 to divert from a common point of diversion, the Hoffman-Niedhardt Ditch, by the Division 3 Water Court in Case No. W3408. Later that same year, in Case No. W3960, said Cotton Creek Water Rights were also decreed to divert from a common alternate point of diversion in addition to the Hoffman-Niedhardt Ditch, the Cotton Creek Airline Ditch. As such, since approximately 1980, each of the Cotton Creek Water Rights have been commonly diverted at one of the alternate points of diversion so decreed. Each of the Cotton Creek Water Rights are more specifically described as follows: I. Cotton Creek Ditch. a. Decree Information: The Cotton Creek Ditch (and extensions), is originally decreed for 2.0, 1.6, 2.0, 1.8, 3.6, and 6.4 cfs, for a total of 17.40 cubic feet per second (Priority Nos. 9, 12, 24, 32, 44, 52, respectively) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 100, 80, 100, 90, 180, and 320 acres, respectively, for a total of 870 acres. b. Decreed Point of Diversion: The Cotton Creek Ditch is decreed to divert water from Cotton Creek. The original point of diversion was changed in Case Nos. W408 and W3960 in 1980, to allow for diversions from either the Hoffman-Niedhardt Ditch or the Cotton Creek Airline Ditch. The Hoffman-Niedhardt Ditch is on the bank of the Cotton Creek, a tributary to San Luis Creek, located in the SE1/4 NW1/4 of Section 26, Township 45 North, Range 10 East of the N.M. P.M, in Saguache County, Colorado. The Cotton Creek Airline Ditch is located on the South Bank of Cotton Creek, a tributary to San Luis Creek, at a point North 76 degrees 35’ East, 8277 feet from the NE corner of Section 25, Township 45 North, Range 10 East of the N.M. P.M, in Saguache County, Colorado. c. Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, stating that the water right: …is used to irrigate [above described] acres of the land belonging to claimant and it is hereby adjudged and decreed that there be allowed to flow in said ditch from said Creek for the use and benefit of the part[ies] aforesaid and the parties lawfully entitled thereto, under and by virtue of [above described priorities the above described amounts of] cubic feet of water per second of time. ii. Hoffman Ditch. a. Decree Information: The Hoffman Ditch (and extensions), is decreed for 2.4, 0.6, and 0.4 cfs, for a total of 3.4 cubic feet per second (Priority Nos. 4, 13, 53, respectively) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 120, 30, and 20 acres for a total of 170 acres. b. Decreed Point of Diversion: The Hoffman Ditch is decreed to divert water from Cotton Creek. The original point of diversion was changed in Case Nos. W3408 and W3960 in 1980, to allow for diversions from either the Hoffman-Niedhardt Ditch or the Cotton Creek Airline Ditch, the locations of which are more particularly described in Paragraph II.1.A.i.b., above. c. Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, as described in Paragraph II.1.A.i.c., above. iii. Neidhardt Ditch. a. Decree Information: The Neidhardt Ditch (and extensions), is decreed for 4.4, 1.0, 2.2, 2.6, and 0.2 cfs, for a total of 10.4 cubic feet per second (Priority Nos. 4, 7, 21, 32, and 53, respectively) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 220, 50, 50, 80, and 10 acres for a total of 410 acres. b. Decreed Point of Diversion: The Neidhardt Ditch is decreed to divert water from Cotton Creek. The original point of diversion was changed in Case Nos. W3408 and W3960 in 1980, to allow for diversions from either the Hoffman-Niedhardt Ditch or the Cotton Creek Airline Ditch, the locations of which are more particularly described in Paragraph II.1.A.i.b., above. c. Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, as described in Paragraph II.1.A.i.c., above. iv. Gordon Ditch. a. Decree Information: The Gordon Ditch, is decreed for 1.4 cubic feet per second (Priority No. 32) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 70 acres. b. Decreed Point of Diversion: The Gordon Ditch is decreed to divert water from Cotton Creek. The original point of diversion was changed in Case Nos. W3408 and W3960 in 1980, to allow for diversions from either the Hoffman-Niedhardt Ditch or the Cotton Creek Airline Ditch, the locations of which are more particularly described in Paragraph II.1.A.i.b., above. c. Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, stating that the water right: …is used to irrigate 70 acres of the land belonging to [claimant] and takes it supply of water from said creek. It is hereby adjudged and decreed that there be allowed to flow in said ditch from said creek for the use aforesaid, for the benefit of the party lawfully entitled thereto, under and by virtue of said appropriation of original construction –Priority No. 32—1.40 cubic foot per second of time. v. Sanchez Ditch. a. Decree Information: The Sanchez Ditch, is decreed for 0.5 cubic feet per second (Priority No. 44) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 25 acres. b. Decreed Point of Diversion: The Sanchez Ditch is decreed to divert water from Cotton Creek. The original point of diversion was changed in Case Nos. W3408 and W3960 in 1980, to allow for diversions from either the Hoffman-Niedhardt Ditch or the Cotton Creek Airline Ditch, the locations of which are more particularly described in Paragraph II.1.A.i.b., above. c. Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, stating that the water right: …is used to irrigate 25 acres of the land belonging to [claimant] and takes it supply of water from said creek. It is hereby adjudged and decreed that there be allowed to flow in said ditch from said creek for the use aforesaid, for the benefit of the party lawfully entitled thereto, under and by virtue of said appropriation of original construction –Priority No. 25—0.5 cubic foot per second of time. vi. Cotton Creek Airline Ditch. a. Decree Information. The Cotton Creek Airline Ditch was originally decreed for 36.0 cubic feet per second (Priority No. 139) in the supplemental adjudication of water rights for Water District No. 25 dated June 9, 1914, for the irrigation of 1,440 acres. b.Decreed Point of Diversion: The Cotton Creek Airline Ditch is decreed to divert water from Cotton Creek. The original point of diversion was changed in Case Nos. W3408 and W3960 in 1980, to allow for diversions from either the Hoffman-Niedhardt Ditch or the Cotton Creek Airline Ditch, the locations of which are more particularly described in Paragraph II.1.A.i.b., above. c. Decreed Season of Use: The Decree dated June 9 1914, provides no express limitation on the season of use, stating that the water right: … is used for the irrigation of the land, taking its supply of water from Cotton Creek, a tributary of San Luis creek, and there are two thousand (2000) acres [o]f land belonging to the stockholders of the claimant lying under said ditch which have been irrigated by its waters and it is hereby ordered, adjudged and decreed there be allowed to flow into said ditch from said Cotton Creek for the use aforesaid for the benefit of the parties lawfully entitled thereto under and by virtue of said original construction and actual appropriation under Priority No. 139, not to exceed 36 cubic feet of water per second of time. 2. Description of Decreed Interest, Point of Diversion, and Season of Use on the Wells North Ditch on the Nye Ranch: A. Decree Information: Wells North Ditch, decreed for 0.4 cubic feet per second (Priority No. 1) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 20 acres. In Case No. 12CW29, additional priorities were also added to this ditch and point of diversion through the transfer of the Hills Ditch Nos. 2, 3 and 4. The Hills Ditch No. 2 adds 0.3 cfs under Priority No. 45 (1874) for irrigation of up to 15 acres, while the Hills Ditch No. 3 adds 0.16 cfs under Priority No. 46 (1874) for irrigation of up to 8 acres, and the Hills Ditch No. 4 adds another 0.08 cfs under Priority No. 45 (1874) for irrigation of up to 4 acres. All said, this ditch is now entitled to maximum diversions under all priorities of 0.94 cfs for irrigation of up to 47 acres. B.Decreed Point of Diversion: The Wells North Ditch is decreed to divert water from Kerber Creek, a tributary of San Luis Creek, at a point on the left bank, whence the E. quarter corner of Sec. 16, Township 46 North, Range 9 East of the N.M.P.M., Saguache County, Colorado bears N. 52.5 degrees E. 508 feet. As clarified by decree in Case No. 12CW29, the actual point of diversion for the Wells North Ditch is UTM coordinates (Zone 13) Easting 414549, Northing 4232656. C. Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, as described in Paragraph II.1.A.i.c., above. 3. Description of Decreed Interest, Point of Diversion, and Season of Use on the Wells Kerber Ditch on the Nye Ranch: A. Decree Information: The Wells Kerber Ditch (and extensions), is decreed for 2.2, 2.0, 4.0, and 0.8, for a total of 9.0 cubic feet per second (Priority Nos. 1, 60, 81, and 94, respectively) in the original adjudication of water rights for Water District No. 25 dated March 28, 1890, for the irrigation of 110, 100, 200, and 40 acres, for a total of 450 acres. In Case No. 12CW29 additional priorities were added to this ditch and point of diversion, through the transfer of the Hills Ditch Nos. 1 and 5, and the Wells Middle Ditch. The Hills Ditch No. 1 adds 0.72 cfs under Priority No. 42 for the irrigation of up to 36 acres. The Hills Ditch No. 5 adds 2.26 cfs and 1.0 cfs under Priority Nos. 63 and 94, respectively, for irrigation of 113 and 50 acres, respectively, while the Wells Middle Ditch adds 0.6 cfs under Priority No. 1 for the irrigation of 30 acres. All said ditches were subject of the original adjudication for Water District 25, making for a total diverted amount of 13.58 cfs for irrigation of up to 229 acres. B. Decreed Point of Diversion: The Wells Kerber Ditch is decreed to divert water from Kerber Creek, a tributary of San Luis Creek, at a point on the right bank, whence the S. quarter corner of Sec. 16, Township 46 North, Range 9 East of the N.M.P.M., Saguache County, Colorado bears S. 84 degrees E 834 feet. As clarified by decree in Case No. 12CW29, the actual point of diversion for the Wells Kerber Ditch is UTM coordinates (Zone 13) Easting 413729, Northing 4232097. C.Decreed Season of Use: The Decree dated March 28, 1890 provides no express limitation on the season of use, as described in Paragraph II.1.A.i.c., above. Water has historically been diverted on a year-round basis through ditches described in Paragraphs II.1 through 3 above (the “Subject Ditches”) by the Applicant and its predecessors in title, including for flooding of irrigated meadows with resulting ice flows during shoulder and winter months to maintain soil moisture and enhance irrigation beneficial uses, as evidenced by the Affidavit attached hereto as Exhibit A. III. Confirmation of Historical Season of Use: 1. In 2010, the Division Engineer’s Office for Water Division No. 3 issued Policy No. 2010-01, which provides in relevant part: The irrigation season in Water Division 3 is presumptively set to mirror the season during which water users irrigate growing crops… Irrigating growing crops includes historic practices such as, but not limited to: flushing ditches with water, initiating diversions, germinating volunteer seed and building soil moisture prior to planting… As Water Division 3 includes many different stream elevations and locations, the beginning and end of the irrigation season has not and need not be exactly the same throughout Water Division 3. The Subject Ditches do not always or consistently freeze over during winter months and are often available deep into shoulder seasons. 2. The recently enacted “Rules Governing the Withdrawal of Groundwater in Water Division No. 3 (The Rio Grande Basin) and Establishing Criteria for the Beginning and End of the Irrigation Season in Water Division No. 3 for All Irrigation Water Rights” specifically address a presumptive irrigation season for all water rights, stating that: These Rules establish the criteria for the beginning and end of the Irrigation Season in Water Division 3 for all irrigation water rights. See Rule 3.9. And further state that: “Irrigation Season” means the time during the year when water rights decreed for irrigation can be used in accordance with Rule 14. See Rule 4.14. And further state that: The Irrigation Season in Water Division No. 3 is presumptively set to mirror the season during which water users irrigate growing crops… The Irrigation Season presumptively begins April 1 and ends November 1 of any given year. See Rule 14.1. 3. Because Applicant, and its predecessors in title, have regularly utilized the surface water rights associated with the Cotton Creek Ranch and the Nye Ranch, as described above as the Subject Ditches, outside of the now-presumptive irrigation season for Water Division No. 3, Applicant seeks judicial confirmation of such historical usage by this Application. 4.No Injury Resulting from Confirmation: There will be no injury to other vested water users as a result of the requested confirmation in the historical season of use of the Subject Ditches, as such confirmation will simply verify the historical irrigation practices concerning the use of the Subject Ditches, and all beneficial uses thereof, including diversion for buildup of soil moisture including through icing of fields, will continue to occur only when in-priority. A. This confirmation in season of use will not result in a diversion of a greater amount of water than has been decreed and historically utilized. All points of diversion of the Subject Ditches and associated diversion structures allow for proper measurement and allocation of decreed water amounts for the described ditches, and for return to the appropriate described creeks of any amounts in excess of the decreed entitlements. B. The quantities of water appropriated for the decreed Subject Ditches are present and available for diversion from the historical points of diversion, where measuring structures are or shall be installed consistent with the guidance of the Division Engineer’s office. Applicant seeks no other changes to the water rights of the Subject Ditches and will continue to beneficially use the flows therefrom on the historically irrigated acreage upon which these water rights matured to beneficial use. Applicant’s off-season diversions are a beneficial use of water allowing Applicant to irrigate additional crops during “shoulder months” and to maintain soil moisture through flooding of irrigated meadows and resulting ice sheets, allowing for more efficient early season irrigation. WHEREFORE, Applicant requests confirmation of the Water Court of historical irrigation practices outside of the now-presumptive Division 3 irrigation season, for continued beneficial use of the vested water rights associated with each of the Subject Ditches. Per the decree, acreage is limited to 229 acres for the Wells Kerber, Wells Middle, Hills No. 1 and Hills No. 5 in combination, though their originally decreed acreage adds up to a total of 908 acres.You are further notified that you have until the last day of November 2019, to file with the Water Clerk, 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 $192.00 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, 8955 Independence Way, Alamosa, CO 81101.Witness my hand and seal of this Court this 8th day of October, 2019.Jennifer Pacheco, Clerk of the Alamosa Combined CourtsWater Court, Water Division 38955 Independence Way, Alamosa, CO 81101SEAL ................
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