HomeMy WebLinkAbout20120298.tiff a� 1 111111 11111 1111111 III 111111 Eli Milt
3818482 01/18/2012 11:43A Weld County, CO
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EFILED Document—District Court
2004CW359
DISTRICT COURT,WATER DIVISION 1
CO Weld County District Court 19th JD
STATE OF COLORADO Filing Date:Oct 31 2011 11:03AM MDT
Weld County Courthouse Filing ID:40636596
901 9th Street,P.O. Box 2038
Greeley, CO. 80632
CONCERNING THE APPLICATION FOR
UNDERGROUND WATER RIGHT AND PLAN
FOR AUGMENTATION FOR THE BOARD OF
COUNTY COMMISSIONERS OF THE COUNTY
OF WELD, STATE OF COLORADO
IN WELD COUNTY,COLORADO • COURT USE ONLY A
Case No. 04CW359
FINDINGS OF FACT,CONCLUSIONS OF LAW AND DECREE OF THE WATER
COURT
This matter came before the Water Court upon the Application for Underground Water
P PP �
Right and Plan for Augmentation by the Board of County Commissioners of the County of Weld,
State of Colorado. The Court, having considered the Application and the exhibits and other
documents filed herein, and being otherwise fully advised in the premises, hereby enters the
following findings, conclusions of law and decree in accordance with Colo. Rev. Stat. § 37-92-
304:
I. FINDINGS OF FACT
1. Application: The Application herein was filed December 30, 2004, with the
Water Clerk, Water Division 1. The First Amendment to the Application was filed on October 8,
2007, with the Water Clerk, Water Division 1. The Applicant is the Board of County
Commissioners of Weld County ("Weld County"). The Applicant's address is 915 10th Street,
P.O. Box 758 Greeley, CO 80632.
2. Publication and Statements of Opposition: The Application was published in the
Water Division No. 1 Resume of December 2004 applications. The first amendment was
published in the Water Division No. l Resume of October 2007 applications. The City of
Greeley, acting by and through its Water and Sewer Board ("Greeley"), Greeley Irrigation
Company and Ogilvy Irrigating and Land Company filed Statements of Opposition in a timely
manner. No other parties have filed statements of opposition and the time for filing statements
of opposition has expired.
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3. Notice and Jurisdiction. Timely and adequate notice of the Application and these
proceedings has been given as required by law. The surface water and groundwater involved
herein are not included within the boundaries of any designated ground water basin. The Water
Court has jurisdiction over the Application and the subject matter of these proceedings, and over
all who have standing to appear as parties, whether they have appeared or not.
4. Purpose of Application. Weld County seeks a decree for an underground water
right for Weld County Dust Control Well #1 (Well Permit#50426-F) in the amount of 2.23 cubic
feet per second and 40 acre feet per year. Weld County has claimed 2.23 c.f.s. and 29.2 acre-feet
per year absolute and 10.8 acre-feet per year conditional. Additionally, Weld County seeks
approval of its augmentation plan that includes Weld County Dust Control Well #1.
5. Summary of Consultation. The Summary of Consultation with the Water Referee
was served on April 28, 2005. Weld County responded to the Summary of Consultation via
letter to the Division 1 Water Referee dated June 16, 2005. The Summary of Consultation
regarding the first amendment to this Application with the Water Referee was served on
February 8, 2008. No response was required. The Court has duly considered the Summaries of
Consultation and response thereto.
6. Stipulations and Settlements. Stipulations were entered into between Weld
County and the objectors to this application as follows.
a) City of Greeley entered a stipulation on October 27, 2011
b) Greeley Irrigation Company withdrew its statement of opposition on
November 15, 2010.
c) Ogilvy Irrigating and Land Company entered a stipulation on March
22, 2011,
7. Underground Water Right.
a) Well: The well is Weld County Dust Control Well #1 ("Well #1"), which is
permitted under Well Permit#50426-F.
b) Legal Description: Well #1 is located in the NE ''A of the SW ''A, Section 31,
Township 6 North, Range 65 West of the 6th P.M. in Weld County, Colorado, at a
point 2632 feet from the South section line and 1485 feet from the West Section
Line.
c) Source and Depth: The source of water for Well #1 is groundwater from the
alluvium hydraulically connected to the Cache la Poudre River, a tributary of the
South Platte River. The depth of the well is 65 feet.
d) Determination of Appropriation:
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i. The date of appropriation is June 4, 1998.
ii. Appropriation was initiated by application for the well permit.
iii. Water pumped from Well #1 was applied to beneficial use on August 20,
1998.
e) Amount of Water Claimed: 2.23 cfs and 29.2 acre-feet annually, absolute, and
10.8 acre-feet annually, conditional. The amount of diversions from Well #1 shall
not be more than 40 acre feet per year.
0 Proposed Use: Weld County will use water from Well #1 in gravel mining
operations including operating air emissions control devices; controlling fugitive
particulate emissions; washing and processing sand, gravel and aggregate;
washing equipment; accounting for evaporative losses of water from mined
materials stockpiled at the site or removed from the site; irrigating and reclaiming
mine sites and maintaining wetlands. Weld County will also use water from Well
#1 for other public purposes including construction and maintenance of roads,
control of fugitive particulate emissions from public roads and other public sites,
irrigation of landscaping, reclamation of construction sites for public facilities,
and fire suppression and emergency response.
II. CONCLUSIONS OF LAW
8. Notice and Jurisdiction. The Water Court for Water Division No. 1 has jurisdiction
over the subject matter of these proceedings and over all persons, owners of property and water
rights that may be affected hereby, pursuant to §37-92-203(1), §37-92-302 and §37-92-304,
C.R.S. whether or not they have chosen to appear. The original application and amendments in
this matter, and the resume publication of the application and amendments placed such persons
on notice of the relief requested by the application, the amendments and granted by this decree.
9. Statements of Opposition. Statements of opposition were filed by The City of
Greeley, acting by and through its Water and Sewer Board, Greeley Irrigation Company and
Ogilvy Irrigating and Land Company. No other statements of opposition have been filed and the
time for filing statements of opposition has expired.
10. Burden of Proof. Applicant has met its burden of proof and is therefore entitled to
a decree approving its plan for augmentation.
11. Plan for Augmentation Contemplated by Law. The application for approval of the
Plan for Augmentation in ¶14 of this decree is contemplated by law and satisfies the
requirements of C.R.S. §37-92-101 et seq., including but not limited to §§37-92-103, 37-92-302,
37-92-304(6), 37-92-305(3), 37-92-305(5), 37-92-305(8) and 37-92-305(12). Operation of the
Plan for Augmentation will not injuriously affect any owner of or person entitled to use water
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under a vested water right or decreed conditional water right, so long as operated and
administered in accordance with the terms of this decree.
12. Water Right Contemplated by Law. The appropriation described herein is
contemplated by law and satisfy the requirements of C.R.S. §37-92-101 et seq., including but not
limited to §§37-92-103(3), 37-92-103(6), 37-92-302, and 37-92-305. Weld County has
demonstrated that water can and will be diverted, possessed, and controlled and will be
beneficially used and that the project can and will be completed with diligence and within a
reasonable time. §37-92-305(9), C.R.S.
13. No injury. The Court determines that the plan for augmentation herein is
authorized by law, and if operated in accordance with the terms and conditions of this Decree,
will not result in injury to vested water rights and decreed conditional water rights of others.
Therefore, applicant is entitled to a Decree approving the plan for augmentation herein. §37-92-
305(3) C.R.S.
14. Administrability. The Plan for Augmentation decreed herein is administrable by
the officials of the State of Colorado, so long as operated in accordance with the terms of this
decree.
RULING AND DECREE
15. Incorporation. Paragraphs 1 through 14, inclusive, are incorporated herein by
reference and made a part of this Decree as if fully set forth.
16. Plan for Augmentation.
a) Structure To Be Augmented. Weld County Dust Control Well #1
described in Paragraph 7 above.
16.a.1 Replacement, Alternate Point of Diversion or Supplemental
Wells. Any well that is constructed with a valid well construction
permit issued by the Office of the State Engineer as a replacement
for Well #1 may also be covered by the plan provided the
replaced well is properly abandoned. Any well constructed as an
alternate point of diversion or supplemental well for Well #1 may
also be covered by this plan provided Weld County files a notice
with the court, with a copy to objectors in this case, that such
well(s) are being added to the plan. The notice shall include the
Glover parameters for the well(s) which will be used to lag
depletions from the well(s). Any wells added to the plan shall be
located within the NW '/4 of the NE '/4, the S '/ of the NE '/4, the N
Yz of the SE '/4 and the NE `/4 of the SW '/4 of Section 31,
Township 6 North, Range 65 West of the Sixth P.M., Weld
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County, Colorado and operated pursuant to the terms and
conditions of the augmentation plan decreed herein.
b) Method for Determination of Stream Depletions. The diversions from
Well #1 will be measured by a flow meter and 100% of the diversions will
be considered to be consumed. The monthly lagged well depletions will be
determined using the Alluvial Water Accounting System (AWAS)
developed by Colorado State University's Integrated Decision Support
team. The AWAS model is based on the Glover Stream Depletion Model
(Glover). The Glover model using an alluvial aquifer setting requires the
definition of the following parameters: (1) the distance of the well from
the impacted stream, "X" (2) the distance of the stream from the no flow
boundary, "W" (3) the transmissivity of the aquifer, "T" and (4) the
coefficient of storage of the aquifer, "S." The aquifer characteristics and
information to develop the Glover parameters were obtained from a
review of the South Platte Decision Support System (SPDSS) published
TGRID map in ArcGIS and published geologic maps. The Glover
parameters for Well #1 are X = 136 feet, W = 11,624 feet, T = 194,301
gallons per day per foot and S = 0.2.
c) Depletions. Diversions from Well #1 cause depletions to the Cache la
Poudre River in the NE '/o of the SW '/4 of Section 31, Township 6 North
Range 65 West of the 6th P.M. upstream of the Ogilvy Ditch headgate. To
the extent that depletion from Well # 1 is out of priority, the purpose of
this plan is to provide for replacement of such out of priority depletion in
time, location and amount to the extent necessary to prevent injury to
senior water rights.
d) Water Rights To Be Used For Augmentation. Weld County has rights
in and to 300 acre-feet of fully consumable water via a perpetual lease
with the City of Greeley, dated November 10, 2004, and recorded at
reception #3242334 on December 8, 2004 in the records of the Weld
County Clerk and Recorder (hereinafter the "Perpetual Lease"). Water
made available under the Perpetual Lease shall be delivered to the Cache
la Poudre River from the Greeley Municipal Wastewater Treatment Plant
outfall, which is located on the south bank of the Cache la Poudre River in
the SW '/4 of the SW '/< of Section 4, Township 5 North, Range 65 West of
the 6"' PM or at such other delivery points that Weld County and the City
of Greeley agree in writing; provided, such other points are capable of
delivering replacement water above the downstream calling water right.
There are no intervening water rights between the point of depletion for
diversions from Well # 1 at the Cache la Poudre River described in
paragraph 16(c) above and the outfall for the Greeley Municipal
Wastewater Treatment Plant as described in this paragraph.
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16.d.1 Additional Supplies of Augmentation Water. Pursuant to
§37-92-305(8) C.R.S., the Court may authorize Weld County to
use additional or alternative sources of augmentation water for
replacement in this Augmentation Plan, including water leased by
Weld County, if such sources are part of a substitute water supply
plan approved pursuant to §37-92-308 C.R.S., or if such sources
are decreed for such use. The Court may also authorize Weld
County to use additional or alternative sources of augmentation
water for replacement in this Augmentation Plan, including water
leased by Weld County, if such sources are part of an interruptible
water supply agreement approved pursuant to §37-92-309, C.R.S.
The procedures under which these sources may be added to this
plan are set forth in paragraphs 16.d.1.1 and 16.d.1.2. These
procedures are adequate to prevent injury to other water rights
that might otherwise result from the addition of these sources to
this plan.
16.d.1.1 Additional Water Rights Separately Decreed for
Augmentation Use. If a water right is decreed or
lawfully available for augmentation use and not
already approved for such use under this Decree, Weld
County shall give at least 30 days advance written
Notice of Use of Water Right for Augmentation, to the
Court, the Division Engineer and all the objectors
herein which shall describe 1) the water right by name
and decree, if any; 2) the annual and monthly amount
of water available to Weld County from the water
right; 3) the location or locations at which the water
will be delivered to the stream; 4) the manner in which
Weld County will account for use of the augmentation
credits.
16.d.1.2 Other Additional Water Rights. If a water right is
not decreed or otherwise lawfully available for
augmentation use, and Colorado statutes or other
governing authority provide a mechanism for using
such water right without the need of a decree or well
permit, Weld County shall provide written notice to
the objectors herein of its request for approval of the
State Engineer pursuant to §37-92-308 or §37-92-309,
C.R.S., or other applicable statute. Weld County may
use such water rights in the plan of augmentation upon
the State Engineer's approval of the administrative
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application for the term of such approval, unless such
approval is reversed or modified on appeal.
e) Amount of Diversion. Operations of Well # 1 under this plan may vary
from year to year consistent with Weld County's operations and its
demands for water from Well #1 for the uses described in paragraph 7
above. Therefore, each year, on or before January 1, Weld County shall
file with the Division Engineer a Notice of Estimated Diversions which
shall advise the Division Engineer of the amount of estimated diversion
and stream depletions from Well # 1, by month, for the 12 month period
from January 1 to December 31 and the amount of replacement water from
the Perpetual Lease to be used to augment depletions from Well # 1 under
the terms of this Decree. If Weld County's total diversions from Well # 1
will be greater than the amount included in the Notice of Estimated
Diversions, Weld County shall submit a Supplemental Notice of Estimated
Diversions to the Division Engineer, which notice shall show the new
estimated diversion amount by month, for each month from the date of the
Supplemental Notice until December 31 of that year and the amount of
replacement water from the Perpetual Lease to be used to augment
depletions from Well # 1 during said period under the terms of this
Decree. In no event shall the amount of pumping shown in the original or
Supplemental Notice of Estimated Diversions exceed the total amount of
replacement water available to Weld County pursuant to the Perpetual
Lease and any additional supplies available pursuant paragraph 16.d
above. To the extent Weld County is relying solely on water under the
Perpetual Lease as its augmentation supply in this plan, the amount of
pumping shown in the original or Supplemental Notice of Estimated
Diversions shall not exceed the total amount of replacement water to
which Weld County is entitled to delivery under the terms of the Perpetual
Lease, less any water under the Perpetual Lease that Weld County has
committed to uses other than augmentation of Well #1 under this Plan.
16.e.1 Maximum Diversion Rates: Weld County will limit pumping
from Well #1 to no more than 8 acre feet in any single month and
2.5 acre feet in a week. If Weld County desires to pump more
than 8 acre feet in a month or 2.5 acre feet in a week under this
augmentation plan, it will file a notice with the court under this
case number which notice shall state the estimated maximum
monthly and weekly amounts Weld County anticipates pumping
under this Decree. The parties to this case shall have 30 days
after the filing of said notice to object to the increased monthly
and/or weekly maximum diversion amounts and the court shall set
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the matter for a hearing. If no objection is filed, Weld County
shall be authorized to pump up to the maximum monthly and
weekly amounts as set forth in the notice without further action
from the court.
f) Accounting. Weld County will install such measuring devices on Well #1
as are reasonably determined by the Division Engineer to be necessary for
the proper administration of this Decree. Weld County shall determine the
amount pumped from Well #1 based on the use of a totalizing flow meter.
Weld County shall read the meter on a monthly basis. Accounting for this
plan shall be maintained on a monthly accounting form reasonably
acceptable to the Water Commissioner and Division Engineer. The
accounting form, Exhibit 1 attached hereto, contains the information
necessary to account for this augmentation plan; however, it is not
specifically decreed herein and may be modified as agreed upon by
Applicant and the Division Engineer provided it remains consistent with
this Decree. The accounting for this Decree shall be submitted to the
Division Engineer on a monthly basis and made available to any objector
in this case upon reasonable request and reimbursement of expenses
related to production of the same. Weld County shall be responsible for
submitting all necessary information to the Water Commissioner or the
Division Engineer concerning the accounting for the diversions, stream
depletions and replacement deliveries under this plan for augmentation.
g) Adequacy of Replacement and Augmentation Supplies. The Court
finds that for purposes of this plan for augmentation only the replacement
and augmentation supplies to be used by Weld County for the operation of
this Plan for Augmentation are of a quantity, quality and continuity
satisfactory to meet, in time, location and amount, the requirements for
which the water of senior appropriators has normally been used. In
accordance with the Perpetual Lease, after Greeley delivers replacement
water to the river at the locations described in paragraph 16.d above, Weld
County shall be responsible coordinating with the Water Commissioner
regarding the administration of the replacement water under this plan for
augmentation and shall bear any transit losses assessed by the Water
Commissioner or the Division Engineer from said delivery point(s) to the
location where Weld County uses said water under this augmentation plan.
This finding shall not establish any precedent concerning the use of the
same or similar replacement and augmentation supplies in other cases but
for purposes of this case such replacement and augmentation water shall
be accepted by senior appropriators in substitution for water derived by
exercise of their water rights and Weld County shall be entitled to divert,
store, recharge, use and consume an amount of water equivalent to that
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made available from the augmentation supplies provided under the
Augmentation Plan decreed herein.
17. Stipulations and Settlement. The Stipulations entered into between Weld County
and the Objectors are approved by the Court.
18. Decree. The Court hereby recognizes, confirms, approves, adjudicates and
decrees the Underground Water Rights for Well # 1 and the Plan for Augmentation as described
herein. For Well #1, 2.23 cfs and 29.2 acre-feet annually, are decreed absolute and 10.8 acre-feet
annually, is decreed conditional.
19. No Material Injury. The terms and conditions provided for in this Decree are
adequate to assure that no material injury to any water users will result from the operation of the
plan for augmentation.
20. Perpetual Lease. Nothing in this Decree modifies, or is intended to modify the
terms of the Perpetual Lease.
21. Satisfaction of Senior Water Rights. So long as operated in accordance with this
Decree, the plan for augmentation will be sufficient to permit the diversions from Well #1 and
the resulting depletions, without impairing the rights of others, in the amounts and for the
purposes adjudicated herein, when curtailment of such operations would otherwise be required to
meet valid senior calls for water. Pursuant to §37-92-305(8) C.R.S., the State Engineer shall
curtail all out-of-priority diversions, the depletions from which are not so replaced as to prevent
injury to vested water rights.
22. Retained Jurisdiction. Pursuant to C.R.S. § 37-92-304(6), the Court retains
continuing jurisdiction over the plan for augmentation decreed herein for a period of 3 years
from the entry of this decree, for reconsideration of the question of whether the provisions of this
decree are necessary and/or sufficient to prevent injury to vested water rights of others.
23. Priority. The priority herein awarded Weld County was filed in the Water Court in
the year 2004. The priority shall be administered as having been filed in that year; and shall be
junior to all priorities filed in previous years. As between all rights filed in the same calendar
year, priority shall be determined by the historical date of appropriation and not affected by the
date of entry of the decree.
24. Diligence. The conditional water right decreed herein is continued in full force
and effect until October 31, 2017. If Applicants desire to maintain such conditional right, an
application for finding of reasonable diligence shall be filed on or before October 31, 2017, or a
showing made on or before such date that the conditional water right has become absolute by
reason of the completion of the appropriation.
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Dated October 31, 2011.
BY THE COURT:
c4A/117Wr4A41
James Hartmann
Water Judge
Water Division No. 1
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EXHIBIT I
page 1
RIVER CALL
Weld County-Dust Control#1
Well Permit: 50426-F 111 11111 1111111 BIB 1111111111111 III 111111 III 1111
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WDID: 3-5714
Division: 1
District: 3
Free
Date River?
No=1
Yes=0
1/1/11
1/2/11
1/3/11
1/4/11
1/5/11
1/6/11
1/7/11
1/8/11
1/9/11
1/10/11
1/11/11
1/12/11
1/13/11
1/14/11
1/15/11
1/16/11
1/17/11
1/18/11
1/19/11
1/20/11
1/21/11
1/22/11
1/23/11
1/24/11
1/25/11
1/26/11
1/27/11
1/28/11
1/29/11
1/30/11
Page 2
PUMPING INFORMATION
Weld County-Dust Control#1 1111111 11111 1 111111 liii III 1111111111111 III 111111 CHI
Well Permit: 50426-F 3818482 01/18/2012 11:43A Weld County, CO
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WDID: 3-5714
Division: 1
District: 3
(input)
Meter Total
Month Reading Pumped
(x 0.001 ac-ft) (ac-ft)
(A) (B)_
Jan-10 206873 0.066
Feb-10 206939 0.079
Mar-10 207018 0.632
Apr-10 207650 2.013
May-10 209663 2.260
Jun-10 211923 3.928
Jul-10 215851 3.012
Aug-10 218863 3.010
Sep-10 221873 2.832
Oct-10 224705
Nov-10
Dec-10
Jan-11
Feb-11
Mar-11
Notes:
(A) Readings taken from totalizing flow meter. Readings are x 0.001 to convert to acre-feet
(B)Column(A)current month-Column(A) previous month times 0.001
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STREAM DEPLETIONS I III 111111111111111III EMI 111111 III 111111 III III
Weld County-Dust Control#1 3818482 01/18/2012 11:43A Weld County, CO
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Well Permit: 50426-F
Case No: 2004CW359
WDID: 3-5714
Division: 1
District: 3
Distance from point of interest to river= 136 ft
Transmissivity= 194,301 gpd/ft
Specific yield= 0.2
Distance from river to impermeable boundary= 11,488 ft
(input)
Cumulative Volume of Cumulative
Volume Volume Depletion Volume of
Month Pumped Pumped This Step Depletion
(ac-ft) (ac-ft) (ac-ft) (ac-ft)
(A B (C) (D)
Jan-11
Feb-11
Mar-11
Apr-11
May-11
Jun-11
Jul-11
Aug-11
Sep-11
Oct-11
Nov-11
Dec-11
Notes:
(A)From "Pumping Information"worksheet,Column(B)
(B)Column(B)previous month+Column (A) present month
(C) From AWAS Stream Depletion model
(D)Column(D)previous month+Column (C)present month
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Page 4
DAILY SUMMARY
Weld County-Dust Control#1
Well Permit: 50426-F
Case No: 2004CW359
WDID: 3-5714
Division: 1
District: 3
(input)
Adjusted
Date Volume Stream Stream Replacements River
Pumped Depletions Depletions from Greeley Balance
(ac-ft) (ac-ft) (ac-ft) (ac-ft) (ac-ft)
1/1/2011 0.000
1/2/2011 0.000
1/3/2011 0.000
1/4/2011 0.000
1/5/2011 0.000
1/6/2011 0.000
1/7/2011 0.000
1/8/2011 0.000
1/9/2011 0.000
1/10/2011 0.000
1/11/2011 0.000
1/12/2011 0.000
1/13/2011 0.000
1/14/2011 0.000
1/15/2011 0.000
1/16/2011 0.000
1/17/2011 0.000
1/18/2011 0.000
1/19/2011 0.000
1/20/2011 0.000
1/21/2011 0.000
1/22/2011 0.000
1/23/2011 0.000
1/24/2011 0.000
1/25/2011 0.000
1/26/2011 0.000
1/27/2011 0.000
1/28/2011 0.000
1/29/2011 0.000
1/30/2011 0.000
1/31/2011 0.000
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Weld County-Dust Control#1
Well Permit: 50426-F
Case No: 2004CW359
WDID: 3-5714
Division: 1
District: 3
Adjusted
Volume Stream Stream Replacements River
Month Pumped Depletions Depletions from Greeley Balance
(ac-ft) (ac-ft) (ac-ft) (ac-ft) (ac-ft)
(A) (B) (C) (D) (E)
Jan-11
Feb-11
Mar-11
Apr-11
May-11
Jun-11
Jul-11
Aug-11
Sep-11
Oct-11
Nov-11
Dec-11
Notes:
(A) Daily prorated pumping for month,from "Pumping Information"worksheet
(B)Daily prorated stream depletion for month,from "Stream Depletions"worksheet
(C)Stream depletions adjusted for river call
(D)Total amount of replacement water released from Greeley WWTP
(E)Column (D)-Column(C)
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