HomeMy WebLinkAbout20221216.tiffMEMORANDUM
TO: Esther Gesick DATE: April 20, 2022
FROM: Clay Kimmi, P.E., Public Works
SUBJECT: East Davis Dust Control Well Diligence Decree
Please place the attached water rights decree for the East Davis Dust Control Well on the BOCC Consent
Agenda under Communications.
The BOCC does not need to sign anything with regards to the decree. The diligence decree is intended
to show the Water Court that Weld County is continuing to utilize the original water right that was decreed
in Water Court Case Number 12CW109.
This decree also needs to be sent to the Clerk and Recorder for recording. Once it has been recorded,
please return a copy of the document to me.
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DISTRICT COURT, WATER DIVISION ONE, DATE
CASE
WELD COUNTY, COLORADO
FILED: February 8, 2022 9:56 AM
NUMBER: 2020CW3050
901 9th Avenue
P.O. Box 2038
Greeley, CO 80632
(970) 475-2400
CONCERNING THE APPLICATION FOR WATER
♦ COURT USE ONLY •
RIGHTS OF:
BOARD OF COUNTY COMMISSIONERS OF THE
Case No. 20CW3050
COUNTY OF WELD, STATE OF COLORADO,
(12CW109)
IN WELD COUNTY.
FINDINGS OF FACT, CONCLUSIONS OF LAW,
RULING AND DECREE OF THE WATER COURT
The application in this case was filed with the Water Court, Water Division 1, on April 20,
2020. All matters contained in the application having been reviewed, and testimony and evidence
having been taken as necessary, the Referee hereby enters the following Findings of Fact,
Conclusions of Law and Ruling.
FINDINGS OF FACT
1. Applicants. Board of County Commissioners of the County of Weld ("Weld County"),
1150 O St., Greeley, CO 80632.
2. Application. Applicants filed an Application for Finding of Reasonable Diligence and to
Make Conditional Water Right Absolute on April 20, 2020, pursuant to C.R.S. § 37-92-
301(4)(a).
3. Notice and Jurisdiction. Timely and adequate notice of the Application and these
proceedings has been given as required by law. The groundwater involved herein is not
included within the boundaries of any designated ground water basin. The Water Referee
and the Water Court have jurisdiction over the Application and the subject matter herein.
4. Statement of Opposition. The City of Greeley, acting by and through its Water and Sewer
Board ("Greeley") filed a Statement of Opposition on June 29, 2020. No other Statements
of Opposition were filed and the deadline for filing Statements of Opposition has expired.
5. Stipulations. Applicant and Opposer entered into a Stipulation as follows:
5.1. Applicant and Greeley entered into Stipulation on December 7, 2021.
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Carly Kopp�s, Clerk and Racord�r, Wild County CO
Weld County
20CW3050
Page 2 of 5
6. Summary of Consultation. The Division Engineer for Water Division No. 1 filed a
Summary of Consultation Report dated July 31, 2020. A copy of the Report was served on
all parties to this case. A Response to the Summary of Consultation was filed on November
3, 2020.
7. Description of Water Right. Underground Water Right.
7.1. Well: The Well is East Davis Dust Control Well #3 ("Well #3"), which is
permitted under Well Permit #76222.
7.2. Original Decree: Case No. 12CW109, Weld County District Court, entered April
21, 2014, nunc pro tunc April 2, 2014.
7.3. Legal Description: Well #3 is located in the NE '/4 of the SE '/4 of Section 1,
Township 5 North, Range 65 West of the 6th P.M. in Weld County, Colorado.
7.4. Source and Depth: The source of water for Well #3 is the Cache la Poudre River
alluvium.
7.5. Appropriation Date: May 18, 2012.
7.6. Amount of Water Claimed: 1000 gallons per minute and 30 acre feet annually
were decreed conditional in Case No. 12CW109. Based on diversion and
application to beneficial use, Weld County requests that 900 gallons per minute and
23.05 acre feet annually be decreed as absolute. The remaining 100 gallons per
minute and 6.95 acre feet would continue as conditional.
7.7. Use: Weld County will continue to use water from Well #3 in gravel mining
operations and public works projects 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; construction and
maintenance of roads, irrigation of landscaping, reclamation of construction sites
for public facilities, and fire suppression and emergency response.
8. Outline of Work Performed Toward Completion of the Appropriations During the
Diligence Period.
8.1. Well #3 is an integral facility in Weld County's overall water portfolio and Weld
County anticipates continued and growing demand for Well #3 due to the growth
presently being experienced in Weld County and the corresponding increase in
Capital Improvement Projects being undertaken by the Weld County Public Works
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Carly Kappa', Clerk and Recorder, Weld County , CO
11111
Weld County
20CW3050
Page 3 of 5
Department. In addition, Weld County is presently located within the maintenance
area for PM10 particulate matter. As traffic levels on Weld County's 2,500 miles
of gravel roads increase and regulatory requirements for PM10 levels become more
stringent Weld County's use of Well #3 is expected to continue and grow in order
to maintain those roads and provide necessary air emissions, dust suppression and
particulate controls.
8.2. During the diligence period, Well No. 3 and the associated truck load out facility
used to fill water trucks were constructed at a total cost of $83,928.50.
9. Claim for Diligence and to Make Absolute in Part. Pursuant to §37-92-304 C.R.S.
Applicant seeks a decree: 1) making the water right absolute for an amount of 900 gallons
per minute for a total of 23.05 acre feet annually absolute; 2) for a finding that Applicant
has been reasonably diligent in the development of the conditional water right in the
amount of 100 gallons per minute and 6.95 acre feet annually; and 3) to maintain and
continue the conditional portion for an additional six years.
CONCLUSIONS OF LAW
10. Paragraphs 1 through 9, inclusive, are incorporated herein by reference to the extent they
constitute conclusions of law.
11. Jurisdiction. The Court has jurisdiction of the subject matter of this application and all
persons affected hereby, whether they have appeared or not, pursuant to §37-92-203(1),
§37-92-302 and §37-92-304, C.R.S.
12. Application. This Application was filed with the Water Court pursuant to §37-92-301(4),
and §37-92-302, C.R.S.
13. Notice. Full and adequate notice of the claim adjudicated herein has been given in the
manner required by law.
14. Diligence. Applicant has evidenced reasonable diligence, the steady application of effort
to complete the conditional water right as decreed in Case No. 12CW109 in a reasonably
expedient and efficient manner under the facts and circumstances herein, as required by
§37-92-301(4), C.R.S. is entitled to a decree finding that it has been diligent in the
development 100 gallons per minute and 6.95 acre feet of its conditional water right.
15. Diversion and Application to Beneficial Use. Applicant has diverted and beneficially used
the flow rate of 900 gallons per minute and 23.05 acre feet annually and is therefore entitled
to a decree confirming that it has made its water right for Well No. 3 originally decreed in
Case No. 12CW109 absolute.
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Carly Koppel, Clerk and Recorder, Weld County , CO
VIII I �1111��i �1��4 'Ir�tIIKAM Nilt4114 11111
Weld County
20C W3050
Page 4 of 5
16. Can and Will. The Court hereby concludes that the Applicant has established that water
can and will be diverted under the subject conditional water rights and will be beneficially
used, and that the conditional water right can and will be completed with diligence and
within a reasonable time.
17. Integrated System. The conditional water rights decreed herein are individual components
of Applicant's integrated water supply system. Consequently, in subsequent diligence
proceedings work on any one feature of Applicant's supply system shall be considered in
finding that reasonable diligence has been shown in the development of water rights for all
features of Applicants' water supply system. See C.R.S. § 37-92-301(4)(b).
RULING AND DECREE
18. Paragraphs 1-17, inclusive, are incorporated herein by reference and made a part of this
Ruling and Decree as if fully set forth.
19. Stipulation and Settlement. The Stipulation entered into between Weld County and the
City of Greeley is approved by the court.
20. Perpetual Lease Agreement. Weld County and Greeley are parties to a Perpetual Lease of
Fully Consumable Water dated November 10, 2004. Water from that lease is used as an
augmentation supply for Well No.3 pursuant to the terms of the augmentation plan decreed
in Case No. 12CW109. Nothing in this Decree shall modify the terms of said Lease.
21. Absolute Amount Confirmed. The Court further concludes and decrees that the Applicant
has diverted and beneficially used the flow rate of 900 gallons per minute and 23.05 acre
feet annually and is therefore entitled to a decree confirming that it has made its water right
for Well No. 3 originally decreed in Case No. 12CW109 partially absolute. Claims to make
the remaining, conditional portion of this water right absolute shall be based on diversion
and application to beneficial use made within a 12 month period commencing January 1St
22. Conditional Appropriation Continued. The appropriation granted for Well #3 decreed in
Case No. 12CW109 in a reasonably expedient and efficient manner as required by §37-92-
301(4)(b), C.R.S., and is entitled to a decree finding that it has been diligent in the
development of its conditional water right in the amount of 100 gallons per minute and
6.95 acre feet annually.
23. Conditional Water Right Continued. The remaining conditional portion of the water right
described herein is continued in full force and effect until February 29, 2028. If Applicant
desires to maintain such conditional right, an application for finding of reasonable diligence
shall be filed on or before February 29, 2028 or a showing made on or before such date
that the conditional water right has become an absolute water right by reason of the
completion of the appropriation.
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Carly Kopp., Clark and Recorder, Weld County , CO
1111 INFJVHOIFITIMIgikil w'ANARIIhillimh 11111
Weld County
20CW3050
Page 5 of 5
24. Water Court Rule 9 requires the owner of any conditional water right to notify the clerk of
the water court of any change in mailing address.
Water Court Rule 9 requires, upon the transfer of a conditional water right by sale or
otherwise: The transferee shall file with the water court a notice of transfer including:
1. The title and case number of the case in which the conditional decree was issued;
2. A description of the conditional water right transferred;
3. A copy of the recorded deed effecting the transfer;
4. The name of the transferor; and
5. The name and mailing address of the transferee.
The owner of any conditional water right who sells or otherwise transfers the water right
shall notify the transferee of the requirements of Local Water Court Rule 9.
25. A copy of this judgment and decree shall be filed with the State Engineer and the Division
Engineer for Water Division 1 and it shall be recorded and administered according to its
terms.
Dated January 11, 2022
961
John Cowan
Water Referee
Water Division One
The Court finds: no protest was filed in this matter. The foregoing ruling is confirmed and
approved and s made the judgment and decree of this Court.
Dated February 8, 2022
To . d L. Taylor
Water Judge
Water Division One
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Carly Koppea, Clerk and Recorder, Weld County , CO
VIII IUFAZ1 1A ICI WPM tiyifkr i 11 II
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