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Home My WebLink About20191860.tiffLaw Office of Tod J. Smith, LLC 5777 Central Ave., Suite 228 BOULDER, COLORADO 80301 Tod J. Smith Telephone: (303) 444-4203 E-mail: tod@tjs-law.com May 10, 2019 Via Certified Mail — Return Receipt Requested Weld County, Colorado 1150 O Street Greeley, Colorado 80631 RECEIVED MAY 1 4 2W0 WELD COUNTY COMMISSIONERS Re: Notice of Application for Plan for Augmentation and Substitution To Whom It May Concern: Pursuant to Colorado Revised Statutes § 37-92-302(2)(b)(II), we are providing you with a copy of the Application recently filed by the United Water and Sanitation District and South Weld Holdings, LLC in the Water Court for Water Division No. 1. The application was originally filed April 26, 2019. This notice is being provided to you because the county records indicate that you are the owner of property that may be affected by the Application. The Application is to be published in the April 2019 Water Court Resume for Water Division No. 1. If you have any questions about this Application or this notice, please feel free to contact me at the address or telephone number above. cc: Ann Rhodes, LLC CO freflon%onS ?5/20119 Sincerely yours /s/ Tod J. Smith Tod J. Smith Co -Counsel for the Applicants United Water and Sanitation District and South Weld Holdings, LLC CC'. ceR3I M(JMIE.RICH). HL(LLIBWIIf15$ 5/l1llq 2019-1860 )Hir, DISTRICT COURT, WATER DIVISION 1, FILING STATE OF COLORADO CASE Weld County Courthouse 901 9th Avenue Greeley, Colorado 80631 Telephone: (970) 475-2400 ru-ru: Hpni Zo, LU1 /.DU rivi ID: 1A4B9604C49E4 NUMBER: 2019CW3073 A COURT USE ONLY • CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE UNITED WATER AND SANITATION DISTRICT and SOUTH WELD HOLDINGS, LLC IN ADAMS AND WELD COUNTIES. Attorneys for Applicants United Water and Sanitation District and South Weld Holdings, LLC: Tod J. Smith, #15417 LAW OFFICE OF TOD J. SMITH, LLC 2919 Valmont Road, Suite 205 Boulder, Colorado 80302 Telephone: (303) 444-4203 E-mail:tod@tjs-law.com Case No. 19CW Ann M. Rhodes, #39095 Ann Rhodes, LLC 610 Emporia Road Boulder, Colorado Telephone: 303-870-7887 E-mail: amr@amr-law.com APPLICATION FOR PLAN FOR AUGMENTATION AND SUBSTITUTION 1. Name, Mailing Address, and Telephone Number of Applicants. United Water and Sanitation District, a water and sanitation district organized and operated pursuant to the Special District Act, Colo. Rev. Stat. § 32-1-101 et seq. ("United") c/o Robert A. Lembke 8301 East Prentice Ave. #100 Greenwood Village, Colorado 80111 (303) 785-3585 South Weld Holdings, LLC c/o Josh Shipman 8301 East Prentice Ave. #100 Greenwood Village, Colorado 80111 (303) 785-3585 Jointly referred to herein as the "Applicants." Please send all pleadings and correspondence to: Tod J. Smith, Esq. Law Office of Tod J. Smith, LLC 2919 Valmont Road, Suite 205 Boulder, Colorado 80301 (303) 444-4203 tod@,tjs-law.com 2. Plan for Augmentation and Substitution. 2.1. Purpose of the Plan. Through this Plan for Augmentation and Substitution, the Applicants will provide replacement sources of water and/or substitute water to replace out -of - priority diversions from the Beebe Seep Canal, which diversion will cause out -of -priority depletions to the South Platte River. The Plan for Augmentation and Substitution as further described in this application is referred to as the "Plan." Out -of -priority water diverted from the Beebe Seep Canal will be delivered to storage in the Highlands Reservoir for use on the Highlands Property located in portions of Sections 29 and 32 of Township 1 North, Range 65 West of the 6th P.M., Weld County, Colorado, as depicted on the Map attached as Exhibit A. Water diverted out -of -priority may be replaced from water stored in 70 Ranch Reservoir and Milliken Reservoir as described herein. A depiction of the Plan is attached as Exhibit B. 2.2. Uses. Directly after storage or as a source of augmentation and substitute supply for uses decreed in Case No. 16CW3059, including but not limited to use on lands beneficially owned by South Weld Holdings, LLC, sometimes referred to as the Highlands Property, to whom United has a contractual obligation to provide water for land development for uses including but not limited to municipal, commercial, irrigation, domestic, storage, exchange, augmentation and replacement, recharge, and substitute supply, including, but not limited to: fire protection, irrigation, commercial, recreation, maintenance of storage reserves, stock watering, reclamation, revegetation, water treatment and supply, wastewater treatment, storage for such uses, substitution, and use as a supply or substitute supply for augmentation, replacement (including return flow obligations), exchanges decreed or to be decreed, and substitute supply plans. The Applicants claim the right to divert, re -divert, store, re -use and successively use, and totally consume the water being appropriated herein and use the same to extinction. The volume of water claimed herein is intended to provide water for the claimed beneficial uses and to protect against periods of drought. Application for Plan for Augmentation and Substitution, Case No. 19CW Page 2 of 7 2.3. Volume. The maximum volume of out -of -priority water diverted from the Beebe Seep Canal under the Plan will be 2,000 acre-feet annually. 2.4. Rate of Diversion and Discharge. 50 cfs for each diversion point and outlet point claimed below in Paragraph 2.9. 2.5. Source. Out -of -priority water, including but not limited to water arising in, flowing into, accumulating in and accruing to the Beebe Seep Canal, tributary to the South Platte River, including but not limited to natural runoff, drainage, waste, stormwater, wastewater effluent, precipitation, return flows, and seepage water. 2.6. Date of Appropriation. April 17, 2019 2.7. Lack of Injury. The Applicants will operate the Plan so that it will not injuriously affect vested or decreed water rights to which the Plan is junior. 2.8. How the Plan Was Initiated. The Plan was initiated based upon the posting of notices at the diversion and replacement locations (a copy of the posted notice is attached as Exhibit C); publication of a notice in newspapers of general circulation in Adams and Weld Counties (copies of the published notices are attached as Exhibits D-1 and D-2); the United Board of Directors' Resolution dated April 16, 2019, approving the filing of this application (attached as Exhibit E); and the execution of an Amendment dated April 16, 2019, to the Water Supply Agreement between United and the Highlands Owners (nominees of the Applicant South Weld Holdings, LLC) dated April 18, 2016. The Applicants have conducted engineering studies to determine the feasibility of constructing Highlands Reservoir, have identified the location of Highlands Reservoir, and have identified the approximate locations of the diversion structures as described in this application. 70 Ranch Reservoir and a portion of Milliken Reservoir have been constructed. 2.9. Diversion Structures. The point(s) of diversion from the Beebe Seep Canal for delivery of water to storage in Highlands Reservoir may be located at one or more of the following locations, all of which divert surface water only: 2.9.1. Highlands Diversion No. 1: In the SW% of the SE'/, or the NWl/ of the SE'/, or the NE% of the SE% of Section 30, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado. A diversion facility on land owned by Public Service Company of Colorado will only be constructed and used by United pursuant to an agreement with the owner. 2.9.2. Highlands Diversion No. 2: In the SE'/ of the NE'/ of Section 30, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado. 2.9.3. Highlands Diversion No. 3: In the SW' of the NW'/, or the NW% of the NW'/ of Section 29, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado. Application for Plan for Augmentation and Substitution, Case No. 19CW_ Page 3 of 7 2.9.4. Highlands Diversion No. 4: In the NE1/ of the NW1% of Section 6, Township 1 South, Range 65 West of the 6th P.M. in Adams County, Colorado. 2.9.5. Final locations of diversion points from the Beebe Seep Canal shall be consistent with applicable provisions of the stipulation between the Town of Lochbuie and applicants in Case Nos. 02CW404/03CW442 and 10CW306. 2.10. Location of Highlands Reservoir. Highlands Reservoir will be a lined off -channel reservoir located in the NWl/ of Section 32, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado. The current planned capacity of the Reservoir is approximately 4,500 acre-feet. 2.11. Final Design and Locations. The design and locations of the unconstructed diversion facilities in the Beebe Seep Canal and the Highlands Reservoir's outlet structure have not been finalized to provide distances from section lines and may change. Upon completion of the facilities, the Applicants shall, without amending a decree entered in this case, provide notice of the actual distances from section lines of the relevant facilities. 2.12. Sources of Replacement and/or Substitute Water. The sources of replacement or substitution will be the water rights adjudicated in Case No. 16CW3059, including water stored by United in 70 Ranch Reservoir and Milliken Reservoir. The Applicants also intend to divert and store free river water and to acquire and/or lease additional water supplies in the future for use as a source of replacement or substitute supply for the Plan described herein. To the extent that this future acquired water is legally and physically available, United seeks to allow such sources to serve as replacement or substitute supplies. 2.13. Locations of Replacement and/or Substitute Sources. Water stored by United in: 2.13.1. 70 Ranch Reservoir. Located in the S1/2 of Section 3 and a portion of the NEY of Section 10, all in Township 4 North, Range 63 West of the 6th P.M. in Weld County, Colorado. 70 Ranch Reservoir will make releases through a bi-directional pipeline whose point of release (and diversion) is located on the South Platte River in the NW1/ of the SE1/ of Section 34, Township 5 North, Range 63 West of the 6th P.M. in Weld County, Colorado. Releases may also be made to the South Platte River through a separate outlet located in the SE% of the SE% of Section 34, Township 5 North, Range 63 West of the 6th P.M. in Weld County, Colorado. The diversion structure is a surface diversion. 2.13.2. Milliken Reservoir. Located within a part of Section 2, Township 3 North, Range 67 West and Sections 23, 26, 34, and 35, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado. Milliken Reservoir has several outlets capable of returning water to the South Platte River at the following locations: (1) the NWl/ of the NW% of Section 35, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado; (2) the SWl of the NE1/ of Section 26, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Application for Plan for Augmentation and Substitution, Case No. 19CW Page 4 of 7 Colorado; (3) North Diversion structure located on the South Platte River downstream of the confluence with the St. Vrain River in the NE% of the SW'% of Section 26, Township 4 North, Range 67 West of the 6th P.M. in Weld County Colorado; (4) Pump Station No. 1 located in the SW% of the SW% of Section 35, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado; and (5) Pump Station No. 2 located in Section 34, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado near the confluence of the St. Vrain and South Platte Rivers. 2.13.3. The Applicants reserve the right to add additional locations of sources of replacement water pursuant to future applications and water court decrees. 3. Name and Address of the Owners of the Diversion Structures Listed Above. 3.1. Highlands Reservoir will be owned by the Weld Adams Water Development Authority (WAWDA) (8301 East Prentice Ave., Suite 100, Greenwood Village, Colorado 80111). 3.2. Highlands Equities, LLC holds legal title to the land on which Highlands Reservoir will be located as nominee of South Weld Holdings, LLC which holds beneficial title to the land (8301 East Prentice Ave., Suite 100, Greenwood Village, Colorado 80111). 3.3. The proposed point of diversion from the Beebe Seep Canal, described above in paragraph 2.7.1, may be located on land owned by one or more of Edmundson Land, LLC (P.O. Box 932, Brighton, Colorado 80601) and Public Service Company of Colorado (P.O. Box 1979, Denver, Colorado 80201). 3.4. The proposed point of diversion from the Beebe Seep Canal, described above in paragraph 2.7.2, may be located on land owned by one or more of Vicki and David Pelletier (3851 E. Geddes Ave., Centennial, Colorado 80122) and Weld County, Colorado (1150 O St., Greeley, Colorado 80631). 3.5. The proposed point of diversion from the Beebe Seep Canal, described above in paragraph 2.7.3, may be located on land owned by one or more of Len Pettinger (18437 County Road 8, Brighton, Colorado 80603) and Town of Lochbuie, Colorado (703 County Road 37, Brighton, Colorado 80603). 3.6. The proposed point of diversion from the Beebe Seep Canal, described above in paragraph 2.7.4, may be located on land owned by the Mile High Duck Club c/o Brown and Locke P.C. (1720 S. Bellaire St., Ste. 405, Denver, Colorado 80222). 3.7. The Beebe Seep Canal is owned by the Farmers Reservoir and Irrigation Company (80 South 27th, Brighton, Colorado 80601). Application for Plan for Augmentation and Substitution, Case No. 19CW_ Page 5 of 7 3.8. WAWDA holds an easement for the 70 Ranch Reservoir and its diversion and outlet facilities and the land underlying the easement is owned by 70 Ranch, LLC (8301 East Prentice Ave., Suite 100, Greenwood Village, Colorado 80111). 3.9. Milliken Reservoir and its diversion and outlet facilities are owned by the United Milliken Reservoir Enterprise, LLC (8301 E. Prentice Ave. Suite 100, Greenwood Village, Colorado, 80111). 4. FRICO By -Law Requirement. On October 3, 2018 the FRICO Board of Directors adopted Amended and Restated By-law Article XVI, paragraph 2, which was approved by the shareholders on November 15, 2018. The relevant portion of the new By-law states: Notice of Proposed Use of Company Structures: Any Stockholder who seeks to include a Company structure, including but not limited to a headgate, diversion structure, canal, lateral, pond, or reservoir, in an application for a water right as defined in the Water Right Determination and Administration Act of 1969, Colorado Revised Statutes §37-92- 10 I through §37-92-602, shall provide the Company with notice of the proposed structure to be used and the proposed use of the structure, along with a copy of the application, at least one week prior to the filing of such application with the court. Without waiving any rights or claims United and/or South Weld have or may have to object to, challenge, or adjudicate the validity of this by-law provision, the Applicants have provided notice of this application to FRICO in accordance with the by-law, as was confirmed by FRICO's counsel on April 22, 2109 (attached as Exhibit F). WHEREFORE, the Applicants respectfully request that the Court enter a decree granting the relief described herein and such other relief, which it deems proper. Respectfully submitted this 26th day of April 2019. LAW OFFICE OF TOD J. SMITH, LLC /s/ Tod J. Smith Tod J. Smith, #15417 LAW OFFICE OF ANN RHODES, LLC /s/ Ann Rhodes Ann Rhodes, #39095 Attorneys for the Applicants United Water and Sanitation District and South Weld Holdings, LLC Application for Plan for Augmentation and Substitution, Case No. 19CW Page 6 of 7 GmrnaFa Lo to r TI C rr-iro er:v Ild Ressnic r - Township anc��arr� Section . — Major Roads Ditches/Canals -HigNands Reservof Approximate Hog[n ands ©eve0®prneL1t NOTICE OF APPROPRIATION AND APPLICATION FOR PLAN FOR AUGMENTATION AND SUBSTITUTION M 1 4792 W497:50 PM HIGHLANDS RESERVOIR, 70 RANCH RESERVOIR, MILLI ,MM3,3 The United Water and Sanitation District, pursuant to a Resolution of its Board of Directors dated April 16, 2019, and South Weld Holdings, LLC provides notice of their intent to claim and to file an application in the District Court for Water Division No. 1 for a Plan for Augmentation and Substitution, pursuant to which they will divert out -of -priority water from the Beebe Seep Canal into the Highlands Reservoir, which will be located generally in the NW% of Section 32, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado, and replace those diversions at the South Platte River from the 70 Ranch Reservoir, located generally in the S%: of Section 3 and a portion of the'NEt% of Section 10, all in Township 4 North, Range 63 West of the 6th P.M., Weld County, Colorado, and Milliken Reservoir located generally in a part of Section 2, Township 3 North, Range 67 West and Sections 23, 26, 34, and 35, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado. The water so diverted and replaced will be stored in Highlands Reservoir for subsequent delivery and use within the Beebe Draw for the uses decreed in Case No. 16CW3059, Water Division No. 1. > Volume of water claimed: 2,000 acre-feet ➢ Rate of diversion and replacement: 50 cfs > Source of Supply: Out -of -Priority Water Diverted from the Beebe Seep Canal ➢ Sources of Replacement Water: South Platte River water stored in 70 Ranch Reservoir and Milliken Reservoir > Replacement Locations: 70 Ranch Reservoir: located in the S'/ of Section 3 and a portion of the NE V. of Section 10, all in Township 4 North, Range 63 West of the 6'h P.M., Weld County, Colorado 70 Ranch Reservoir Outlet No. 1 (also a diversion structure): A bi-directional pipeline whose outlet (and diversion) is located on the South Platte River at a point in the NW Y. of the SE'/. of Section 34, Township 5 North, Range 63 West of the 6th P.M. in Weld County, Colorado 70 Ranch Reservoir Outlet No. 2: located on the South Platte River at a point in the SE''/. of the SE'// of Section 34, Township 5 North, Range 63 West of the 6th P.M. in Weld County, Colorado Milliken Reservoir: located within a part of Section 2, Township 3 North, Range 67 West and Sections 23, 26, 34, and 35, Township 4 North, Range 67 West of the 6s' P.M. in Weld County, Colorado. Milliken Reservoir Outlet No. 1: located in the NW'/. of the NW 1/, of Section 35, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado Milliken Reservoir Outlet No. 2: located in the SW1/4 of the NE''/, of Section 26, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado Milliken Reservoir North Outlet: located on the South Platte River downstream of the confluence with the St. Vrain River in the NEV of the SW'/, of Section 26, Township 4 North, Range 67 West of the 6th P.NL, Weld County Colorado Milliken Reservoir Outlet Pump Station No. 1: located in the SW'/. of the SW''/, of Section 35, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado Milliken Reservoir Outlet Pump Station No. 2: located in Section 34, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado near the confluence of the St. Vrain and South Platte Rivers ➢ Diversion Locations: Highlands Reservoir Diversion Point No. 1: located in the SW1/4 of the SE'/., or the NW% of the SE'/., or the NEV. of the SEY. of Section 30, Township 1 North, Range 65 West of the 6th P.M., Weld County, Colorado (may also be an outlet from Highlands Reservoir) Highlands Reservoir Diversion Point No. 2: located in the SE'/. of NE''/. of Section 30, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado (may also bean outlet from Highlands Reservoir) located in the SW1/4 of the NW% or the NW1/4 of the NW1/4 of Section 29, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado (may also bean outlet from Highlands Reservoir) Highlands Reservoir Diversion Point No. 4: located in the NEV. of the NW'/. of Section 6, Township 1 South, Range 65 West of the 6th P.M. in Adams County, Colorado (may also be an outlet from Highlands Reservoir) Highlands Reservoir: a lined off -channel reservoir located in the NW % of Section 32, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado. The current planned capacity of the Reservoir is 4,500 acre-feet FOR FURTHER INFORMATION PLEASE CONTACT: TOD SMITH (303) 444-4203 EXHIBIT C Affidavit of Publication STATE OF COLORADO ss. DAfELI IN'pi1 26, 2019 7:50 PM FILING ID: 1A4B9604C49E4 CY.19k*arrettsu • 2D1gFW 073 of said County of Weld, being duly sworn, say that I am an advertising clerk of THE GREELEY TRIBUNE, that the same is a three days weekly plus Sunday newspaper of general circulation and printed and published in the City of Greeley, in said county and state; that the notice or advertisement, of which the annexed is a true copy, has been published in said daily newspaper for consecutive (days): that the notice was published in the regular and entire issue of every number of said newspaper during the period and time of publication of said notice, and in the newspaper proper and not in a supplement thereof; that the first publication of said notice was contained in the Seventeenth day of April A.D. 2019 and the last publication thereof: in the issue of said newspaper Seventeenth day of April A.D. 2019 that said The Greeley Tribune has been published continuously and uninterruptedly during the period of at least six months next prior to the first issue thereof contained said notice or advertisement above referred to; that said newspaper has been admitted to the United States mails as second-class matter under the provisions of the Act of March 3,1879, or any amendments thereof; and that said newspaper is a daily newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. April 17, 2019 Total Charges: $116.64 17th day of Apri12019 My Commission Expires 02/19/2023 EXHIBIT D-1 PROOF OF PUBLICATION BRIGHTON STANDARD BLADE ADAMS COUNTY STATE OF COLORADO I, Steve Smith, do solemnly swear that I am the Publisher of the Brighton Standard Blade the same is a weekly newspaper printed and published in the County of Adams, State of Colorado, and has a general circulation therein; that said news- paper has been published continuously and unin- terruptedly in said county of Adams for a period of more than fifty-two consecutive weeks prior to the first publication of the annexed legal notice or advertisement; that said newspaper has been ad- mitted to the United States mails as second-class matter under the provisions of the act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Col- orado. That the annexed legal notice or advertise- ment was published in the regular and entire issue of every number of said weekly newspaper for the period of ONE consecutive insertion(s) and that the first publication of said notice was in the issue of newspaper, dated 17th day of April, 2019 the last on the 17th day of April, 2019. 1-1419-0--- )4140ki. Publisher, Subscribed and sworn before me, this 17th day of April, 2019 Notary Public. CYNTHIA MARIE FITCH Notary Public State of Colorado Notary Ma 20174043179 My Commission Expires 10-17-2021 The United Water and Sanitation Dis- trict and South Weld Holdings, LLC provides this public notice of their intent to appropriate and apply for an AUGMENTATION AND SUBSTI- TUTION utilizing HIGHLANDS RES- ERVOIR, 70 RANCH RESERVOIR, and MILLIKEN RESERVOIR. The application will be filed in the District Court for Water Division No. 1. Pur- suant to the Plan for Augmentation and Substitution United and South Weld will divert out -of -priority water from the Beebe Seep Canal into the Highlands Reservoir, which will be located generally in the NW/. of Sec- tion 32, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado, and replace those diver- sions at the South Platte River from the 70 Ranch Reservoir, located gen- erally in the S/: of Section 3 and a portion of the NE% of Section 10, al in Township 4 North, Range 63 West of the 6th P.M., Weld County, Colo- rado, and Milliken Reservoir located generally in a part of Section 2, Town- ship 3 North, Range 67 West and Sections 23, 26, 34, and 35, Town- ship 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado. The water so diverted and replaced will be stored in Highlands Reser- voir for subsequent delivery and use within the Beebe Draw for the uses decreed in Case No. 16CW3059, Water Division No. 1. Volume of wa- ter claimed: 2 000 acre-feet. Rate of diversion and replacement: 50 cfs. Source of Supply: Out -of -Priority Water Diverted from the Beebe Seep Canal. Sources of Replacement Water: Water from the South Platte River stored in 70 Ranch Reservoir and Milliken Reservoir. Replacement Locations: 70 Ranch Reservoir: lo- cated in the SV. of Section 3 and a portion of the NE/. of Section 10, all in Township 4 North, Range 63 West of the 6th P.M., Weld County, Colo- rado. 70 Ranch Reservoir Outlet No. 1 (also a diversion structure): A bi-di- rectional pipeline whose outlet (and diversion) is located on the South Platte River at a point in the NW'/. of the SE% of Section 34, Township 5 North, Range 63 West of the 6th P.M. in Weld County, Colorado. 70 Ranch Reservoir Outlet No. 2: located on the South Platte River at a point in the SE% of the SE'/. of Section 34, Township 5 North, Range 63 West of the 6th P.M. in Weld County, Colora- do. Milliken Reservoir located within a part of Section 2, Township 3 North, Range 67 West and Sections 23, 26, 34, and 35, Township 4 North, Range 67 West of the 6th P.M. in Weld County, Colorado. Milliken Reservoir Outlet No. 1: located in the NW% of the NW V. of Section 35, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado. Millik- en Reservoir Outlet No. 2: located in the SW/. of the NE/. of Section 26, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado. Milliken Reservoir North Outlet: locat- ed on the South Platte River down- stream of the confluence with the St. Vrain River in the NE1/4 of the SWY. of Section 26, Township 4 North, Range 67 West of the 6th P.M., Weld County Colorado. Milliken Reservoir Outlet Pump Station No. 1: located in the SWA of the SW% of Section 35, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colo- rado. Milliken Reservoir Outlet Pump Station No, Z: located in Section 34, Township 4 North, Range 67 West of the 6th P.M., Weld County, Colorado near the confluence of the St. Vrain and South Platte Rivers. Diversion Locations: Highlands Reservoir Di- version Point No. 1: located in the SW% of the SE/., or the NW'. of the SE/., or the NE% of the SE% of Section 30, Township 1 North, Range 65 West of the 6th P.M., Weld Coun- ty, Colorado (may also be an outlet from Highlands Reservoir). -i0- )ands Reservoir Diversion Point No 2: located in the SE/. of NE/. of Sec- tion 30, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colorado (may also be an outlet from Highlands Reservoir). Highlands Reservoir Diversion Point No. 3: located in the SW/. of the NW% or the NW% of the NW%. of Section 29, Township 1 North, Range 65 West of the 6th P.M. in Weld County, Colora- do (may also be an outlet from High- lands Reservoir). Highlands Reser- voir Diversion Point No. 4: located in the NEY. of the NW'/. of Section 6, Township 1 South, Range 65 West of the 6th P.M. in Adams County, Col- orado (may also be an outlet from Highlands Reservoir). Highlands Reservoir a lined off -channel reser- voir located in the NW/. of Section 32, Township 1 North, Range 65 West of the 6th P.M. in Weld Coun- ty, Colorado. The current planned capacity of the Reservoir is 4,200 acre-feet. Water Court Application: An application for the subject water rights will be filed in April 2019 with the District Court for Water Division 1. The complete text of the application will be published in the Division 1 Re- sume which will be available online in mid -May 2019 at www.courts.state. co.us/Courts/VVater/Index.cfs Published in the Brighton Standard Blade on April 17, 2019. #190396 EXHIBIT D-2 RESOLUTION OF THE BOARD OF DIRECTORS OF UNITED WATER AND SANITATION DISTRICT ACTING DIRECTLY AND BY AND THROUGH ITS HIGHLANDS RESERVOIR WATER ACTIVITY ENTEMEIZEt WOWS, S, Mil4511, WATER ACQUISITION PROJECT WATER ACAM 1 09X73 APPROVING, RATIFYING AND AUTHORIZING THE FILING OF THE APPLICATION FOR PLAN FOR AUGMENTATION AND SUBSTITUTION OF WATER TO BE DELIVERED TO STORAGE IN THE HIGHLANDS RESERVOIR AND APPROVING AN AMENDMENT TO THE WATER SUPPLY AGREEMENT BETWEEN THE DISTRICT AND THE HIGHLANDS OWNERS CERTIFIED COPY OF RESOLUTION STATE OF COLORADO ) ) ss COUNTY OF ELBERT ) At the special meeting of the Board of Directors (the "Board") of United Water and Sanitation District, acting directly and by and through its Highlands Reservoir Water Activity Enterprise and its United Water Acquisition Project Water Activity Enterprise (collectively, "United"), County of Elbert, Colorado, held at 4:00 p.m., on Tuesday, April 16, 2019, at Community Resource Services of Colorado, LLC, 7995 East Prentice Avenue, Suite 103E, Greenwood Village, Colorado, after duly posting notice of such special meeting in at least three locations within the district's boundaries and in the office of the Elbert County clerk and recorder at least 72 -hours prior to the meeting time in accordance with § 32-1-903(2) CRS, there were present: Robert A. Lembke, President James Korpal, Assistant Secretary Andrew Damiano, Assistant Secretary Lisa Haas, Secretary When the following proceedings were had and done, to wit: It was moved by Director Korpal to adopt the following Resolution: A. The Board of Directors of United Water & Sanitation District adopted a resolution on December 27, 2013 authorizing United to file an application for water rights for storage in a reservoir (the "Highlands Reservoir") to be constructed on land located in portions of Sections 29 and 32, Township 1 North, Range 65 West of the 6th P.M., Weld County, Colorado, to develop a water supply for, among other things, a residential development project known as the "I-Iighlands Property." EXHIBIT E B. On December 31, 2013, United filed an application in Case No. 13CW3182 for a conditional water right to divert 2,000 acre-feet of water from the South Platte River at the United Diversion Facility No. 3 and the Burlington Canal Headgate, for storage in Highlands Reservoir, including a 2,000 acre-foot re -fill right. C. On December 31, 2013, United also filed Case No. 13CW3180 for storage in Gilcrest (now known as "Milliken") Reservoir, and Case No. 13CW3183 for storage in 70 Ranch Reservoir, both of which can deliver water by exchange to the Highlands Reservoir. D. On December 31, 2014, United filed Case No. 14CW3173, seeking three alternative points of diversion from the Beebe Seep Canal for delivery of water to Highlands Reservoir. E. On December 31, 2014, United filed Case No. 14CW3175, seeking the right, in part, to exchange water from the 70 Ranch and Milliken Reservoirs to the United Diversion Facility No. 3 and the Burlington Canal Headgate, for delivery to the Highlands Reservoir. F. The Highlands Reservoir can serve a variety of purposes including, but not limited to, storing and providing water for the development of the Highlands Property, including the use of water for all purposes related to a residential and commercial development, as well as other municipal, industrial, oil and gas, commercial, and irrigation uses within the Beebe Draw area. G. Water stored in Highlands Reservoir can, if required, be used to meet contractual obligations in the Beebe Draw, to the East Cherry Creek Valley Water and Sanitation District ("ECCV") and the Arapahoe County Water and Wastewater Authority ("AC W WA"). H. On April 12, 2016, the Water Court, Water Division No. 1, issued an order in Consolidated Case Nos. 13CW3180, 13CW3182, 13CW3183, and 14CW3173 holding in part that United was required to have a contract in place at the time it filed its applications with the Highlands Owners to provide water for the Highlands Development. Pursuant to that Order, United determined that it would withdraw the Consolidated Cases and re -file applications for conditional storage rights in 70 Ranch Reservoir, Milliken Reservoir, and Highlands Reservoir, exchanges from 70 Ranch and Milliken Reservoirs into the Beebe Draw for delivery to Highlands Reservoir, diversions from the South Platte River, diversions from the Beebe Draw into Highlands Reservoir and, diversions into what is now known as Binder Reservoir. I. On April 18, 2016 United and the owners of the Highlands Property (the "Highlands Owners") entered into a Water Supply Agreement for the delivery of water stored by United in Highlands Reservoir for use on the Highlands Property (the "Water Supply EXHIBIT E Agreement") and on April 19, 2016, filed a new application for water rights as described above for Highlands Reservoir. J. On April 29, 2016, United filed a new application for water rights as described above for 70 Ranch Reservoir and Milliken Reservoir, including rights of exchange. Those rights were decreed by the Water Court on April 4, 2018. K. In Case No. 16CW3053, the Water Court, in an Order dated March 30, 2019, granted the Farmers Reservoir and Irrigation Company's Motion for Partial Summary Judgment (the "Order"), and held in part that: "The [Water Supply Agreement] between United and Highland Owners does not bind Highland Owners to purchase any water from United, and therefore United's claim pertaining to the Highland Development is speculative and cannot support a conditional water right. Further negotiations and agreements are required between United and Highland Owners before any storage space in the Highland Reservoir is designated for use in the Highland Development." L. While United disagrees with the Water Court's assessment of the Water Supply Agreement and reserves the right to appeal that Order, United and the Highlands Owners determined that, to protect and assure a water supply for the Highlands Development, they would amend the Water Supply Agreement and file new applications for a Plan for Augmentation and Substitution (the "Plan") that would allow United to divert out -of - priority water from the Beebe Draw into Highlands Reservoir and replace that water to South Platte River from 70 Ranch and/or Milliken Reservoirs. M. At 4:30 p.m. on April 9, 2019, the Board conducted a special meeting, after duly posting notice of such special meeting in at least three locations within the district's boundaries and in the office of the Elbert County clerk and recorder at least 72 -hours prior to the meeting time in accordance with § 32-1-903(2) CRS, to consider approval of the Plan and the amendment to the Water Supply Agreement (the "Amendment"), at which time the Board approved the Plan and the Amendment subject to certain revisions and final legal review, and continued said special meeting to 4:00 p.m. on April 11, 2019. N. At 4:00 p.m. on April 11, 2019 the Board conducted the special meeting continued from April 9, 2019, at which time the Board ratified and approved certain changes made to the Plan and the Amendment, and further scheduled a third special meeting at 4:00 p.m. on Tuesday, April 16, 2019 to ratify and approve the final form of the Plan and the Amendment. NOW THEREFORE BE IT RESOLVED BY THE BOARD OF DIRECTORS OF UNITED WATER AND SANITIATION DISTRICT ACTING DIRECTLY AND BY AND THROUGH ITS HIGHLANDS RESERVOIR WATER ACTIVITY ENTERPRISE AND ITS UNITED WATER ACQUISITION PROJECT WATER ACTIVITY ENTERPRISE AS FOLLOWS: EXHIBIT E Section 1. That the Board finds that the Plan and the Amendment will benefit United, as well as its users and taxpayers. Section 2. That United's attorneys shall immediately file the Plan with the Weld County District Court, Water Division 1, to provide replacement sources of water and/or substitute water to replace out -of -priority diversions from the Beebe Seep Canal for delivery to and storage in the Highlands Reservoir for use on the Highlands Property. Section 3. That United shall immediately enter into the Amendment to amend the Water Supply Agreement for the purpose of clarifying the parties' intent and contractual relationship to develop and ensure a water supply for the Highlands Project through the delivery of water to Highlands Reservoir pursuant to the Plan. Section 4. That United's consultants and attorneys are authorized to take all actions necessary to implement this Resolution and the intent of this Resolution. Section 5. That the President, Secretary and other officers of United shall be and hereby are authorized and directed to execute and file, on behalf of the District, such other and further documents as are necessary to effectuate the Plan and the Amendment. WHEREUPON, the motion was seconded by Director Damiano, and upon vote, unanimously carried. ADOPTED AND APPROVED THIS 16th DAY OF APRIL, 2019. UNITED WATER AND SANITATION DISTRICT, ACTING DIRECTLY AND BY AND THROUGH ITS HIGHLANDS RESERVOIR WATER ACTIVITY ENTERPRISE AND ITS UNITED WATER ACQUISITION PROJECT WATER ACTIVITY ENTERPRI SC By: ATTEST: By: Lisa Haas, Secretary Robert A. Lembke, President EXHIBIT E CERTIFICATION I, Lisa Haas, Secretary of the Board of Directors of the United Water and Sanitation District, do hereby certify that the annexed and foregoing resolution is a true and correct copy from the records of the proceedings of the Board of Directors of said District on file with Community Resource Services of Colorado, LLC, the District's management company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the District this 16th day of April, 2019. Lisa Haas, Secretary EXHIBIT E From: Joseph B. Dischinger To: Tod Smith; Beth Ann Parsons Subject: RE: Notification of Application Date: Monday, April 22, 2019 3:46:35 PM DATE FILED: April 2G, 2019 7:50 PM Tod — FILING ID: 1A4B9604C49E4 CASE NUMBER: 2019CW3073 I acknowledge that you sent the transmittal letter, the application with exhibits, and a photo showing that the FRICO office was closed on Friday, to me with the email below. We accept these documents as notice on April 19, 2019, as required under FRICO's bylaws. Thank you. --Joe From: Tod Smith <tod@tjs-law.com> Sent: Friday, April 19, 2019 3:11 PM To: Joseph B. Dischinger <jdischinger@fwlaw.com>; 'Scott Edgar' <scott@farmersres.com>; Beth Ann Parsons <bparsons@fwlaw.com> Cc: Bob Lembke <bob@unitedwaterdistrict.com>; Drew Damiano <drew@unitedwaterdistrict.com>; Matt Bliss <matt@dinatalewater.com> Subject: Notification of Application Joe and Scott: Today United sent a courier to FRICO's office to deliver the attached application as FRICO requires under its new by-law which, as we state in our transmittal letter (attached) is not and should not be construed as a waiver of any claim we may have regarding the validity of the by-law. As shown in the picture taken by our courier, FRICO's office was closed for Good Friday. I note that the by-law says that a shareholder must provide the Company notice of the application; it does not limit how that notice can be made. Therefore, I believe that our attempt to deliver the application to the FRICO office today, which is neither a State nor Federal holiday, and by providing it by e-mail to both FRICO's attorneys and FRICO's General Manager meets the by-law's requirements. I would appreciate it if you would execute the receipt acknowledgement and return it to me. Thank you and have a good Easter weekend. Sincerely yours Tod Smith Law Office of Tod J. Smith, LLC 2919 Valmont Road, Suite 205 Boulder, Colorado 80301 (303) 444-4203 todCE tjs-law.com SPECIAL NOTE TO CLIENT(s): If you or your organization is a client of this firm and this electronic mail EXHIBIT F Hello