DISTRICT COURT, WATER DIVISION

COLORADO,SEPTEMBER 2020 WATER RESUME PUBLICATION

TO: ALL PERSONS INTERESTED IN WATER APPLICATIONS IN WATER DIV. 1

Pursuant to C.R.S. 37-92-302, you are notified that the following is a resume of all water right applications and certain amendments filed in the Office of the Water Clerk during the month of SEPTEMBER 2020 for each County affected.

20CW3144 ELK CREEK ESTATES, LLC, MOUNTAIN MUTUAL RESERVOIR COMPANY, and NORTH FORK ASSOCIATES, LLC; Elk Creek Estates, LLC, c/o Greg Podd, C.P.A., P.F.S., 4942 Snowberry Lane, Evergreen, CO 80439; Email: gregpodd@gmail.com; Telephone: (303) 330-0096; Mountain Mutual Reservoir Company, 6949 Highway 73, Suite 15, Evergreen, CO 80439; Email: 613blatch@gmail.com; Telephone: (303) 989-6932; and North Fork Associates, LLC, 2686 S. Yukon Ct., Denver, CO 80227; Email 613blatch@gmail.com; Telephone: (303) 988-7111. Please direct all correspondence concerning this Application to: Aaron Ladd, Esq., Vranesh and Raisch, LLP, 5303 Spine Road, Suite 202, Boulder, CO 80301; Email: asl@vrlaw.com; Telephone: (303) 443-6151. APPLICATION FOR PLAN FOR AUGMENTATION INCLUDING EXCHANGE IN JEFFERSON AND PARK COUNTIES. CLAIM NO. 1: APPLICATION FOR APPROVAL OF A PLAN FOR AUGMENTATION INCLUDING EXCHANGE 2. Names of Structures to be Augmented: Elk Creek Estates Well Nos. 11-22. The Elk Creek Estates Well Nos. 11-22 will divert ground water from the fractured granites underlying portions of the NW 1/4, the SW 1/4, and the SE 1/4 of S 5, and parts of the NE 1/4 and the SE 1/4 of S 6, T7S, R71W, 6th P.M., Jefferson County, Colorado. The rate of diversion for each well will not exceed 15 gallons per minute. Applications to construct each well will be submitted to the Division of Water Resources when the property described herein is developed and the wells are needed. The Elk Creek Estates property on which Elk Creek Estates Well Nos. 11-22 will be located is shown on the map attached as Exhibit A. The exact location of the wells will be determined as the properties within the area described above are developed and described in the well permit issued for each well. 3. Water Rights to be used for Augmentation Purposes: Elk Creek Estates has contracted with North Fork Associates, LLC to purchase 12.2 shares of Mountain Mutual Reservoir Company stock, which represents a firm annual yield of 0.384 of an acre-foot to satisfy present and anticipated future replacement needs associated with Elk Creek Estates Well Nos. 11-22. a. The water rights associated with the MMRC shares described above in paragraph 3 include the following: i. Maddox Reservoir: The Maddox Reservoir is located in the NE 1/4 SW 1/4, S 22, T7S, R73 W of the 6th P.M. in Park County. It was adjudicated on November 11, 1971 with an appropriation date of May 31, 1905. It is decreed for multiple purposes including irrigation, domestic, fish culture and recreation with a capacity of 54.0 acre-feet. It is filled by the Maddox Reservoir Feeder Ditch, which diverts from the North Fork of the South Platte River in the NE 1/4, SE 1/4, SW 1/4, S 22, T7S, R73 W of the 6th P.M. and decreed as an alternate point of diversion for the Slaght Ditch. Allocation of yield to Maddox Reservoir is attached as Exhibit B. ii. Lower Sacramento Creek Reservoir: The Lower Sacramento Creek Reservoir Company, a Colorado corporation, owns and operates the Lower Sacramento Creek Reservoir No. 1. The Reservoir is located in the NE 1/4 NW 1/4, S 32, and the SE 1/4 SW 1/4, S29, T 9S, R77W, 6th P.M., Park County, Colorado. North Fork Associates owns 932 shares of a total of 3,700 shares in the Company (a 25.2% interest). The Reservoir has been constructed and is entitled to store water under the following decree:

Adjudication Date

Appropriation Date

Amount

Case No. W‑7741‑74

July 25, 1974

40 a.f.

Case No. 84CW250

Use of Res. as Recharge Facility

Case No. 85CW465

Use of Res. as Recharge Facility

The water may be used for domestic, municipal, commercial, industrial, irrigation, fish and wildlife propagation, recreational and all other beneficial purposes, including exchange to compensate for depletions in the South Platte River and its tributaries. Other owners in the reservoir have transferred water rights to Lower Sacramento Creek Reservoir No. 1 in which Applicants have no interest. iii. Nickerson No. 2 Ditch: The Nickerson No. 2 Ditch, with a South Platte Priority No. 262 and North Fork Drainage Priority No. 24 has an appropriation date of May 1, 1872 as adjudicated by the District Court for Park County on May 22, 1913 in the amount of 0.65 of a cubic-foot-per-second. The headgate is located on the North bank of Deer Creek at a point whence the E 1/4 Corner, S 9, T7S, R 72 West of the 6th P.M., bears North 58º15’ East, 2320 feet and has historically irrigated approximately 35 acres adjacent to Deer Creek in the SE 1/4 S 9, NW 1/4 S 15, and NE 1/4 S 16, T 7 South, R 72 West of the 6th P.M. all in Park County. iv. Parmalee No. 1 Ditch: The Parmalee No. 1 Ditch, with a South Platte Priority No. 251 and North Fork Drainage Priority No. 14 has an appropriation date of May 1, 1867 as adjudicated by the District Court for Park County on May 22, 1913 in the amount of 0.52 of a cubic-foot-per-second. In that decree the headgate was located on the North bank of Deer Creek at a point whence the S 1/4 Corner of S 32, T6S, R72W of the 6th P.M., bears South 70° 6’ East, 1,210 feet. Water Division No. 1 District Court Case No. W-7434 changed the location of the headgate to the Nickerson No. 2 Ditch, as shown above. v. Carruthers No. 2 Ditch: The Carruthers No. 2 Ditch, with a South Platte Priority No. 250 and North Fork Drainage Priority No. 13 has an appropriation date of May 1, 1867 as adjudicated by the District Court for Park County on May 22, 1913 in the amount of 0.52 of a cubic-foot-per-second. In that decree the headgate was located on the North bank of Deer Creek at a point whence the S 1/4 Corner between S 31 and 32, T 6 South, R 72 West of the 6th P.M., bears North 85° 30’ East, 1398 feet. Water Division No. 1 District Court Case No. W-7434 changed the location of the headgate for 0.28 of a cubic-foot-per-second to the Nickerson No. 2 Ditch, as shown above. This 0.28 of a cubic-foot-per-second is included in this contract. vi. Slaght Ditch: In accordance with the Decree entered in Civil Action No. 1678 of Park County District Court, on May 22, 1913, the Slaght Ditch was awarded a direct flow priority of May 1, 1863, for 2.0 cubic feet per second for irrigation purposes. The source of water is the North Fork of the South Platte River. The point of diversion for the Slaght Ditch was originally established to be a point on the North bank of the North Fork of the South Platte River in the NE 1/4 SE 1/4, of S 21, T7S, R 73 W, 6th P.M., approximately 2,060 feet North and 490 feet West of the SE Corner of S 21. Pursuant to a decree entered by the District Court for Water Division 1 in Case No. 82CW472, on October 3, 1983, the Maddox Reservoir Feeder Ditch was approved as an alternate point of diversion for the Slaght Ditch water right. The point of diversion of the Maddox Reservoir Feeder Ditch is located on the North bank of the North Fork of the South Platte River in the NW 1/4 SW 1/4, S 22, T 7 S, R73 W, 6th P.M., approximately 1,240 feet East and 1,740 feet North of the SW Corner of S 22. In Case No. 79CW339, 0.12 of a cubic foot per second of the Slaght Ditch water right was changed to augmentation, replacement and storage purposes. In Case No. 81CW253, the point of diversion for 0.008 of a cubic foot per second of the Slaght Ditch priority was changed to a new location, with the water continuing to be used for irrigation purposes. Of the remaining 1.872 cubic feet per second, 0.481 of a cubic foot per second was transferred by MMRC in Case No. 2003CW238 and 0.727 was transferred in Case No. 2016CW3197. vi. Mack Ditch No. 2: In accordance with the Decree entered in Civil Action No. 1678 of the Park County District Court, on May 22, 1913, the Mack Ditch No. 2 as awarded a direct flow priority of May 1, 1863, for 1.0 cubic foot per second for irrigation purposes. The source of water is the North Fork of the South Platte River. The point of diversion of the Mack Ditch No. 2 was originally established to be on the South bank of the North Fork of the South Platte River at a point in the N E1/4 SE 1/4, S 21, T7S, R 73 W, 6th P.M., Park County, Colorado whence the E 1/4 Corner of said S 21 bears North 43 degrees East, a distance of 984 feet more or less. By an Order of the Park County District Court entered on October 17, 1927, the point of diversion was moved approximately 789 feet upstream to a point on the South bank of the North Fork of the South Platte River in the NE 1/4 SE 1/4, S 21, T7S, R 73 West, 6th P.M., whence the E 1/4 Corner of said S 21 bears North 79 degrees 30 seconds East, a distance of 1,292 feet, more or less. In Case Nos. W-7503, W7548, 80CW080, 80CW455, 81CW143, 81CW298, and 89CW081, at total of 0.1191 of a cubic foot per second of Mack Ditch No. 2 water right was transferred out of the ditch for uses other than irrigation. Of the remaining 0.8809 of a cubic foot per second, 0.44045 of a cubic foot per second was transferred by MMRC in Case No. 2003CW238. b. Firm Yield of Nickerson Ditch Rights: The Nickerson No 2, Parmalee No. 1, and Carruthers No. 2 Ditches are referred to herein as the “Nickerson Ditch Rights.” The Decree issued in Case No. 2000CW174, dated October 11, 2002, quantified the historic consumptive use associated with the Nickerson Ditch Rights. The terms and conditions under which the Nickerson Ditch Rights are used for augmentation, replacement, exchange and storage purposes were also defined and approved in Case No. 2000CW174, as follows: i. The Nickerson Ditch Rights may be left in the stream system to offset depletions from water use by MMRC shareholders. The water may also be stored in the Lower Sacramento Creek Reservoir No. 1, Maddox Reservoir and other MMRC reservoirs within the South Platte River Basin located above South Platte, Colorado; provided, however, that the details of storage in another reservoir are published in the Water Resume, or such storage is approved by the State Engineer pursuant to Paragraphs 37-80-120 and 37-92-308, 10 C.R.S. (2002). ii. The maximum rate of diversion under the Nickerson Ditch Rights is 0.8 of a cubic foot per second. Diversions are limited to the May 1, 1867 priorities decreed to the Parmalee Ditch No. 1 and the Carruthers Ditch No. 2. iii. Diversions to storage and/or assignment for in-stream augmentation credit are limited to the period April 23 through October 31 of each year and are further limited to those times when water is physically and legally available for diversion at the historic Nickerson Ditch No. 2 headgate on Deer Creek. If the May 1, 1867, priority is not fully satisfied to the extent of 0.8 of a cubic foot per second, the diversion rate is reduced to the flow, which is then physically and legally available. iv. Maximum monthly diversions under the Nickerson Ditch Rights are limited as follows: April, 2.0-acre feet; May, 16.0 acre feet; June, 19.0 acre feet; July, 16.0 acre feet; August, 10.0 acre feet; September, 7.0 acre feet; and October, 4.0 acre feet. Maximum annual diversions are limited to 62 acre-feet per year. During any consecutive ten-year period, total diversions are further limited to 486 acre-feet. c. Firm Yield of Slaght Ditch Rights: The Slaght Ditch and Mack Ditch No. 2 water rights described herein shall hereinafter be referred to collectively as “Slaght Ditch Rights.” Allocation of yield to Slaght Ditch Rights is attached as Exhibit C. The Decree issued in Case No. 2003CW238, dated October 24, 2006, quantified the historic consumptive use associated with the Slaght Ditch Rights. The terms and conditions under which these water rights are used for augmentation, replacement, exchange and storage purposes were also defined and approved in Case No. 2003CW238, as follows: i. The Slaght Ditch Rights may be left in the stream system to offset depletions from water use by MMRC shareholders. The water may also be stored in the Lower Sacramento Creek Reservoir No. 1 or the Maddox Reservoir. ii. The maximum rate of diversion under the Slaght Ditch Rights is 0.5 of a cubic foot per second. iii. Diversions to storage and/or assignment for in-stream augmentation credit are limited to the period May 1 through October 31 of each year, and are further limit

ed to those times when water is physically and legally available for diversion at the

historic Slaght Ditch headgates on the North Fork of the South Platte River. If the May 1, 1867, priority is not fully satisfied to the extent of 2.0 cubic foot per second for the Slaght Ditch and 1.0 cubic foot per second for the Mack Ditch No. 2, MMRC’s diversions are limited to its prorate entitlement to the water when physically and legally available. iv. Maximum annual diversions of the portion of the Slaght Ditch Rights changed in 2003CW238 are limited to 41 acre-feet per year. During any consecutive ten-year period, the total diversions are further limited to 342-acre feet. v. Pursuant to the Decree issued in Case No. 2016CW3197, the historic consumptive use associated with an additional 0.727 cfs of the Slaght Ditch water right yields 31.8 acre-feet of consumptive use water. 4. Statement of Plan for Augmentation: Elk Creek Estates is the owner of a 105 acre parcel of property located in parts of the NW 1/4, the SW 1/4, and the SE 1/4 of S 5, and parts of the NE 1/ 4 and the SE 1/4 of S 6, T7S, R 71 W, 6th P.M., Jefferson County. Elk Creek Estates proposes to subdivide the property into twenty-two (22) residential lots. Elk Creek Estates Well Nos. 1-10 will be augmented pursuant to the plan for augmentation previously decreed in Case No. 17CW3124, Water Division 1, dated March 8, 2018. That decree also adjudicated a water right for the Elk Creek Estates Pond to be located on the property and shown on Exhibit A. This augmentation plan will replace out-of-priority depletions associated with twelve additional wells, Elk Creek Estates Well Nos. 11-22, for in-house domestic uses only. a. The water requirements for Elk Creek Estates Well Nos. 11-22 are for in-house use with an average occupancy of 3.5 persons per house. The estimated water requirements for each well is 80 gallons per capita per day (gpcd) for in-house uses, with 10% consumption based on subsurface discharge from an individual septic tank-soil absorption system. The in-house allowance is well above the actual uses because of a change in the demographics and low flow water systems. This plan will require 0.384 of an acre-foot of replacement water as is shown in Table 1.

Table 1

Replacement Requirements

Use

Water

Requirements

Units

Quantity AF

CU Rate

Total Ac-Ft

Summer Ac-Ft

Winter Ac-Ft

In-house

80 gl/cap/dy

(3.5 cap)

12

3.768

10%

0.3768

0.1884

0.1884

Tran. Chg

0.13%/Mi

14

0.007

100%

0.0068

0.0034

0.0034

Total

3.3

0.384

0.192

0.192

The monthly depletions are as follows in acre-feet:

Nov

Dec

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

.032

.032

.032

.032

.032

.032

.032

.032

.032

.032

.032

1.32

b. The total consumptive use water requirement will be met with 0.384 of an acre foot of the annual yield from the Slaght Ditch Rights as described above and 0.192 of an acre-foot of space in Maddox Reservoir. (See Exhibits “C” and “B” respectively) The calculated requirements of the direct flow water rights from May through October are a total of 0.188 of an acre-foot at the point of depletion on an unnamed stream in the NW 1/4 SE 1/4, S 5, T7S, R 71 W of the 6th P.M. The point of delivery of this water will be the confluence of Elk Creek and the North Fork of the South Platte River in the NE 1/4 SE 1/4, S 27, T7S, R 71 W of the 6th P.M. The distance from the headgate of the Slaght Ditch on the North Fork of the South Platte River to its confluence with the Elk Creek is 14 miles. At 0.13% per mile the stream loss from the headgate of the Slaght Ditch to the point of delivery is 1.8%, (0.0035 AF). During the non-irrigation season during the months of November through April, and at times when the Slaght Ditch Rights are not in priority, replacement will be made by release from Maddox Reservoir. The distance from the outlet of the Maddox Reservoir to the same point of depletion is 14 miles. With the same rate of loss, the transportation loss from November through April is 1.8%, (0.0035 AF). The total requirement at the points of exchange at the confluence of Elk Creek and the North Fork of the South Platte River is 0.377 of an acre-foot. MMRC also seeks the right to use the Nickerson Ditch Rights and/or Lower Sacramento Creek Reservoir as an alternate supply to make replacements pursuant to this augmentation plan. c. Due to the small volume of annual stream depletions projected to occur under this plan, instantaneous stream depletions may be aggregated and replaced by one or more releases of short duration. 5. Water Exchange Reach: Since the points of depletion associated with the augmented structures are upstream of the augmentation supplies, Applicants assert an exchange project right including a right of substitution and exchange pursuant to Ss 37-80-120, 37-92-103(9), 37-92-302(1)(a), and 37-92-305(5), C.R.S. The reach of the substitution and exchange shall extend from the confluence of Elk Creek and the North Fork of the South Platte River in the NE 1/4 SE 1/4, S 27, T7S, R 71 W, thence up Elk Creek to its confluence with an unnamed creek in the NW 1/4 SE 1/4, S 5, T7S, R 71 W, thence up the unnamed creek to the point of depletion in the NE 1/4 SW 1/4, S 5, T7S, R 71 W all in the 6th P.M. In the event that there is an intervening senior water right that precludes operation of the substitution and exchange, the Applicants can make releases from Elk Creek Estates Pond as an alternate replacement supply, have replacement water delivered by truck to the point of depletions, or have an on-site container from which replacement water may be released. The exchange project right will operate to replace depletions to the flow of water in the stream system as the depletions occur. The water exchange project right will be operated and administered with a priority date of September 30, 2020, at a maximum flow rate of 0.002 of a cubic foot per second. WHEREFORE, Applicants request the entry of a decree approving this Application, specifically (1) granting the appropriations sought in this Application, (2) authorizing use of the augmentation supplies described in this Application, (3) determining that the source and location of delivery of augmentation water are sufficient to prevent material injury to vested water rights. The Applicants also request entry of an Order directing the State Engineer to issue well permits for the construction and use of Elk Creek Estates Well Nos. 11-22. (11 pgs., 4 Exhibits)

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

YOU ARE HEREBY NOTIFIED that any party who wishes to oppose an application, or an amended application, may file with the Water Clerk, P. O. Box 2038, Greeley, CO 80632, a verified Statement of Opposition, setting forth facts as to why the application should not be granted, or why it should be granted only in part or on certain conditions. Such Statement of Opposition must be filed by the last day of NOVEMBER 2020 (forms available on www.courts.state.co.us or in the Clerk’s office) and must be filed as an Original and include $192.00 filing fee. A copy of each Statement of Opposition must also be served upon the Applicant or Applicant’s Attorney and an affidavit or certificate of such service of mailing shall be filed with the Water Clerk.

As published in the Park County Republican and Fairplay Flume on Oct. 16, 2020

(0) comments

Welcome to the discussion.

Keep it Clean. Please avoid obscene, vulgar, lewd, racist or sexually-oriented language.
PLEASE TURN OFF YOUR CAPS LOCK.
Don't Threaten. Threats of harming another person will not be tolerated.
Be Truthful. Don't knowingly lie about anyone or anything.
Be Nice. No racism, sexism or any sort of -ism that is degrading to another person.
Be Proactive. Use the 'Report' link on each comment to let us know of abusive posts.
Share with Us. We'd love to hear eyewitness accounts, the history behind an article.