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HomeMy WebLinkAbout1.0 Application(.36' PLAY 16 '95 87: 38AN, LEAVENWORTHc;CALf IA " urffCE OF THE STATE ENGINEER Division of Water Resources Department of Natural Resources 1313 Sherman Street. Rooth 818 Dernier, Colorado 80203 Phone (303166-3581 FAX (303) 866-35a9 P.1 STAT OF QLOIADQ. February 24, 1995 POLICY ME ORANDUM 95-1 Ray Romer Governor 1)tret 5. Lechhead Executive Director Hal D. Simpson State Enginccr SITA ECT: ACCEPTANCE OF 25 -YEAR LEASE AUGNEWTATION SUPPLIES Phis far 1►olicy The Bureau of Reclamation has stated that all new contracts for augmentation water will only be on a 225 -year lease with no guaranteed option to renew. Existing leases that come up for renewal will also only be given the same 25 -year lease option. The State Engineer is very concerned about this short term lease period in that it places a great burden on the water users and cur office in our attempts to ensure a reliable supply of augmentation water, especially when dealing with domestic uses. Various entities have been in negotiations with the Bureau in an attempt to lengthen the contract period and the State Engineer supports those efforts. The State Engineer believes that it is critical to obtain long-term augmentation supplies to ensure viable domestic and municipal type uses and to protect the vested water rights of others. However, the Bureau appears determined to make the 25 year contract policy a reality. Therefore, the need for policy by the State Engineer is required. This policy becomes effective immediately and can only be modified or revoked in writing. Policy 1. Water Court The State Engineer will accept 25 -year Bureau of Reclamation contracts as a source of augmentation water until such time as efforts to increase the contract length and/or renewal options are successful. In order to accept such a supply, all decrees for augmentation plans with this type of contract must include the following language: "'The state engineer shall curtail all out -of -priority diversions, the depledons from which are not so replaced as to prevent injury to vested water rights pursuant to section 37-92-305(8), C.R.S. (1990). Further, the applicant and • MAY 16 '95 0 39AM LEA'v'ENNORTH&CALOIA P. POLICY MEMORANDUM 95-1 Page 2 February 24, 1995 its assigns understand that the lease supply is only for a period of 25 years and if such lase should expire, fail to be renewed, is terminated, or an alternative sufficient source of replacement water is not included in this decree by proper amendment prior to such expiration, curtailment of all out -of -priority diversions will occur." 2. Subdivision Review If a subdivision review is before the State Engineer that proposes to depend on a 25 - year lease of Bureau of Reclamation water for its augmentation supply, the State E:,ngineer will clearly inform the County of his concern over the supply and state that while'we accept the supply, it is the state's position that if the lease should expire, fail to be renewed, be terminated, or an alternative sufficient source of replacement winter is not obtained prior to expiration of the lease, curtailment of all out -of -priority diversions will occur. Furthermore, a legal entity should be established to represent the horrAeowners such as a water district or homeowners association. Dated the 2 " day of February, 1995 11 D. Simpson State Engineer - MAY 15 '95 07:39AM LEAVENWORTH&CALOIA DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. Consolidated Cases No. 93CW322 and 93CW323 P. 3 FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMI' IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS AND APPROVAL OF PLN FOR AUGMENTATION AND GRANGE OF WATER RIGHTS, INCLUDING RIGHT OF SU STITU'I'IQN AND APPROPRIATIVE EXCHANGE OF: HINES HIGHLANDS LIMITED PARTNERSHIP AND ASPEN HIGHLANDS MOUNTAIN LIMITED LIABILITY COMPANY, in Pitkin County Dates of Trial: April 11--14, 1995 Nature of Proceeding: Trial to Court Presiding Judge: Thomas W. Applicants Appeared by: Objectors Appeared by: Ossola Kevin Patrick, Esq. Arthur B. Ferguson, Jr., Esq. Alison Maynard, Esq. Cynthia Covell, Esq. David Belleck, Esq. Peter Fahrny, Asst. Atty. Gen. Don Brown, Esq. THIS MATTER having come before the Court and the Court being fully advised in the premises, following, finds, concludes and orders the PROCEDURAL MATTERS Applicants filed separate applications in this Water Court for water rights and approval of plan for augmentation and change of water rights, including right of substitution and appropriative exchange concerning water from Maroon creek in Pitkin County, Colorado. The cases were consolidated for trial. Statements cif Opposition were filed by various objectors, ��• V7, x11,1-af Tl S{ F V I !V I I -'H I K1l.K 15 ' 55 �t7: 4OAM LEAVENWORTH5 r LOIA P.4 Immediately prior to trial, applicants entered into stipulations with all of the objectors except Aspen Wilderness Workshop, Inc., Joy and Samuel Caudill and Constance Harvey (hereinafter referred to as the AWW objectors) based upon a proposed decree filed with the Court on April 4, 1995. The Court took approval of the stipulations under advisement pending trial on the merits. On April 7, 1395, trig AWW objectors filed a motion to dismiss applicants' plan for augmentation and exchange insofar as it pertained to use of the Stein-Arlian and Marolt Ditch water right. Applicants withdrew that part of the application at the time of trial. The issues raised by that motion have not yet been fully briefed and are not the subject of this order. on April 28, 1995, the AWW objectors filed a motion for leave to file brief to supplement closing argument. Applicants filed a response and the City of Aspen filed a motion to strike. The Court concludes that the City of Aspen's Motion to Strike should be granted. Such briefs are not contemplated by the rules and wa not authorized by the Court in this case. The Court has not taken into account either the brief of AWW objectors or the response by applicants in arriving at its findings of fact, conclusions of law and judgment as set out below. BACKGROUND Applicants are the Current owners and operators of the Aspen Highlands Ski Area in Pitkin, county, Colorado. On December 31, 1993, they filed 93CW322 to confirm a series of 1993 water rights, each with an appropriation date of August 10, 1993, for MFMAY 1a -,—s5 -07. 404.l- LfActNI JWf1 04_0121 physical water delivery for tie ski resort including base village area, ski area uses, and related irrigation and snowmaking. The project includes single family homes, condominiums, townhvmes and commercial and on -mountain industrial uses. The water supply would be delivered through an integrated water system consisting of diversion facilities, transmission lines, storage tanks and a water treatment plant. The source of supply would originate from either the City of Aspen's Maroon Creek Pipeline, and independent diversion system encompassing wells and direct diversions or a combination of the two. The applications contemplate water delivery through these alternative sources of supply. The total annual water demand associated with the project is estimated to be 488 acre feet. Approximately 314 acre feet would be for snowmaking purposes. The kW objectors assert that applicants did riot have tha requisite intent to appropriate arzd that the applications would have an injurious effect on the coJ.orado Water Conservation Board's decreed instream flow water right for 1,4-.0 csf on Maroon Creek and water rights held by the Caudi1ls and Me. Harvey. They also assert that applicants.db not have a present intent to make snow,, making the applications speculative in nature. FINDINGS OF FACT 1. The Court finds that it has jurisdiction over the parties and the subject -matter of this action and that venue is proper. 2. Applicants filed a proposed decree in this matter pursuant to CRS 37-52-305( 3) and stipulations approving the form MAY 1b 95 _ �7 4 HM LEF�VENNORTH2CRLOIA of decree signed by the various objectors except the AWW objectors. 3. Applicants presented evidence from Robert Daniel, Project Manager for Hines Highlands Limited Partnership. Ha established that the Highlands Project was acquired by applicants in December, 1993, through a stock acquisition. The purchase price was in excess of $15 million. Since acquisition, some $3 million have been spent on development approvals and water rights. Resource Engineering, Inc,, was retained to study Maroon Creek and determine the water demands associated with the project, including snowmaking. Authority was granted to Resource Engineering, Inc,, to appropriate water rights. Development. plans were submitted to the Pitkin County Board of County Commissioners including architectural and land use plans in 3'une, 1993. He testified that snowmaking plans were conceived in Jun 1993, which included an additional 300 acres of snowmaking to be added to the existing 50-80 acres. The source of the water for snowmaking was to be 1 csf of water under contract with the City. of Aspen. In analyzing that source, applicant, concluded that most of the 1 csf was needed for potable water Uses with the balance to be available for snowmaking. It was decided that an alternate source of supply was needed. Mr. Daniel testified that Scott Fifer of Resource Engineering, Inc., determined the amounts of water necessary for the project and the proposed, poi MH` rsrirrii_� • • MAY 16 '95 U7:41HM LEAVENNORTH&CALOIA ,•/• r• r feet of water from Reudi Reservoir for augmentation purposes. The project design includes 220 housing units, on -mountain maintenance facilities, ponds with fish, commercial and skier support services and irrigation. He testified that applicants are not a municipality. They have no current arrangements to make water from those applications available to the City of aspen, though that may happen in the future. The applicants do have agrcenents for the City to provide 1 csf of water. To meet their total water needs, applicants have agreed with the City that there are three options. The city has agreed to manage its water rights or, Maroon Creek in such a way as to allow 14 csf of water to flow in the creek below its Maroon Creek Pipeline Intake to satisfy decreed minimum stream flow rights on the creek. Mr. Daniel stated that with the City's agreement to provide 1 csf of water and to manage the Maroon creek Pipeline Intake in such a way as to satisfy minimum stream flow requirements, the water requested here represents "redundancy of supply" to back up the primary water supply from the City of Aspen. 4. The testimohy,.of Mr. Daniel was followed by the testimony of R. Scott Fifer,' a principal of Resources Engineering, Inc. He is a hydrologist and conducted the analysis of the water ,needs of the project and a study of Maroon crook. He was retained in July, 1993. Based upon a description of the project, he calculated the water requirements associated with it, including base area and snowmaking needs. He designed a water system to supply water to base areas and ski trails and identified water rights necessary to complete the project. MFMPY 15 '95 7 41Hf1 LEH'v'ENWORTH&C:HLOIH Pp. 71.5 On August 10, 1993, he along with Mr. Daniel and others visited Maroon Creek. He testified that he had the intent to appropriate water at the locations and for the uses set out in these applications. He located the proposed diversion sites on the ground and marked them. In cooperation with engineers from the City of Aspen, Mr. Fifer commenced a stream flow measurement and monitoring program. He utilized measurements taken at the uSCS gauging station on Maroon Creek and in -stream measurements conducted by himself as well as historic data from the office of the Division Engineer. It was Mr- Fifer's opinion that the Colorado River system has water available for appropriation. Releases from Reudi Reservoir could augment water in the Colorado River to keep these rights in priority as to calls made on the river. He was aware of no call ever having been made on Mardon Creek from it's headwaters to the Roaring Fork River. It was his opinion that the water rights which are the subject of these applications may be subject to a call one year in twenty. It was further his opinion that when such conditions.exist, if applicants' rights are curtailed, no injury would be suffered by senior rights. He was of the opinion that contracts for water from Reudi Reservoir constitute an acceptable source of augmentation water. He testified that the conditions of the proposed decree were reasonable. He assumed that measuring devises would be placed at each diversion source making accounting available on a daily basis. He developed a ' computer model of the stream based upon historic data and measurements taken in the stream by himself and I'Ir-11 1G 7.J id.'yon,1 IS.,v :.r 6., MAY 16 '95 07:42AM LEAVENNORTH&CALOIA P.9 personnel of the City of Aspen. used upon this model, he recommended the development of a model for administration of these water rights as set out in the proposed decree. Additional measurements would be required in the proposed decree in years when the sfowpack is below 80% or the flow at the Maroon Creek Pipeline Intake is below specified levels. At several times, he testified that his opinions as to availability of water were based upon all of the information available to him and not just on the model of the stream that he developed. 5. The testimony of Mr. Fifer was followed by testimony from Mr. Sundeen, a hydrologist employed by the City of Aspen, Who had also completed a study of water availability on Maroon Creek. While his techniques and assumptions differed somewhat from those used by Mr. Fifer, he testified that shortages of potable dater may exist in 3 of 23 years. His analysis assumed that the minimum strum flow right would always take precedence over the rights of the City of Aspen. 6. Mr. Dean Gordon, a civil engineer, reviewed the work of resource Engineering, Inc., and concluded that they were reasonable representations of projected demands of the project. He considered both public and private estimates of demand. 7. Fred Smith, Senior vice President of the Aspen Skiing Company for planning and development testified. He has represented the applicants in proceedings before the Pitkin county. Planning and Zoning Commission and the County Commissioners concerning the project. He testified that current snowmaking faoilities at Aspen Highlands were installed in 1976 MA' 7 7 OC i (i AOrM is \! 1 N 1 �L] d f VG MAY 16 ' 95 i7: = 2Af1 LEHVENNORTHaCALOIA 1 . J+ 11 P.10 to make snow on 50-75 acres. It is a "patch system" designed to cover areas at the bottom of runs which are subject to high use. Tt is not designed to support early opening of the area. The current water source is the 1 oaf of City water. He further testified that to remain competitive in the industry, it is Imperative that applicants make snow on 310-320 acres up the spire of the mountain. In his opinion 4.5 csf is necessary for this purpose. Mr. Smit acknowledged that current submissions to the County do not include requests for snowmaking approval. He stated that the request had not been make because the water source had not yet been approved. He acknowledged that permission would have to be secured from the Forest Service and that an environmental assessment would be required. He acknowledged that no application had been made to that agency. 'A memorandum agreement is being discussed but has not been signed. He further acknowledged that the application for water from Rcudi Reservoir would be subject to environmental review. He also testified that touch of the motivation for the current applications was to create a "redundancy of supply". 8. Mr. Robinson, and employee of the Aspen Skiing Company, testified that approximately 15 acres had been historically irrigated at the base of the mountain from the Pearson Spring Ditch. Approximately that amount of acreage would continue to be irrigated as part of the project. 9, Mr. Crlyn Bell, Division Engineer,.testified that his office had reviewed the conditions of the proposed decree and MAY 16 '95 07 43Af'1 LEAUEf IWURTH&CALQ I A P.11 that it was his opinion that it contained terms and conditions necessary to protect vested water rights, including the minimum stream flow rights. He felt the ten year period of retained jurisdiction was appropriate. He testified that he believed that Round II contract water from Raudi Reservoir was an appropriate source of augmentation water. He noted, however, that the contracts would be limited to 25 years in length. He is of the opinion that these rights can be administered'as set out in.the proposed decree. He specifically sought flexibility in designing the model for administration to take into account future needs. 10. The AWW objectors called several witnesses including Constance Harvey and Joy Caudill who testified that Maroon Creek had been running lower over the last several years, especially in the kala and winter. 11. The primary witness for the AWW objector was Cheryl Sines, a water resources engineer. -See examined the work product of N. Fifer and Mr, Sundeen, stream flow records, decrees, interviews, publications, field observations and aerial photography, She disagreed with some of the assumptions made by Mr. Fifer and Mr. Sundeen and concluded that in dry years, applicants would not be able to divert water between November 15 and March. She was further of the opinion that the terms and conditions of the proposed decree were not sufficient to protect vested water rights. Specifically, she testified that the accounting foists were not adequate because amounts diverted by use are not identified nor are calls in effect identified. She asserted that the forms do not break down water used for potable ry t'"p�MflY 16 ' �5 O7 4 l i LEHVENNORT -T&' LOIR v and irrigation purposes separately. She also felt that stream measurements should be reported on the forms as well as the results of :yodeling. She rioted that Maroon creak is a small stream and the diversion points are remote. Size testified that small fluctuations in the stream can have significant impact and that the proposal for administration does not provide for timely response to changes. In her opinion telemetric metering and control are required. She testified that the 15 csf trigger provision is not high enough to take into account fluctuations of the stream. Ms. Sines is also concerted that the proposed decree creates separate water rights for eight structures and a change for the ninth when the total demand f'or water is 4.5 cfs. She asserts that this will lead to confusion in administration and lead to a latex' interpretation that each structure is entitled to 4.5 cfs. CONCLUSIONS OF LAW 1. The AWW objectors assert that applicants have failed to establish that they had the necessary intent to appropriate water and failed to take an adequate -first step in such appropriations to establish the conditional, water rights sought. They also assert that applicants have failed to establish that they can and will complete the appropriation within a reasonable time, and that applicants have not been diligent in taking steps to make , the appropriations. The Court concludes that the better and more convincing evidence produced at trial establishes that applicants through Mr. Fifer and Mrs Daniel had the requisite intent to appropriate and took the necessary first steps on MAY 15 '95 07:44AM LEAVENLJORTH&CALOIA P.13 August 10, 1993. Since that time applicants have been reasonably diligent in pursuing the appropriation. The evidence further supports the conclusion that the applicants can and will divert water and apply such diversions to beneficial use and that the project can and will be completed with diligence and within a reasonable time except for the claimed municipal uses. The appropriation is not speculative as an alternate source of supply for the project because there is a significant risk of interruption of the primary water supply due to geologic Conditions It is undisputed that applicants are not municipalities and. have not current arrangement with any municipality which would support an appropriation for a municipal use. The only evidence is that they may wish to transfer the water rights to the City of Aspen for municipal use at some time in the future. That evidence is,insufficierit to support an appropriation Eor municipal uses. 2. The AWW objectors assert that since there is no existing contract for the use of Reud.i Reservoir water for augmentation purposes, the plan for augmentation and the claimed rights which the plan would augment should be denied. The evidence is that an application for ;such augmentation water has been made but no contract or lease has been entered into. There is na evidence as to when such contract may be issued. 2f issued, the contract or lease would have a life of 25 years. The Division Engineer, for purposes of issuance of well permits, has accepted application for such water as sufficient, This Court, however, concludes MAY 16 '95 07:44AM LEAV'ENWORTH&CALOIA F.14 that for an augmentation plan to be approved, the applicant Must establish a present right to the water to be used for augmentation and that right cannot be limited as to time. Therefore, the Court concludes that the evidence here is insufficient to support approval of the augmentation plan, and the application for approval of the plan should be denied. Denial of the plan for augmentation, however, does not defeat the application for the water right sought. The right will have to be administered within the priority system and may be called out by senior: appropriators. The stream is not over appropriated. . The AWW objectors finally assert that the terms and conditions of the proposed decree are not sufficient to protect vested water rights on the stream, particularly the minimum stream flow right. The evidence is that Maroon Creek is a small stream and that the proposed diversion sites are remote. The evidence further establishes that daily fluctuations in the stream are on the order of lo% of the flow. The Court ccnc1udes that the better evidence is that the terms and conditions are sufficient to protect vested water rights. The proposed decree is sufficiently clear that the total amount appropriated under these applications is 4.5 csf. The court rejects the oall by the AWW objectors to deny the application because the Colorado Water Conservation Board has never placed a call to protect minimum stream flows and that it would be politically difficult for Board to do so in this case because of the economic impact which would result from curtailing snowmaking once it was started. Zn ward o C u ty Camm�ss�oner MAY 15 ' 95 07: 45AM LEAVEHWORTH&CALOIA of th _-- -00 v Ur. ' t tel O¢ .9 Brief Times Reporter 237 (Colo. 1995) at p. 247, the Colorado Supreme Court held as follows: we have consistently recognized that the General Assembly has acted to preserve the natural environment by giving authority to the Colorado Water Conservation Hoard to appropriate water to maintain the natural environment, and we will not intrude into an area where legislative prerogative governs. The degree of protection at'f orded the environment and the mechanism to address state appropriation of water for the good of the public is the province of the General Assembly and the electorate. P.15 The environmental concerns expressed by the AWw objectors are not within the authority of this Court to addressed. The doctrine of maximum beneficial use of water requires courts to interpret applications for water rights to encourage development of Colorado's water resources. Board of gour!ty ComMiSsioners of thn County .of Arepal ? y. ?Tnite St to , supra, at p. 243. 4. The Court concludes that the stipulations entered into by applicants with the other objectors should be and are hereby approved. CUDGMENT WHEREFORE, IT IS ORDERED, ADJUDGED AND DEcREED that a decree enter approving the application for the water rights requested for the uses Sought except municipal uses on the terms and conditions set out in the proposed decree. IT IS FURTHER ORDERED that the relief requested in 93cW323 LEAVENWORTH&CALO I A P.16 be granted except as to augmentation through the use of water from Reudi Reservoir or the Stein-Arlian and Marolt Ditch. Dated:/4:77 i7r!)//2- Copy j si �f y Water Judge. Copy o' Ino ioreaoing makla to Ib Counsa: et reccrd YYaEer PtlAtrae—iv. a inner' —an 13'6 nginoar a r-= K. Patrick A, Ferguson P. Palmy C. Covell D. B+=11ack T. W"hitei.tt J. M'..zsxck A, Maynard /C. DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. 94CW317 ORDER CONCERNING THE APPLICATION FOR WATER RIGHTS OF WILLIAM M. ZILM IN GARFIELD COUNTY This matter came before the Court on the Motion to Withdraw Application of William M. Zilm, and the Court having become fully advised in the premises, enters the following order. IT IS HEREBY ORDERED: 1. The application of William M. Zilm in the above - captioned case is hereby withdrawn. 2. Each party shall pay his own costs in this matter. DATED this day of , 1997. BY THE COURT: Thomas W. Ossola Water Judge Water Division No. 5 State of Colorado CERTIFICATE OF MAILING I hereby certify that the foregoing APPLICATION and proposed ORDER were served on the following TO WITHDRAW by placing true and correct copies ther personsa Mail® first-class postage in the United States addressed as follows: g prepaid this day of April, 1997, Ray D. Walker 3125 Highway 13 Rifle, CO 81650 Edmund A. Prehm 916 Bennett Glenwood Springs, CO 81601 James P. Mahan, Jr. P. O. Box 1821 Glenwood Springs, CO 81602 DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. 94CW317 ENTRY OF APPEARANCE CONCERNING THE APPLICATION FOR WATER RIGHTS OF WILLIAM M. ZILM IN GARFIELD COUNTY James R. Montgomery and Kelly J. Custer, of Moses, Wittemyer, Harrison and Woodruff, P.C., hereby enter their appearance on behalf of the applicant William M. Zilm in this case. Respectfully submitted this day of April, 1997. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. By Jame s R Moome rY , #10989 J Kelly J. Custer, #27247 P. O. Box 1440 Boulder, Colorado 80306-1440 (303) 443-8782 ATTORNEYS FOR WILLIAM M. ZILM DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. 94CW317 MOTION TO WITHDRAW APPLICATION CONCERNING THE APPLICATION FOR WATER RIGHTS OF WILLIAM M. ZILM IN GARFIELD COUNTY The applicant, William M. Zilm ("Zilm"), by and through his undersigned attorneys and pursuant to Uniform Local Water Court Rule 5, hereby requests the withdrawal of his application in this case, and states as follows: 1. The application in this matter was filed on December 22, 1994, claiming an absolute water right for the Zilm Transfer Ditch, in the amount of 2.0 cfs. A timely statehent of opposition was filed by Ray D. Walker, Edmund A. Prehm, and James P. Mahan, Jr. 2. On December 28, 1994, an application was filed with this Court in Case No. 94CW344 by Zilm and the West Divide Water Conservancy District, as co -applicants. That application included a claim for the Zilm Transfer Ditch 2.0 cfs absolute water right. Walker, Prehm, and Mahan, among other objectors, filed a statement of opposition in Case No. 94CW344. 3. A decree was _entered_ _in _ _Case._ No. 94CW344 on August 5, 1996. The Court decreed the Zilm Transfer Ditch 2.0 cfs absolute water right. 4. Therefore, there is no need to seek a decree in Case No. 94CW317, and the objectors will not be prejudiced by withdrawal of the application. WHEREFORE, Zilm respectfully requests that the application be withdrawn. A proposed order is attached hereto. William M. Zilm Case No. 94CW317 Page 2 Respectfully submitted this 6J/IL day of April, 1997. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. By 1/1 4. Ce.3ro Jarhes R.(JIorfgomery, #10989 Kelly J. Custer, #27247 P. O. Box 1440 Boulder, Colorado 80306-1440 (303) 443-8782 ATTORNEYS FOR WILLIAM M. ZILM DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. 94CW318 ENTRY OF APPEARANCE CONCERNING THE APPLICATION FOR WATER RIGHTS OF WILLIAM M. ZILM IN GARFIELD COUNTY James R. Montgomery and Kelly J Wittemyer, Harrison and Woodruff, P.C., appearance on behalf of the applicant William Respectfully submitted this . Custer, of Moses, hereby enter their M. Zilm in this case. _EL L day of April, 1997. MOSES, WITTEMYER, HARRISO14 AND WOODRUFF, P.C. By Ja es ontthomerY. #10989 Kelly J. Custer, #27247 P. O. Box 1440 Boulder, Colorado 80306-1440 (303) 443-8782 ATTORNEYS FOR WILLIAM M. ZILM DISTRICT. COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. 94CW318 APPLICANT'S RESPONSE TO COURT DISMISSAL NOTICE OF MARCH 14, 1997 CONCERNING THE APPLICATION FOR WATER RIGHTS OF WILLIAM M. ZILM IN GARFIELD COUNTY The applicant, William M. Zilm ("Zilm"), by and through his undersigned attorneys, respectfully shows to the Court the following reasons why the application should not be dismissed: 1. The application in this was filed by William Zilm, pro se, on December 22, 1994, seeking a decree for the Zilm Well No. 3. Timely statements of opposition were filed by Ray D. Walker, Edmund A. Prehm, James P. Mahan, Jr., and the Oak 'Meadows Water Association and Oak Meadows Homeowners Association. 2. A well permit application was submitted to the State Engineer's Office on the same date. A permit was issued on September 24, 1996 (Permit No. 047247-F). 3. Shortly after the application in this case was filed, Zilm joined the West Divide Water Conservancy District as co -applicant in Case No. 94CW344. The application in Case No.94CW344 included a claim for the Zilm Well No. 3 as an alternate point of diversion for the West Divide Fourmile Canal. However, it did not include a claim for a water right for the Zilm Well No. 3 under its own priority. 4. A decree was entered in Case No. 94CW344 on August 5, 1996, approving, among other things, the claim for the Zilm Well No. 3 as an alternate point of diversion in the amount of 0.22 cfs. 5. Zilm is in the process of planning the water supply for a proposed subdivision. The Zilm Well No. 3 is a key component of the water supply plan, as shown by his efforts in obtaining the well permit and the decree in Case No. 94CW344. At this time, Zilm's engineering studies indicate that the full 225 gpm rate claimed in the application in this case will be required for the new subdivision. Therefore, ,Zilm will move forward at this time with the application in this case, seeking a decree for the well. William M. Zilm Case No. 94CW318 Page 2 6. Zilm submits that the foregoing constitute good cause as to why the application should not be dismissed. Accordingly, Zilm respectfully requests that the notice of dismissal be withdrawn. Respectfully submitted this q day of April, 1997. MOSES, WITTEMYER, WOODRUFF, P.C. HARRISON AND Kelly J. Custgomery, er, 2 #70989 #272 P. O. Box 1440 #47 Boulder, Colorado (303) 443-8782 80306-1440 . ATTORNEYS FOR WILLIAM M. ZILM DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO Case No. 94CW318 ORDER WITHDRAWING NOTICE OF DISMISSAL CONCERNING THE APPLICATION FOR WATER RIGHTS OF WILLIAM M. ZILM IN GARFIELD COUNTY On March 14, 1997, the Court issued a Court Dismissal Notice requiring the applicant to show cause why this case should not be dismissed. The Court, having reviewed the applicant's Response to Court Dismissal Notice showing cause why the case should not be dismissed and having become fully advised in the premises, finds that the applicant has shown good cause why the case should not be dismissed. It is hereby ordered that the notice of March 14, 1997, is withdrawn. DATED this day of , 1997. BY THE COURT: Thomas W. Ossola Water Judge Water Division No. 5 State of Colorado CERTIFICATE OF MAILING I hereby certify that the foregoing APPLICANT'S RESPONSE TO COURT DISMISSAL NOTICE OF MARCH 14, 1997 and proposed ORDER WITHDRAWING NOTICE OF DISMISSAL were served on the following persons by placing true and correct copies the of in the United States Mail, first-class postage prepaid this day of April, 1997, addressed as follows: Ray D. Walker 3125 Highway 13 Rifle, CO 81650 Edmund A. Prehm 916 Bennett Glenwood Springs, CO 81601 James P. Mahan, Jr. P. O. Box 1821 Glenwood Springs, CO 81602 Sherry A. Caloia, Esq. Caloia & Houpt, P.C. 1204 Grand Avenue Glenwood Springs, CO 81601 MOSES, WITTEMYER, HARRISON AND WOODRUFF, P. C. LAW OFFICES 1002 WALNUT STREET, SUITE 300 DAVID L. HARRISON JAMES R. MONTGOMERY TIMOTHY J. BEATON VERONICA A. SPERLING GILBERT Y. MARCHAND, JR. AMELIA S. WHITING KELLY J. CUSTER BOULDER, COLORADO 80302 TELEPHONE: (303) 443-8782 FAX: (303) 443-8796 ADDRESS CORRESPONDENCE TO: P. 0. BOX 1440 BOULDER, CO 80306-1440 April 9, 1997 Robert C. Cutter Water Referee Water Division No. 5 109 - 8th Street, Suite 104 Glenwood Springs, CO 81601-3361 Re: Case No. 94CW318 (William M. Zilm) Dear Referee Cutter: CHARLES N. WOODRUFF (1941-1996) COUNSEL RAPHAEL J. MOSES JOHN WITTEMYER ROBERT E. L. BEEBE DAVID M. BROWN SPECIAL COUNSEL HUNTLEY STONE FEDERAL EXPRESS Enclosed herewith are the applicant's response to Court Dismissal Notice and proposed order withdrawing the dismissal notice. I have recently become involved in this case, which Dr. Zilm originally filed pro se. Dr. Zilm was under the impression that his joint application with the West Divide Water Conservancy District in Case No. 94CW344 was an "over -filing" on this water right. However, the decree in 94CW344 did not adjudicate a separate priority for the Zilm Well No. 3; it only approved that well as an alternate point of diversion for a West Divide Water Conservancy District water right. Therefore, Dr. Zilm intends to pursue this application and obtain a decree for a conditional water right for the Zilm Well No. 3. Dr. Zilm has recently obtained a permit for the well. Although the decree in 94CW344 approves the well as an alternate point in the amount of 0.22 cfs, the application in this case seeks s a conditional decree for 225 gpm.--_�_0.5 cfs) .J Dr. Zilm is in- the process of planning the water supply for a proposed subdivisioTr, which probably _will require-- the full 225 gpm _pumping rate. --In order to provide augmentation for the full pumping rate of the well, it may be necessary to seek an amendment of the 94CW344 decree, but that decision is premature until Dr. Zilm's engineering work is complete. Please call if you have any questions in this matter. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P. C. Robert C. Cutter April 9, 1997 Page 2 Yours truly, a1,40 12- A441s)4k J es R. Montgomery 1 for MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. JRM:jt Enclosures cc: William M. Zilm William L. Lorah Ray D. Walker Edmund A. Prehm James P. Mahan, Jr. Sherry A. Caloia, Esq. STATE OF COLORADO OFFICE OF THE STATE ENGINEER 'ivision of Water Resources epartment of Natural Resources 1313 Sherman Street, Room 818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 December 17, 1993 Mr. Mike Connor El Paso County Planning Depai 'lent P. O. Box 2007 Colorado Springs, CO 80901 I:5,2'/oa�e. fiLF Re: Use of a well for providing service to single family residence in addition to a commercial business. Dear Mr. Connor: Roy Romer Governor Ken Salazar Executive Director Hal D: Simpson State Engineer Thank you for your letter of November 8, 1993, inquiring about use of a well to serve a single family residence in addition to a commercial business owned by the same individual, on one parcel or lot. As you may be aware, certain commercial well permits are issued in over appropriated areas, for use as described in Section 37-92-602, (1) (c), C.R.S., under a policy of the State Engineer's office. This section states, " Wells not exceeding fifteen gallons per minute of production and used for drinking and sanitary facilities in individual commercial businesses;". The statutes do not define individual commercial businesses, however they do require the consideration of injury to other water rights when evaluating well permit applications. In order to approve certain permits under this statute, the State Engineer has adopted guidelines for evaluating the well permit applications. These guidelines are: A. The applicant can document that no other water supply is available. B. The lot was recorded with the county prior to their adoption of Senate Bill 35 rules or has been created by the county through the exemption process, OR is 35 acres or more. C. The proposed well would be the only well exempted under Section 37-92-602, located on a lot. D. Water use is limited to drinking and sanitary purposes inside one commercial business. No outside uses such as landscape irrigation, stock watering, car washing , etc. will be allowed. Use of the well for fighting a fire in the commercial business is allowed. Kennels or veterinary clinics where animals are boarded would not be allowed to use such a well. E. The well pumping flow rate does not exceed 15 gallons per timinute. F. Annual diversions will not exceed 1/3 acre foot of water, 108,600 gallons. G. The applicant must document that the total water requirements for the combined residence and business use will not exceed 108,600 gallons annually. Mr. Mike Connor December 17, 1993 Page 2 H. The return flow is to the same stream system as the well is located in. I. Consumptive use does not exceed 10 percent. This is usually governed by the waste water treatment system. The typical septic and leach field system is considered to not exceed 10 percent consumptive use. J. A continuous recording flow meter must be installed on the well and annual readings recorded. This information must be available to the Division Engineer upon request. When the business is being conducted from a single family residential dwelling where the business operators will occupy the dwelling as a living quarters and .the uses do meet the above guidelines, we generally can recommend approval. If you have any questions, please contact Steve Lautenschlager, Assistant State Engineer. Sincerely, • Hal D. Simpson, P.E. State Engineer HDS/JS/exemptc3 cc: Steve Witte, Division Engineer RICHARD 0 L.ANtm Governor NEMORANDUM .*V• CO i t_)c; OFFICE OF THE STATE ENGINEER DIVISION OF WATER RESOURCES 1313 Sherman Street -Room 818 Denver, COIoraCo 80203 (303)8666-3581 April 9, 1985 JERIS A OANtE_SON State Engineer TO: ROBERT A. LONGENRAUGH, ASSISTANT STATE ENGINEER FOR GROUND ''WATER FROM: JERIS A. DA`IELSON, STATE ENGINEER SUBJECT: POLICY CONCERNING THE EVALUATION OF WELL PERMIT APPLICATIONS FOR EXEMPT COIF_•= RC IAL USES In 1972 the legislature established a rebuttable presumption in subsection 37-92-502(3)(b)(II), C.R.S., that wells used solely for household purposes in a single-family dwelling will not materially injure the vested water rights of others or any other existing well. This presumption has been used to approve many permits for "household use" wells appropriating ground water tributary to overappropriated stream systems. By including small capacity wells used for drinking and sanitary facilities in a commercial business in the exemptions of Section 37-92-602(1), C.R.S., the legislature apparently intended for such wells to be a� limiting conditions _Prc�'ec under special however, the presumptions of subsection 57-92-502(3)(b)(II) do not apply to these well permit applications. Therefore they must be evaluated pursuant to subsection 37-92-502(3)(o)(I) In order to assist in the evaluation and provide for approval of certain limited uses of well permit applications to serve drinking and sanitary facilities in a commercial business, it shall be the policy of the State Engineer that if the proposed annual diversion and the consumptive use of water from the well do not exceed those values of ordinary in-house purposes inside a single-family d;elling, there shall be rebuttable presumption that such uses will not injure other vested water rights or wells. icy shall be implemented by applying a rebuttable presumption of non injurThis y owhen the following cordititns are met: No other water supply source or system is available to serve the property. An affidavit by the applicant affirming this situation must accompany the applications as well as an affidavit from any entity capable of serving the use that it will not do so. S.G A'yt- 3 a -;*77f3 44 e 0 2 :Dace Z b TO: Reber` A. Lengenbaugh S. The amount of r.ound water diverted shallarrua annually (14$ 6t70 ��ll,- : not exceed 1/3 acre-foot annuillyion 08, 6 evidence os) . :ha: The applicant must support :he the proposed use w _l no: mare demand greater1 /3 se.. c- o- �_ than acre -roe � create a t. The well must be the only well cr. the si:e. 3. The site must have been established prior to June 1, 1972, or must be exempt from the def Inj t10n = ' bU--'8-10I(1p ( o- a subdivision pursuant to Sec_ion ).c) and (d), C.R.S. For after June 1, 1977, the recommendations in subdivisions .: review process will be �. mode in the ware:- supply llimited t0 he i=e- honored. Ground water production will e e d restricted ace . approve:: duringthe e - b ieSZrIC�_e; LO one acui_er � review prCCeSS and w___ only by Conditions of Approval. The pumping.rate sisal_ not exceed IS gallons per minute. 6. The consumptive of C use the water Of ground water er diverted. shall not 2XC2et'. lU � of the volume t The return.:.. Jo ter must be diS,ici +� to the c-...� L _ti1r:� flow from the use O the wager not injure same stream system in a Location so as non-evaporativeoiJe y Vested water right. an approved t"d leachc is anacceptable" 520 lC �.;: \ and O yield - tiler types of disposal systems di_�.ac_;? method. Other �.,. Ist ms must be evaluatede and location 0f the return flow. to determine the � The use of the water -ii„ es diverted is limited to drinking and s -- T clay' in an individual commercial �.._ Hater are permitted outside ofthe business. No uses C. building. annual diversion records :.etmust be installed on -- = 7-nd submitted must be maintained by the `x211 owner and to the Division of water Resources annually.. Exempt commercial wel on the bass el is which do not meet the above criteria will be evaluat ` material injury. This policy becomes effective d;__ log of well permit J immediately and is Essential -o writing. � educe the back applications. It shall be modified or revoked only is JAD/RGH/jp cc: Hal Simpson Division Engineers 43971(6) a A. Danielson 3 DISTRICT COURT, WATER DIVISION NO. 5, COLORAD Case No. 94 -CW -344 ORDER RECOGNIZING COMPLETION OF THIS CASE TF;!CT COU PT OF ' gat l"::_ •.BOUNTY GLENW'03D Si"•eNGS, Gv-'uRADO Certifie original Dated __ e a full, true and correct copy of the ycustody. /_X�7 / ?F7 _Clerk puty CONCERNING THE AMENDED APPLICATION FOR WATER RIGHTS OF WEST DIVIDE WATER CONSERVANCY DISTRICT AND WILLIAM ZIL4, In Garfield County, Colorado. By this Order the Court recognizes that this action has been completed following the Court's granting of the Applicant's Motion for Summary Judgment (filed in Water Division 5 on July 23, 1996) on August 5, 1996, and the Court's entry of a Judgment and Decree of Water Court on August 5, 1996. Said Motion for Summary Judgment was entered because all of the parties have either been dismissed out of the case, disclaimed, or entered into stipulations consenting to the form of the decree. This reference to "stipulations" includes especially the Stipulation of the Applicants and Objector Edmund Prehm filed July 11, 1996, the Stipulation of the Applicants and Objector Springridge Place Homeowners' Association filed July 19, 1996, and the Stipulation of the Applicants and Objector Lazy Diamond A Homeowners Association filed on July 19, 1996. As a result of the foregoing, the Court found that no party remained in opposition to the Motion for Summary Judgment, and hence said Motion was granted. Further, the Court on August 5, 1996, on the basis of the fore- going, entered the Judgment and Decree of Water Court presented to it by the parties. WHEREFORE, It is the Order of the Court that the Clerk of Delta Combined Courts (who has been assisting the undersigned judge with the maintenance of the file in this action) shall send, with a copy of this Order, copies of the signature pages for the Order granting summary judgment, and for the Judgment and Decree of Water Court, to Peggy Jor- dan, the Water Clerk for Water Division 5 in Glenwood Springs, Colo- rado, and Ms. Jordan shall distribute copies of said pages to counsel (it being the Court's belief that counsel already have copies of the documents, and they need receive only a completed signature page for their files). It is further Ordered, that the Delta Clerk shall consult with Ms. Jordan by phone to determine how she desires to have the bulky file in this case returned to her office (by mail, UPS, etc.), and having ascertained a procedure, the Delta Clerk shall carry out the action agreed to. DONE BY THE COURT, This ig day of August, 1996. District Judge cc: Satterfield, George, Burchfield, Fahmy, Miller FAX to Div 5 Water Clerk for distribution/Wily‘ IP I IIII JIST^iCT �::�' ^m CwG,,.74):.:1...:-,"".'�"'-P GLEN'r.';;Cii�wa : !�CtJi4T`i , Certified time. original in Dated _ IV 4 DISTRICT COURT, WATER DIVISION 5, COLORADO Case No. 94CW344 AMEND= ORDER REGARDING ATTORNEYS' FEES AND COSTS a full, true ,gr,d rest co f ccr �y o the CONCERNING THE AMENDED APPLICATION FOR WATER RIGHTS OF WEST DIVIDE WATER CONSERVANCY DISTRICT AND WILLIAM ZILM IN GARFIELD COUNTY The Court hereby amends its Order Awarding Attorneys' Fees and Costs dated July 18, 1996 only to reflect that the judgment is entered in favor of the Applicants, West Divide Water Conservancy District and William Zilm (jointly and severally) in the total judgment amount of $24,089.90. The judgment is entered against the Objectors'Ray D. Walker and James P. Mahan, Jr., (jointly and severally)_ Payment of the judgment shall be made to the said Applicants. It is further ordered that the foregoing judgment was entered effective July 18, 1996, and the same shall bear interest at the rate of eight percent (8t) per annum (compounded annually) until fully paid, with interest to be computed from the date of July 18, 1996. Said judgment _�,,is enforceable as permitted by law. DONE by the Court, this 1 day of July, 199G. BY THE COURT: Robert A_ Brown, District Judge xc: Scott Balcomb, Esq. Russell George, Esq. Ray Walker James P. Mahan, Jr. Edmund A. Prelim (c/o Billie Burchfield, Esq.) i/4axed to: Peggy Jordan, Division No. 5 Water Clerk (970-945-8756) for distribution 1 9 4 CW34 4A. ORD July 17, 1996 C rerk Z/Z 30Hd Z066SbG0LB r UI 8WO0'IVS AalsarlaGeW021.4 Le . s I ss-sz-Inr ty DISTRICT DISTRICTAIIIURT ORF EL COUNTY GLEN`S D SPRINGS, COLORADO Certified..e s'fGtf: rue end correcf-copy of the original IV C` Stody. c� Dated !C� [ / ?' Case No. 94CW344 - Clerk eputy RADO FILED IN COMBINED COURT GARFIELD COUNTY, CO UUL62iothd9: :,inedCou Delta County, Colorado MOTION FOR SUMMARY JUDGMENT 5 1 1 , Mut R. Blaine, Clerk CONCERNING THE AMENDED APPLICATION FOR WATER RIGHTS OF WEST DIVIDE WATER CONSERVANCY DISTRICT AND WILLIAM ZILM IN GARFIELD COUNTY Applicants, West Divide Water Conservancy District (the "District"), and William Zilm, by and through their attorneys, Delaney & Balcomb, P.C., hereby move for summary judgment pursuant to C.R.C.P. 56. As grounds therefor, Applicants state the following: I. Procedural Background 1. Applicants filed their Application in Case No. 94CW344 in District Court, Water Division No. 5, on December 28, 1994. Applicants filed an Amended Application on November 29, 1995. The Water Judge referred the Application to the Water Referee for Water Division No. 5, State of Colorado, in accordance with Article 92 of Chapter 37, Colorado Revised Statutes, 1973, known as the Water Rights Determination and Administration Act of 1969. The Referee ordered re-referral of the Application to the Water Judge on March 15, 1995. 2. Statements of Opposition were filed by Ray D. Walker, James P. Mahan, Jr., Edmund Prehm, Lazy Diamond A Homeowners Association Ltd., the State and Division Engineers, Richard Hilleary, John M. Traul, Sr., Russell William Coletti, Jr., May S. Duncan, John H. Quinn, Jr., Faye B. Faas, Betty Byers -Coates, Brenda P. Zegarski, and Alan Wolf. Springridge Place Homeowners' Association was substituted as a party for Traul, Coletti, Zegarski, and Wolf. Duncan, Quinn, Hilleary, and Faas have withdrawn their Statements of Opposition. The Water Court summarily dismissed the Statement of Opposition filed by Walker and Mahan. Prehm, Springridge Place Homeowners' Association, Lazy Diamond A Homeowners' Association, and the State and Division Engineers have stipulated to entry of this Decree. 3. Thus, no issues of material fact remain, and Applicants are entitled to a decree in this proceeding as a matter of law. II. Motion and Supporting Brief 1. Pursuant to C.R.C.P. 56, a party may move for summary judgment with or without supporting affidavits. Case No. 94CW344 West Divide Water Conservancy District and William Zilm Motion for Summary Judgment Page -2- 2. All issues of material fact have been resolved either by order of this Court (i.e., the Order regarding summary judgment against Objectors Walker and Mahan) or by stipulations among the Applicants and the remaining Objectors evidencing consent to entry of Applicants' proposed decree. The said proposed decree is submitted herewith as Exhibit A. Therefore, the case in controversy is ripe for determination by an order granting summary judgment. See City of Westminster v. Church, 167 Colo. 1, 445 P.2d 52 (1968). WHEREFORE, Applicants respectfully request that the Court grant this Motion for Summary Judgment and enter the proposed judgment and decree of water court submitted herewith as Exhibit A as the final judgment and Decree of the Court in this matter. Dated this alk- day of July, 1996. Copy of the foregoing mailed to ail Counsel of record—Water Rei Div. Eneineer d to E gineer—''Dat 7 4e4tyCterk./ !tey' Iv 94CW344A.MOT July 17, 1996 DELANEY & BALCOMB, P.C. By : At -4 - Scot Balco • # 76 Lori J. M. Sat rfield #233 Attorneys for: West Divide W ter Conservancy District and illiam Zilm P.O. Drawer 790 Glenwood Springs, CO 81602 Telephone: (970) 945-6546 Facsimile: (970) 945-8902 Case No. 94CW344 West Divide Water Conservancy District and William Zilm Motion for Summary Judgment Page -3- STUVE—(GEORGE, P.C. By: Russell George #6096 6 Melody Massih #24683 Attorneys for: West Divide Water Conservancy District 120 West 3rd Street Rifle, CO 81650 Telephone: (970) 625-1887 Facsimile: (970) 625-4448 ORDER The Court has considered the Applicants' Motion for Summary Judgment and hereby finds that all genuine issues of material fact have been resolved. Accordingly, the Court hereby grants the said Motion. On this date, the Court has executed the Judgment and Decree of Water Court in the form submitted as Exhibit A to the Motion. DONE this 5f;/day of , 1996. 94CW344A.MOT July 17, 1996 ec ,. 4/S6 BY THE COURT: The Honorable Robert A. Brown Case No. 94CW344 West Divide Water Conservancy District and William Zilm Motion for Summary Judgment Page -4- CERTIFICATE OF MAILING I hereby certify that I served a true and correct copy of the within MOTION FOR SUMMARY JUDGMENT by placing the same, postage prepaid, in the United States Mail, first class, addressed to: Russell George, Esq. Melody Massih, Esq. Stuver & George, P.C. 120 West 3rd Street Rifle, CO 81650 Billie Burchfield, Esq. 802 Grand Avenue, Suite 305 Glenwood Springs, CO 81601 Scott Miller, Esq. Patrick & Stowell, P.C. 205 South Mill Street, Suite 300 Aspen, CO 81611 Peter Fahmy Assistant Attorney General Natural Resources Section 1525 Sherman Street, 5th Floor Denver, CO 80203 Dated this 94CW344A.MOT July 17, 1996 day of July, 1996. DISTRICT COURT, WATER DIVISION 5, COLORADO Case No. 94CW344 JUDGMENT AND DECREE OF WATER COURT CONCERNING THE APPLICATION FOR WATER RIGHTS OF WEST DIVIDE WATER CONSERVANCY DISTRICT AND WILLIAM ZILM IN GARFIELD, PITKIN, AND EAGLE COUNTIES The Applicants, West Divide Water Conservancy District (the "District") and William Zilm, have applied for a surface water right for the Zilm Transfer Ditch, a change of water right for the Atkinson Ditch, and approval of a plan for augmentation and exchange. The Water Judge referred the Application to the Water Referee for Water Division No. 5, State of Colorado, in accordance with Article 92 of Chapter 37, Colorado Revised Statutes, 1973, known as the Water Rights Determination and Administration Act of 1969. The Referee ordered re-referral of the Application to the Water Judge on March 15, 1995. I. FINDINGS OF FACT 1. Applicants filed their Application in Case No. 94CW344 in District Court, Water Division No. 5, on December 28, 1994. Applicants filed an Amended Application on November 29, 1995. 2. All notices required by law have been made. 3. Statements of Opposition were filed by Ray D. Walker, James P. Mahan, Jr., Edmund Prehm, Lazy Diamond A Homeowners Association Ltd., the State and Division Engineers, Richard Hilleary, John M. Traul, Sr., Russell William Coletti, Jr., May S. Duncan, John H. Quinn, Jr., Faye B. Faas, Betty Byers -Coates, Brenda P. Zegarski, and Alan Wolf. Springridge Place Homeowners' Association was substituted as a party for Traul, Coletti, Zegarski, and Wolf. Duncan, Quinn, Hilleary, and Faas have withdrawn their Statements of Opposition. The Water Court summarily dismissed the Statement of Opposition filed by Walker and Mahan. Prehm, Springridge Place Homeowners' Association, Lazy Diamond A Homeowners' Association, and the State and Division Engineers have stipulated to entry of this Decree. EXHIBIT A Case No. 4 West Divide Water Conservancy District9atKi1. Judgment and Decree of Water Court Page -2- CLAIM FOR SURFACE WATER RIGHT 4. The Applicants claim a surface water right for the Zilm Transfer Ditch, more particularly described as follows: a. Legal description: The Zilm Transfer Ditch diverts from the left bank of Zilm Draw at a point whence the SE corner of Section 3, T. 7 S., R. 89 W. at the 6th P.M. bears S. 41° East a distance of 4100 feet. b. Source: Zilm Gulch and return flow from diversions from Fourmile Creek, tributary to the Roaring Fork River c. (1) Date of initiation of appropriation: 6/1/1969 (2) How appropriation was initiated: construction of ditch and application of water to beneficial use d. Amount claimed: 2.0 cfs, absolute e. Use: Augmentation CLAIM FOR CHANGE OF WATER RIGHTS 5. Name of structure: Atkinson Ditch See paragraphs 8 and 9. 6. Proposed change: The District requests the right to use its interest in the Atkinson Ditch for augmentation purposes in addition to the currently decreed irrigation use. CLAIM FOR APPROVAL OF PLAN FOR AUGMENTATION AND EXCHANGE 7. Structures to be augmented (hereinafter "the augmented rights"): WDWCD.P32 July 17, 1996 S 3 O O3 I U ✓ V O � O P 4 4 O ✓iW •0 II e 242 i •0� V 0 T. 0 U 4 0 a o > a 0 C 0 C 04, 00 ✓ P • V X. 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CU 4.J E 0 0 0 .0 0 .0 •.4 'V TL 0 .4 C E m E 0 .-1 .0 . 0 0 0 0 N 4 0 \ 4 • 0. 0 40 0 44 0 N 0 O 0 a 0 c O O C m 0 O 0 Z 0 L C 0 N ti CO 41••00 Fav G O T. m C7 0 V T O C 00 •.0 4 -o © 0 V' V) w O • O • 4 14 4 w w a 0 .0 4) 41 • 3 4)0 0 3 w w w 4 '0 IIn r.1 y 4) '0 r- 4) 0 4, '0 '0 4 +"1 C C • M O 4 4 W CO C 07 0 0 0 U 4 C C -1 -/ 0 CO '1 •4 41 C O C C 0 4.1 . ..4 4) 14 4) 4..) 4) 4) ..1 U U a 0 0 V 0 07 CO O CO +4 O 4 4 L .0 4 7 4.1 4) 'O + O 0 0 .0 4) L L 4) O J 1 L +-1 X 3 4) E 0 4) 14 14 '43 w w 0 0 C +-, 4h 0 0 ▪ ▪ Y .•1 0 3 •yl b 44 0�V • m W W -1 Ot 4 • 0 O O • VO -i • O -.-1j NT 4 Z 4x v 4 I.. 1 N ., • • v 0 iY •CIId •a 0 0 L I) 4 • •0 +-1 -, 1 E O O co a 0. w C L • C 4 m H •• C 4 4.4 1 0 C a 07 • 4) L 4 o 0 4 O CT 0 C -1 L 4V O 41 •0 3 Z Z 4 v 0 4) • '2 '- a a 4) 4 -a 07 L .0 3 U 3 0 4 ' ✓ 73 0 .O NO 73 ✓ 4) C U 0 0 4) 4 u 4) L L 4,Q x > 4) u U a O w v, 0 U 0 0 9 0 0 0 • 0 •.1 C.3 3 c 0 C • as a. 0 044 C • c m CT CO m 4 0 • L U - • a E L U osOI0 44 07L K 44 m 7 4) -1 41 a 4 4 -IC 01 a O . 0 0 444 0 4) C 0) U) V) Z .0 0040 0 y ••-1 (D 4) 4 -1 h t` ,-1 41 0 4.00 • • F 4 3 •O 0.4. .0-1 � • 0 0 41 > v k. 4.1 • M +-1 0 ••+0 •y 7 4 m 3 0 4o vi ., .�. -1 v > 6 fa .4-I. 0 41 3 U C c N O CV C U 0- m O • 0 • 4) 7 .0 7 C 4) OS -1 0 -i ., L ,.y 4'O 03 0-4)-. y.-. y U 0.09 4 U 0 0 10 4 4 4 .0 r-1 C 4) C 0) C 'O -i • C 404a4V)OV) O c 4.0 4 L 0 0 -.4 .-1 -1 +-1 O 4) 0 • 0003 C a . N - 4.) .p 0.0 L +) 4 4 0 v 0 a 0 v +i 0 U -1 4) 4.4 -.i C 0) - 0 .-1 07++4.+0 m C U4) O-+v).+cq '0 4. 1 -.1 4 4 -1 W 3 C -.1 00000 4414)Z•0v)77 43 y 44 4.) 4, 43 "1 C C. 0 4 0 4 m>. '0008'7 434,0 0 0 0 L 4) 0) 0 4 0 •-1 U 0, 0 4) 4) L 43000433: 08 w w I04-' 4 -1 -4 0 •.1 7 0.4 Cnw 0 41 0 0 7.XY1.. E C 0 0 0 Z• 1 4) 41 07 M 41 '4. +, \ -1 ., O. -•C1> 003044% 'OW 3� 3 O .-1 4..1 C 4-1 4) 1.4 -.1 V) C V) C 0 W 0 0 .3) L 4 O O 0> O 4 R) 01 0 C 4.0 O, CP 0 -1 0 -1 0' 0 4 0- -1 CL 4)L 41 •0.0 4104-) •-1 -1 4t 0 i) U •.1 C•• •• •• -4 L C 4 0 4 04 U m 0. 7 O. C 01 C 01 p. 4Li 0 0 0 0 -1 41 C w w •0 07 0 0 4 ▪ >, 04-.1 -1 -1 .4/C7000000 4.0 4) 4) L (LI 0 V) 1) G) 44 3 V) L 4 4 c 4 •-1 4 4) 44 4 4 4.) 00 O O O 0 7 .X L 4 4 0 ..0 O L 44 4aaaaUV)aaau44l E.-4 N m v t1 O n CO ase West Divide Water ConservancyCDistrict9etWal. Judgment and Decree of Water Court Page -6- 8. Water rights to be used for augmentation: Atkinson Ditch") 05/11/1889 05/24/1882 C.A.132 4.0 cfs Fourmile Creek Green Mountain Reservoir") 10/12/1955 08/01/1935 2782, 5016, 5017 154,645 af Blue River Ruedi Reservoir 06/20/1958 07/29/1957 C.A.4613, W-789-76 140,697.3 af 101,369 af Frying Pan River Zilm Transfer Ditch 12/31/1994 06/01/1969 94C1.7344 2.0 cfs Zilm Gulch Refer to paragraph 11bA for amount of Atkinson Ditch dedicated to plan for augmentation. The District's contracts for Ruedi Reservoir and Green Mountain Reservoir releases are described in paragraph 11bC. 9. Legal description of point of diversion or place of storage of water rights to be used for augmentation. Atkinson Ditch: The headgate is located on the East Bank of Fourmile Creek about three miles from the mouth of said creek. Green Mountain Reservoir: The reservoir is located approximately 16 miles southeast of the town of Kremmling in Summit County, Colorado and more particularly in all or parts of Sections 11, 12, 13, 14, 15, and 24 of Township 2 South, Range 80 West in Sections 17, 18, 19, 20, 21, 28, 29, and 34, Township 2 South, Range 79 West of the 6th P.M. Ruedi Reservoir: An on -channel reservoir located in the NW'/a NE1/4 of Section 18, Township 8 South, Range 84 West of the 6th P.M. Zilm Transfer Ditch: Please refer to paragraph 4 above. 10. Uses: a. Atkinson Ditch — irrigation and augmentation WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District at al. Judgment and Decree of Water Court Page -7- b. Green Mountain Reservoir — in accordance with paragraph 5(a), (b), and (c) of the section entitled "Manner of Operation of Project Facilities and Auxiliary Facilities" in Senate Document 80 c. Ruedi Reservoir — generation of electric energy, domestic, municipal, industrial, irrigation, and stock watering d. Zilm Transfer Ditch — augmentation 11. Statement of plan for augmentation: a. Background The District intends to provide water to contract users within the Fourmile Creek basin for domestic, recreational, municipal, and commercial purposes. The District has consequently developed this augmentation plan to providesucha water supply for up to 500 equivalent residential units (EQR) within the Fourmile Creek basin. For purposes of this plan for augmentation, one EQR is based on the assumptions that 3.5 people live in each residence and use 100 gallons per day per capita for in-house use, and that 3500 square feet of lawn and garden will be irrigated at each residence. Depletions to the stream system vary depending upon the type of waste water disposal system used: approximately 5% to 25% of in-house diversions are consumed when the waste water is centrally collected and treated, and approximately 15% of in- house diversions are consumed when the waste water is collected and treated by individual waste water treatment systems (septic tank—leach field). Irrigation depletions are estimated to be 80% of diversions, with a unit consumptive -use value of 1.99 acre feet per acre at lower elevations in the Fourmile Creek basin. Diversions and depletions for a single EQR are tabulated below (values in acre feet): WDWCD.F32 July 17, 1996 Case No. 94CN344 Nest Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -0- TYPE:07: WRstrKATtI TRsa►TRaiiT SSRTDI sissusIOI $OEO/i' Onme s.. is ACRI Mittr4 DIPLXTXOISC` Non- IRRSOATror SiM3011. ROMs IkRroarzor Tows Ia Imrmma". Tom. DrvsNaross Dimarzoss Central Wastewater Treatment (5%) 0.199 0.20 0.399 0.010 0.160 0.170 0.193 0.010 Central Wastewater Treatment (25%) 0.199 0.20 0.399 0.050 0.160 0.210 0.193 0.048 Septic Tank — Leach field or central wastewater treatment (151) 0.199 0.20 0.399 0.030 0.160 0.190 0.193 0.029 No Return to Fourmile Creek (100%) 0.199 0.20 0.399 0.199 0.160 0.359 0.193 0.193 (1) The irrigation season is typically April 15 - October 15 in the lower Fourmile Creek area b. Operation of plan for augmentation When the augmented rights are out -of -priority, augmentation will be provided first through diversions at the Zilm Transfer Ditch. When said Ditch is out -of -priority, augmentation will occur through dry -up of lands historically irrigated by the Atkinson Ditch and associated bypasses or storage releases from Ruedi Reservoir and/or Green Mountain Reservoir. This preferred order of augmentation and the actual augmentation source (or any combination of sources) may vary, depending upon the location of the call and the time of year. Each year the Applicant will report to the Division Engineer the number of units augmented by this plan and the type of sewage treatment by unit. Using the depletion information described in paragraph 11.a. of this decree, the Applicant will propose a plan of operation by April 1 for the upcoming administrative year (April 1 through March 31). Applicant will provide a copy of the plan to the Objectors Lazy Diamond A Homeowners Association, Springridge Place Homeowners' Association and Edmund Prehm upon their request. The plan will include at least diversions at the Zilm Transfer Ditch, a quantity of bypass water at the headgate of the Atkinson Ditch and/or releases from storage facilities as necessary to meet projected calls and as necessary to conform with the preferred order of augmentation described above. If the Division Engineer accepts said plan of operation, including proposed diversions at the Zilm Transfer Ditch, bypass and WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -9- releases, then administration the following year shall be in accordance with such. however, the Division Engineer may adjust the said plan of operation as he deems appropriate in consideration of the actual calls and stream conditions, if the actual call is different from the projected call estimated by Applicant. A. IRRIGATION SEASON - AVERAGE YEAR Irrigation -season depletions will be augmented by the cessation of, use of Applicant's interest in the senior priority in the Atkinson Ditch. The portions of the Atkinson Ditch dedicated to this plan are as follows: 1.00 cfs owned by the Applicant, West Divide of the senior priority (priority no. 33) of the Atkinson Ditch, described more fully in paragraph 8 above; Dry up of 50 acres of lands historically irrigated by the senior priority of the Atkinson Ditch as depicted in the attached Exhibit A; and 99.5 acre feet of consumptive use associated with the said 1.00 cfs and dry up of 50 acres. See footnote 1, page 6. The monthly distribution of consumptive -use credits associated with the portion of the Atkinson Ditch dedicated to the plan for augmentation is as follows: APR MAY JUN JUL") AUG SEP OCT UNIT- OF CONSUMPTIVE -USE CREDIT (FEET) 0.06 0.38 0.48 0.45 0.29 0.25 0.08 TOTAL .CONSUMPTIVE—USE CREDIT (ACRE FEST) 3.0 19.0 24.0 22.5 14.5 12.5 4.0 TOTAL (1) July. Aunnatand c 1.99 99.5 cu,aaumecive-use creaits may not be expected -to be available in dry years. However, even in dry years, one-half of Applicant's interest in the Atkinson Ditch is made more dependable for purposes of this augmentation plan by virtue of the WDWCD.P32 July 17, 1996 Cale No. 94CW344 West Divide rater Conservancy District et al. Judgment and Decree Of Water Court Page -10- District's long term contract with the owner of a one-half interest in the senior Fourmile Ditch priority no. 19. See paragraph llbB below. B. IRRIGATION SEASON - DRY YEAR At times in the past, the Atkinson Ditch has been out of priority to the Four Mile Ditch, Priority No. 19, with an adjudication date of May 11, 1889, and an appropriation date of November 11, 1886. In order to minimize the repetition of this circumstance in the future, the West Divide Water Conservancy District has entered into a long-term (40 years) contract (Exhibit B hereto) with the owner of a one-half interest in that Fourmile Ditch priority. The said agreement allows the Applicants to divert 0.5 cfs of the Applicants' interest in the Atkinson Ditch, Priority No. 33, out of priority to the said Fourmile Ditch, thereby making one-half of Applicants' interest in the Atkinson Ditch more dependable for purposes of this decree. The Court hereby approves said agreement and agrees that Applicant's interest in the Atkinson Ditch is thereby made more secure. The Applicants understand that this contract is of limited duration and if such contract expires, fails to be renewed, is terminated, or alternative sufficient sources of replacement water are not included in a temporary substitute supply plan or in this decree by proper amendment prior to such expiration, curtailment of all out -of -priority diversions will occur. 'During the irrigation season when the physical supply at the Atkinson Ditch headgate is 1.0 cfs or less, the Fourmile Ditch call (up to 0.5 cfs) shall be deferred to the Atkinson Ditch for Applicants under this plan. When the augmented rights are out of priority, Applicants will whenever possible (as a preferred order of augmentation) provide water to the Fourmile Ditch by diversions into the Zilm Transfer Ditch and by releasing such diversions to Fourmile Creek above the headgate of the Fourmile Ditch. Applicants may obtain a credit for said releases that may be applied directly to benefit the augmented rights or to improve the reliability of the Applicants' interest in the Atkinson Ditch. SMART AND GREEN AND GRISTY DITCHES Two ditch headgates on Fourmile Creek below the Fourmile Ditch and above the confluence with the Roaring Fork River have WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court . Page -11- historically received a supply of water from ground water accretions to Fourmile Creek below the headgate of the Fourmile Ditch. Historically the supply available to such ditches has varied depending on the overall water supply in any given water year. At times the full decreed allocation has not been available to the Smart and Green Ditch, which derives its source of supply both from Fourmile Creek and the same unnamed tributary upon which the Zilm Transfer Ditch is located. Because Applicants' plan contemplates the replacement of 100% of depletions either to Fourmile Creek or the unnamed tributary above the Smart and Green Ditch, no injury should accrue to either downstream headgate. However, Applicants' proposal for augmentation releases is a complex system that may vary from year to year and season and season. In the evaluation of Applicants' annual proposal of operation and in the administration of such plan, the Division Engineer may consider that adequate water is made available to the Smart and Green Ditch, for example, by making deliveries to the Smart and Green Ditch via the Atkinson Ditch and the Zilm Gulch. C. NON -IRRIGATION SEASON Some non -irrigation season calls affecting the augmented rights are expected to come from outside the Fourmile Creek basin. Thus, Green Mountain Reservoir and Ruedi Reservoir releases may be used pursuant to this plan for augmentation during the non -irrigation season to augment depletions to the Roaring Fork River and the Colorado River. Green Mountain Reservoir: The District currently has a temporary water -service contract with the United States Bureau of Reclamation for delivery of up to 100 acre feet. As necessary, releases may be made from Green Mountain Reservoir to augment depletions pursuant to this plan. Ruedi Reservoir: The District currently has a water -service contract with the United States Bureau of Reclamation for release of up to 200 acre feet per year. As necessary, releases may be made from Ruedi Reservoir to augment depletions pursuant to this plan. The Applicants understand that these water service contracts are of limited duration and if such contracts expire, fail to be renewed, are terminated, or alternative sufficient sources of WDWCD.P32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court • Page -12- replacement water are not included in a temporary substitute supply plan or in this decree by proper amendment prior to such expiration, curtailment of all out -of -priority diversion will occur. The most probable source of non -irrigation season calls affecting the augmented rights from within the Fourmile Creek basin is the Zilm hydropower right. In order to prevent injury to this hydropower right, Applicant has entered into an agreement (Exhibit C hereto) with the owner of the Zilm hydropower water right. Under that agreement, Zilm has agreed to accept payment (as described in the agreement) in lieu of augmentation replacement releases. 12. Pursuant to C.R.S. § § 37-84-112 and 113, the Applicants shall install headgates and measuring devices, provide accounting, and supply calculations regarding the timing of depletions as may be required by the Division Engineer for the operation of this plan. The Applicants shall also file an annual report with the Division Engineer by November 15th of each year summarizing diversions, depletions, and replacements made under this plan. Applicant will provide a copy of the report to the Objector Lazy Diamond A Homeowners Association, Springridge Place Homeowners' Association upon their request. A proposed accounting form is attached hereto as Exhibit D. The accounting shall include an accounting of upstream out -of - priority depletions covered under this plan for augmentation, so that a corresponding amount of water, when required, will not be called at the Atkinson Ditch headgate under Priority No. 33. The proposed accounting form may be modified as required by the Division Engineer. 13. Upon its own initiation or at Springridge Place Homeowners' Association's and/or Lazy Diamond A Homeowners' Association's request, West Divide will be responsible for making improvements to the Atkinson Ditch to allow for accurate measuring of any necessary bypasses at the headgate of such ditch in accord with the plan for augmentation decreed herein. West Divide shall have two years from the time of such request (if any) by Springridge Place Homeowners' Association and/or Lazy Diamond A Homeowners Association, to respond with the said improvements. WDWCD.F32 July 17, 1996 Case No. 9401344 West Divide Water Conservancy District et al. ' Judgment and Decree of Water Court Page -13- 14. Furthermore, to ensure that no injury occurs to others, the District shall observe the following conditions during the operation of its augmentation plan: a. Each year the Applicants will submit to the Division Engineer a statement in the format generally represented in Exhibit D which contains calculations of depletions which would be tributary to Fourmile Creek upstream of the headgate of the Atkinson Ditch. The annual statement will also include a calculation of the depletions that are expected to occur between the headgate of the Atkinson Ditch and the headgate of the Fourmile Ditch. The Applicants will also annually submit calculations of projected depletions to be made to that unnamed tributary of Fourmile Creek which has been referred to as Zilm Gulch, on which the Zilm Transfer Ditch headgates. b. When the Atkinson Ditch is being used as the augmentation source, out -of -priority depletions will be charged to West Divide's proportionate share of the Atkinson Ditch. Under circumstances where those depletions do not fully consume West Divide's proportionate share, West Divide can call for and leave its unconsumed share in the ditch for use by the ditch co- owners. c. Out of priority depletions will be replaced to other users so that water users on Fourmile Creek, including other users of the Atkinson Ditch priorities, may receive, through actual diversions, the amounts of water they would have otherwise received if not for the out of priority depletions. d. This decree contemplates that West Divide will add to the augmentation service plan (as described in this decree) additional points of diversion and/or water rights and/or EQR (above those currently represented in paragraph 7, Section I). In the event such future points of diversion and/or water rights and/or additional EQR are added, and approval of a substitute supply is requested from the State Engineer, notice will be given by the Applicant to the Objectors Edmund Prehm, Springridge Place Homeowners' Association and Lazy Diamond A of said substitute supply plan, and an opportunity to object thereto. Future points of diversion and/or water rights and/or additional EQR would be added on a permanent basis to the augmentation plan herein decreed only after the filing of an application in Water Court, notice of which is published in the resume, and an opportunity WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -14- given to all, including Objectors Edmund Prehm, Springridge Place Homeowners' Association, and Lazy Diamond A, to object on the basis of injury to water rights or for such other basis as may be provided for by law. II. CONCLUSIONS OF LAW 1. The foregoing Findings of Fact are fully incorporated herein. 2. The Court has jurisdiction over the Amended Application and over all who had standing to appear in this action, whether they actually appeared or not. 3. The surface water right, change of water right, and plan for augmentation described herein are such as are contemplated by the law. If implemented and administered in accordance with this decree and the stipulations set forth herein, the change of water right and plan for augmentation described herein will provide water to contract users within the Fourmile Creek drainage basin without adversely affecting the owners or users of vested water rights or decreed conditional water rights. The change of water right and plan for augmentation described herein may be lawfully decreed by this Court. III. JUDGMENT AND DECREE 1. The foregoing Findings of Fact and Conclusions of Law are fully incorporated herein. 2. The Zilm Transfer Ditch described herein is decreed an absolute water right. The change of water right for the Atkinson Ditch and the plan for augmentation described herein are approved, subject to the terms and conditions set forth herein. 3. The State Engineer and Division Engineer may lawfully be required under the terms of this decree to: a. Administer the plan for augmentation in the manner set forth herein. WDWCD.F32 July 17, 1996 Case No. 94CM344 neat Divide Mater Conservancy Diatrlet at al. Judgment and Decree of Water Court Page -15- b. Refrain from curtailing out -of -priority diversions of the augmented rights when the depletions are offset by the operation of the plan for augmentation approved herein. c. In conformance with Colo. Rev. Stat. § 37-92- 305(8), curtail out -of -priority diversions by the augmented rights at any time when the consumptive use associated with Applicants' provision of water as approved herein exceeds the net amount of replacement water available under the plan for augmentation. 4. In consideration of the specific findings and conclusions made herein and in conformance with Colo. Rev. Stat. § 37-92-304(6) (1990), as amended, the approval of the change of water right and plan for augmentation decreed herein shall be subject to reconsideration by the Water Judge on the question of injury to the vested water rights of others for five years commencing upon completion of the structures identified in paragraph I.7. Applicants agree not to assert the defenses of res judicata or collateral estoppel with respect to any future claim made during the said 5 -years retained jurisdiction period by Springridge Place Homeowners' Association and/or Lazy Diamond A Homeowners Association that the agreement between Bershenyi and West Divide Water Conservancy District (Exhibit B to this Decree) fails to operate to prevent injury to Springridge Place Homeowners' Association and/or Lazy Diamond A Homeowners Association or their successors or assigns. IT IS ACCORDINGLY ORDERED that this Decree shall be filed with the Water Clerk subject to judicial review pursuant to Colo. Rev. Stat. § 37-92-304. IT IS FURTHER ORDERED that a copy of the Decree shall be filed with the State Engineer and the Division Engineer for Water Division No. 5. Dated: BY THE JUDGE: Water Judge WDWCD.F32 July 17, 1996 WATER ARM num THIS AGREEMENT is Meade this 2rday of /�Y.t=C./ , 1994 by and between JOHN W. BERSHENYI and ALICE BERSHENYI, hereinafter referred to as "Bershenyi," and the WEST (DIVIDE WATER CONSERVANCY DISTRICT, a quasi-municipal entity formed pursuant to Colorado statute, hereinafter referred to as "West Divide." WITNESSETH Bershenyi is the owner of those certain water rights described on Exhibit A, which exhibit is attached hereto and incorporated herein as those fully set forth; and WITNESSETH Bershenyi has, in the past, been forced to participate in litigation in Water Court in order to protect the yield of water available to said water rights; and WHEREAS West Divide is desirous of furthering its water allocation program in the Four Mile Creek region whereby it allocates water pursuant to C.R.S. 37-45-101 et. seq. to water users in need thereof, primarily for domestic and lawn irrigation type uses; and WHEREAS west Divide wishes to implement its program in cooperation with Bershenyi and in a manner that does not cause Bershenyi injury as set forth 'in this Agreement. FOR AND IN CONSIDERATION of the payments and promises to be made hereunder, the parties agree as follows: 1. Bershenyi agrees that he will accept payment as hereinafter described in lieu of replacement releases that otherwise would be made to meet calls made pursuant to the priorities listed on Exhibit A to the extent of 0.5 c.f.s., which 0.5 c.f.s. may be included in an allocation and augmentation program by West Divide. 2. West Divide shall pay to Bershenyi in consideration for the foregoing agreement not to call, the minimum annual sum of Five Hundred Dollars ($500.00), together with an additional annual sum in the amount of Twenty Dollars ($20.00) per acre foot for each and every acre foot allocated by West Divide pursuant in whole or in part to the water rights leased hereunder under its Four Mile Creek allocation program. 3. The term of this Water Agreement shall begin on the first day of January, 1995, and extend to and include the 31st day of December, 2035. Water Agreement John W. Bershenyi and Alice Bershenyi and West Divide Water Conservancy District EXHIBIT B Page 1 of 3 4. Each anniversary during the term hereof, the minimum annual rental and the per -acre-foot annual rental described herein shall be subject to modification. The minimal annual rental and the per -acre-foot rental shall be modified on the 1st day of January of each year of the term of this Agreement by the percentage of the rent which is equal to the percentage that the cost of living for the preceding twelve -(12) month period increased or decreased. The cost of living shall be computed upon the basis of the Consumer Price Index, All Urban Consumers, U.S. City Average 1982-84=100, published by the United States Department of Labor, Bureau of Labor Statistics. The base index number shall be the latest month available prior to January 1, 1995. The current index number shall be the same month of each year thereafter. Commencing on the second year of this Agreement and each thereafter, the rental shall be adjusted by computing the increase or decrease in the cost of living for the preceding twelve (12) month period and adding or deducting the same from the rental. The increase or decrease between the base index number and the current index number (expressed as a percentage) shall be multiplied by the rental. Any resulting positive or negative product shall be added to or deducted from the rental and the total thereof shall be paid in equal, successive, monthly installments. If at any time the Consumer Price Index is no longer published, the parties shall use such other index as is generally recognized or accepted for the purpose of making similar determinations of purchasing power. 5. As additional consideration for the agreement herein, West Divide agrees to investigate means by which Bershenyi's Reynolds Ditch may be rehabilitated and placed to efficient beneficial use in accordance with its decrees. Bershenyi is the owner of irrigated land under said Reynolds Ditch that is in need of irrigation from the ditch. 6. West Divide acknowledges Bershenyi's title to the water rights described in Exhibit A and exclusive use thereof except for the term of and pursuant to the terms of this Agreement. Further, West Divide agrees that it will appear in Water Court, as necessary, in order to protect Bershenyi's and West Divide's rights under this Agreement. 7. Bershenyi's agreement not to exercise an administrative call shall be conditioned upon West Divide's ability to cause either a bypass at the headgate of the Adkinson Ditch on Four Mile Creek, an amount of 1.0 c.f.s., or West Divide's ability, through agreement with others, to cause return flows from an unnamed gulch immediately east of Four Mile Creek proper to be Water Agreement John W. Bershenyi and Alice Bershenyi and West Divide Water Conservancy District Page 2 of 3 returned to Four Mile Creek above the gate of the Four Mile Ditch in the amount of 1.0 c.f.s, or a combination of the bypass and return flow to Four Mile Creek to occur in a total amount of 1.0 c.f.s. B. West Divide shall be solely responsible for the installation of any and all measuring devices, recording devices, and administrative requirements associated with this Agreement. 9. West Divide agrees to hold Bershenyi harmless for and on account of any damages that may occur to Bershenyi and/or third party users contractees of West Divide's allocation program resulting from water use derived under this Agreement. 10. West Divide shall be solely responsible for obtaining all local, state, and judicial approvals necessary to accomplish water use pursuant to this Agreement. 11. West Divide may terminate the within arrangement should West Divide no longer need to rely on this Agreement to implement the allocation plan. THIS AGREEMENT is done this ;LT day of „;0e.,02,_„4 ,L 1994, and shall be binding upon the heirs, successors, and assigns of the parties hereto. Attest: Secretary �� / HN W. BERS;HENY T ALICE BE WEST DIVIDE WATER CONSERVANCY DISTRICT 1-el,5 I B 2 Y Water Agreement John W. Bershenyi and Alice Bershenyi and West Divide Water Conservancy District Page 3 of 3 EXHIBIT A FOUR MILE DITCH =SAM Ditch priority No. Amt• APF.DATE ALWATI Four Mile Four Mile .19 1.6 11/6/1881 5/11/89 WATER AGREEMENT This Agreement made this ..;ZyTh day of 7•,- 1995, by and between JOHN W. BERSHENYI AND ALICE BERSH NYI, hereinafter referred to as Bershenyi, and the WEST DIVIDE WATER CONSERVANCY DISTRICT, a quasi -municipal entity performed pursuant to Colorado Statute, hereinafter referred to as "West Divide." WITNESSETH, Bershenyi and West Divide entered into a Water Agreement dated December 28, 1994; and WHEREAS, the parties have determined that one paragraph of said Agreement should be amended. FOR AND IN CONSIDERATION of the payment and promises to be made hereunder, the parties agree as follows: 1. The parties agree that paragraph 7 of the Agreement of December 28, 1994 should be amended so that it will provide as follows: L . 7. West Divide shall cause either a bypass at the headgate of the Atkinson Ditch on Four Mile Creek or West Divide shall cause return flows from an unnamed gulch immediately west of Four Mile Creek to be returned in the Zilm Transfer Ditch to Four Mile Creek above the headgate of the Four Mile Ditch. The obligation to provide bypasses at either point shall be limited in that the amount of cumulative bypass at both points shall be that quantity of water available for bypass in excess of 0.5 cfs. In all other respects, the Agreement between West Divide and Bershenyi shall remain in full force and effect. WEST DIVIDE WATER CONSERVANCY DISTRICT /JOHN-ERSHENYI ----Lie_L.,- i ALICE BERSHENYI WATER AGREEMENT THIS AGREEMENT is made this � aaY of , 1994 by and between WILLIAM M. SUM and CHARLOTTE B. 3ILM, ere natter referred to as 'Zila,' and the WEST DIVIDE WATER CONSERVANCY DISTRICT, a quasi -municipal entity formed pursuant to Colorado statute, hereinafter referred to as 'West Divide.' WITNESSETH Zilm is the owner of those certain water rights described on Exhibit A, which exhibit is attached hereto and incorporated herein as those fully set forth; and WITNESSETH Zila has, in the past, been forced to participate in litigation in Water Court in order to protect the yield of water available to said water rights; and WHEREAS West Divide is desirous of furthering its water allocation program in the Four Mile Creek region whereby it allocates water pursuant to C.R.S. 37-45-101 et. seq. to water users in need thereof, primarily for domestic and lawn irrigation type uses; and WHEREAS West Divide wishes to implement its program in cooperation with Zilm and in a manner that does not cause Zilm injury as set forth in this Agreement. FOR AND IN CONSIDERATION of the payments and promises to be made hereunder, the parties agree as follows: 1. Zilm agrees that he will accept payment as hereinafter described in lieu of replacement releases that otherwise would be made to meet calls made pursuant to the priorities listed on Exhibit A. This Agreement may be included in an allocation and augmentation program by West Divide. 2. West Divide shall pay to Zila in consideration for the foregoing agreement not to call, the minimum annual sum of Five Hundred Dollars ($500.00), together with an additional annual sum in the amount of Twenty Dollars ($20.00) per acre foot for each and every acre foot allocated by West Divide under its Four Mile Creek allocation program pursuant in whole or in part to the water rights leased hereunder. 3. The term of this Water Agreement shall begin on the first day of January, 1995, and extend to and include the 3lst day of December, 2035. Water Agreement William M. filo and Charlotte B. Silo and West Divide Water Conservancy District EXHIBIT C Page 1 of 3 4. Each anniversary during the term hereof, the minimum annual rental and the per -acre-foot annual rental described herein shall be subject to modification. The minimal annual rental and the per -acre-foot rental shall be modified on the lst day of January of each year of the tern of this Agreement by the percentage of the rent which is equal to the percentage that the cost of living for the preceding twelve -(12) month riod increased or decreased. The cost of living shall be computed upon the basis of the Consumer Price Index, All Urban Consumers, U.S. City Average 1982-84-100, published by the United States Department of Labor, Bureau of Labor Statistics. The base index number shall be the latest month available prior to January 1, 1995. The current index number shall be the same month of each year thereafter. Commencing on the secondear of this Agreement and each thereafter, the rental shall be adjusted by computing the increase or decrease in the cost of living for the preceding twelve (12) month period and adding or deducting the same from the rental. The increase or decrease between the base index number and the current index number (expressed as a percentage) shall be multiplied by the rental. Any resultin ve or negative product shall be added to or deducted from the irental and the total thereof shall be paid in equal, successive, monthly installments. If at any time the Consumer Price Index is no longer published, the parties shall use such other index as is generally recognized or accepted for the purpose of making similar determinations of purchasing power. 5. West Divide acknowledges Zilm's title to the water rights described in Exhibit A and exclusive use thereof except for the term of and pursuant to the terms of this Agreement. Further, West Divide agrees that it will appear in Water Court, as necessary, in order to protect Ziln's and West Divide's rights under this Agreement. 6. West Divide shall be solely responsible for the installation of any and all measuring devices, recording devices, and administrative requirements associated with this Agreement. 7. West Divide agrees to hold Zits harmless for and on account of any damages that may occur to Zilm and/or third party users contractees of West Divide's allocation program resulting from water use derived under this Agreement. - 8. West Divide shall be solely responsible for obtaining all local, state, and judicial approvals necessary to accomplish water use pursuant to this Agreement. Watsr Agreeettnt William X. fiLa and Charlottes B. flim and W.at D1vid. Wat.r Conservancy District Fags 2of.3 9. West Divide may terminate the within arrangement should West Divide no longer need to rely on this Agreement to implement the allocation plan. THIS AGREEMENT is done this ?day of , 1994, and shall be binding upon the heirs, success rs, and assigns of the parties hereto. st: ecretary WILLIAM M. ZILM c 7 s A— Ls - CHARLOTTE B. ZILM WEST DIVIDE WATER CONSERVANCY DISTRICT By xo� Mater Agreement William X. film and Charlotte B. film and Most Divide Mater Conservancy District Page 3 of 3 Stream Four Mile Creek Four Mile Creek Four Mile Creek EXHIBIT A ATKINSON DITCij Ditch priority No. Atkinson Ditch Atkinson Ditch Atkinson Ditch Mt. =WatsAdh.Da_A 2.0 9/29/1977 12/31/1979 2.0 03/24/1983 12/31/1985 2.0 03/24/1983 12/31/1985 V DISTRICT COURT OF GAR FIELla COUNTY GLENWOOD SPRINGS, COLORADO - e Certified to e a full, true and correct copy of the original in my , ustody. �� tied /� 7 Iii' I:�r ..? Cferk DISTRICT COURT, WATER DIVISION 5, COLO Case No. 94CW344 JUDGMENT AND DECREE OF WATER COURT CONCERNING THE APPLICATION FOR WATER RIGHTS OF WEST DIVIDE WATER CONSERVANCY DISTRICT AND WILLIAM ZILM IN GARFIELD, PITKIN, AND EAGLE COUNTIES The Applicants, West Divide Water Conservancy District (the "District") and William Zilm, have applied for a surface water right for the Zilm Transfer Ditch, a change of water right for the Atkinson Ditch, and approval of a plan for augmentation and exchange. The Water Judge referred the Application to the Water Referee for Water Division No. 5, State of Colorado, in accordance with Article 92 of Chapter 37, Colorado Revised Statutes, 1973, known as the Water Rights Determination and Administration Act of 1969. The Referee ordered re-referral of the Application to the Water Judge on March 15, 1995. I. FINDINGS OF FACT 1. Applicants filed their Application in Case No. 94CW344 in District Court, Water Division No. 5, on December 28, 1994. Applicants filed an Amended Application on November 29, 1995. 2. All notices required by law have been made. 3. Statements of Opposition were filed by Ray D. Walker, James P. Mahan, Jr., Edmund Prehm, Lazy Diamond A Homeowners Association Ltd., the State and Division Engineers, Richard Hilleary, John M. Traul, Sr., Russell William Coletti, Jr., May S. Duncan, John H. Quinn, Jr., Faye B. Faas, Betty Byers -Coates, Brenda P. Zegarski, and Alan Wolf. Springridge Place Homeowners' Association was substituted as a party for Traul, Coletti, Zegarski, and Wolf. Duncan, Quinn, Hilleary, and Faas have withdrawn their Statements of Opposition. The Water Court summarily dismissed the Statement of Opposition filed by Walker and Mahan. Prehm, Springridge Place Homeowners' Association, Lazy Diamond A Homeowners' Association, and the State and Division Engineers have stipulated to entry of this Decree. • • Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -2- CLAIM FOR SURFACE WATER RIGHT 4. The Applicants claim a surface water right for the Zilm Transfer Ditch, more particularly described as follows: a. Legal description: The Zilm Transfer Ditch diverts from the left bank of Zilm Draw at a point whence the SE corner of Section 3, T. 7 S., R. 89 W. at the 6th P.M. bears S. 41° East a distance of 4100 feet. b. Source: Zilm Gulch and return flow from diversions from Fourmile Creek, tributary to the Roaring Fork River c. (1) Date of initiation of appropriation: 6/1/1969 (2) How appropriation was initiated: construction of ditch and application of water to beneficial use d. Amount claimed: 2.0 cfs, absolute e. Use: Augmentation CLAIM FOR CHANGE OF WATER RIGHTS 5. Name of structure: Atkinson Ditch See paragraphs 8 and 9. 6. Proposed change: The District requests the right to use its interest in the Atkinson Ditch for augmentation purposes in addition to the currently decreed irrigation use. CLAIM FOR APPROVAL OF PLAN FOR AUGMENTATION AND EXCHANGE 7. Structures to be augmented (hereinafter "the augmented rights"): WDWCD.F32 July 17, 1996 v • L I • 4.4 0 0 1 0 • O V w U 0 m O • H • ✓mW 0 Z 000 m 0 m0 U TN 0 0 m 0 >0 0 MAXIMUM EQR • TO BE AUGMENTEDt3 UNDER EXISTING CONTRACTS 0 0 N O rn N x ' 0 O E.c!` 4 4 4 4 4 4 U U U W 02 ANTICIPATED CONSUMPTIVE . USE(1) 40 ul N 40 In N OP ul N M ul N 40 ul N 40 ul N 40 Ill .-1 JP u) 91 EP ul .-1 40 ul 94 dP tll 91 0 IO. H 4 py C H y 4 O Q K p'D.W 4 l0 l0 ON .-a -, m O \ O 05/18/1967 l0 i0 0\ .- 1 CO O \ co O CO 04Ol as N \ l0 O O W 91 - W .--1 \ .-1 .-1 09/25/1985 -�, N fs- rn .-1-a \ C' O \ ul O 06/30/1973 N 1'- ON ti Ol N \ 10 O in 0l O \ l0 O 0 Z 1y 4 tl O H G44 a. .-y O 4 O 01 --1 .-I m \ N .-1 O CO 0, .-1 . i m - N .-1 0 W 0. \ .-. m \ -N4 .-1 CO ON \ .-1 m '. .Ni .-1 CO CP .-1 -, .-1 m \ N ., u) CO OS .-1 \ _1 m - (N4 N 1-s CP .-1 .-1.--i m \ N - 12/31/1973 Cs - r- 01 .-1 f+) \ N9 .-1 1n Ol \ .I m N CASE No. 80CW546/ 81CW413 80CW546/ 81CW413 80CW546/ 81CW413 80CW546/ 81CW413 V 4-1 V' 0 CO 85CW331 O CO l0 .-1 3 O CO m N 3 O r ul m 3 in 91 3 U 1n CP AMOUNT (CFS) N N O 0 N N0 O O 10 04-1 0 0.045 ea. 0.02 ea. 1.5 zz•0 Li'0 N N 0 Flood Water 0.03 Well Flood Well No. 0.033 2 STRUCTURE WARE Sunlight Well No. 1 Sunlight Well No. 2 91 0 3 L 04 .1 m .1 C • 0 0 VOZ 91 CD 3CL N L I me •.1 91 • 0 m 0 0 CO Sunlight Spring Nos. 1-7 Sunlight Feeder Ditch Zilm Well No. 1 Zilm Well No. 2 m zz .4 91 0 3 0 .-1 •91 N \. co OC N py W a O Ski Sunlight 10901 117 Rd. Glenwood Spgs CO 81601 Dr. William Zilm 0090 Sunlight Dr. Glenwood Spgs CO 81601 Dr. William Flood 4339 Rd 117 Glenwood Spgs CO 81601 4o4sue m N 0 I O U V C e N CT 4 L N C1.. •U4 O N q Z43 •0 m 0 RI V 0 T C! V 4 C U N CI C C 0 -' 4 4, Y E 1"° 9 0 0 W U -...op, .. Id I�. N W W P7 CQ 4 .4 4 4: W W 0t..1 Ed 4H n•t O. -. QQE.. iiW U 0. t() HZ O v dP ,r) .-1 44 4l .-i 44 .mo i on 41 .-1 dP in r1 di, In N dP u, N 44 41 N w u) N dP u'1 .-1 d+ V1 .-I APPROPRIATION DATE 11/15/1990(6] 02/04/1993 04/15/1912 10/03/94 cr \ (c, O 0 .-I V ..--- rl O O .-1 10/03/94 11/01/1993 Gentry Well No. I 0.033 95CW015 I 12/31/1995 I 12/01/1994 2 a ty 4 d U H .. 4. 0 oO O Q r1 O, O+ - rl ---..C1 .-1 r1 O, rn .--1 .-I.--1 rn N .- 10/24/1952 12/31/1994 12/31/1994 12/31/1994 12/31/1994 1 Oc y 14 U ul U rn t[, U rncr r1rc, 0 U rn o rn Ucr co, 0 1 U rn 94CW319 STRUCTURE NAME AMOUNT (CFS) Springridge 0.156 Well No. 1 1O ul .-I 0 10 10 rl 0 10 41 ..1 0 u, .-I 0 0 O O Sunlight Hollow 10.0 AF Pond Sunlight Hollow 2.0 Ditch Springridge Well No. 2 Springridge Well No. 3(7) Springridge Well No. 4 ie) Bershenyi Spring & Pipeline Sunlight Hollow Well No. 1 Sunlight Hollow well No. 2 010ER/ ADDRESS Greenwald Trust c/o United Airlines PO Box 66100 Chicago IL 60666 Sunlight Hollow c/o Thomas Adkison Krabacher, Hill & Edwards, P.C. 242 Main, #B Carbondale, CO 81623 Bruce Gentry 4613 Cty Rd 117, Glenwood Springs, CO 8160 a a • i1 4, -4 3 a) v ro .0 4) '0 a, v U X v 41 O C a.. Nv4 0 3 m 0 1 T5 V 140 0 0 s m rn 14 RI 0 co O '�4)ID Mr 0 l0-. 0.40 •.i v 0143 4-) (NI .. 4) al mmw .1 4) 4) moo 0 C 0 0 41 4) -.4 -.4 C0 a a • >0 N • 0 y .0 0 AI 0 •.1 0 '0 44 4) a) m e 4) 4) .0 ). 0 m 0 0 ro IT a) 0 V MI -.-1 .0 y m :4 0' 'O 0/o' 0 E E 14 a) 3 0 a) a 0 ) h .4 0. 0. 1) 1. m MI 0 v 0) t .0 3 (1) > al 4-) 4+ v VD 0 '0 a)0 m a) 4) 4) 0 a 3 > a) 0 w 44 -0 0 0 0 0 0 4) -.1 a) • 0 4) .0 3 3 C C 4) C • CP Os 0) C • .O C•) 01 CO O0 N a) •.0 U.• • (0 E .0 0 cr. 0+ 0 4) co .0 Z 04 m 7 41-.4 0 0.14 ro •.1 0 01 00 0 0 11 4. 0 a) C 0, to v) Z .0 0014.00] 4) .-4 0 0 14 •.1 1- 4- .-1 -1. N .0 ro .. 14 E 0 4) a a)0 a) 14 0 'O • E. F 3 '0 0•a .0•.1-- • C 0 4)>v.--- E0 44 4.1 • •.4 -.4 0 .-1 0 .-c .-4 1.40303141.-c .. •.4 'O a) ro 4) •'4 ,{ N a) > E•.l a)4)3 C.) 0 0 '0 0 V) C 0 01'.. -..Ch 0 • 0 • a) 0 7 0 0 Ol ..♦ 0 ..1 .. .0.-1 ro 'O al 3 c '- 4) .. 4) •. 41 0 0 '0 'O 10 0 U C 'O ml 11 14 .0 .i 0 a) 0 0 0 O -.4 • C 1004)16.630)0V10 C 0) CO .O 'O O •.4 r4 •.4 •.4 10 a) 0 • 00030111,4) -4) A 0.0.04)0)10 0 v 0v0 a' -4 U 0,44-) 4) •.4 C---.0,-- a) .4 0)4)4)Q0)004)0.-00-400 4-1061 'O .-1 14 -.4 •.4 -.1 ml 10 •.4 41 3 C --1 0 0 0 0 0 40.1 m 1) 0 0 ..4 15 l'O CO 3 •.4 0 0 ..1 CO C 0 41 a) ro a) ro PI >, '0 0 0 E '0 0 0 E C .0 01 .0 IA a) CO Ul 0 0) .-1 U 0 a) 4) 4) • .0 0000440 7 E 4a 44 04.-' 0] •.1 -.1 0 ..4 7 b+.41 b+44 04.0 0 7 .3 .3 w E C 7 0 0 Z- .0 4 4 0 .) W -1 'O 4ye' 0 v C .-1 a) 1 4) a) O1 -.4 0 -.1 \ -4 .-1 0 0 0 3 0 4) -.4 -.1 > b+.-....•4 .-4 0 0 •.4 > 0 3 044 X 'O W 3 3 .-4 .O 0 41 0 ateC 0 .0 ) 41 14 O O a) > m 00)00C410'0'0-.40--4 0, 0.) rn H 0 •.4 C .0 4) .c 41 'O 'O N .-1 0 0)v 4)x4•.44) 041 0 -.4 1..) 0430)c)m b100.000c O 0.10.4 k•1- r1 0 0-1-1u1m•+ .1 c0) 0 H 0 0 C O .4 0 J-1 JO •/4 al OOO.4 J) 0 4-1 4-100 O01ON 0>, a•.4 .......-1 4.)CU 0 7 0 O 010 a) 0 a a) 3 y 4) (+1 a) a) V1 +1 03 4 3 V) 44 00(00,4 14 41 ♦ CO CO 44 000 a0-414144 0000 0 0/10000)7X0)0)0,00,0 .04-1 40030 0Crl 0.0.1.7411..4) E•.4 E E 0 14 ro • w w - 0 They are included within this decree to confirm that when and 650 feet 730 feet from the North section 4) 0 44 from the South section 4) 0 a) 4-1 0/1 vO 1- '0 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -6- 8. Water rights to be used for augmentation: Atkinson Ditch") 05/11/1889 05/24/1882 C.A.132 4.0 cfs Fourmile Creek Green Mountain Reservoir(2) 10/12/1955 08/01/1935 2782, 5016, 5017 154,645 af Blue River Ruedi Reservoir 06/20/1958 07/29/1957 C.A.4613, W-789-76 140,697.3 af 101,369 af Frying Pan River Zilm Transfer Ditch 12/31/1994 06/01/1969 94CW344 2.0 cfs Zilm Gulch Refer to paragraph 11bA for amount of Atkinson Ditch dedicated to plan for augmentation. The District's contracts for Ruedi Reservoir and Green Mountain Reservoir releases are described in paragraph 11bC. 9. Legal description of point of diversion or place of storage of water rights to be used for augmentation. Atkinson Ditch: The headgate is located on the East Bank of Fourmile Creek about three miles from the mouth of said creek. Green Mountain Reservoir: The reservoir is located approximately 16 miles southeast of the town of Kremmling in Summit County, Colorado and more particularly in all or parts of Sections 11, 12, 13, 14, 15, and 24 of Township 2 South, Range 80 West in Sections 17, 18, 19, 20, 21, 28, 29, and 34, Township 2 South, Range 79 West of the 6th P.M. Ruedi Reservoir: An on -channel reservoir located in the NWS NE'/4 of Section 18, Township 8 South, Range 84 West of the 6th P.M. Zilm Transfer Ditch: Please refer to paragraph 4 above. 10. Uses: a. Atkinson Ditch — irrigation and augmentation WDWCD.F32 July 17, 1996 • Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -7- b. Green Mountain Reservoir — in accordance with paragraph 5(a), (b), and (c) of the section entitled "Manner of Operation of Project Facilities and Auxiliary Facilities" in Senate Document 80 c. Ruedi Reservoir — generation of electric energy, domestic, municipal, industrial, irrigation, and stock watering d. Zilm Transfer Ditch — augmentation 11. Statement of plan for augmentation: a. Background The District intends to provide water to contract users within the Fourmile Creek basin for domestic, recreational, municipal, and commercial purposes. The District has consequently developed this augmentation plan to provide such a water supply for up to 500 equivalent residential units (EQR) within the Fourmile Creek basin. For purposes of this plan for augmentation, one EQR is based on the assumptions that 3.5 people live in each residence and use 100 gallons per day per capita for in-house use, and that 3500 square feet of lawn and garden will be irrigated at each residence. Depletions to the stream system vary depending upon the type of waste water disposal system used: approximately 5% to 25% of in-house diversions are consumed when the waste water is centrally collected and treated, and approximately 15% of in- house diversions are consumed when the waste water is collected and treated by individual waste water treatment systems (septic tank—leach field). Irrigation depletions are estimated to be 80% of diversions, with a unit consumptive -use value of 1.99 acre feet per acre at lower elevations in the Fourmile Creek basin. Diversions and depletions for a single EQR are tabulated below (values in acre feet): WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -8- TYPE or WASTEWATER` TREATMENT': SYSTEM. Central Wastewater Treatment (5%) IRRIGATION $EASoN (v.LVEs IN ACRE FRET 0.199 DIVERSTd1s.. 0.20 0.399 IN_ HOUSE 0.010 DEPLETIONS IRRIGATION 0.160 TOTAL 0.170 NON -IRRIGATION SEAsoN . DIVSRSIONs 0.193 DEPLETZONS 0.010 Central Wastewater Treatment (25%) 0.199 0.20 0.399 0.050 0.160 0.210 0.193 0.048 Septic Tank — Leach field or central wastewater treatment (15%) 0.199 0.20 0.399 0.030 0.160 0.190 0.193 0.029 No Return to Fourmile Creek (100%) 0.199 0.20 0.399 0.199 0.160 0.359 0.193 0.193 (1) The irrigation season is typically April 15 - October 15 in the lower Fourmile Creek area. b. Operation of plan for augmentation When the augmented rights are out -of -priority, augmentation will be provided first through diversions at the Zilm Transfer Ditch. When said Ditch is out -of -priority, augmentation will occur through dry -up of lands historically irrigated by the Atkinson Ditch and associated bypasses or storage releases from Ruedi Reservoir and/or Green Mountain Reservoir. This preferred order of augmentation and the actual augmentation source (or any combination of sources) may vary, depending upon the location of the call and the time of year. Each year the Applicant will report to the Division Engineer the number of units augmented by this plan and the type of sewage treatment by unit. Using the depletion information described in paragraph 11.a. of this decree, the Applicant will propose a plan of operation by April 1 for the upcoming administrative year (April 1 through March 31). Applicant will provide a copy of the plan to the Objectors Lazy Diamond A Homeowners Association, Springridge Place Homeowners' Association and Edmund Prehm upon their request. The plan will include at least diversions at the Zilm Transfer Ditch, a quantity of bypass water at the headgate of the Atkinson Ditch and/or releases from storage facilities as necessary to meet projected calls and as necessary to conform with the preferred order of augmentation described above. If the Division Engineer accepts said plan of operation, including proposed diversions at the Zilm Transfer Ditch, bypass and WDWCD.F32 July 17, 1996 • • Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -9- releases, then administration the following year shall be in accordance with such. however, the Division Engineer may adjust the said plan of operation as he deems appropriate in consideration of the actual calls and stream conditions, if the actual call is different from the projected call estimated by Applicant. A. IRRIGATION SEASON - AVERAGE YEAR Irrigation -season depletions will be augmented by the cessation of, use of Applicant's interest in the senior priority in the Atkinson Ditch. The portions of the Atkinson Ditch dedicated to this plan are as follows: 1.00 cfs owned by the Applicant, West Divide of the senior priority (priority no. 33) of the Atkinson Ditch, described more fully in paragraph 8 above; Dry up of 50 acres of lands historically irrigated by the senior priority of the Atkinson Ditch as depicted in the attached Exhibit A; and 99.5 acre feet of consumptive use associated with the said 1.00 cfs and dry up of 50 acres. See footnote 1, page 6. The monthly distribution of consumptive -use credits associated with the portion of the Atkinson Ditch dedicated to the plan for augmentation is as follows: APR MAY JUN JUL(1) AUG SEP OCT UNIT: OF CONSUMPTIVE -USE CREDIT (FEET) 0.06 0.38 0.48 0.45 0.29 0.25 0.08 TOTAL CONSUMPTIVE -USE CREDIT (AcRz FEET); 3.0 19.0 24.0 22.5 14.5 12.5 4.0 TOTAL 1.99 99.5 (1) July, August, and September consumptive -use credits may not be expected to be available in dry years. However, even in dry years, one-half of Applicant's interest in the Atkinson Ditch is made more dependable for purposes of this augmentation plan by virtue of the WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -10- District's long term contract with the owner of a one-half interest in the senior Fourmile Ditch priority no. 19. See paragraph 11bB below. B. IRRIGATION SEASON - DRY YEAR At times in the past, the Atkinson Ditch has been out of priority to the Four Mile Ditch, Priority No. 19, with an adjudication date of May 11, 1889, and an appropriation date of November 11, 1886. In order to minimize the repetition of this circumstance in the future, the West Divide Water Conservancy District has entered into a long-term (40 years) contract (Exhibit B hereto) with the owner of a one-half interest in that Fourmile Ditch priority. The said agreement allows the Applicants to divert 0.5 cfs of the Applicants' interest in the Atkinson Ditch, Priority No. 33, out of priority to the said Fourmile Ditch, thereby making one-half of Applicants' interest in the Atkinson Ditch more dependable for purposes of this decree. The Court hereby approves said agreement and agrees that Applicant's interest in the Atkinson Ditch is thereby made more secure. The Applicants understand that this contract is of limited duration and if such contract expires, fails to be renewed, is terminated, or alternative sufficient sources of replacement water are not included in a temporary substitute supply plan or in this decree by proper amendment prior to such expiration, curtailment of all out -of -priority diversions will occur. During the irrigation season when the physical supply at the Atkinson Ditch headgate is 1.0 cfs or less, the Fourmile Ditch call (up to 0.5 cfs) shall be deferred to the Atkinson Ditch for Applicants under this plan. When the augmented rights are out of priority, Applicants will whenever possible (as a preferred order of augmentation) provide water to the Fourmile Ditch by diversions into the Zilm Transfer Ditch and by releasing such diversions to Fourmile Creek above the headgate of the Fourmile Ditch. Applicants may obtain a credit for said releases that may be applied directly to benefit the augmented rights or to improve the reliability of the Applicants' interest in the Atkinson Ditch. SMART AND GREEN AND GRISTY DITCHES Two ditch headgates on Fourmile Creek below the Fourmile Ditch and above the confluence with the Roaring Fork River have WDWCD.F32 July 17, 1996 • • Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -11- historically received a supply of water from ground water accretions to Fourmile Creek below the headgate of the Fourmile Ditch. Historically the supply available to such ditches has varied depending on the overall water supply in any given water year. At times the full decreed allocation has not been available to the Smart and Green Ditch, which derives its source of supply both from Fourmile Creek and the same unnamed tributary upon which the Zilm Transfer Ditch is located. Because Applicants' plan contemplates the replacement of 100% of depletions either to Fourmile Creek or the unnamed tributary above the Smart and Green Ditch, no injury should accrue to either downstream headgate. However, Applicants' proposal for augmentation releases is a complex system that may vary from year to year and season and season. In the evaluation of Applicants' annual proposal of operation and in the administration of such plan, the Division Engineer may consider that adequate water is made available to the Smart and Green Ditch, for example, by making deliveries to the Smart and Green Ditch via the Atkinson Ditch and the Zilm Gulch. C. NON -IRRIGATION SEASON Some non -irrigation season calls affecting the augmented rights are expected to come from outside the Fourmile Creek basin. Thus, Green Mountain Reservoir and Ruedi Reservoir releases may be used pursuant to this plan for augmentation during the non -irrigation season to augment depletions to the Roaring Fork River and the Colorado River. Green Mountain Reservoir: The District currently has a temporary water -service contract with the United States Bureau of Reclamation for delivery of up to 100 acre feet. As necessary, releases may be made from Green Mountain Reservoir to augment depletions pursuant to this plan. Ruedi Reservoir: The District currently has a water -service contract with the United States Bureau of Reclamation for release of up to 200 acre feet per year. As necessary, releases may be made from Ruedi Reservoir to augment depletions pursuant to this plan. The Applicants understand that these water service contracts are of limited duration and if such contracts expire, fail to be renewed, are terminated, or alternative sufficient sources of WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -12- replacement water are not included in a temporary substitute supply plan or in this decree by proper amendment prior to such expiration, curtailment of all out -of -priority diversion will occur. The most probable source of non -irrigation season calls affecting the augmented rights from within the Fourmile Creek basin is the Zilm hydropower right. In order to prevent injury to this hydropower right, Applicant has entered into an agreement (Exhibit C hereto) with the owner of the Zilm hydropower water right. Under that agreement, Zilm has agreed to accept payment (as described in the agreement) in lieu of augmentation replacement releases. 12. Pursuant to C.R.S. § § 37-84-112 and 113, the Applicants shall install headgates and measuring devices, provide accounting, and supply calculations regarding the timing of depletions as may be required by the Division Engineer for the operation of this plan. The Applicants shall also file an annual report with the Division Engineer by November 15th of each year summarizing diversions, depletions, and replacements made under this plan. Applicant will provide a copy of the report to the Objector Lazy Diamond A Homeowners Association, Springridge Place Homeowners' Association upon their request. A proposed accounting form is attached hereto as Exhibit D. The accounting shall include an accounting of upstream out -of - priority depletions covered under this plan for augmentation, so that a corresponding amount of water, when required, will not be called at the Atkinson Ditch headgate under Priority No. 33. The proposed accounting form may be modified as required by the Division Engineer. 13. Upon its own initiation or at Springridge Place Homeowners' Association's and/or Lazy Diamond A Homeowners' Association's request, West Divide will be responsible for making improvements to the Atkinson Ditch to allow for accurate measuring of any necessary bypasses at the headgate of such ditch in accord with the plan for augmentation decreed herein. West Divide shall have two years from the time of such request (if any) by Springridge Place Homeowners' Association and/or Lazy Diamond A Homeowners Association, to respond with the said improvements. WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -13- 14. Furthermore, to ensure that no injury occurs to others, the District shall observe the following conditions during the operation of its augmentation plan: a. Each year the Applicants will submit to the Division Engineer a statement in the format generally represented in Exhibit D which contains calculations of depletions which would be tributary to Fourmile Creek upstream of the headgate of the Atkinson Ditch. The annual statement will also include a calculation of the depletions that are expected to occur between the headgate of the Atkinson Ditch and the headgate of the Fourmile Ditch. The Applicants will also annually submit calculations of projected depletions to be made to that unnamed tributary of Fourmile Creek which has been referred to as Zilm Gulch, on which the Zilm Transfer Ditch headgates. b. When the Atkinson Ditch is being used as the augmentation source, out -of -priority depletions will be charged to West Divide's proportionate share of the Atkinson Ditch. Under circumstances where those depletions do not fully consume West Divide's proportionate share, West Divide can call for and leave its unconsumed share in the ditch for use by the ditch co- owners. c. Out of priority depletions will be replaced to other users so that water users on Fourmile Creek, including other users of the Atkinson Ditch priorities, may receive, through actual diversions, the amounts of water they would have otherwise received if not for the out of priority depletions. d. This decree contemplates that West Divide will add to the augmentation service plan (as described in this decree) additional points of diversion and/or water rights and/or EQR (above those currently represented in paragraph 7, Section I). In the event such future points of diversion and/or water rights and/or additional EQR are added, and approval of a substitute supply is requested from the State Engineer, notice will be given by the Applicant to the Objectors Edmund Prehm, Springridge Place Homeowners' Association and Lazy Diamond A of said substitute supply plan, and an opportunity to object thereto. Future points of diversion and/or water rights and/or additional EQR would be added on a permanent basis to the augmentation plan herein decreed only after the filing of an application in Water Court, notice of which is published in the resume, and an opportunity WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -14- given to all, including Objectors Edmund Prehm, Springridge Place Homeowners' Association, and Lazy Diamond A, to object on the basis of injury to water rights or for such other basis as may be provided for by law. II. CONCLUSIONS OF LAW 1. The foregoing Findings of Fact are fully incorporated herein. 2. The Court has jurisdiction over the Amended Application and over all who had standing to appear in this action, whether they actually appeared or not. 3. The surface water right, change of water right, and plan for augmentation described herein are such as are contemplated by the law. If implemented and administered in accordance with this decree and the stipulations set forth herein, the change of water right and plan for augmentation described herein will provide water to contract users within the Fourmile Creek drainage basin without adversely affecting the owners or users of vested water rights or decreed conditional water rights. The change of water right and plan for augmentation described herein may be lawfully decreed by this Court. III. JUDGMENT AND DECREE 1. The foregoing Findings of Fact and Conclusions of Law are fully incorporated herein. 2. The Zilm Transfer Ditch described herein is decreed an absolute water right. The change of water right for the Atkinson Ditch and the plan for augmentation described herein are approved, subject to the terms and conditions set forth herein. 3. The State Engineer and Division Engineer may lawfully be required under the terms of this decree to: a. Administer the plan for augmentation in the manner set forth herein. WDWCD.F32 July 17, 1996 Case No. 94CW344 West Divide Water Conservancy District et al. Judgment and Decree of Water Court Page -15- b. Refrain from curtailing out -of -priority diversions of the augmented rights when the depletions are offset by the operation of the plan for augmentation approved herein. c. In conformance with Colo. Rev. Stat. § 37-92- 305(8), curtail out -of -priority diversions by the augmented rights at any time when the consumptive use associated with Applicants' provision of water as approved herein exceeds the net amount of replacement water available under the plan for augmentation. 4. In consideration of the specific findings and conclusions made herein and in conformance with Colo. Rev. Stat. § 37-92-304(6) (1990), as amended, the approval of the change of water right and plan for augmentation decreed herein shall be subject to reconsideration by the Water Judge on the question of injury to the vested water rights of others for five years commencing upon completion of the structures identified in paragraph I.7. Applicants agree not to assert the defenses of res judicata or collateral estoppel with respect to any future claim made during the said 5 -years retained jurisdiction period by Springridge Place Homeowners' Association and/or Lazy Diamond A Homeowners Association that the agreement between Bershenyi and West Divide Water Conservancy District (Exhibit B to this Decree) fails to operate to prevent injury to Springridge Place Homeowners' Association and/or Lazy Diamond A Homeowners Association or their successors or assigns. IT IS ACCORDINGLY ORDERED that this Decree shall be filed with the Water Clerk subject to judicial review pursuant to Colo. Rev. Stat. § 37-92-304. IT IS FURTHER ORDERED that a copy of the Decree shall be filed with the State Engineer and the Division Engineer for Water Division No. 5. Dated: WDWCD.F32 July 17, 1996 ec12"`i tri BY THE JUDGE: or ..f Water Judge EXHIBIT A • ATKINSON DITCH Sec. 3 & 10, T 7 S, R89W, 6th PM LEGEND Historically irrigated lands that are part of augmentation plan. Up to 50 acres to be dried up. Historically irrigated lands that are not part of augmentation plan. • • WATER AGREEMENT THIS AGREEMENT is fltade this day of 1'�C.t.L/ , 1994 by and between JOHN W. BERSH$NYI and ALICE BERBHENYI, hereinafter referred to as "Bershenyi," and the WEST DIVIDE WATER CONSERVANCY DISTRICT, a quasi -municipal entity formed pursuant to Colorado statute, hereinafter referred to as "West Divide." WITNESSETH Bershenyi is the owner of those certain water rights described on Exhibit A, which exhibit is attached hereto and incorporated herein as those fully set forth; and WITNESSETH Bershenyi has, in the past, been forced to participate in litigation in Water Court in order to protect the yield of water available to said water rights; and WHEREAS West Divide is desirous of furthering its water allocation program in the Four Mile Creek region whereby it allocates water pursuant to C.R.S. 37-45-101 et. seq. to water users in need thereof, primarily for domestic and lawn irrigation type uses; and WHEREAS West Divide wishes to implement its program in cooperation with Bershenyi and in a manner that does not cause Bershenyi injury as set forth in this Agreement. FOR AND IN CONSIDERATION of the payments and promises to be made hereunder, the parties agree as follows: 1. Bershenyi agrees that he will accept payment as hereinafter described in lieu of replacement releases that otherwise would be made to meet calls made pursuant to the priorities listed on Exhibit A to the extent of 0.5 c.f.s., which 0.5 c.f.s. may be included in an allocation and augmentation program by West Divide. 2. West Divide shall pay to Bershenyi in consideration for the foregoing agreement not to call, the minimum annual sum of Five Hundred Dollars ($500.00), together with an additional annual sum in the amount of Twenty Dollars ($20.00) per acre foot for each and every acre foot allocated by West Divide pursuant in whole or in part to the water rights leased hereunder under its Four Mile Creek allocation program. 3. The term of this Water Agreement shall begin on the first day of January, 1995, and extend to and include the 31st day of December, 2035. Water Agreement John W. Bershenyi and Alice Bershenyi and West Divide Water Conservancy District EXHIBIT B Page 1 of 3 4. Each anniversary during the term hereof, the minimum annual rental and the per -acre-foot annual rental described herein shall be subject to modification. The minimal annual rental and the per -acre-foot rental shall be modified on the 1st day of January of each year of the term of this Agreement by the percentage of the rent which is equal to the percentage that the cost of living for the preceding twelve -(12) month period increased or decreased. The cost of living shall be computed upon the basis of the Consumer Price Index, All Urban Consumers, U.S. City Average 1982-84=100, published by the United States Department of Labor, Bureau of Labor Statistics. The base index number shall be the latest month available prior to January 1, 1995. The current index number shall be the same month of each year thereafter. Commencing on the second year of this Agreement and each thereafter, the rental shall be adjusted by computing the increase or decrease in the cost of living for the preceding twelve (12) month period and adding or deducting the same from the rental. The increase or decrease between the base index number and the current index number (expressed as a percentage) shall be multiplied by the rental. Any resulting positive or negative product shall be added to or deducted from the rental and the total thereof shall be paid in equal, successive, monthly installments. If at any time the Consumer Price Index is no longer published, the parties shall use such other index as is generally recognized or accepted for the purpose of making similar determinations of purchasing power. 5. As additional consideration for the agreement herein, West Divide agrees to investigate means by which Bershenyi's Reynolds Ditch may be rehabilitated and placed to efficient beneficial use in accordance with its decrees. Bershenyi is the owner of irrigated land under said Reynolds Ditch that is in need of irrigation from the ditch. 6. West Divide acknowledges Bershenyi's title to the water rights described in Exhibit A and exclusive use thereof except for the term of and pursuant to the terms of this Agreement. Further, West Divide agrees that it will appear in Water Court, as necessary, in order to protect Bershenyi's and West Divide's rights under this Agreement. 7. Bershenyi's agreement not to exercise an administrative call shall be conditioned upon West Divide's ability to cause either a bypass at the headgate of the Adkinson Ditch on Four Mile Creek, an amount of 1.0 c.f.s., or West Divide's ability, through agreement with others, to cause return flows from an unnamed gulch immediately east of Four Mile Creek proper to be Water Agreement John W. Bershenyi and Alice Bershenyi and West Divide Water Conservancy District Page 2 of 3 • • returned to Four Mile Creek above the gate of the Four Mile Ditch in the amount of 1.0 c.f.s, or a combination of the bypass and return flow to Four Mile Creek to occur in a total amount of 1.0 c.f.s. 8. West Divide shall be solely responsible for the installation of any and all measuring devices, recording devices, and administrative requirements associated with this Agreement. 9. West Divide agrees to hold Bershenyi harmless for and on account of any damages that may occur to Bershenyi and/or third party users contractees of West Divide's allocation program resulting from water use derived under this Agreement. 10. West Divide shall be solely responsible for obtaining all local, state, and judicial approvals necessary to accomplish water use pursuant to this Agreement. 11. West Divide may terminate the within arrangement should West Divide no longer need to rely on this Agreement to implement the allocation plan. THIS AGREEMENT is done this a$' day of � ,,_ 1994, and shall be binding upon the heirs, successors, and assigns of the parties hereto. Secretary HN W. BERSHENYI '1 �r _Q_AS? ALICE BERS I WEST DIVIDE WATER CONSERVANCY DISTRICT Water Agreement John W. Bershenyi and Alice Bershenyi and West Divide Water Conservancy District Page 3 of 3 EXHIBIT A FOUR MILE DITCH Stream Ditch Priority No. Amt. APP.DATE ADJ.DATE Four Mile Four Mile 19 1.6 11/6/1881 5/11/89 • • WATER AGREEMENT This Agreement made this yTh day of g.7) , 1995, b and between JOHN W. BERSHENYI AND ALICE BERSH$NYI, hereinafter y referred to as Bershenyi, and the WEST DIVIDE WATER CONSERVANCY DISTRICT, a quasi -municipal entity performed pursuant to Colorado Statute, hereinafter referred to as "West Divide." WITNESSETH, Bershenyi and West Divide entered into a Water Agreement dated December 28, 1994; and WHEREAS, the parties have determined that one paragraph of said Agreement should be amended. FOR AND IN CONSIDERATION of the payment and promises to be made hereunder, the parties agree as follows: 1. The parties agree that paragraph 7 of the Agreement of December 28, 1994 should be amended so that it will provide as follows: 7. west Divide shall cause either a bypass at the headgate of the Atkinson Ditch on Four Mile Creek or West Divide shall cause return flows from an unnamed gulch immediately west of Four Mile Creek to be returned in the Zilm Transfer Ditch to Four Mile Creek above the headgate of the Four Mile Ditch. The obligation to provide bypasses at either point shall be limited in that the amount of cumulative bypass at both points shall be that quantity of water available for bypass in excess of 0.5 cfs. 2. In all other respects, the Agreement between West Divide and Bershenyi shall remain in full force and effect. WEST DIVIDE WATER CONSERVANCY DISTRICT tic D ALICE'HERS HENYI dHN WERSHENYI WATER AGREEMENT THIS AGREEMENT is made this 1.ay of _i , 1994 by and between WILLIAM M. ZILH and CHARLOTTE B. 11L14, here nafter referred to as "Zilm," and the WEST DIVIDE WATER CONSERVANCY DISTRICT, a quasi -municipal entity formed pursuant to Colorado statute, hereinafter referred to as "West Divide." WITNESSETH Zilm is the owner of those certain water rights described on Exhibit A, which exhibit is attached hereto and incorporated herein as those fully set forth; and WITNESSETH Zilm has, in the past, been forced to participate in litigation in Water Court in order to protect the yield of water available to said water rights; and WHEREAS West Divide is desirous of furthering its water allocation program in the Four Mile Creek region whereby it allocates water pursuant to C.R.S. 37-45-101 et. seq. to water users in need thereof, primarily for domestic and lawn irrigation type uses; and WHEREAS West Divide wishes to implement its program in cooperation with Zilm and in a manner that does not cause Zilm injury as set forth in this Agreement. FOR AND IN CONSIDERATION of the payments and promises to be made hereunder, the parties agree as follows: 1. Zilm agrees that he will accept payment as hereinafter described in lieu of replacement releases that otherwise would be made to meet calls made pursuant to the priorities listed on Exhibit A. This Agreement may be included in an allocation and augmentation program by West Divide. 2. West Divide shall pay to Zilm in consideration for the foregoing agreement not to call, the minimum annual sum of Five Hundred Dollars ($500.00), together with an additional annual sum in the amount of Twenty Dollars ($20.00) per acre foot for each and every acre foot allocated by West Divide under its Four Mile Creek allocation program pursuant in whole or in part to the water rights leased hereunder. 3. The term of this Water Agreement shall begin on the first day of January, 1995, and extend to and include the 31st day of December, 2035. Water Agreement William N. fila and Charlotte B. fila and West Divide Water Conservancy District EXHIBIT C Page 1 of 3 i • 4. Each anniversary during the term hereof, the minimum annual rental and the per -acre-foot annual rental described herein shall be subject to modification. The minimal annual rental and the per -acre-foot rental shall be modified on the lst day of January of each year of the term of this Agreement by the percentage of the rent which is equal to the percentage that the cost of living for the preceding twelve -(12) month period increased or decreased. The cost of living shall be computed upon the basis of the Consumer Price Index, All Urban Consumers, U.S. City Average 1982-84=100, published by the United States Department of Labor, Bureau of Labor Statistics. The base index number shall be the latest month available prior to January 1, 1995. The current index number shall be the same month of each year thereafter. Commencing on the second year of this Agreement and each thereafter, the rental shall be adjusted by computing the increase or decrease in the cost of living for the preceding twelve (12) month period and adding or deducting the same from the rental. The increase or decrease between the base index number and the current index number (expressed as a percentage) shall be multiplied by the rental. Any resulting positive or negative product shall be added to or deducted from the rental and the total thereof shall be paid in equal, successive, monthly installments. If at any time the Consumer Price Index is no longer published, the parties shall use such other index as is generally recognized or accepted for the purpose of making similar determinations of purchasing power. 5. West Divide acknowledges Zilm's title to the water rights described in Exhibit A and exclusive use thereof except for the term of and pursuant to the terms of this Agreement. Further, West Divide agrees that it will appear in Water Court, as necessary, in order to protect Zilm's and West Divide's rights under this Agreement. 6. West Divide shall be solely responsible for the installation of any and all measuring devices, recording devices, and administrative requirements associated with this Agreement. 7. West Divide agrees to hold Zile harmless for and on account of any damages that may occur to Zilm and/or third party users contractees of West Divide's allocation program resulting from water use derived under this Agreement. 8. West Divide shall be solely responsible for obtaining all local, state, and judicial approvals necessary to accomplish water use pursuant to this Agreement. Mater Agreement William M. sila and Charlotte D. fits and West Divide Mater Conservancy District Pape 2 of 3 9. West Divide may terminate the within arrangement should West Divide no longer need to rely on this Agreement to implement the allocation plan. THIS AGREEMENT is done this Z'day of, 1994, and shall be binding upon the heirs, success rs, and assigns of the parties hereto. St: dteze Secretary traJL,-- WILLIAM M. ZILM • 7-7 CHARLOTTE B. ZILM WEST DIVIDE WATER CONSERVANCY DISTRICT By Water Agreement William X. fila and Charlotte B. fila and Nest Divide Water Conservancy District Page 3 of 3 • • EXHIBIT A ATKINSON DITCEH =tzeam Ditch Priority No. Amt, ADD.Date Ad1.Dat@ Four Mile Atkinson 2.0 9/29/1977 12/31/1979 Creek Ditch Four Mile Atkinson 2.0 03/24/1983 12/31/1985 Creek Ditch Four Mile Atkinson 2.0 03/24/1983 12/31/1985 Creek Ditch EXHIBIT DI c `t o U i.c Q1 w < a) a) 4.0u - as Depletion Location Note', Above Below Atkinson Below Fourmile Atkinson Above Fourmile Above Smart & Ditch Ditch Green Ditch Location cc 1— con 0 Diversion Structure Z m E m Z v RI ,_ N o Er Zv 1 1 Com Name of Contractee •— O N O fh O i. O '4) O O t� O a O Q) O O