Loading...
HomeMy WebLinkAbout1.03 Supplemental Application Materials - 06.02.2026DISTRICT COURT, GARFIELD(GLENWOOD SPRINGS) COUNTY,COLORA O Court Address: 109 8th Street, Ste. 104, Glenwood Springs, CO, 81601 Z2.A'1'P:FiLS?D:August 25,20Q3 10:52^..M CAST,'..NUMBF..R:2616CW!75 In the Interest of: ENCANA OIL GAS USA INC Q COURT USE ONLY Q Case Number: 2010CW175 Division: E Courtroom: Order: Proposed Decree of the Water Court The motion/proposed order attached hereto: GRANTED. Any request for a finding of reasonable diligence shall be filed in August 2019. Issue Date: 812 512 01 3 f i rvr.l1r".'j,L.. JAMES BERKLEY BOYD District Court Judge Pagel oft DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 Eighth Street,#104 Glenwood Springs, Colorado 81601 970) 945-8109 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF ENCANA OIL & GAS (USA) INC. COURT USE ONLY IN THE COLORADO RIVER OR ITS TRIBUTARIES Case Number: 2010CW 175 IN GARFIELD AND MESA COUNTIES FINDINGS OF FACT, CONCLUSIONS OF LAW,RULING OF THE REFEREE AND DECREE OF THE WATER COURT The above-entitled Application for Approval of Plan for Augmentation was filed by Encana Oil & Gas (USA) Inc. ("Encana") on June 30, 2010. The application was referred to the undersigned as Water Referee for Water Division No. 5, State of Colorado, by the Water Judge of said Court in accordance with Article 92 of Chapter 37, Colorado Revised Statues 1973, known as the Water Right Determination and Administration Act of 1969, as amended. Encana filed its First Amended Application for Approval of Plan for Augmentation, Including Exchanges, and for Surface Water Rights on December 30, 2010. The application and the first amendment are referred to herein as the "Application." The undersigned Referee, having made such investigations as are necessary to determine whether the statements in the Application are true, being fully advised with respect to the subject matter of the Application, and having considered the pleadings, evidence presented and stipulations of the parties,hereby enters the following Findings of Fact, Conclusions of Law, and Ruling of the Referee: FINDINGS OF FACT 1. Name, Address and Telephone Number of Applicant: Encana Oil & Gas (USA) Inc., c/o Christopher Durrant, 370 17" Street, Suite 1700, Denver, Colorado 80202, (303) 623- 2300. 2. Notice and Jurisdiction: Timely and adequate notice of the Application was given in the manner required by law. The Court finds that the Application is complete and covers all matters required by law. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, whether or not those 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 2 persons or owners of property have appeared. The land and water rights involved herein are not included within the boundaries of a designated groundwater basin. 3. Parties: Timely statements of opposition to the original Application were filed by Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise ("River District'); Exxon Mobil Corporation; Town of Parachute; William R. Patterson, Rodney C. Power, Ronald Tipping and Marie Tipping; and Solvay Chemicals, Inc. Statements of opposition to the first amendment were filed by Chevron U.S.A. Inc. and Petroleum Development Corporation. No other party has filed a statement of opposition or motion to intervene, and the time for filing statements of opposition and motions to intervene has expired. Encana entered into stipulations pursuant to which the stipulating parties consented to entry of a decree granting the Application herein, subject to the terms of the stipulation. All of the stipulations referred to in this paragraph are hereby approved and are hereby incorporated in this Decree by this reference. A. Rodney C. Power, William R. Patterson, Ronald Tipping and Marie Tipping entered into a stipulation dated August 30, 2011. B. The Town of Parachute entered into a stipulation dated November 2, 2011. C. The River District entered into a stipulation dated December 12, 2011. D. Petroleum Development Corporation entered into a stipulation dated April 5, 2012. ., E. Solvay Chemicals, Inc., entered into a stipulation dated May 30, 2012. F. Exxon Mobil Corporation entered into a stipulation dated July 16, 2012. G. Chevron U.S.A. Inc. entered into a stipulation dated August 27, 2012. 4. Landowners: In accordance with C.R.S. § 37-92-302(2)(b) and Rule 3(d)(3) of the Uniform Local Rules for All Sate Water Court Divisions, Encana notified the owners of the land upon which any new diversion or storage structure or modification to any existing diversion or storage structure or existing storage pool is or will be constructed or upon which water is or will be stored pursuant to this Decree. 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 3 5. Description of Application: The Application seeks to adjudicate (a) a plan for augmentation, including appropriative rights of substitution and exchange, for the replacement of out-of-priority diversions from the Colorado River and Parachute Creek; and (b) a surface water right to be diverted at any one or more of four structures located on East Fork, Middle Fork, and/or West Fork Parachute Creek. Water diverted under the plan for augmentation and new surface water right is used in connection with Encana's oil and gas drilling operations in Garfield, Mesa, and Rio Blanco Counties. 6. Report of the Division Engineer: Reports of the Division Engineer, Summary of Consultation, were filed with this Court on October 20, 2010 and April 8, 2011 pursuant to C.R.S. § 37-92-302(4). Encana responded to the Summaries of Consultation on September 28, 2012. The Referee has considered the Reports and Encana's Response in accordance with C.R.S. § 37-92-305(6). PLAN FOR AUGbIENTATION 7. Name and Description of Structures To Be Aummented: Each of the structures described in Paragraphs 7.A. through 7.K. below (collectively the "Encana Structures"). The attached maps at Exhibits A through G depict the locations of the Encana Structures to be augmented by this plan. A. Grand Junction — Colorado River Pipeline Colorado River Intake ("Grand Junction Pipeline"): i.Decree entered: July 21, 1959, Civil Action No. 8303, Mesa County District Court. ii. Decreed point of diversion: The Grand Junction Pipeline water right was originally decreed at a point whence the SE corner of Section 2, Township 11 South, Range 98 West of the 6th P.M. bears South 56'15' West 7,051.80 feet in Mesa County, Colorado. The decree entered February 23, 1978 in Case No. W-2915, District Court, Water Division No. 5, changed the subject water right to the headgate of the J.T. Pearce and W.A. Skelton Ditch at a point whence the North Quarter Corner of Section 21, Township 6 South, Range 93 West of the 6t' P.M. bears South 79'05' East 4,071.9 feet in Garfield County, Colorado. The water rights decreed to the J.T. Pearce and W.A. Skelton Ditch were decreed in Civil Action No. 4954, Garfield County District Court. The decree entered May 5, 1983 in Case No. 81CW360, District Court, Water Division No. 5, approved an alternate point of diversion for the subject 5.0 cfs water right at the 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 4 decreed point of diversion for the existing Colorado River Intake Facility for the Pumping Pipeline of Union Oil Company of California, located at a point whence the section corner common to Sections 6 and 7, Township 7 South, Range 95 West of the 6s' P.M., and Sections 1 and 12, Township 7 South, Range 96 West of the 6s' P.M. bears South 89'05' West 3,364.65 feet in Garfield County, Colorado. See Exhibit A. iii. Source: Colorado River. iv. Appropriation date: February 17, 1947. V. Amount: 5.0 cfs, conditional (Encana owns 5.0 cfs of 120 cfs decreed to the Grand Junction Pipeline). vi. Use: A decree entered May 5, 1983 in Case No. 81CW360, District Court, Water Division No. 5, changed the use of this conditional water right to domestic, municipal, and industrial uses in connection with the construction and operation of oil shale mining and processing plants, including all related uses. This water right may be used directly or stored for subsequent use. The decree entered April 12, 2008 in Case No. 05CW136, District,. Court, Water Division No. 5 abandoned municipal uses for this water right. The decree entered April 3, 2011 in Case No. 05CW52,,District Court, Water Division No. 5 ("Case No. 05CW52") confirmed` that the Grand Junction Pipeline water right may be fully consumed for all purposes in connection with Encana's oil and gas drilling operations and industrial use. B. Pumping Pipeline of Union Oil Company of California("Pumping Pipeline"): Decree entered: September 5, 1952, Civil Action No. 4004, Garfield County District Court. ii. Decreed point of diversion: The originally decreed point of diversion of the Pumping Pipeline is at a point on the westerly or northwesterly bank of the Colorado River whence the section corner common to Sections 6 and 7, Township 7 South, Range 95 West of the 6s' P.M., and Sections 1 and 12, Township 7 South, Range 96 West of the 6s'P.M., bears South 89'05' West 3,364.65 feet in Garfield County, Colorado. See Exhibit B. iii. Source: Colorado River. 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 5 iv. Appropriation date: February 14, 1949. V. Amount: Pursuant to the decree entered June 10, 2010 in Case No. 09CW49, District Court, Water Division No. 5, the total amount of the Pumping Pipeline water right owned by Encana is 108.5 cfs, consisting of 9.93 cfs absolute and 98.57 cfs conditional. vi. Use: Industrial, retorting, mining, refining, power, domestic and all other purposes used in connection with the production of shale oil and its products and for water necessary or convenient in the operation of such plants and of the persons and lands used for the housing of employees of such company in connection with said plant and their families. The decree entered May 8, 1985 in Case No. 83CW349, District Court, Water Division No. 5 also allows storage and 'irrigation for reclamation of retorted shale and other irrigation reasonably required for oil shale products. The decree in Case No. 05CW52 confirmed that the Pumping Pipeline water right may be fully consumed for all purposes in connection with Encana's oil and gas drilling operations and industrial use. C. Last Chance Ditch Alternate Point of Diversion: i.Decree entered: The Last Chance Ditch was decreed in Civil Action No. 89, Garfield County District Court. The Last Chance Ditch was decreed as one of five alternate points of diversion for up to a combined diversion rate of 7.0 cfs for the Grand Junction Pipeline and Pumping Pipeline water rights in Case No. 05CW52. ii. Decreed point of diversion: The headgate of the Last Chance Ditch is located on the South bank of the old channel of the Colorado River in the NE'/4 of the SE'/4 of Section 10, Township 6 South, Range 92 West of the 6t'P.M., 890 feet from the East section line and 1,600 feet from the South section line of said Section 10. See Exhibit C. iii. Amount: 10.0 cfs, of which 3.0 cfs will be diverted as the alternate point of diversion decreed in Case No. 05CW52, and 7.0 cfs will be diverted solely pursuant to the plan for augmentation decreed herein. iv. Source: Colorado River. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 6 D. Rulison Alternate Point of Diversion: i.Decree entered: The Rulison Alternate Point of Diversion was decreed as one of five alternate points of diversion for up to a combined diversion rate of 7.0 cfs for the Grand Junction Pipeline and Pumping Pipeline water rights in Case No. 05CW52. ii. Decreed point of diversion: The decreed alternate point of diversion is located on the North bank of the Colorado River in the NE%a of the SE'/4 of Section 25, Township 6 South, Range 95 West of the 6t' P.M., 620 feet from the East section line and 2_,135 feet from the South section line of said Section 25. See Exhibit D. iii. Amount: 2.0 cfs, of which 1.0 cfs will be diverted as the alternate point of diversion decreed in Case No. 05CW52 and 1.0 cfs will be diverted solely pursuant to the plan for augmentation decreed herein. iv. Source: Colorado River. E. Parachute Alternate Point of Diversion: i.Decree entered: The Parachute Alternate Point of Diversion was decreed as one of five alternate points of diversion for up to a combined diversion rate of 7.0 cfs for the Grand Junction Pipeline and Pumping Pipeline water rights in Case No. 05CW52. ii. Decreed point of diversion: The decreed alternate point of diversion is located on the North bank of the Colorado River in the SW'/4 of the SE'/4 of Section 6, Township 7 South, Range 95 West of the 6t'P.M., 1,500 feet from the East section line and 652 feet from the South section line of said Section 6. See Exhibit B. iii. Amount: 2.0 cfs, of which 1.0 cfs will be diverted as the alternate point of diversion decreed in Case No. 05CW52 and 1.0 cfs will be diverted solely pursuant to the plan for augmentation decreed herein. iv. Source: Colorado River. F. Unabridee Alternate Point of Diversion: 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 7 i.Decree entered: The Unabridge Alternate Point of Diversion was decreed as one of five alternate points of diversion for up to a combined diversion rate of 7.0 cfs for the Grand Junction Pipeline and Pumping Pipeline water rights in Case No. 05CW52. ii. Decreed point of diversion: The decreed alternate point of diversion is located on the North bank of the Colorado River in the SW'/4 of the NW'/4 of Section 34, Township 7 South, Range 96 West of the & P.M,., 758 feet from the West section line and 2_,725 feet from the North section line of said Section 34. See Exhibit E. iii. Amount: 10.0 cfs, of which 1.0 cfs will be diverted as the alternate point of diversion decreed in Case No. 05CW52_and.9.0 cfs will be diverted solely pursuant to the plan for augmentation decreed herein. iv. Source: Colorado River. G. Debeque Alternate Point of Diversion: i.Decree entered: The Debeque Alternate Point of Diversion was decreed as one of five alternate points of diversion for up to a combined diversion rate of 7.0 cfs for the Grand Junction Pipeline and Pumping Pipeline water rights in Case No. 05CW52. ii. Decreed point of diversion: The decreed alternate point of diversion is located on the South bank of the Colorado River in the SW'/4 of the NE'/4 of Section 27, Township 8 South, Range 97 West of the 6t' P.M., 2,554 feet from the East section line and 2_,688 feet from the South section line of said Section 27. See Exhibit F. iii. Amount: 2.0 cfs, of which 1.0 cfs will be diverted as the alternate point of diversion decreed in Case No. 05CW52, and 1.0 cfs will be diverted solely pursuant to the plan for augmentation decreed herein. iv. Source: Colorado River. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 8 H. Encana Water Horse Point of Diversion: i.Point of diversion: Located on the East Fork Parachute Creek in the SW'/4 of the SW'/4 of Section 30, Township 5 South, Range 95 West of the 6t' P.M., 597 feet from the West section line and 96 feet from the South section line of said Section 30. See Exhibit G. ii. Source: East Fork Parachute Creels, tributary to Parachute Creek,tributary to the Colorado River. iii. Amount: 3.0 cfs, cumulative with the North „Parachute Ranch Truck Pullout Point of Diversion, the North Parachute Ranch Meadows Ditch Point of Diversion, and the North Parachute Ranch West Fork Creek Point of Diversion. iv. Pending decree: This Decree adjudicates a new water right, as described in Paragraphs 13 through 17 below, for diversion at the Encana Water Horse Point of Diversion....and three additional structures located in the Parachute Creek basin. I.North Parachute Ranch Truck Pullout Point of Diversion: i.Point of diversion: Located on the Middle Fork Parachute Creek in the SE'/4 of the SE'/4 of Section 25, Township 5 South, Range 96 West of the 6t' PM , 732 feet from the East section line and 635 feet from the South section line of said Section 25. See Exhibit G. ii. Source: Middle Fork Parachute Creek, tributary to Parachute Creels, tributary to the Colorado River. iii. Amount: 3.0 cfs, cumulative with the Encana Water Horse Point of Diversion, the North Parachute Ranch Meadows Ditch Point of Diversion, and the North Parachute Ranch West Fork Creek Point of Diversion. iv. Pending decree: This Decree adjudicates a new water right, as described in Paragraphs 13 through 17 below, for diversion at the North Parachute Ranch Truck Pullout Point of Diversion and three additional structures located in the Parachute Creek basin. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 9 J.North Parachute Ranch Meadows Ditch Point of Diversion: i.Point of diversion: Located on the Middle Fork Parachute Creek in the NE'/4 of the SE'/4 of Section 25, Township 5 South, Range 96 West of the 6t'P.M., 978 feet from the East section line and 1,841 feet from the South section line of said Section 25. See Exhibit G. ii. Source: Middle Fork Parachute Creek, tributary to Parachute"Creels, tributary to the Colorado River. iii. Amount: 3.0 cfs, cumulative with the Encana Water Horse Point of Diversion, the North Parachute Ranch Truck Pullout Point of Diversion_, and the North Parachute Ranch West Fork Creek Point of Diversion. iv. Pending decree: This Decree adjudicates anew water right, as described in Paragraphs 13 through 17 below,< for diversion at the North Parachute Ranch Meadows Ditch Point of Diversion and three additional structures located in the Parachute Greets basin. K. North Parachute Ranch West Fork Creek Point of Diversion: i.Point of diversion: Located on the West Fork Parachute Creek in the NW'/4 of the NE%4 of Section 8, Township 5 South, Range 96 West of the 6t' P.M., 1,753 feet from the East section line and 1,204 feet from the North section line of said Section 8. See Exhibit G. ii. Source: West Fork Parachute Creels, tributary to Parachute Creels, tributary to the Colorado River. iii. Amount: 3.0 cfs, cumulative with the Encana Water Horse Point of Diversion, the North Parachute Ranch Truck Pullout Point of Diversion, and the North Parachute Ranch Meadows Ditch Point of Diversion. iv. Pending decree: This Decree adjudicates a new water right, as described in Paragraphs 13 through 17 below, for diversion at the North Parachute Ranch West Fork Creek Point of Diversion and three additional structures located in the Parachute Creek basin. 8.Sources of Water To Be Used for Augmentation, Substitution, and Exchange: Water available to the River District in Wolford Mountain Reservoir and Ruedi Reservoir, and 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 10 available to Encana pursuant to valid contracts between Encana and the River District. Pursuant to Water Supply Contract CW11002 entered May 16, 2011 between the River District and Encana, as may be amended from time to time ("Water Supply Contract"), Encana is entitled to releases from these sources in the amount of 1,250 acre-feet per year. Pursuant to the Right of First Refusal Contract for Lease of Ruedi Reservoir Water entered into July 6, 2011 between the River District and Encana, as may be amended from time to time ("ROFR"), Encana has a right of first refusal for the lease of the River District's water supplies in Ruedi Reservoir in the additional amount of 3,250 acre-feet per year. Encana released 202.4 acre-feet of water from the ROFR as of May 2, 2012. Therefore, the ROFR Contract remains in effect in the amount of 3,047.6 acre-feet per year. The current sources of augmentation water that may be used by Encana pursuant to its River District contracts are described in Paragraphs B.A.-B. below. A. Wolford Mountain Reservoir: The River District owns and operates Wolford Mountain Reservoir (f/k/a Gunsight Pass Reservoir)'. i.Legal description of place of storage: The dam is located in the SW'/4 of the NE'/4 of Section 25, Township 2 North, Range 81 West of the 6t' P.M. The intersection of the dam axis (Sta. D19+35.61) with the West Access Road (Sta. WR50+55.05) occurs at a point which bears South 53°24'56" East a distance of 3,395.51 feet from the NW corner of said Section 25; the bearing of said dam axis from Sta. 19+35.61 to Sta. 0+00 being South 75°28'29" East. ii. Source: Muddy Creek and its tributaries. iii. Previous storage decrees: 1) Case No. 87CW283: Decree Date: November 20, 1989. Court: District Court, Water Division No. 5. Amount: 59,993 acre feet. Appropriation Date: December 14, 1987. Use: All beneficial uses, including but not limited to domestic, municipal, agricultural and recreational uses. 2) Case No. 95CW281: Decree Date: August 26, 1997. Court: District Court, Water Division No. 5. Amount: 6,000 acre feet (enlargement). 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 11 Appropriation Date: January 16, 1995. Use: All beneficial uses by and for the benefit of the inhabitants of the River District, including but not limited to domestic, municipal, industrial, irrigation, agricultural, piscatorial, recreational and environmental mitigation. 3) Case No. 98CW237: Decree Date: July 6, 2000. Court: District Court, Water Division No. 5. Amount: 30,000 acre feet(refill). Appropriation Date: November 17, 1998. Use: Certain of the beneficial uses previously adjudicated for Wolford Mountain Reservoir in <Cases No. 87CW283 and 95CW281. B. Ruedi Reservoir: The River District is entitled to deliveries of water from Ruedi Reservoir pursuant to contract with the U.S. Bureau of Reclamation. i.Legal description of place of storage: Ruedi Reservoir is located in Sections 7, 8, 9, 11'and 14 through 18, Township 8 South, Range 84 West of the 6t' P.M., in Eagle and Pitkin Counties. The dam axis intersects the right abutment at point whence the SW corner of Section 7, Township 8 South, Range 84 West of the 6t' P.M. bears North 82°10' West a distance of 1,285 feet. ii. Source: Fryingpan River. iii. Previous storage decrees: 1) Civil Action No. 4613: Decree Date: June 20, 1958. Court: Garfield County District Court. Amount: 140,697.3 acre feet, reduced to 102,369 acre feet pursuant to order of the District Court, Water Division No. 5 in Case No. W-789-76. Appropriation Date: July 29, 1957. Use: Domestic, municipal, irrigation, industrial, generation of electrical energy,stock watering and piscatorial. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 12 2) Case No. 81CW34: Decree Date: April 8, 1985. Court: District Court, Water Division No. 5. Amount: 101,280 acre feet(refill). Appropriation Date: Jan. 22, 1981. Use: Irrigation, domestic, municipal, generation of electrical energy, stock watering, industrial, piscatorial, recreation and maintenance of sufficient storage reserves to fulfill contractual obligations and provide stored water for recreation in times of drought. C. Additional and Alternative Sources of Augmentation Water:` Pursuant to C.R.S. 37-92-305(8)(c), Encana may use water from additional and alternative sources for replacement in this plan for augmentation after entry of this Decree, if such sources are decreed for such use, are part of a'substitute water supply plan approved by the State Engineer pursuant to C.R.S. § 37-92-308, or are part of an interruptible water supply agreement approved under C.R.S. § 37-92-309 or other applicable and/or successor statutes. As contemplated by C.R.S. § 37-92- 305(8)(c), this paragraph sets forth the procedures under which these sources may be used in this plan for augmentation. These procedures are adequate to prevent injury to other water rights that might otherwise result from the addition of these sources to this plan for augmentation. i.Additional water rights separately decreed or lawfully available for augmentation use: If a water right is decreed or lawfully available for augmentation or replacement use and not already approved for such use under this Decree, Encana shall give at least forty-five days advance written Notice of Use of Water Right for Augmentation to the Court, the Division Engineer and all Objectors herein ("Notice"), which Notice shall describe (a) the water right by name and decree, if any; (b) the annual and monthly amount of water available to Encana from the water right; (c) the location or locations at which the water will be delivered to the stream; (d) evidence that Encana owns or controls the water right to be added, and that the claimed amount of water will not be used by another person; and e) the manner in which Encana will account for use of the augmentation credits. If any person wishes to object to the addition of the noticed water rights to this plan, that person shall file a written objection with the Court within forty-five days after the date Encana gave the Notice. If no objection is so filed, then Encana may use the noticed water rights in this plan, in the manner stated in the Notice, without further action by the 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 13 Court. If an objection is so filed, then Encana may not use the noticed water rights until the Court determines whether, and under what terms and conditions necessary to prevent injury to vested water rights and decreed conditional rights, the noticed water rights may be used in this plan. ii. Additional water rights - temporary administrative approval: If a water right is not decreed or otherwise lawfully available for augmentation or replacement use, and Colorado statutes or other governing authority provide a mechanism for using such water right without the need of a decree, Encana shall provide written notice to the Objectors herein of its request for approval of the State Engineer pursuant to C.R.S. §§ 37-92-308 or 37-92-309, or other applicable statute. Such`notice shall be in addition to any notice required by the applicable statute, Encana may use such water rights in this plan for augmentation upon the State Engineer's approval of the underlying administrative,application for the term of such approval, unless such approval is reversed or modified on appeal or under retained jurisdiction. iii. Retained iurisdiction: The Court retains perpetual jurisdiction to resolve disputes and objections, including but not limited to claims of injury, that relate to Encana's use of additional augmentation sources in this plan pursuant to C.R.S. § 37-92-305(8) and the procedure described above. In such proceedings, Encana shall have the burden of showing non-injury from the use of any additional augmentation sources. 9.Complete Statement of Plan for Augmentation: This Decree adjudicates a plan for augmentation for the replacement of Encana's out-of-priority diversion of water at the Encana Structures. Water diverted by the Encana Structures is used in connection with Encana's oil and gas drilling operations in Garfield, Mesa, and Rio Blanco Counties. Encana proposes to replace out-of-priority diversions by the Encana Structures, to the extent necessary to prevent injury to other water rights, with fully-consumable water from the sources described in Paragraph 8 above, including additional and alternate sources of water added to this plan for augmentation pursuant to C.R.S. § 37-92-305(8) and the procedures set forth in Paragraph B.C. above. Encana will divert water at the Encana Structures year-round for its oil and gas drilling operations. Such uses will be considered 100% consumptive, and Encana claims the right to use and reuse and to fully consume all such water. The plan for augmentation also involves the replacement of Encana's out-of-priority diversions at the Encana Water Horse Point of Diversion, North Parachute Ranch Truck Pullout Point of Diversion, North Parachute Ranch Meadows Ditch Point of Diversion, and North Parachute Ranch West Fork Creek Point of 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 14 Diversion (collectively the "Parachute Diversion Structures"), the upstream Exchange-to Points, with water released to or left in the river at the downstream Exchange-from Point by use of the appropriative rights of substitution and exchange described in Paragraphs 18 through 22 of this Decree. Replacements of out-of-priority diversions are discussed in detail in Paragraph 10.A. below. As a result, the Court approves the plan for augmentation subject to the terms and conditions of this Decree. 10. Terms and Conditions for Operation of the Plan for Augmentation: The Court finds that there will be no material injury to the owners or users of vested water rights or decreed conditional water rights as a result of the plan for augmentation decreed Herein so long as there is compliance with the protective terms and conditions set forth below: A. Replacement of Out-of-Priority Diversions: When diversions at the Encana Structures are out-of-priority, Encana shall make augmentation water available to the Colorado River to replace such out-of-priority diversions. Encana will determine the amount, time, and location of depletions as follows: i.Amount: Because water diverted at the Encana Structures is fully- consumable, the total depletions to the stream associated with the use of the Encana Structures will be equal to the total volume of water diverted at the Encana Structures. Therefore, Encana will determine the amount of depletions by measuring diversions at the Encana Structures on a daily basis with measuring devices reasonably acceptable to the Division Engineer. ' ii. Time: The Encana Structures are surface water diversion structures, and there are no lagged depletions caused by the operation of the Encana Structures. Therefore, the time at which Encana diverts water at the Encana Structures is the time at which the depletions affect the stream. iii. Location: Diversions from the Encana Structures impact the stream at the point at which the water is diverted from the stream by the particular structure. Based on its determination of out-of-priority depletions as described above, Encana shall fully replace such depletions in time, location, and amount with augmentation water delivered to the stream above the calling senior water right, either directly or by exchange. Encana will deliver augmentation water to the stream by means of the River District's releases of water to which Encana is entitled under the Water Supply Contract and/or the ROFR, as more fully 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 15 described in Paragraph 8 above, and/or by means to be established in the future pursuant to Paragraph B.C. above. Appropriate transit losses will be assessed on Encana's deliveries of augmentation water in accordance with Paragraph 10.E. below. Both the water provided as the augmentation supply and the water diverted from the Encana Structures will be fully consumable. B. Operation of Plan for Augmentation Including Exchanges: The Parachute Diversion Structures are located in the Parachute Creek basin, which is tributary to the Colorado River. At times, Encana will provide augmentation water directly to the Colorado River downstream of the out-of-priority by the Parachute Diversion Structures (the "Downstream Releases'). At such times, the plan for augmentation will include an exchange. Accordingly, when Encana provides the augmentation water using the Downstream Releases, the Court finds that the additional terms and conditions in Paragraphs 18 through 22 of this Decree shall also be followed. C. Measurement of Diversions: All diversions from the Encana Structures shall be measured on a daily basis using measuring devices approved by the Division Engineer, and Encana shall include those measurements with its accounting for the plan for augmentation.' D. Curtailment: Encana's, plan for augmentation is sufficient to permit the continuation of diversions by the Encana Structures when curtailment would otherwise be required to meet a valid senior call for water, to the extent Encana complies with all the terms and conditions of this Decree, including but not limited to providing the necessary augmentation water as required by this Decree. E. Transit Losses on Deliveries of Augmentation Water: The Division Engineer shall assess stream transit losses in all circumstances in which Encana is using the natural stream channel to transport augmentation water to the location of depletions from the augmented structures. Transit losses shall be assessed in the same manner as for other water users using the Colorado River and its tributaries for carriage. F. Quantity, Quality, and Continuity of Augmentation Water: Pursuant to C.R.S. 37-92-305(5), the augmentation supplies that Encana will use for operation of the plan for augmentation are of a quantity, quality, and continuity satisfactory to meet in time, location, and amount the requirements for which the water of senior appropriators has normally been used. Such water shall be accepted by senior appropriators in substitution for water derived by exercise of their water rights, 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 16 and Encana shall be entitled to divert an amount of water equivalent to that made available from the augmentation supplies. G. Stipulation with Power Obiectors: Encana has entered into a Surface Lease with Objectors Rodney C. Power, William R. Patterson, Ronald Tipping and Marie Tipping ("Power Objectors") with an effective date of September 4, 2008 Surface Lease"). The real property owned by the Power Objectors that is the subject of the Surface Lease is referred to herein as the "Power Property`" The Power Property is described in a Memorandum of Surface Lease Agreement recorded at Reception No. 756525 of the records of Garfield County, Colorado. The Unabridge Alternate Point of Diversion, described in Paragraph 7.F. above, is located on the Power Property. Encana's use of the Unabridge Alternate Point of Diversion and of the Power Property is subject to the terms and conditions set forth in the Surface Lease, as such Surface Lease has been and may hereafter be amended. If the Surface Lease is terminated pursuant to its terms, and if Encana is unable to obtain an easement, right-of-way, ownership interest or other right to use the Power Property or the Unabridge Alternate Point of Diversion, then Encana shall quit and surrender the Power Property to the owners of the Power Property, as set forth in the Surface Lease, and Encana shall not thereafter be entitled to use the Power Property or the Unabridge Alternate Point of Diversion to divert water under the water rights described in Case No. 05CW52 or pursuant to the plan for augmentation decreed herein. Encana, for itself and its successors, assigns, and affiliates,has stipulated with the Power Objectors, for their benefit and the benefit of their successors and assigns, that Encana waives and agrees not to exercise any and all rights it may have under applicable constitutional, statutory or other,law, including without limitation C.R.S. §§ 38-1-101 to -202 and 37-86- 101 to .-113, Article 11, Section 14, Colorado Constitution, and Article XVI, Section 7, Colorado Constitution, to condemn, take, or otherwise acquire without the Power Objectors' consent any interests in the Power Property for points of diversion, ditches, pipelines or other conveyance facilities for or in connection with the water rights described in Case No. 05CW52 or water diverted pursuant to the plan for augmentation decreed herein, and that if any condemnation or eminent domain proceedings are commenced in violation of this stipulation, Encana agrees that such proceedings shall be dismissed upon motion of the Power Objectors filed in such proceeding. H. Coordination with Division Engineer and Water Commissioner: To ensure that no injury to other water rights results from operation of the plan for augmentation, before diverting out-of-priority at the Encana Structures, Encana will first notify and coordinate with the Division Engineer or Water Commissioner, to 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 17 communicate Encana's planned out-of-priority diversions and to confirm that Encana has available sufficient augmentation water to replace those planned out- of-priority diversions as required by this plan for augmentation. E River District Schedule of Anticipated Monthly Demands: Pursuant to Section 2.a. of the Water Supply Contract, Encana has provided to the River District a preliminary written schedule of its anticipated monthly demands for the contracted water during the project year of July 1, 2011 through June 30,2012. That preliminary schedule, which Encana provided in its application for the Water Supply Contract, serves as the schedule of Encana's use of its River District contract water until that schedule is modified in a written notice given by Encana to the River District, or as necessary in response to river administration of Encana's diversions. Encana must update the schedule periodically during the project year as conditions require, and must give the River District written notice of all such revisions. As part of its communication and coordination with the Division Engineer or Water Commissioner with respect to operation of the plan for augmentation, at any time that Encana gives the River District written notice of revisions to the schedule of its anticipated monthly demands under the Water Supply Contract, Encana shall provide a copy of that written notice to the Division Engineer or Water Commissioner. Upon request of any Objector, Encana also shall provide a,copy of such written notice to that Objector. 11. No Iniury: The Court finds that subject to the maintenance of the foregoing terms and conditions, the plan for augmentation sought herein will not injuriously affect any other owners of water rights. ' 12. Approval of Plan for Augmentation: The Court finds that the requested plan for augmentation is in accordance with law and should be granted subject to the terms of this Decree. SURFACE WATER RIGHT 13. Description of Surface Water Right: The surface water right is a single right that may be diverted at any one or more of four alternate points of diversion, the Parachute Diversion Structures, as described more fully below. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 18 A. Names and Descriptions of the Parachute Diversion Structures: i.Encana Water Horse Point of Diversion: 1) Legal description of point of diversion: Located on the East Fork Parachute Creek in the SW'/4 of the SW'/4 of Section 30, Township 5 South, Range 95 West of the 6t' P.M., 597 feet from the West section line and 96 feet from the South section line of said Section 30. 2) Source: East Fork Parachute Creek, tributary to Parachute Creek, tributary to the Colorado River. ii. North Parachute Ranch Truck Pullout Point of Diversion: 1) Legal description of point of diversion: Located on the Middle Fork Parachute Creek in the SE'/4 of the SE'/4 of Section 25, Township 5 South, Range 96 West of the 6t' P.M., 732 feet from the East section line and 635 feet from the South section line of said Section 25,. 2) Source: Middle Fork Parachute Creels, tributary to Parachute Creep tributary to the Colorado River. iii. North Parachute Ranch Meadows Ditch Point of Diversion: 1) Legal description of point of diversion: Located on the Middle Fork Parachute Creek in the NE'/4 of the SE'/4 of Section 25, Township 5 South, Range 96 West of the 6t' P.M., 978 feet from the East section line and 1_,841 feet from the South section line of said Section 25. 2) Source: Middle Fork Parachute Creels, tributary to Parachute Creels, tributary to the Colorado River. iv. North Parachute Ranch West Fork Creek Point of Diversion: 1) Legal description of point of diversion: Located on the West Fork Parachute Creek in the NW'/4 of the NE'/4 of Section 8, Township 5 South, Range 96 West of the 6t' P.M., 1,753 feet from the East 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 19 section line and 1,204 feet from the North section line of said Section 8. 2) Source: West Fork Parachute Creek, tributary to Parachute Creek, tributary to the Colorado River. B. Date of initiation of appropriation: June 30, 2004. C. How appropriation was initiated: Encana began diverting water at the parachute Structures during free-river conditions for its oil and gas drilling operations. D. Date water applied to beneficial use: April 30, 2012. E. Amount claimed: 1.08 cfs, absolute; 1.92 cfs, conditional. The Applicant may divert a cumulative total of 3.0 cfs at the above-described points of diverion. F. Use: Fully-consumptive industrial purposes in connection with oil and gas drilling and production, including without limitation drilling, hydraulic fracturing, completion of oil and gas wells,pipeline pressure testing, tank hydrostatic testing, pond testing, dust suppression, chemical makeup, equipment washing, and pad reclamation, and including;the right to use,reuse, successively use, and dispose of to extinction all water lawfully diverted pursuant to this Decree. 14. Places of Use of Surface Water Right: The places of use for the subject surface water right are variable because Encana is in the process of acquiring new oil and gas leases and contracts for oil and gas exploration and drilling. The Referee finds that Encana may put the subject surface water right to beneficial use on lands located in Garfield, Rio Blanco or Mesa Counties on which Encana is conducting oil and gas drilling or other industrial uses or for which Encana has contracted to provide water from the subject surface water right for such purposes. Attached as Exhibit H is a map that indicates Encana's current property and leaseholds in Garfield, Rio Blanco and Mesa Counties. As appropriate, Encana shall provide updated maps of its property ownership and leaseholds to the Court and Division Engineer. In the event that Encana has contracted to provide water to entities other than Encana, it shall provide such contracts with maps depicting the land subject to the contract to the Court and Division Engineer. 15. No Iniury: The Court finds that the surface water right sought herein will not injuriously affect any other owners of water rights. 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 20 16. Can and Will: Encana has established that the conditional surface water right described herein can and will be diverted and controlled and the water will be beneficially used and the projects can and will be completed with diligence within a reasonable time. 17. Approval of Absolute and Conditional Surface Water Right: The requested absolute and conditional surface water right is in accordance with law and should be granted subject to the terms of this Decree. APPROPRIATIVE RIGHTS OF SUBSTITUTION AND EXCHANGE 18. Appropriative Rights of Substitution and Exchange: The subject plan for augmentation involves the replacement of out-of-priority diversions by the Parachute Diversion Structures upstream on East Fork Parachute Creek, Middle Fork Parachute Creek, and West Fork Parachute Creek with consumptively usable water delivered downstream at the confluence of Parachute Creek and the Colorado River and, thus, the substitution and exchange of water. Accordingly, Encana seeks confirmation of these appropriative rights of substitution and exchange as described below: A. Name of Appropriative Rights of Substitution and Exchange: Encana Parachute Creek Exchanges ("Exchanges"). B. Exchange Reaches and Points of Substitution and Exchange: i.The downstream terminus ("Exchange-from Point") of the exchanges is the confluence of Parachute Creek and the Colorado River, located in the SW'/4 of the NE'/4, Section 13, Township 7 South, Range 96 West of the 6th P.M., 1846 feet from the North section line and 1374 feet from the East section line of said Section 13. ii. The upstream termini ("Exchange-to Point(s)") for the exchanges are the Encana Water Horse Point of Diversion, North Parachute Ranch Truck Pullout Point of Diversion, the North Parachute Ranch Meadows Ditch Point of Diversion, and the North Parachute Ranch West Fork Creek Point of Diversion, as more fully described in Paragraphs TH. through 7.K., above. C. Sources of Substitute Supply: Water Supply Contract, ROFR, and Additional and Alternative Sources of Augmentation Water as described in Paragraph 8, above. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 21 D. Appropriation Information: i.Date appropriations initiated: September 30, 2010. ii. How the appropriations were initiated: Encana formed the specific intent to amend its previously-filed application for plan for augmentation to include points of diversion on Parachute Creek as augmented structures, including the specific acts of determining the precise location of these structures. E. Maximum Rate of Exchange: 3.0 efs, conditional. F. Use: Consistent with the decreed uses of the sources of substitute supply, the use of water exchanged under the Exchanges will be augmentation of depletions caused by Encana's out-of-priority diversions at the Parachute Diversion Structures. The water diverted out of ,priority at the Parachute Diversion Structures and augmented by the Exchanges will be used for fully-consumptive industrial purposes in connection with oil and gas drilling and production, as more fully described in Paragraph B.F. above. Encana may use, reuse, successively use, and dispose of to extinction all water legally diverted pursuant to this Decree. G. Place of Use: The place of use for the water exchanged under the Exchanges will be consistent with the decreed places of use of the sources of substitute supply. 19. Terms and Conditions for Operation of the Encana Parachute Creek Exchanges: Encana's operation of the Exchanges shall be subject to the following terms and conditions: A. Live Stream: Water may be diverted by exchange only at such times as and to the extent that a live surface stream would exist between the Exchange-from Point to the Exchange-to Point absent the operation of the exchange. B. Transit Losses: The Division Engineer shall assess stream transit losses in all circumstances in which Encana is using the natural stream channel to transport a substitute supply to the Exchange-from Point. Transit losses shall be assessed in the same manner as for other water users using the Colorado River and its tributaries for carriage. No transit losses shall be assessed on the Exchanges from the Exchange-from Point upstream to the Exchange-to Points. 000333457 Encana Oil& Gas (USA) hic. Case No. 2010CW 175 Page 22 C. Volumetric Limit on Exchanges: The amount of water diverted at the Exchange- to Points shall be limited to the amount of substitute supply delivered to the Exchange-from Point, not to exceed a combined total of 3.0 cfs at any time up to 900 acre-feet per year. D. Water Quality: Pursuant to C.R.S. § 37-80-120(3) the substitute supply water shall be of a quality and continuity to meet the requirements of use to which the senior appropriation has normally been put. E. Division Engineer or Water Commissioner Approval of Exchange Operations: Encana shall notify and obtain the approval of the Division Engineer or Water Commissioner before operating any of the Exchanges decreed herein, and shall notify the Division Engineer or Water Commissioner when it terminates such operation. F. Administration Within Priority System: The Exchanges are appropriative water rights and like other appropriative water rights will be exercised within the priority system, so that Encana's rights of exchange are subject to the legal call of water rights senior in priority and are able to call out water rights junior in priority to Encana's rights of exchange as decreed herein. Accordingly, Encana may operate the Exchanges only when that operation will not reduce the water available to the lawful; calls of senior water rights diverting between the Exchange-to Points and the Exchange-from Point. 20. No Iniury: The Court finds that subject to the maintenance of the foregoing terms and conditions the appropriative rights of substitution and exchange sought herein will not injuriously affect any other owners of water rights. 21. Can and Will: Encana has established that the conditional appropriative rights of substitution and exchange can and will be diverted and that water will be beneficially used and the projects can and will be completed with diligence within a reasonable time. 22. Approval of Conditional Appropriative Rights of Substitution and Exchange: The Court finds that the requested appropriative rights of substitution and exchange are in accordance with law, have been appropriated by Encana, and can and will be exercised and should be granted subject to the terms of this Decree. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 23 CONCLUSIONS OF LAW 23. Incorporation: Any conclusion of law contained in the foregoing Findings of Fact is included herein by reference. 24. Notice and Jurisdiction: The Water Court for Water Division No. 5 has jurisdiction over the subject matter of this proceeding and over all persons, owners of property and:water rights that may be affected hereby, whether or not they have chosen to appear. The original Application, the first amendment, and the resume publication of the Application placed such persons on notice of the relief requested by the Application and granted by this Decree. 25. Plan for Augmentation: The plan for augmentation proposed by Encana and approved herein is contemplated and authorized by law and will not injuriously affect any owner of or person entitled to use water under a vested water right or a decreed conditional water right so long as operated and administered in accordance with the terms of this Decree. 26. Conditional and Absolute Surface Water Right: The conditional and absolute surface water right claimed by Encana and approved herein is contemplated and authorized by law and will not injuriously affect any owner of or person entitled to use water under a vested water right or a decreed conditional water right so long as operated and administered in accordance with the terms of this Decree. 27. Appropriative Rights of Substitution and Exchange: The exchanges proposed by Encana and approved herein are contemplated and authorized by law and will not injuriously affect any owner of or person entitled to use water under a vested water right or a decreed conditional water right so long as operated and administered in accordance with the terms of this Decree. 28. Requirements, Standards, and Burdens of Proof: Encana has complied with all requirements and met all standards and burdens of proof, including but not limited to C.R.S. §§ 37-83-104, 37-92-302, 37-92-304, and 37-92-305, and is therefore entitled to a decree confirming and approving the plan for augmentation, conditional and absolute surface water right, and appropriative rights of substitution and exchange described herein. RULING OF THE REFEREE 29. Incorporation: The foregoing Findings of Fact and Conclusions of Law, together with any exhibits hereto, are incorporated herein by reference. 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 24 30. Plan for Augmentation: The plan for augmentation described herein is approved, subject to the terms and conditions set forth herein. 31. Conditional and Absolute Surface Water Right: The conditional and absolute surface water right for the Parachute Diversion Structures (Encana Water Horse Point of Diversion, North Parachute Ranch Truck Pullout Point of Diversion, North Parachute Ranch Meadows Ditch Point of Diversion, and North Parachute Ranch West Fork Creek Point of Diversion) for 3.0 cfs cumulative, for industrial uses in connection with oil and gas drilling as more fully described in Paragraph 13.F. above, is approved, subject to the terms and conditions set forth herein. Applicant has applied 1.08 cfs to beneficial use; therefore_, the Court determines that the Parachute Diversion Structures are absolute for 1.08 cfs for the industrial uses described in Paragraph 13.F. above. The conditional portion of the surface water right is for 1.92 cfs for the industrial uses described in Paragraph 13.F. above. 32. If Encana desires to maintain such conditional decree, an application for a finding of reasonable diligence shall be filed by the end of the month six years from the date of the Water Judge's entry of this Decree, or a showing made on or before such date that the conditional portion of the surface water right has become an absolute water right by reason of the completion of the appropriation. 33. Appropriative Rights of Substitution and Exchange: The conditional appropriative rights of substitution and exchange described herein are approved for 3.0 cfs, up to 900 acre- feet per year, for augmentation of depletions caused by out-of-priority diversions at the Parachute Diversion Structures, subject to the terms and conditions set forth herein. Water diverted at the Parachute Diversion Structures out of priority and augmented by the Exchanges is for fully-consumptive industrial uses in connection with oil and gas drilling and production, as more fully described in Paragraph 13.F. above. 34. If Encana desires to maintain such conditional appropriative rights of substitution and exchange, an application for a finding of reasonable diligence shall be filed by the end of the month six years from the date of the Water Judge's entry of this Decree, or a showing made on or before such date that the conditional appropriative rights of substitution and exchange have become absolute water rights by reason of the completion of the appropriation. 35. Measuring Devices: In addition to the measuring devices expressly required by this Decree, Encana shall install and maintain, at its expense, such meters, gages, or other measuring devices reasonably required by the Water Commissioner or Division Engineer, 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 25 and shall report at reasonable times to the Water Commissioner and/or Division Engineer the readings of such meters, gages, or other measuring devices pursuant to C.R.S. § 37- 92-502(5). 36. Administration of Priorities: The priorities granted for the surface water right and the appropriative rights of substitution and exchange are based on the appropriation dates confirmed herein and on the filing of the original application and the first amendment in this case in the year 2010. Said priorities shall be administered as having been filed in the year 2010 and shall be junior to all water rights granted pursuant to applications filed in previous years. As between all water rights applied for in the same, calendar year, priorities shall be determined by historical dates of appropriation and shall not be affected by the date of entry of ruling. 37. Accounting: In the exercise of the water rights and plan for augmentation including exchanges decreed herein, the following accounting procedures shall apply. Encana shall complete the accounting forms on a daily basis and provide the accounting forms to the Division Engineer on at least a monthly basis, or more frequently if requested by the Division Engineer. No later than each November 15 following the previous irrigation year (November 1 through October 31), Encana shall file with the Division Engineer an annual report summarizing diversions and replacements under the plan for augmentation decreed herein. The initial accounting forms are attached to this Decree as Exhibit 1. The initial accounting forms are approved but not decreed herein and may be changed from time to time with approval of the Division Engineer, provided that all information contained in Exhibit I and required by this Decree is included in any changed accounting forms, and notice of.and'an opportunity to comment on the proposed changes is provided to Objectors in accordance with the provisions of this paragraph. Encana shall provide written notice to the Objectors of any proposed changes to the accounting forms when those changes are submitted to the Division Engineer. Objectors shall have 60 days after service of written notice of the proposed changes to the accounting forms to provide comments to the Division Engineer on the proposed changes. Upon the Division Engineer's approval of the changes to the accounting forms, any party may appeal the decision of the Division Engineer by invoking retained jurisdiction pursuant to this paragraph and/or Paragraph 39, below. The Court retains perpetual jurisdiction to resolve disputes over proposed changes to the accounting forms. 38. Use of Structures: Nothing in this Decree shall be construed to create or enlarge any right of Encana to use land or structures owned by parties other than Encana for the diversion of water, nor construed to enlarge any right to use lands, structures or facilities currently possessed by Encana. Encana may utilize existing water diversion, carriage, and storage structures only to the extent it has acquired the right to use such structures 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 26 from the appropriate entities through contract or other means. Similarly, Encana may use land for the construction and operation of such structures only to the extent it has acquired the right to use such land from the appropriate entities by purchase or other means. 39. Retained Jurisdiction: Pursuant to C.R.S. § 37-92-304(6), the plan for augmentation shall remain subject to reconsideration on the issue of injury to vested water rights ofothers that may result from future operation of the plan for augmentation for (5) five years from the date of this Decree. Except to the extent subject to retained jurisdiction, these findings, conclusions and decree are final. The retained jurisdiction provision of this paragraph is in addition to the specific retained jurisdiction provisions included in Paragraphs 8.C.iii. and 37 of this Decree. A. Procedure for Retained Jurisdiction: Unless a different procedure is specifically set forth in a previous paragraph of this Decree„ any person, including the State and Division Engineers, may invoke retained jurisdiction within the general retained jurisdiction or under continuing jurisdiction, by filing a petition to do so with this Court. Such petition shall be filed under the caption and case number of this case and shall be served on counsel of record for all parties who have appeared. Any petition to invoke the retained jurisdiction shall set forth with particularity the factual basis and the alleged injury or violation of this Decree upon which the requested reconsideration is premised, together with proposed decree language modifications offered by the moving party or relief requested to remedy the alleged injury or violation. Parties shall be given 60 days from the service of the petition to file a response thereto. The moving party shall have the initial burden of going forward to establish the prima facie facts and the alleged injury or violation alleged in the petition, and then Encana shall have the burden of proof either to show that the alleged injury or violation has not occurred or will not occur, or to propose additional terms and conditions which will prevent injury or violation from occurring. 40. Curtailment: Pursuant to C.R.S. § 37-92-305(8), the State Engineer shall curtail all out- of-priority diversions, the depletions from which are not so replaced as to prevent injury to vested water rights. 41. Final Judgment and Decree. Except to the extent subject to retained jurisdiction, the findings, conclusions, and decree entered herein are final. 42. No Precedent. This Decree is the result of substantial negotiations and settlement discussions between the parties. Its terms are based on the specific facts and 000333457 Encana Oil& Gas (USA) Inc. Case No. 201OCW 175 Page 27 circumstances of this case and compromises by the parties. By stipulation to entry of this Decree, no party in this case intends that it become precedent to resolve issues in any other case, and all parties reserve their rights to challenge the terms and conditions to be applied to any other Water Court application. A copy of the Ruling shall be filed with the Division Engineer for Division No. 5 and with the State Engineer. It is further ORDERED that this Ruling shall be filed with the Water Clerk, subject to judicial review. DATED this 25th day of July, 2013. BY THE COURT: Holly K. Strablizky Water Referee Water Division No. 5 000333457 Encana Oil& Gas (USA) Inc. Case No. 2010CW 175 Page 28 DECREE OF THE WATER COURT The Court finds that no protest has been filed in this matter. The Court hereby confirms the foregoing Ruling of the Referee, and enters the same as the Judgment and Decree of this Court. DATED this _day of 2013. BY THE COURT: James B. Boyd Water Judge Water Division No. 5 000333457 TE_X_H__1B_1T_A1. e f e iP of n ne Mes t y a._.. 3 fJ. lam+ _ C, Grand Junction Pipeline ES V d v , g EnCana Oil & Gas (USA) Inc. LEGEND— R yYSURA iI ii Record Point of Map Showing wn SV t Diversion Location it Grand Junction Pipeline HvsW(307)78W 5 c DATE:Sept. le,2007 SHEET U Section 17, T6S, R93 W, 6th P.M. SCALE:, =z000 Exhibit Gayfield County, Colorado PROJECTNO.:07-04.104 OF , EXHIBIT B t. 1 tt Parachute Aftemate Point of Diversion Pumping Pipeline -- - - r EnCana Oil & Gas (USA) Inc. sAZC LEGEND— Map Showing Ven K Record Point of e wfm S~ Diversion Location E" ,WO "e WOOPuminPipeline & No r307i Parachute Alternate Point of Diversion Dare:Sept. 18.2007 SHEET Section 6, T7S, R95W, 6th P.M.scnLe: r=2000 Exhibit 1 Garfield County, Colorado PROJECT NO.:0704-163 OF 1 I EXHIBIT C II; 1 G fr l ii uac%A Ik a r 9 wYE t-c_= tee.• •_ J L.,' RIVER y Dp SUN Last Chance Ditch Z° } 1 Attemate Point of Diversion RISING ,'- - 6 v . IV 95 d fH I I Pea czs IV EnCana Oil & Gas (USA) Inc. BATCH LEGEND— MapMap Showing su Ry EYrNG Point of Diversion Location 908 m Sv I Last Chance Ditch E..W,""°"dW° p P .Ne.(307)789-0.565 LS Q Alternate Point of Diversion DATE:November 1,2007 SHEET Section 10, T6S, R92W, 6th P.M. SCALE: 1'=2000 Exh%b%t Garfield County, Colorado PROJECT NO.:07-04-104 of 1 EXHIBIT D y.II A 1. E R V P. Rulison Alternate Point of Diversion f 36 R YQ ; T6S_, T7S - EnCana ll as nc. LEGEND— SURVEYING Record Point of Map Showing sos M.,S eer Diversion Location LLEversion.Wyo°tlnp B"5 Rulison Alternate Point of Diversion a"" a DATE:October 9,2007 SHEET Section 25, T6S, R95W, 6th P.M. SCALE: ,'=2000• 704 Exhibit 1 Garfield County, Colorado PROJEC7N0.:07-04- 0F1 EXHIBIT E Unabridge Alternate Point of Diversion EnCana Oil & Gas (USA) Inc. LEGEND- ATC$I A. rvc Record Point of 1 ' Map Showing soars.$ Diversion Location i Erarwmrr.N'Y..'W a W Unabridge Alternate Point of Diversion W(W7)7 Section 34, T7S, R96 W, 6th P.M. Dare:Octobers.zoos sHeer SCALE: ,•=s000 Exhibit I Garfield County, Colorado PROJECTNO.:o704-,Of OF , EXHIBIT F I 1 1 J li h' l{Pliny Debeque Altemate 1 Point of Diversion 1 a r , r r . r En Cana Oil & Gas (USA) Inc. ATCL; LEGEND- SURVEYING Record Point of Map Showing sosnd seeel Diversion Location LL E.. ,Wl9 BPBdO Debeque Alternate Point of Diversion N."°"' y Section 27, TBS, R97W, 6th P.M. Dare:October s,zoo? SHEE7 SCALE: 1"=2000' Exhibit Mesa County, Colorado PROJECrN0.:0714104 OF i r m s w I j W ri.4. QAY , G LO dGJ Cherry Gulcti d o 0 O N% i MA a/pprhV L 1 rcG 2 U Meek c d t$° t 4Z P° rKPxla° z U e 5 CCr a m r 14 0 Go DQ OYom. L > co le creek a eJ u W y rr1l K `o Of- ky... z aU ey W rl J N Y F a U 7W U u 7 lI w o°XUe Cm 640 dl Cn S i s F J 0 1 ,Z CM I T5 n n z z N m m 3 N N N m m N N N m5 nM M M M n n n M1 c M N N M Q N Z pO z ao ao ao ao ao ao m N N N N N c M z z N M Q N lit N N M m z z c M N N N M Q yN 3 3 T O 3 3 3 3 z N ? N N M Q N m m m o N rn m 3 3 3 3 3 3 3 3 orm n m m N M z N ? N N N N N c N lV N N pNj N N <1 A T Of N N T U z z z m m m m m 3 3MNNNMQN N p N N N T T T T T T T Mun fb K g m N M ol z z z N T T T T T T T pi M N N N M Q N H N N N m 3 3 3mmmmNmmm n n o Qy 5 T pl N M N m m m m om' mr ° n m m o z c N N Nm M N 0 N M Q N Q N LN N Oc SO O z z z N N N 3 3 3 3 3 3MNQN O O O j Cc N N N N 3 c 3 co 0 0 z z z N c N N N N N N N 3MNNQNOOOOOQ ONN NN N pppppN c fb 3 3 M Z N Ny N N N NO N M EAHT7T 1 10CW77 z 00000000 6a 00000000 s @ V -------------- C " 0000000000000 5rc - 00000000 a 5 e 5 00000000 00000000 ado°o s= a a ------ 00 3 o s§ o ^_ -------- 95¢^O 5o Via`-0a°a LL - -------- p dg5 3°5¢455 5> 00000000 a a a u u 9 LgFy o5"z P So'a'a Sgo W s5 000 c"5^ 552 a5 ooqG6G x"5 A®3 59 e ao z 0 0 0 0 0 0 0 0 o." 0 u a o0 00000 seae 'e $3g g 10 x =3 sa ox m 3 00000000 m °8" tlga53CCCC 9- 3 95 "gd 00000000 g 00000000 0 a 3 T d 0 0 0 m-0 s ¢ " 3 a aye ede5a e aam c g %se 5 a r. ssss sa aE-0 o 5a ai63.5 9999 $ d a g 0 9. -------------- c EcceE6EEEcccc°cccccccEE EX wwwwwwwwww, wwwwwwwwww\ It', j`° J wwwwwwwwww\ b\mmmmwwmwww: j$wwwwwwwwmw\ wwwwwwwwmm G» \ , wwwwwwwwww{ lwwwwwwmwmw} 6 J ` i wwwwwwwwww{ wwwwwwwwww{ y EX H 5 e ee aaae Goaas e eel o lit se eeeeeeeeeeeeeee eeeee eeeevoos 5°$ 33ae°eeeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeeee==< e m-°n-mws-°°_°s_°9Aa AAra FwwaaB EX wwwwwwwwwwe wwwwwwwwww7 It',j° J wwwwwwwwww7 b\mmmmwwwwmwg 1111P wwwwww7 fill wwwwww® 11, 6© \ wwwwwwwwww\ lwwwwwwwwww\ 6 J ` i mmmmmmmmmm\ mmmmmmmmmm\ y EX wwwwwwwwww wwwwwwwwww{ It',j° J wwwwwwwwww{ mmmmmmmmmg wwwwwwwwww} wwwwwwwww»! wwwwwwwww7 l wwwwwwwww7 6 J ` i wwwwwwwww7 wwwwwwwww7 y mmmwwmwww» EX H 5 e ee aaae Goaas e eel o lit se eeeeeeeeeeeeeee eeeee eeeevoos 5°$ 33ae°eeeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeeee==< e EX H 5 e eee aaaaaaaaaaaaaaaaaaaaaaaaaaaaaa gg s e eeeeeeeeeeeeeee eeeee eeevoos 5°$ 33a e°eeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeee==< EX H 5 e ee aaae Goaas e eel o lit se eeeeeeeeeeeeeee eeeee eeeevoos 5°$ 33ae°eeeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeeee==< e EX H 5 e eee aaaaaaaaaaaaaaaaaaaaaaaaaaaaaa gg s e eeeeeeeeeeeeeee eeeee eeevoos 5°$ 33a e°eeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeee==< e @ @ @ @E @ @ @ @444444444444444444444'g EX H 5 e ee aaae Goaas e eel o lit se eeeeeeeeeeeeeee eeeee eeeevoos 5°$ 33ae°eeeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeeee==< e EX H 5 e ee aaae Goaas e eel o lit se eeeeeeeeeeeeeee eeeee eeeevoos 5°$ 33ae°eeeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeeee==< e EX H 5 e eee aaaaaaaaaaaaaaaaaaaaaaaaaaaaaa gg s e eeeeeeeeeeeeeee eeeee eeevoos 5°$ 33a e°eeeeeeeeeeeeeeeeeeeeeeeeeeee4 a aFOO eeeeeeeeeeeeeeeeeeeeeeeeee==< e EX H 5 e G 5 aaa°°°° eevaaa°°°°°° vaaaaeeeeeees O j J3Q Qe a m q6 9 se eeeeeeeeeeeeeee eeeee eeeevoos 5 $ a 3 Sulk", a A m 1e 11 Iawj 'gm e eeeeeeeeeeeeeeeeeeeeeeeeeeeeee? p'e==: zzzz . 5 3 n36 6p rggg, + li WIN 6666666660_06_06_666606606666688 EXHIBIT 110CW175 DRAFT ANNUAL ACCOUNTING FORM Encana Oil& Gas(USA)Inc. Case No. 10CW175 Values in Ac-ft) Water Year Exchange from confluence of Parachute Creek and the Colorado River To Encana To North Parachute To North Parachute To North Parachute Total Water Water Horse Ranch Truck Pullout Ranch Meadows Ranch West Fork Exchanged under Month POD POD Ditch POD Creek POD Case No. l OCW 175 November December January February March April May June July August September October Total Notes: See Daily Accounting form. All exchange reaches are limited to a maximum rate of 3 cfs,and not to exceed a cumulative of 3 cfs for the sum of all of the exchanges. See columns(11)through(14)from Daily Accounting Form. The annual total volume of exchanged water is not to exceed 900 Ac-ft for the year. A ..