To: Honorable Mayor and Members of Town Council
From: Mark Marlowe, P.E., Utilities Director
Title
Update: Water Court Cases
Body
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Executive Summary
Acquiring, changing, using and protecting the Town’s water rights is a key component of the Town’s long-term renewable water plan. This requires the Town to file applications in Water Court and oppositions where an application by another entity has the potential to injure the Town’s water rights. The Town is continuing to use Lyons, Gaddis, Kahn as our water attorneys and W.W. Wheeler Associates for engineering support. The purpose of this memorandum is to update Town Council on the Town’s current Water Court cases.
The Town currently has one active case where we are the applicant requesting a finding of reasonable diligence for the Town’s Chatfield Reservoir conditional water right. There are five active cases that the Town is opposing that could injure our water rights and four upcoming applications that may be filed this year. These cases are summarized in the following discussion.
Discussion
The diligence application for the Chatfield Reservoir conditional water right to 2,000 acre-feet of storage was filed on August 11, 2016, and is case number 16CW3102. This has to be done every five years until the right is made absolute. A right is made absolute once it is put into use. The deadline for statements of opposition is October 31, 2016.
The Town is an opposer to case 13CW3108, which is an application to withdraw water from Box Elder Creek upstream of the wellfield that we are currently under an option agreement to purchase. This would potentially decrease the yield from our future wells. The Town is currently negotiating with the applicant, Box Elder Properties, to have them withdraw the application contingency on the Town closing on the Box Elder well field option.
We have stipulated in cases 14CW3174 and 15CW3016 for an augmentation plan adjacent to Box Elder Creek and a change to the Newmarch Ditch on Plum Creek, respectively. The remaining two cases we are opposing, 15CW3148 and 15CW3181, are for a conditional refill right for Chatfield Reservoir and a conditional storage water right on West Plum Creek. Proposed decrees and engineering are due from the applicant on those cases in the coming weeks.
We are planning to apply for a conditional refill right for Chatfield Reservoir and surface water right for Chatfield Reservoir Pump Back by December 30, 2016, in order to get a 2016 priority date. Other potential cases to be filed this year to receive a 2016 priority date are a conditional direct flow and storage water right for the Sedalia Diversion, an augmentation plan for Box Elder Creek well field, and a change of the Rothe-Sublette Water Rights.
The Town has brought cases 92CW144 and 12CW296 to conclusion. Case 92CW144 was dismissed by the Town without prejudice, as it no longer provided significant benefit to the Town.
In the second case, 12CW296, the Town was able to get all opposers to stipulate, and a final successful decree has been entered. In summary, this case allows us to exchange water from as far north as Chatfield Reservoir back to the Town and amongst the various diversion structures the Town is planning. Actual cost to get to conclusion for the two cases was $197,000. The Town is currently using the exchange from 12CW296 to withdraw water from East Plum Creek at the PCWPF. This will make this right absolute.
These cases are summarized in Attachment A.
Budget Impact
In the annual budgeting process, the Town budgets money for Legal Services related to Water Court cases, other water resource legal matters, and Intergovernmental Agreement negotiation. The Town also budgets money for water resource consulting services related to support of Water Court cases and the Town’s water rights, water resources planning and evaluation analysis, preparation of technical memos and engineering reports, water rights accounting, and other as-directed matters. In total, the Town budgeted $210,000 for Water Court cases in 2016. The Town has spent $107,700 on legal services and another $69,000 on consulting services so far this year.
Staff Recommendation
Staff recommends continuing to file and work water court cases as the applicant, which will provide maximum benefit for use of our water rights and file cases as an opposer where our water rights could be impacted. Staff will continue to keep Council updated regarding active Water Court cases on an annual basis.
Attachments
Attachment A: Summary of Cases