To: Honorable Mayor and Members of Town Council
From: Mark Marlowe, P.E., Director of Castle Rock Water
Matt Benak, P.E., Water Resources Manager
Sheri Scott, P.E., Water Resources Program Analyst
Title
Update: Water Court Cases
Body
________________________________________________________________________________
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 as well as an important aspect of managing our groundwater rights. 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 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 four active cases where we are the applicant. There are five active cases that the Town is opposing that could injure our water rights and five upcoming applications that may be filed in 2018. These cases are summarized in the following discussion.
Discussion
The Town of Castle Rock has four active Water Court cases in which the Town is the applicant. These cases are summarized below:
1. 16CW3178 - This case was filed on December 15, 2016. This is an application for a conditional refill right for 2,000 acre-feet for Chatfield Reservoir and a surface water diversion right for 30 cubic feet per second for the Chatfield Reservoir Pump Back. This case has seven opposers which include Denver Water, Aurora, Centennial Water & Sanitation District, Castle Pines Metro District, Colorado Parks & Wildlife, Littleton, and South Suburban Park & Recreation District. No entities have stipulated.
This case is before the Water Referee. We responded to the opposers’ comments on November 16, 2017. The opposers have until Jan. 29, 2018 to provide additional comments. The next status conference is scheduled for Feb. 6, 2018.
To date, the Town has spent $ 16,300 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $40,000 to $80,000 of work to conclude this case depending if the case settles or goes to trial.
2. 17CW3044 - This case was filed on March 16, 2017. This is an application to amend the current location of the CR-1 diversion listed in the existing decree 12CW296. This case had two opposers which were Central Colorado Water Conservancy District (Central) and Littleton. Central has stipulated and is no longer an active opposer in the case. We are expecting Littleton to stipulate soon. This case is before the Water Referee. The next status conference is scheduled for December 6, 2017.
To date, the Town has spent $3,800 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $4,000 to $20,000 of work to conclude this case depending if the case settles or goes to trial.
3. 17CW3128 - This case was filed on August 31, 2017. This is an augmentation plan for not non-tributary groundwater in Lower Dawson and Denver Aquifers. This case has four opposers which include Castle Pines North Metro District, Castle Pines Metro District, Sedalia Water & Sanitation District, and CPV, Inc. No entities have stipulated.
This case is before the Water Referee. Opposer’s comments are due Dec. 4, 2017. The Town’s Water Counsel will respond to opposers by Jan. 4, 2018. The next status conference is scheduled for January 11, 2018.
To date, the Town has spent $18,700 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $30,000 to $60,000 of work to conclude this case depending if the case settles or goes to trial.
4. 17CW3161 - This case was filed on Oct. 30, 2017. This is a diligence application for the Heckendorf groundwater rights and exchange. This case is before the Water Referee and the opposition period ends on Dec. 31, 2017. To date, the Town has spent $1,800 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $4,000 to $30,000 of work to conclude this case depending if the case settles or goes to trial.
The Town has five current active cases where the Town is an opposer. Costs for opposition are typically on the order of $32,000 to $150,000.
1. 15CW3148 - The Town is currently an opposer in this case for Central Colorado Water Conservancy District’s conditional refill right for Chatfield Reservoir. This case has been re-referred to the Water Judge and trial has been set for April 2019. A status conference was held on Nov. 16, 2017. The applicant’s expert disclosures are due July 30, 2018. Expert disclosures are due from Castle Rock by Nov. 26, 2018.
2. 15CW3181 - The Town is currently an opposer in the case for Centennial III, LLC’s conditional storage water right on West Plum Creek. This case has been re-referred to the Water Judge and trial has been set for January 2019. The next status conference is scheduled for Jan. 4, 2018. The applicant’s expert disclosures are due May 22, 2018. Expert disclosures are due from Castle Rock by Sept. 8, 2018.
3. 16CW3112 - The Town is currently an opposer in the case for Mt. Carbon Metropolitan District’s diligence on a conditional water right for Chatfield Reservoir. The case is before the Water Referee and the next status conference is scheduled for Dec. 13, 2017. We have offered to stipulate if they give our water right in Chatfield priority over their water right. They cannot currently meet the “can and will” requirements for this case as they do not own storage in Chatfield.
4. 16CW3138 - The Town is currently an opposer in the Central Colorado Water Conservancy District’s diligence on a conditional water right for Chatfield Reservoir. The case is before the Water Referee and the next status conference is scheduled for Jan. 25, 2018.
5. 17CW3122 - The Town is currently an opposer in the Perry Park Water & Sanitation District’s change of Gove Ditch water right and amended plan for augmentation. This case is before the Water Referee and no deadlines have been set.
The Town has five upcoming or possible future cases where we would be the applicant in 2018. We are planning on submitting the following applications in 2018:
• Rothe-Sublette Recharge - a diligence application on direct flow water.
• Plum Creek Diversion and Castle Rock Reservoir - an application to claim a conditional direct flow water right and storage water rights at the Plum Creek Diversion Structure and Castle Rock Reservoir in Sedalia (attempting to file these before December 31, 2017).
• Box Elder Creek Well Field - an augmentation plan application to allow the Town to divert water at the Box Elder Creek Well Field for municipal use.
• Box Elder Creek Water Right - an application for direct flow and storage water rights to be claimed at the Box Elder Creek Well Field.
• Denver Basin Groundwater Well Field - an application to include all the new water rights dedicated to the Town in an overall well field to make operations and accounting cleaner.
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 $200,000 for Water Court cases in 2017. The Town has spent $33,000 on legal services and another $62,000 on consulting services so far this year related to Water Court cases.
For 2018, Castle Rock Water has budgeted $110,000 for legal fees and $110,000 for engineering fees.
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. Where we are the applicant, the goal is to obtain stipulations from opposers as quickly as possible. On cases we oppose, we want to stipulate as early as possible but we must make sure we can do this while protecting our rights. Staff will continue to keep Council updated regarding active Water Court cases on an annual basis.
Attachments
Attachment A: Summary of Cases