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
Lauren Moore, 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 three active cases where we are the applicant. There are six active cases that the Town is opposing that could injure our water rights, one upcoming application that may be filed in 2018 and seven upcoming applications that may be filed in 2019. These cases are summarized in the following discussion.
Discussion
The Town of Castle Rock has three 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. All parties have since stipulated and been approved by the Court.
This case is before the Water Referee. The Town’s Water Counsel responded to opposers on November 16, 2017. A status conference was held on February 6, 2018. A motion for Entry of Decree was filed on August 28, 2018.
To date, the Town has spent $ 28,954 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $500 of work to conclude this case.
2. 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. All parties have since stipulated and been approved by the Court.
This case is before the Water Referee. Opposer’s comments were due on December 4, 2017 and the Town’s Water Counsel responded to opposers. A status conference was held on January 11, 2018. A motion for Entry of Decree was filed on September 17, 2018.
To date, the Town has spent $34,977 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $500 of work to conclude this case.
3. 17CW3211 - This case was filed December 28, 2017. This is an application for diverting 40 cubic feet per second (cfs) of 2017 priority water at the Plum Creek Diversion and the ability to store this water in Castle Rock Reservoirs. This case is before the Water Referee and the Town’s Water Counsel will respond to opposers by November 2, 2018. Opposers’ comments are due by January 18, 2019. The next status conference is scheduled for February 4, 2019.
To date, the Town has spent $14,779 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $10,000 to $15,000 of work to conclude this case, assuming that the Town obtains a stipulated settlement before litigation deadlines begin.
The Town has six current active cases where the Town is an opposer. Costs for opposition are typically on the order of $72,000 to $150,000.
1. 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 a revised ruling is due from the applicant on October 31, 2018. Opposer’s comments are due January 19, 2019. The next status conference is scheduled for January 31, 2019.
2. 17GW5 - The Town is currently an opposer in the Colorado Groundwater Commission’s rulemaking for aquifer storage and recharge and replacement plans in the Designated Basins. New parties’ prehearing statements were due October 12, 2018 and rebuttal to new parties’ prehearing statements were due October 19, 2018. A settlement conference is scheduled for November 7, 2018. The rulemaking hearing is scheduled from November 26, 2018 through November 30, 2018.
3. 18CW3038 - The Town is currently an opposer in the Castle Pines North’s changes of Lupton Bottom and Meadow Island #1 Ditches water rights. This case is before the Water Referee and a status conference was held on October 12, 2018.
4. 18CW3039 - The Town is currently an opposer in the Dominion Water & Sanitation District’s conditional surface, storage and exchanges, including at Castle Rock’s structures (such as the Plum Creek Diversion and Castle Rock Reservoir No. 1). This case is before the Water Referee and a status conference was held on October 9, 2018.
5. 18CW3056 - The Town is currently an opposer in the Sublette, Riverside Irrigation District & Riverside Res & Land Co’s due diligence for water rights that yield Rothe Sublette recharge credits. This is a “friendly” opposition because the Town actually supports the application. The Town has an interest in these water rights, since once they are exercised, the Town will own some of the recharge credits. Opposition allows for the Town to monitor this case as it progresses. This case is before the Water Referee and a status conference is scheduled on October 29, 2018.
6. 18CW3066 - The Town is currently an opposer in the Perry Park Country Club’s absolute water right for the Wauconda Reservoir Refill. This case is before the Water Referee and comments are due by October 31, 2018.
The Town has eight upcoming or possible future cases where we would be the applicant in late 2018 and in 2019. We are planning on submitting the following applications in 2018:
• Denver Basin Groundwater Well Field - an application to include all the new water rights dedicated to the Town (since 1997) in an overall well field to make operations and accounting cleaner.
We are planning on submitting the following applications in 2019:
• Chatfield Reservoir Exchange - a diligence application for Well Nos. 176 to 186, exchange from Chatfield Reservoir to Castle Rock Well 181, exchange from Confluence of East and West Plum Creek to Castle Rock Well 181, exchange from Chatfield Reservoir to Douglas Lane Pipeline and exchange from Plum Creek Water Reclamation Authority to Douglas Lane Pipeline. The application deadline is February 28, 2019.
• Confluence of East and West Plum Creek Exchange - a diligence application for exchange from Confluence of East and West Plum Creek to Douglas Lane and exchange from Confluence of East and West Plum Creek to Wells in Meadows and East Plum Creek Wellfield. The application deadline is March 31, 2019.
• Plum Creek Water Reclamation Authority Exchange - a diligence application for exchange from PCWRA to Douglas Lane. The application deadline is March 31, 2019.
• West Plum Creek Exchange - a diligence application for Well Nos. AL-1 to AL-20, exchange from S11, T8S, R67W to AL-4, exchange from Plum Creek water reclamation Authority to AL-20, and exchange on West Plum Creek from S1, T8S, R68W to Alluvial Wellfield. The application deadline is April 30, 2019.
• Plum Creek Water Reclamation Authority Exchange - a diligence application for exchange from PCWRA to TCR WWTP. The application deadline is December 30, 2019.
• 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 groundwater, surface and storage water rights to be claimed at the Box Elder Creek Well Field (attempting to file this before December 31, 2019).
These cases are summarized in Attachment A.
Budget Impact
In the annual budgeting process, Castle Rock Water budgets money for Legal Services related to Water Court cases, other water resource legal matters, and Intergovernmental Agreement negotiation. Castle Rock Water 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 $220,000 for Water Court cases in 2018. The Town has spent $158,500 on legal services and another $35,000 on consulting services so far this year related to Water Court cases.
For 2019, 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