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 six active cases where we are the applicant. There are two upcoming applications that may be filed in 2019, and one upcoming application that may be filed in 2020. There are seven active cases that the Town is opposing that could injure our water rights. These cases are summarized in (Attachment A) with additional details in the following discussion.
Discussion
The Town of Castle Rock has six active Water Court cases in which the Town is the applicant. These cases are summarized below:
1. 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 near Sedalia. This case is before the Water Judge, and Centennial Water & Sanitation District is the only opposer. The trial setting conference was scheduled for September 23, 2019. The Town’s initial disclosures are due by November 21, 2019. If successful, this case will allow the Town to store fully consumable return flows at Castle Rock Reservoir No. 1, as well as to divert native Plum Creek flows when in-priority at Plum Creek Diversion. Overall, this will contribute to the Town’s renewable supply portfolio, as diverted water will eventually be pumped to the Plum Creek Water Purification Facility (PCWPF) for treatment.
To-date, the Town has spent $23,496 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $3,000 to $15,000 of work to conclude this case, assuming that the Town obtains a stipulated settlement before litigation deadlines begin.
2. 19CW3030 - This case was filed February 28, 2019. This is a due diligence application for Chatfield Reservoir Exchange - for Well Nos. 176 to 186, exchange from Chatfield Reservoir to Castle Rock Well 181, exchange from the confluence of East and West Plum Creek to Castle Rock Well 181, exchange from Chatfield Reservoir to Castle Rock Well 80, and exchange from the Plum Creek Water Reclamation Authority to Castle Rock Well 80. A drawing showing this exchange has been provided (Attachment B). This case is before the Water Referee, and Castle Pines Village is the only opposer. The opposer’s comments on the proposed decree were due October 14, 2019. A status conference is scheduled on November 1, 2019. If successful, this case will make 1.37 cfs of our conditional water right of 22.13 cfs partially absolute for the exchange from Plum Creek Regional Waste Water Treatment Plant discharge to Castle Rock Well 80. Additionally, this case provides work done towards completion of the appropriation from March 2013 to February 2019, as required by the conditional water right.
To-date, the Town has spent $5,120 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $5,000 to $10,000 of work to conclude this case.
3. 19CW3039 - This case was filed February 28, 2019. This is an application for the Denver Basin Groundwater Well Field and is to include all the new water rights dedicated to the Town (since 1997) in an overall well field to make operations and accounting more streamlined. This case is before the Water Referee and has multiple opposers. The opposer’s comments on the decree are due by November 18, 2019. A status conference is scheduled on December 2, 2019.
To-date, the Town has spent $57,749 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 $30,000 of work to conclude this case.
4. 19CW3042 - This case was filed March 20, 2019. This is a diligence application for the confluence of East and West Plum Creek Exchange that exchanges from the confluence of East and West Plum Creek to Castle Rock Well 80, and exchanges from the confluence of East and West Plum Creek to wells in the Meadows and East Plum Creek Wellfields. A drawing showing this exchange has been provided (Attachment C). This case is before the Water Referee and Castle Pines Village is the only opposer. The opposer’s comments on the proposed decree were due on October 14, 2019. A status conference is scheduled on October 31, 2019. If successful, this case will make 0.86 cfs of our conditional water right of 2.02 cfs partially absolute for the exchange from the confluence of East and West Plum Creek to Wells in Meadows and East Plum Creek wellfields. Additionally, this case provides work done towards completion of the appropriation from March 2013 to March 2019, as required by the conditional water right.
To-date, the Town has spent $4,655 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $5,000 to $10,000 of work to conclude this case.
5. 19CW3043 - This case was filed March 20, 2019. This is a diligence application for Plum Creek Water Reclamation Authority exchange to Castle Rock Well 80. A drawing showing this exchange has been provided (Attachment D). This case is before the Water Referee and Castle Pines Village is the only opposer. The opposer’s comments on the proposed decree were due on October 7, 2019. A status conference is scheduled on October 31, 2019. If successful, this case will provide work done towards completion of the appropriation from March 2013 to March 2019, as required for the conditional water right.
To-date, the Town has spent $3,787 on the case between legal fees and water resource consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $5,000 to $10,000 of work to conclude this case.
6. 19CW3078 - This case was filed April 30, 2019. This is a diligence application for West Plum Creek Exchange - 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 the Alluvial Wellfield. A drawing showing this exchange has been provided (Attachment E). A final decree for this case was entered on September 25 and will make 1,043 gpm of our conditional water right of 5,000 gpm partially absolute for the West Plum Creek Exchange. Additionally, this case provided work done towards completion of the appropriation from April 2013 to April 2019, as required by the conditional water right.
To-date, the Town has spent $3,914 on the case between legal fees and water resource
consulting fees. Discussions with our Legal Counsel indicate that it may take an additional $1,000 of work to conclude this case.
The Town has seven current active cases where the Town is an opposer. Costs for opposition to-date in 2019 have been $37,325. Costs are typically on the order of $55,000 annually.
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 Judge and the Town’s comments on the proposed decree are due by October 17, 2019. A status conference is scheduled on October 29, 2019. The applicant’s expert disclosures are due by January 20, 2020 and the Town’s expert disclosures are due by May 18, 2020. Trial is scheduled for October 26, 2020 through October 28, 2020. The Town is opposing this case because it may cause injury to the Town’s absolute and conditional water rights that are decreed to divert from East Plum Creek, West Plum Creek, and Plum Creek.
2. 18CW3038 - The Town is currently an opposer in Castle Pines North’s changes of Lupton Bottom and Meadow Island #1 Ditches water rights. This case is before the Water Judge and a status conference is scheduled on October 15, 2019. The applicant’s expert disclosures are due by January 27, 2020 and the Town’s expert disclosures are due by May 22, 2020. Trial is scheduled for November 2, 2020 through November 12, 2020. The Town is opposing this case in order to protect the Town’s operations from injury and to ensure that the proposed decree outlines the reuse operations on East Plum Creek and Plum Creek.
3. 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 the applicant’s response to comments are due by October 15, 2019. A status conference is scheduled on October 15, 2019. The Town is opposing this case in order to protect the Town’s future operations of Plum Creek, Town-owned infrastructure, and storage rights.
4. 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 November 14, 2019.
5. 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 the Town’s comments were due on September 27, 2019. The applicant’s response to comments are due by October 28, 2019. A status conference is scheduled for November 13, 2019. The Town is opposing this case because an absolute refill storage water right may cause injury to the Town’s absolute and conditional water rights that are decreed to divert from Plum Creek.
6. 18CW3232 - The Town is currently an opposer in the Castle Pines Metropolitan District’s change of water rights and conditional appropriative rights of exchange that propose to use Castle Rock’s infrastructure in Sedalia. This case is before the Water Referee. The opposers are to provide comments on the proposed decree by October 31, 2019, followed by the Town’s response to comments on December 13, 2019. A status conference is scheduled on December 18, 2019. The Town is opposing this case because it may cause injury to the Town’s absolute and conditional water rights that are decreed to divert from East Plum Creek and Plum Creek. Additionally, the applicant has no right to use of the Town’s structures as claimed in the application.
7. 19GW4 - The Town is currently an opposer in the Colorado Groundwater Commission’s
rule-making to amend the rules and regulations for the management and control of designated groundwater. This case is before the Groundwater Commission and a Groundwater Commission hearing is scheduled on November 15, 2019. The Town is opposing this case because some of the proposed rule changes may prove too restrictive, contain inflexible language, may result in an expansion of use, and/or may result in injury to the Town’s use of designated groundwater.
The Town has three upcoming or possible future cases where we would be the applicant in late 2019 and in 2020. We are planning on submitting the following applications in 2019:
¨ Plum Creek Water Reclamation Authority (PCWRA) Exchange - a diligence application for exchange from PCWRA to the Town of Castle Rock Wastewater Treatment Plant (TCR WWTP). The application deadline is December 30, 2019. This case would prove beneficial to the Town in order to make any conditional water rights absolute, if any, as well as to provide any work done since completion of appropriation as required by the conditional water right.
¨ 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, as well as a change of junior water rights and conditional water rights. In order to have a 2019 priority date, an internal application deadline is scheduled for December 30, 2019. If successful, this augmentation plan would allow for an additional 2,500 acre feet of supply to the Town on an annual basis from our Box Elder Creek property.
We are planning on submitting the following application in 2020:
¨ Plum Creek Diversion and Castle Rock Reservoirs - a diligence application for Plum Creek Diversion (formerly Ravenna Diversion) and Castle Rock Reservoirs (formerly Sedalia Reservoirs) absolute and conditional storage rights. The application deadline is November 30, 2020. This case would prove beneficial to the Town in order to make any conditional water rights absolute, if any, as well as to provide any work done since completion of appropriation as required by the conditional water right.
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 $520,000 for Water Court cases in 2019. The Town has spent $84,043 on legal services, $70,379 on consulting services, and $75, 849 on Box Elder Creek due diligence, for a total of $230,271 this year related to Water Court cases. In 2018, a total of $333,165 was spent on services related to Water Court cases.
For 2020, Castle Rock Water has budgeted $125,000 for legal fees, $210,000 for engineering fees, and $300,000 for Box Elder due diligence.
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
Attachment B: 19CW3030 Map of Exchange
Attachment C: 19CW3042 Map of Exchange
Attachment D: 19CW3043 Map of Exchange
Attachment E: 19CW3078 Map of Exchange