BOARD01451

• Board Meeting Date: 9/13/2004
• Description: ISF Section - Paul Moltz, Case No. 2-02CW073 - Consideration of Inundation Proposal or, in the Alternative, a Request for Authorization to Proceed to Trial
• Board Meetings - Doc Type: Memo

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MacDOUGALL, WOLDRIDGE & WORLEY, P.C.
530 Communication Circle, #204
Colorado Springs, CO 80905-1743

M.E. MacDougall
Julianne M. Waldridge
Henry D. Worley

[e-mail]

Telephone
[phone]
Fax
[phone]

September 7, 2004

Colorado Water Conservation Board
Altn: Mr. Ted Kowalski
1313 Sherman Street, 8th Roor
Denver, Colorado 80203

US MAIL AND FAX . [phone]

RE: ewcs instream flow right on Trout Creek, Chaffee County, Colorado
and request of V. Paul Moltz to approve partial inundation

Dear Board Members:

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Mr. V. Paul Moltz hereby petitions the CWCS for permission, retroactively, to inundate a
portion of an instream flow right owned by the CWCS on Trout Creek in Chaffee County, Colorado.
In addition. Mr. Moltz wishes to offer mitigation for the inundation.

BACKGROUND

In January 2001, Mr. Paul Moltz began storing water in a 70 foot high roller-compacted
concrete dam on Trout Creek in Chaffee County, Colorado, and filled the reservoir completely over
about a four month period. Since that time, the reservoir has remained near its 672 acre foot
capacity. It was not until July 2002 that Mr. Moltz learned for the first time that the CWCS owns
an instream flow right on the land that was inundated by the reservoir. This was a tremendous
surprise to Mr. Moltz. for several reasons. First, Mr. Moltz had previously obtained a conditional
decree for an 80 acre foot reservoir in the same location, and the CWCB had not filed a statement
of opposition in that case (possibly because the proposed inundation was less than 100 acre feet).
Second, during the pendency of that litigation, Mr. Moltz had received a letter from his then-attorney
in which the attorney had itemized what purported to blil a complete list of adjudicated water rights
on Trout Creek, but had not included the CWCS instream flow right in that list. Third, the design
and approval process for the current dam took several years of work with various personnel in the
Division of Water Resources. but the existence of the CWCS instream flow right never came to
light during that lengthy process.

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The purpose of the above recitation is not to seek to absolve Mr. Moltz from responsibility

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