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<br />, <br /> <br />Page 5 <br /> <br />. <br /> <br />all the required elements of the appropriation of a conditional water right, and that the applicants <br />failed to prove that they can and will develop the water rights. <br /> <br />Sportsman's Ranch ("SCUP" South Park Conjunctive Use Project), 96CW14, Division 1. <br /> <br />Issue: Does an applicant for and underground storage right need to get the consent from <br />surface owners before storing water under the property of the surface owner? <br /> <br />Decision: The water court held that "ownership of or right of access to a water storage site <br />are elements to be considered in a determination of whether a storage project will be completed, <br />but applicant need not establish an unrestricted right of access to the South Park formation and <br />absent a showing that applicant possesses no prospective ability to complete the storage project <br />in a reasonable amount of time, the court must grant the conditional right. " (citations omitted). <br /> <br />.. <br /> <br />Discussion: The Board has three instream flow water right appropriations on Michigan Creek, <br />Jefferson Creek, and Tarryall Creek, that could be affected by these applications. The proposed <br />South Park Conjunctive Use Project facilities are located in South Park Colorado in Water <br />Diyision No. I. All of the potentially affected water rights are in the South Platte Riyer drainage. <br />The Project proposes the removal of 110,000 acre-feet from the Upper and Lower South Park <br />aquifers. The removal of this water is necessary so that sufficient storage space is available to <br />allow water from the recharge facilities to infiltrate into the South Park aquifers. The Project <br />includes a surface water collection system that intercepts a number of tributaries to the South <br />Platte River. South Park Sportsmen's Ranch proposes to divert water from these sources to <br />recharge ponds and ditches located on the Applicant's ranch and BLM property located near the <br />ranch. The Applicant claims a storage capacity of 140,000 acre-feet (70,000 acre-feet in the <br />Upper South Park Aquifer and 70,000 acre-feet in the Lower South Park Aquifer). The <br />Applicant then proposes to withdraw water from the underground storage system through 47 <br />wells for ultimate delivery to Aurora. <br /> <br />Case No. 96CWI4 is set for an eight-week trial in Fairplay, Colorado. The trial is set to begin on <br />July 10, 2000. The Applicant claims a storage right in the underground South Park aquifers. <br />This storage right would be located in an underground aquifer that is approximately 112 square <br />miles in area, and underneath lands not owned by the Applicant. Several of the objectors have <br />made motions for summary judgment on the basis that the Applicant cannot impound, possess or <br />control the water placed in the aquifer (first motion), and on the grounds that some of the <br />claimed water is not "stored by other than natural means" (second motion). The State filed a <br />Response that did not concur with the movants' arguments on the first motion, but agreed with <br />the movants' arguments on the second motion. <br /> <br />4 <br /> <br />The water court has now ruled on those motions. The ruling seems to reject objectors main <br />argument that the surface owner must approve any water that was stored and then migrated under <br />the surface owners property. The court instead focused the whole consent issue on the right to <br />use the recharge site and ducked the migration of water issue. This logic makes underground <br />storage more possible. <br /> <br />5 <br />