2014-01-24_PERMIT FILE - C2010089 (5)

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Western Fuels- Colorado, LLC Case No. IOCW208 Page 28 C. Location of depletions: Any out -of- priority depletions associated with the New Horizon North mining area will occur in Tuttle Draw, Calamity Draw and Coal Canyon, tributaries to the San Miguel River, depending on the configuration of the mining area at that time. A portion of any potential out -of- priority depletions caused by mining at the Cyprus mining area will be directly to the San Miguel River. The locations of the potential out -of- priority depletions associated with underground water rights are shown on the map attached as Exhibit J and will be accounted for in the Accounting Form. d. Replacement of depletions and operation of exchanges: In the event of a valid senior call administered by the Division of Water Resources, Applicant shall replace all out -of- priority depletions resulting from its mining operations at a point located upstream of the calling water right by: (1) delivery of historical consumptive use credits associated with its 27 Tranche One shares and /or 34 Tranche Two shares; and /or (2) release of stored water from its ponds; and /or (3) operation of its exchanges. Water associated with Applicant's 27 Tranche One and 34 Tranche Two shares can be delivered from the CC Ditch through laterals to replace out -of- priority depletions to Tuttle Draw, Calamity Draw or Coal Canyon. The quantity released by Applicant from its ponds for augmentation purposes will be measured. In addition, Applicant will operate its exchanges as identified above to directly use and/or store such exchange water, or to provide replacement water to any senior calling water right(s) when adequate exchange potential exists. e. Accounting of depletions and replacements: In the event of a valid senior call administered by the Division of Water Resources, the applicants shall install measuring devices, provide accounting, and supply calculations regarding the timing of depletions as required by the Division Engineer for the operation of this plan. The applicants shall also file an annual report with the Division Engineer by November 15 of each year, summarizing diversions, depletions and replacements made under this plan. f. Curtailment of out -of- priority diversions: Pursuant to C.R.S. 37 -92- 305(8), the State Engineer shall curtail all out -of- priority diversions, the depletions from which are not so replaced as to prevent injury to vested water rights. g. Finding of no iniva: The Court finds that the Applicant has provided an engineering report, related documents, and responses to the summary of consultation that demonstrate that Applicant can operate the change of water rights and plan for augmentation decreed herein without causing injury to other water rights, subject to the terms and conditions contained herein. 00053058 -7