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5. Fontanari claims water rights decreed to the Martin -Crawford Ditch from Rapid Creek, a <br />tributary to the Colorado River. Those water rights are decreed for direct irrigation, not <br />for storage. Nonetheless, Fontanari delivers water to a pond (the "Carey Pond") located <br />on lands owned by Jason Carey ("Carey"). No irrigation structures or facilities presently <br />provide for delivery of water from the Carey Pond for irrigation. <br />6. In the spring of 2014, Mr. Fontanari constructed an "extension" to his ditch that takes <br />delivery of water from the Martin -Crawford Ditch. The location of the "extension" and <br />of the Carey Pond are illustrated in Exhibit A. The "extension" does not deliver water to <br />any identifiable irrigation structures or facilities. Mr. Fontanari acquired the lands where <br />the "extension" is located ("Tract #71") from SCC pursuant to a Special Warranty Deed <br />dated December 15, 2003, and recorded in the records of the Mesa County Clerk and <br />Recorder on December 22, 2003 at Reception No. 2168754. <br />7. For approximately 30 days in May and June of 2014, Mr. Fontanari continually ran 3 cfs <br />of water, totaling an estimated 166 acre-feet2 of water, to the Carey Pond and the <br />"extension." None of the water was applied to irrigation of lands or crops. Rather, Mr. <br />Fontanari permitted the water to run into subsurface features without accomplishing <br />legally recognizable beneficial use. <br />8. During a June 11, 2014 DRMS inspection of the Roadside Portals, as set forth in a report <br />dated July 1, 2014 by Michael P. Boulay(the `Boulay Report"), Mr. Fontanari's delivery <br />of water to the "extension" and to an enlarged Carey Pond was documented, as well as <br />seepage of water from the "extension" into the ground. That inspection also noted <br />increased flow out of the South Portal of the Roadside Portals which was believed by <br />DRMS staff to be directly attributable to Fontanari's delivery of water to the "extension" <br />and the Carey Pond. The location of the South Portal is shown in Exhibit A. <br />9. The Boulay Report also documents additional seepage observed by SCC at the South <br />Portal on June 17, 2014, and that Mr. Fontanari, at the request of DRMS, agreed to stop <br />the flow of water to the "extension" and the Carey Pond on June 18, 2014. <br />10. On October 8, 2015, DRMS issued a Proposed Decision and Findings of Compliance for <br />the Roadside Portals (the "SL -8 Proposed Decision") in response to SCC's SL -8 <br />Application. Proper notice was published and no objections were filed, permitting the <br />SL -8 Proposed Decision to become final. Because of the known hydrologic <br />communication issue identified in the Boulay Report and concerns raised by Mr. <br />Fontanari and Mr. Carey regarding potential hydrologic communication to the <br />underground mine workings from other affected lands during DRMS's review of the SL - <br />8 Application, DRMS ordered, and SCC agreed to, two distinct types of investigation of <br />hydrologic communication issues as a term and condition to the release of reclamation <br />Z 166 acre-feet of water is equivalent to approximately 54,091,337 gallons of water, and would be sufficient to fill a <br />building with a one —acre footprint to a height of almost 17 stories. This amount of water is sufficient to accomplish <br />the irrigation of 40 acres of land for an entire irrigation season using less efficient flood irrigation methods. <br />2 <br />