2019-03-18_PERMIT FILE - M2018016 (15)

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BEATTIE, HOUPT & JARVIS, LLP ATTORNEYS AND COUNSELORS AT LAW 932 COOPER AVENUE GLENWOOD SPRINGS,CO 81 601 STEVEN M.BEATTIE TELEPHONE(970)945-8659 JEFFERSON V. HOUPT FACSIMILE(970)945-8671 RYAN M.JARVIS WWW.BHJLEGAL.COM jejj@bhjlegal.com March 12, 2019 Via Email: beniklewicki.biz Ben Langenfeld, P.E. Greg Lewicki and Associates 3375 W Powers Circle Littleton, CO 80123 Re: Douglas Mountain Mine Water Use Dear Ben: This letter follows up our conversation regarding the authorized uses of water under the existing water rights decreed to Douglas Mountain Ranch &Preserve in Case No. 97CW394. The Division of Water Resources' memo of November 9, 2018 includes the statement that "Gravel mining is generally considered an industrial use, which was not included as a decreed use of the Douglas Mountain Ranch Collection System. A decreed change of water right or an approved substitute water supply plan would be required prior to the use of this water right for the proposed gravel mining purposes." I believe that this is an exceptionally narrow reading of the decree in Case No. 97CW394 and disagree with the conclusion that it is necessary to obtain a judicially- approved change of water right in order to use the subject water rights for gravel mining purposes. I am not aware of any Colorado law that would support the assertion that water use for gravel washing and dust control can be conducted only by the exercise of water rights decreed for industrial use or that commercial use does not include the use of water for these purposes. If the question were to be presented to a court for determination, I have no doubt that the court would look to the original intent of the parties, City of Golden v. Simpson, 83 P.3d 87 (Colo. 2004), and would look at the entire decree(and not just the absence of the term "industrial")to determine that intent, Ready Mixed Concrete Co. v. Farmers Reservoir and Irrigation Co., 115 P.3d 638 (Colo. 2005). At the time of the original adjudication of these water rights, the plan was clearly to excavate gravel within the property as part of the construction of Douglas Mountain Ranch Reservoir: "The reservoir is to be constructed as a lined reservoir facility by the excavation of alluvial fill material...." (See, decree in Case No. 97CW394,¶5,a copy of which is attached). To think that the parties and the court did not intend to allow the subject water rights to be used for dust suppression and gravel washing as part of the excavation of alluvial fill materials is simply not a reasonable interpretation of this decree. See, City of Golden, supra(Courts will not interpret a water decree in a manner that leads to an absurd result).