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' SUN-12-06 TUE 07:40 qM CNq V,ERS _„ 303 6595223 <br />P. OT <br />12. ]3dith Chavers is an individual whose primary residence is in Weld County, <br />Colorado, and who upon information and belief owns the real property described on Exhibit E. <br />13. CDOT is the Colorado Department of Transportation. Tine legislahue reorganized <br />highway matters and created the Colorado Division of Highways, which became the Colorado <br />Department of Transportation in 1991. CDOT contracts and operates State Highway 85. <br />IV. FACTUAL ALLEGATIONS <br />14, In 1908, the Ogilvie Seepage Ditch was established to transport water from <br />certain high points to the South Platte River. The Ogilvie Seepage Ditch has been continuously <br />Used since then as part and parcel ofthe operation and use of the Plaintiffs' property. <br />15. In 1919, the Porter Seepage Ditch was established to transport water from certain <br />high points to the South Platte River'. The Porter Seepage Ditch has been continuously used <br />since then as part and parcel of the operation and use of the Plaintiffs' property. <br />I6. On August 26, 1952,'a Memorandum of Settlement was issued and an agreement <br />was reached between the then owner of Plaintiffs' parcel and the Department of Highways and <br />the State of Colorado, for constnrction of State Highway 85 over the ditches, via culverts <br />constructed by the highway department. Since then, the ditches have discharged water to the <br />South Platte River under State Highway 85. Further, storm runoff from the highway median also <br />uses the ditches but without legal right. CDOT has installed a drain in the highway median and a <br />culvert under the southbound highway where water runs under the highway and into the Porter <br />Seepage Ditch. CDOT's right to use the Porter Seepage Ditch is inferior to Plaintiffs' right and <br />any right of CDOT to use the ditch n,ay be revoked at anytime, <br />17. In 2005, Defendants Chavers and Defendant CDOT were advised of the <br />Plaintiffs' request to develop and permit the property and to use the Porter Seepage Ditch and the <br />Ogilvie Seepage Ditch. Those development permits were issued using the name Lupton Lakes <br />Project. In March of 2006, Mt. Chavers requested a meeting with the Division of Minerals 8t <br />Geology (DMG) to discuss the Lupton Lakes Project. He stated that he was concerned with the <br />property located at Road 8 and US 85 and was primarily concerned with water being plunped <br />onto his property as a result of the project, At no time have the Plaintiffs used or threatened to <br />use the Porter Seepage Ditch in excess of the amounts allowed by the declaration of the ditch: <br />I S cfs. <br />18. Prior to the request made by the Defendants Chavers to the DMQ, the Plaintiffs <br />were granted a Use by Special Review Permit by the City of Fort Lupton and a Section 112 <br />Permit from the Mined Land Reclamation Boazd. Following this grant, the Plaintiffs <br />commenced work for the sand and gravel operations, <br />