2006-06-12_REVISION - M1978314 (2)

Home Browse Search

Conversion Applicafion OI (CN-01) Objection by Sleeping Lion Ranch, LLC Court - "Angus Investment LLC acknowledges that it will ultimately need Water Court approval of a change of water rights or plan for augmentation to provide full, legal water supply for its expanded gravel operation." (Letter from Jay Montgomery to Paul Gesso and Maureen Jacoby dated March 8, 2005, a copy of which is enclosed (the "Montgomery Letter"). This is nothing short of an admission that no legal water supply exists. The only senior, and therefore reliable, water right that King has under lease in the vicinity of the proposed mine is the Morse Ditch. The Morse Ditch, whose source is Egeria Creek, is decreed for 1 c.fs for irrigation purposes only. Absent approval from the Water Court, King has no legal right to use this, or any of its other water rights, for industrial, mining or dust suppression purposes. The Water Court will not permit a change in the point of diversion, the type of use, the location of use, or the season of use of an existing water right if those changes will injuriously affect the owner of a vested water right. § 37-92-305(3) C.R.S. (2006). "One of the basic tenets of Colorado water law is that junior appropriators are entitled to maintenance of stream conditions existing at the time of their respective appropriations. Accordingly, the right to make a change in point of diversion or place or type of use, is limited in time and quantity to historic use." ~lliarns v. Midway Ranches Property Owners Assoc., Inc., 938 P.2d 515 (Colo. 1997). The change of water rights that King admits will be necessary "to provide full,,legal water supply" would necessarily injure Sleeping Lion. 'Thus, Sleeping Lion will actively oppose any attempt by King to change its water rights. Changing the place of use would alter the amount and location of historic return flows. Moving the point of diversion upstream, into a tributary of Egeria Creek (Smith Creek), would injure intervening water rights. Changing the type of use, from irrigation to dust suppression would adversely impact the quality of return flows. All of King's water rights have historically been used during the summer months only. Changes are limited in time to their historical use. Therefore, even if the Water Court were to approve a change in place and type of use, and a change in the point of diversion, Colorado law does not permit a change in the time of use. King's water rights, in their present or changed form, will never be available for use outside the historical irrigation season. King states - in a disingenuous and highly misleading fashion -- in Exhibit G to the Application "There are no expected impacts on water resources by this proposed operation." Yet it is abundantly cleaz that King would need Water Court approval to change its water rights, which by definition would impact water resources in the vicinity. In violation of Rule 6.4.7, King has not stated how the operation is expected to affect surface or groundwater systems. King has not submitted maps of tributary water courses, wells, springs, stock water ponds, and ditches on the affected land and on adjacent lands. King has not submitted a statement showing how it will protect against pollution of surface and groundwater as a result of its dust suppression and runoff from disturbed areas. In violation of Rule 6.4.7(3) King has not provided an estimate of flow rates and annual volumes for the development, mining and reclamation phases of the project. Most loala 2