Laserfiche WebLink
<br />immediately releasing any surfacerunoffcaptmedbythepondsduriagtheirrigatioaseason, <br />which would thus require compensatory releases from other ponds and/or appropriate <br />tumours of the high Line Canal. However, the obligation to make such releases under the <br />augmentation plan is only triggered "[w]hen the Division Engineer determines that any out- <br />of-priority storage in any of the ponds is causing injury to vested water rights ...." Decree <br />g6.C.2.(d)(5). Thos,ifthishasnotbeenanissueratsedbytheDivisionEngineerinthepast, <br />it may not be a matter of much concern in the present. It is an issue, though, that wuld be <br />raised by the State if and when a new well permit is sought for the mine pit at NH-2. <br />UL CONCLUSION AND RECOIYIIVII+NDATION <br />To definitively answer the question of whether'the augmentation plan needs to be <br />amended to encompass the new mining area in NH-2 it would be necessary [o convert total <br />water use of the mines into consumptive use based on the language in the decree and dte <br />methods utilized in the underlying engineering report. It is possible that available <br />consumptive use credits under fhe existing augmrn[ation plan would be sufficient to.cover <br />the maximum anticipated depletions at NH-2. However, leaving aside the quantitative <br />concern, the augmentation plan may need to be amended so as to geographically rncompass <br />the new mining area a[ NH-2 and [o expressly augment depletions associated with the nets <br />srtucntres for Ponds 008-015. <br />Amending the augmentation plan would be a relatively expensive and protracted <br />process(witltanestimatedcestofroughly$50,000ia legal fees and waterrngineeringcosts; <br />and with an anticipated time for approval of 12-18 months). Based on the analysis in this <br />memorandum, it is possible that consumptive use credits available under the existing <br />augmentation plan would be sufficient, in conjunction with declining water use at NH-I, to <br />coverthe additional depletions atNH-2. Thus, if Western Fuels decides to pursue amending <br />. the plan, it may not be necessary to change additional shares or other water rights to <br />industrial and augmentation use. This could result in significant cost savings for Western <br />Fuels, since the engineering required to calculate historical consumptive use of a changed <br />water right is often involved and expensive. ~ - <br />Conversely, even if Western needs to change additional shares in amending the <br />augmentation plan, it may be possible to rely onthe engmeeringunderlying the existingplan <br />for such purposes. The Colorado Supreme Court has determined that a shareholder of a <br />mutual ditch company, like the Colorado Co-operative Company, "enjoys a pro mta <br />ownership of the water rights of that company." TYilliams v. Mrdway Rmrclus Property <br />Owners Assn, 938 P.2d 515, 525 (Colo. 199'7). Thus, `~vhrn historical usage has bern <br />quantified for the ditch system by previous court determinations, the yield per share which <br />can be removed foruse in an augmentation plan is not expected to differ fiom augmrntation <br />Il <br /> <br />1tEVlst=_n ttARCIl zoov Attachment 2.05.3(3}•16-20 <br />