2011-03-14_REVISION - M1977493 (40)

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CM0001320 Findings of Fact, Conclusions of Law, Judgment and Decree Case Nos. 92CW233 and 92CW336 - Page 46 • the annual diversion limitations of subparagraphs 6.1.1.a. and 6.1.2 in the event replacement water cannot be obtained. Nothing herein shall preclude any party affected by said temporary detention from seeking relief from alleged damages resulting thereof, nor shall anything herein preclude or interfere with the statutory duties and authority of the Division or State Engineer. 6.1.2 Tenmile Creek Stream Depletion Limitations. a. Total monthly and annual consumptive use and depletions of water from the Tenmile Creek drainage basin under Applicant's Tenmile Creek water rights shall not exceed the amounts described above in subparagraph 6.1. La. and Table A below, and shall be limited to periods of time when the water rights are in priority. In addition, total consumptive use and depletions of water from the Tenmile Creek drainage basin under Applicant's Tenmile Creek water rights shall not exceed 5,090 acre feet per year over a five-year running average. To the extent Applicant is leasing or sells any consumptive use credit from its Tenmile Creek water rights, the total monthly and annual consumptive use and depletions from the Tenmile Creek drainage basin shall be further limited by the provisions of paragraph 6.3.1 below. b. Depletions from Tenmile Creek under Applicant's Tenmile Creek water rights shall not occur during the months of November through March, even if downstream senior water rights are not calling, unless said depletions are augmented pursuant to a court approved plan for augmentation or a substitute supply plan approved by the State Engineer pursuant to C.R.S. § 37-80-120. For the purposes of this paragraph 6.1.2, the pumping of up to 54 acre feet of water per month from the Climax Mine Underground Levels shall not constitute a November through March depletion of Tenmile Creek; provided, however, that such pumping E 56642.WPD:5