2011-09-28_PERMIT FILE - P2011018

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DIVISION OF WATER RESOURCES WATER DIVISION FOUR Office of the State Engineer Department of Natural Resources 1871 E. Main St. P.O. Box 456 Montrose, Colorado 81402 Phone (970) 249 -6622 Fax (970) 249-8728 September 15, 2011 G. Russell Means EPS II Colorado Division of Reclamation Mining and Safety 101 south 3rd St. Suite 301 Grand Junction, CO 81501 Dear Mr. Means: Sinc /if 7;'. Division Eng ` • er STATE OF COLORADO Qv ii 87 1 OC1 00 ZO11 Division et Keclamation, Miring and Safety gig fi � 6' SE.P282011 GRARID JU; .,; , ,. _ � . , OFFICE D` r.S;01:; o;: RECLAMATION !WINING & SAFETY RE: Tomichi Resources LLC — NOI #P- 2011 -018 — Legally Approved Water Right Feel free to contact me at your convenience if you have any questions for me on this matter. John W. Hickenlooper Governor Mike King Executive Director Dick Wolfe, P.E. Director /State Engineer Bob W. Hurford, P.E. Division Engineer It's my understanding Tomichi Resources LLC (TRL) seeks a permit from your agency. One of your agency's requirements prior to the issuance of a permit is for TRL to acquire an approved water right from the court for any diversion and use of water related to their project. TRL has filed a water right application with the court in our water division (11CW084). However, this will take some five or six months for the court to adjudicate the water right application. I also understand your agency has certain procedures and processes in which you conduct your business. Even so, I am writing this letter simply as a point of clarification on the law and as an explanation of how our agency directs, manages or administers any non - adjudicated uses of water. Article XVI, titled Mining and Irrigation, of the Colorado Constitution declares "water is the property of the people of the State of Colorado" and "the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied." One acquires a water right by diverting from its natural source and placing it to some beneficial use. Perfection of the water right requires a determination and confirmation by the court of a pre- existing use. Diverting and placing to use comes before the confirmation of the court of an absolute water right via decree, thus, a decree is not required in advance of any diversion and subsequent use of water. The local water commissioner ensures that no injury will result to vested water rights. Should the stream be "on- call" due to a senior water right being short of their entitled amount, the water commissioner will cause the more junior water users to cease diverting water. The practical working out of the law is that it is not illegal to divert and use water without a water right granted by the court. A decree ensures and secures the right to divert and use water within the priority system. As long as a stream is not "on- call" by a senior water right, one may continue to divert and use water (without waste), even without a court decree. The only illegal use of water in the State of Colorado is using water from a well without a valid well permit.