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Mr. Paul Flack <br />April 25, 2012 <br />be fully consumed during the first use of water, or recaptured and reused until the water is fully <br />consumed. <br />Diversions from the New Elk East Diversion are surface diversions and therefore the depletions <br />are considered to be instantaneous. For the purpose of this SWSP, the stream depletions will be <br />tabulated at Trinidad Reservoir in time and place. A travel time will be assessed from the New Elk East <br />Diversion to the inlet of Trinidad Reservoir, as determined by the Division 2 Engineer, to accurately <br />determine the timing of the depletions. <br />Replacement <br />The source of replacement water is fully - consumable water owned by the City of Trinidad, <br />decreed in Division 2 Water Court case no. 88CW61 and stored in Trinidad Reservoir. NECC has <br />entered in a water lease agreement (expires December 31, 2014) with the City of Trinidad for up to 250 <br />acre feet of water on an annual basis, as found in Attachment 1. The replacement water will be released <br />by the City of Trinidad, pursuant to the lease agreement and by direction of the District 19 Water <br />Commissioner, to the calling right at the Trinidad Reservoir or downstream of the reservoir on a daily <br />basis. Historical return flows will be maintained by the City of Trinidad, pursuant to Division 2 Water <br />Court case no. 88CW61. An accounting sheet, an electronic copy of which is found in Attachment 2, will <br />be used to document daily diversions at New Elk East Diversion, the calling water right, and the amount <br />of replacement water necessary to augment the out of priority depletions. <br />Conditions of Approval <br />Page 2 <br />hereby approve the proposed substitute water supply plan in accordance with Section 37 -92- <br />308(5), C.R.S., subject to the following conditions: <br />1. This SWSP shall be valid for the period of April 1, 2012 through March 31, 2013, unless <br />otherwise revoked, modified, or superseded by decree. Should an additional SWSP be <br />requested, the provisions of C.R.S. 37 -92- 308(5) shall apply and the statutory fee of $300 will be <br />required. Any request for an additional SWSP must be submitted to this office 90 days prior to <br />the expiration date of this plan. <br />2. Approval of this plan is for the purposes as stated herein. The use of water shall be limited to <br />coal washing and /or other mining operations. No other use of water is authorized unless an <br />amendment to this plan is approved. <br />3. NECC must provide a receipt of payment from the City of Trinidad to the Division 2 Engineer prior <br />to the initial diversion under this plan. Additionally, NECC must provide evidence of payment for <br />each additional quantity leased in the form of a receipt identifying the Tier level and amount of <br />water leased while operating under the terms of this plan. <br />4. Prior to the start of every out of priority water diversion from the New Elk Mine East Diversion, the <br />District 19 Water Commissioner, Jeff Montoya, must be contacted (719- 680 -1052 or <br />Jeff.Montoyaastate.co.us) in order to confirm that the resulting depletions are able to be <br />replaced at Trinidad Reservoir. If it is determined that such depletions are unable to be replaced <br />at Trinidad Reservoir at that time, NECC may be required to curtail its out of priority diversions at <br />the mine. <br />5. NECC shall inform the City of Trinidad that it has authorized the District 19 Water Commissioner <br />to direct the release of NECC's leased water to replace depletions concurrently with out of priority <br />diversions. <br />