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DEPARTMENT OF NATURAL RESOURCES DIVISION OF WATER RESOURCES September 12, 2012 Govern/oHickenlooper Mike King Executive Director Mr. James S. Witwer Dick Wolfe, P.E. Trout, Raley, Montano, Witwer & Freeman, P.C. Director /State Engineer 1120 Lincoln Street, Suite 1600 Denver, Colorado 80203 -4465 Re: Holcim Portland Plant and Quarry (Permit No. M1977- 344) - evaporative loss under Case No. 92CW35 Dear Mr. Witwer: This is in reply to your letter dated August 21, 2012 regarding your proposal for the temporary transfer of evaporation loss replacement credits previously approved in Case No. 92CW35 for the Portland Quarry Pond ( "Duck Pond ") to other evaporative losses occurring within the Holcim Portland Plant and Quarry ("Holcim "), Division of Reclamation Mining and Safety ("DBMS "), Permit No. M1977 -344. According to the terms and conditions of the decree in Case No. 92CW35 the existing Duck Pond (permit no. 44376 -F) was made an alternate point of diversion for the Porter Ditch. The Porter Ditch was originally decreed by the Fremont County District Court, for 1.052 cfs of water from the Arkansas River, for irrigation purposes of 40 acres, with an appropriation date of May 1, 1861 and awarded Priority No. 6. Case No. CA -6988 changed the original decreed point of diversion for the Porter Ditch and Case No. CA -7592 changed the point of diversion of the Porter Ditch to a well or pumping plant, and changed the use of the Porter Ditch from irrigation to domestic, municipal and manufacturing purposes. Historically, the Porter Ditch has been used for domestic, municipal and manufacturing purposes at Holcim's mining operation. Water diverted at the alternate point of diversion under the Porter Ditch priority was decreed in Case No. 92CW35 for replacement of evaporation losses from the Duck Pond and allows water pumped from the Duck Pond to be used for dust suppression. The decree in Case No. 92CW35 allows for up to 8.3 acres of exposed groundwater and the associated evaporation depletions from the 8.3 -acre pond are identified as 31.13 acre - feet per year. The total pumping from the Duck Pond for dust suppression is limited to 55 acre -feet per year. Although the decree in Case No. 92CW35 was approved to replace the evaporation losses from the Duck Pond, the State Engineer's Office ( "SEO ") previously agreed that the Duck Pond was developed in the early 1960's and 1970's as a result of the mining operation and under Senate Bill 120 and § 37 -90- 137(11), C.R.S., this pond qualifies as a pre -1981 pit that does not require replacement of depletions due to evaporation. Therefore as identified in your letter the evaporation loss component of the changed Porter Ditch water right (specifically the 31.13 acre -feet per year) is available for replacement of evaporative losses elsewhere on Holcim's DRMS permitted boundary. Currently two existing ponds are located within Holcim's DRMS permitted boundary. The existing ponds are known as the North Pond and the East Pond and have a combined exposed ground water surface acreage below the 8.3 surface acre limit identified in the decree in Case No. 92CW35. Pursuant to § 37- 90- 137(11), C.R.S., a gravel pit substitute water supply plan ('SWSP ") may be approved to allow the temporary transfer of evaporation loss replacements credits previously approved in Case No. 92CW35 to be used to offset evaporation losses from the ground water exposed within Holcim's DRMS permitted boundary. Note, that any such approval will not make the Porter Ditch an alternate point of diversion to any other ponds on Holcim's DRMS permitted boundary and also will not Office of the State Engineer 1313 Sherman Street, Suite 818 • Denver, CO 80203 • Phone: 303 - 866 -3581 • Fax: 303 - 866 -3589 www.watenstate.co.us