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<br /> <br />Ms. Mitchell and Ms. Ris <br />December 14, 2018 <br />Page 3 of 9 <br /> <br /> <br /> <br />their forthcoming application. Tri-State hopes to meet with Applicants this month to discuss the <br />development of the return flow plan. Finally, Tri-State requests that Applicants obtain all <br />necessary ditch company approvals before the application stage. Tri-State is providing high <br />level comments at this selection stage and will provide detailed comments after the project is <br />refined in an application. <br /> <br />Tri-State’s requested terms and conditions and the reasons for seeking their inclusion are <br />described in more detail in Part I of this letter. While Tri-State supports the CWCB’s selection <br />of the CS-U Pilot Project Proposal with proper terms and conditions, it also must reserve its legal <br />rights in the event Tri-State determines that the terms and conditions in this letter are not <br />imposed in the CWCB’s selection. Part II of this letter summarizes legal and injury issues that <br />Tri-State may pursue if necessary terms and conditions are not imposed on the CWCB’s <br />selection or approval of Applicants’ Proposal. <br />I. TRI-STATE’S REQUESTED TERMS AND CONDITIONS FOR CWCB’S CATLIN PILOT <br />PROJECT SELECTION. <br />Based on the information provided by Applicants, the following terms and conditions <br />should be included as part of the CWCB’s selection of the Catlin Pilot Project. The terms and <br />conditions should be included as requirements for the pilot project application to the CWCB. <br />The Criteria provide the Board with specific authority to include these as requirements for the <br />application. Criteria § II.G.1.f. <br />A. Identification of Specific Lands, Water Rights and Structures Supported by <br />Contracts. <br /> <br />The Criteria require the Proposal to identify “the specific water rights to be utilized by <br />the pilot project and ownership of them” and “the specific lands and parcels that will be analyzed <br />and dried up, and the ownership of them.” Criteria § II.F.1.a–b. The Applicants have identified <br />specific farms and shareholders under the Catlin Canal Farms in the Proposal. However, they <br />list the entirety of the Fort Lyon Canal and Rocky Ford High Line ditch systems and water rights <br />and fail to identify specific land and water rights to be included. Water rights in mutual ditch <br />systems are owned by the individual shareholders. Jacobucci v. Dist. Ct. In and For Jefferson <br />County, 541 P.2d 667, 673 (Colo. 1975). Applicants have not identified the water rights owners <br />under the Fort Lyon or Rocky Ford High Line canals who may participate in t he CS-U Pilot <br />Project. Applicants do not have permission from the owners to include all the water rights under <br />these Canals in the Pilot Project. <br />Similarly, Criteria require the Proposal to identify “any and all structures necessary for <br />operation of the pilot project and ownership of them.” Criteria § II.F.1.f. The Proposal fails to <br />identify any specific structures under the Fort Lyon or Rocky Ford canal systems. See Proposal <br />at 6. For example, the Proposal refers to augmentation stations under these canals but does not