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MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. <br /> <br /> <br />Colorado Water Conservation Board <br />December 14, 2018 <br />Page 4 <br /> <br /> <br />00187068-1 <br />which does not commit FLCC share water to the proposed pilot project and which does not indicate <br />that FLCC shareholders will be voting on a proposed contract with Super Ditch at the FLCC’s <br />annual meeting on December 17. <br />Even if Super Ditch is able to enter into agreements with FLCC shareholders for use of <br />their water in the proposed pilot project, obtaining the FLCC Board’s approval of such temporary <br />change of use of FLCC share water will take significant time and is by no means assured. Under <br />the FLCC’s bylaws, the FLCC Board must review all proposed changes in use of FLCC shares, <br />and may approve such changes only if they will not cause injury to FLCC, the Fort Lyon canal, <br />and other FLCC shareholders.2 Furthermore, FLCC’s Board is on the record as interpreting its <br />bylaws to require shareholders to obtain such approval before they may even submit an application <br />for temporary administrative changes of use of FLCC share water. Accordingly, before the <br />Applicants may include FLCC share water in an application for the proposed pilot project, the <br />owners of any participating FLCC shares must apply for and obtain FLCC’s approval of the <br />proposed temporary change in use necessary of those shares. Having twice sought and obtained <br />such approval from FLCC, LAWMA is aware that FLCC will require submission of supporting <br />engineering reports, a hearing before the FLCC Board and interested shareholders, and extensive <br />conferral between the shareholders’ attorneys and engineers and the FLCC’s attorneys and <br />engineers. That process can be quite lengthy. LAWMA’s first request for FLCC approval of a <br />proposed change in use of LAWMA’s FLCC shares took approximately one year from application <br />to approval; the second took approximately five and one-half months. The Criteria and Guidelines <br />require that within ninety days of CWCB’s selection of any pilot project proposal, the applicant <br />must submit a full application for that pilot project. Here, Super Ditch has not yet identified FLCC <br />shares that will be included in the project, and no FLCC shareholder has initiated an application <br />for the FLCC’s required review and approval of any proposed change in use of FLCC share water. <br />The Proposal therefore does not meet the minimum requirement of demonstrating that Super Ditch <br />reasonably will obtain all needed FLCC approvals for inclusion of FLCC share water in the <br />proposed pilot project. The Proposal also does not document the likelihood that the Applicants <br />can obtain approval of their use of necessary infrastructure (e.g., augmentation stations) on the <br />Fort Lyon Canal. <br />CWCB therefore should table consideration of the Proposal until the Applicants have <br />delivered to the CWCB and the parties the required evidence that the Applicants have obtained or <br />reasonably can obtain the necessary approvals of and/or agreements with the FLCC and its <br />shareholders. Should CWCB determine to select the Proposal in spite of its failure to meet this <br /> <br />2 Article V, Section 1 of the Fort Lyon Canal Company Bylaws provides in pertinent part that “[e]ach Stockholder <br />desiring to change the type of use, place of use, time of use, point or means of diversion, storage or other change of <br />said Stockholder’s water shall make written request therefore to the Board of Directors. If in the opinion of the Board <br />of Directors, such change may be made without injury to the canal, the Company, and other Stockholders, such request <br />shall be granted, with such terms and conditions as may be necessary to prevent injury.”