DISTRICT COURT, WATER DIVISION NO. 4 STATE OF COLORADO 1200 N. Grand Ave. Bin A Montrose, CO 81401 CONCERNING THE APPLICATION FOR WATER RIGHTS OF: COLORADO WATER TRUST and COLORADO WATER CONSERVATION BOARD 1N GUNNISON and MONTROSE COUNTIES DATE FILED: December 31, 2014 FILING ID: FDC391E9438A0 CASE NUMBER: 2014CW3108 A COURT USE ONLY A Attorneys for Colorado Water Trust: Michael Browning, #8217 PORZAK BROWNING BUSHONG 2120 13th St. Boulder, CO 80302 Phone: (303) 443-6800 Fax: (303) 443-6864 mfbrowning@pbblaw.com Amy Beatie, #32351 Zachary Smith, #41575 COLORADO WATER TRUST 1420 Ogden St., Suite A2 Denver, CO 80218 Phone: (720) 570-2897 Fax: (720) 907-0377 Email: abeatie@coloradowatertrustorg zsmith@coloradowatertrustorg Attorneys for Colorado Water Conservation Board: JOHN W. SUTHERS, Attorney General SUSAN J. SCHNEIDER, Attorney Reg. 19961* First Assistant Attorney General Natural Resources Environment Section Office of the Colorado Attorney General 1300 Broadway, 7th Floor Denver, CO 80203 Phone Number: (720) 508-6311 Email Address: susan.schneider@state.co.us *Counsel of Record Case No.: 14CW 1:53 AM APPLICATION FOR CHANGE OF WATER RIGHTS 1. Names, Addresses and Telephone Numbers of Co-Applicants: Colorado Water Trust (?Trust?) 1420 Ogden St., Suite A2 Denver, CO 80218 Phone: (720) 570-2897 Colorado Water Conservation Board 1313 Sherman St., Room 721 Denver, CO 80203 Phone: (303) 866?3441 2. Summary of Application: The Trust is a Colorado nonprofit corporation that seeks to restore and protect stream?ows in Colorado using voluntary, market?based tools. The Trust owns 1.5 of the 8 shares (18.75%) in the water rights decreed to the McKinley Ditch (the ?Shares?), a ditch with four priorities that diverts water from the Little Cimarron River. In furtherance of the Trust?s mission, the Trust conveyed to the CWCB a Grant of Flow Restoration Use (the ?Grant?). The Grant conveys to the CWCB a perpetual contractual interest in the Shares, with the goal of restoring stream?ows to the Little Cimarron River and the Cimarron River. At its September 12, 2014 meeting, the CWCB found that the Grant would preserve and/or improve the natural environment of the Little Cimarron River and the Cimarron River, to be used exclusively by the CWCB pursuant to section C.R.S. The Trust retains the underlying ownership of the Shares. Under this application, the preferred use of the Shares will be a split season use, with irrigation use made during the first part of the irrigation season and instream ?ow use made in the second part of the irrigation season. However, in some years the Shares will only be used for irrigation, and in other years the Shares will only be used for instream ?ow use. This filing seeks to add instream ?ow use by the CWCB to the existing decreed irrigation use of the Shares. 3. Decreed water right for which change is sought: A. Name of Structure: McKinley Ditch B. Case Number, Court, and Date of Original and All Relevant Subsequent Decrees: i. Civil Action No. 1319, District Court, Montrose County, March 28, 1904 ii. Civil Action No. 1745, District Court, Montrose County, May 8, 1913 Civil Action No. 4742, District Court, Montrose County, April 21, 1941 iv. Case No. 05CW132, District Court, Water Division 4, May 30, 2008 v. Case No. 12CW52, District Court, Water Division 4, February 14, 2013 C. Legal description of structure as described in most recent decree (12CW52): A point in the Section 12, Township 47 North, Range 6 West, N.M.P.M., 58 feet from the north section line and 220 feet from the west section line (casting 282861, northing 4247959, Zone 13, NAD 83). D. Decreed source of water: Little Cimarron River, tributary to the Cimarron River, tributary to the Gunnison River. E. Priorities, appropriation dates, total amount decreed, and amount Co-Applicants intend to change: McKinley Ditch (all amounts are absolute and are in cfs) Priority Appropriation Total Decreed Amount Co- Date Amount Applicants Intend to Change (18.75% of each priority) 56 September 1, 1886 12.17 2.281875 125 May 10, 1905 3.125 0.5859375 128 May 10, 1906 3.125 0.5859375 285 May 1, 1912 12.58 2.35875 TOTAL 31.0 5.8125 i. Previous Changes 1. Case No. 05CW132, decreed on May 2, 2008 by the District Court for Water Division 4, corrected the point of diversion for the McKinley Ditch to the point referenced in paragraph 2. Case No. 12CW52, decreed on February 14, 2013 by the District Court for Water Division 4, confirmed the historical place of use irrigation under the McKinley Ditch. This case also confirmed that each priority under the McKinley Ditch may be used on all lands irrigated under the McKinley Ditch. F. Decreed use: Irrigation. 4. Description of Proposed Change: A. Addition of instream ?ow use requested: The CWCB seeks approval to use its interest in the Shares for instream ?ow use exclusively by the CWCB pursuant to the terms of the Grant and section C.R.S. (2014), for preservation and/or improvement of the natural environment to a reasonable degree. Water used under this change of use decree will be in addition to any water to which the CWCB would otherwise be entitled pursuant to its existing decreed instream ?ow water rights on the Cimarron River, described below. i. ii. Existing Decreed Instream Flow Water Right: The CWCB currently holds a decreed instream ?ow right on the Cimarron River, described in the table below. Case No. Stream Reach Amount Appropriation Date Con?uence of 16 May 4, 1984 Little Cimarron River to con?uence of Gunnison River 84CW398 Cimarron The CWCB intends to use the Shares in priority for instream ?ow uses in Segment 3, described below, in combination with or in addition to the decreed instream ?ow appropriations described above. Such use will be for preservation of the natural environment at times when the existing instream flow is not in priority or is not fully met, and for improvement of the natural environment at ?ow rates above that decreed to the existing instream ?ow when the existing instream ?ow water right is fully met. Segments and rates: The instream ?ow use will occur in three reaches on the Little Cimarron and Cimarron Rivers described below and depicted on Figure 1 attached hereto, and at the rates listed below. a. Segment One: i. Upper terminus: A point on the Little Cimarron River in the NW 1/4, Section 12, Township 47 North, Range 6 West, .M.P.M., 58 feet from the north section line and 220 feet from the west section line (casting 282861, northing 4247959, Zone 13, NAD 83). This is the existing point of diversion of the McKinley Ditch. ii. Lower terminus: A point on the Little Cimarron River where the return ?ows from the historical use of the McKinley Ditch returned to the Little Cimarron River, estimated to be upstream of the Perrin Ditch headgate in the Section 27, Township 48 North, Range 6 West, N.M.P.M. Maximum rate of ?ow: 5.8125 to improve the natural environment. b. Segment Two: i. ii. Upper terminus: A point on the Little Cimarron River where the return ?ows from the historical place of use of the Shares return to the Little Cimarron River, estimated to be upstream of the Perrin Ditch headgate in the Section 27, Township 48 North, Range 6 West, N.M.P.M. Lower terminus: The con?uence of the Little Cimarron River and the Cimarron River. Maximum rate of ?ow: The rate of ?ow will be based on average annual net historical depletion historical depletion in stream ?ow attributable to the historical use of the Shares in the months of April through November) (?Shares? Net Depletions?) to improve the natural environment. The average annual Shares? Net Depletions are estimated by Co-Applicants? engineers to be 273.7 acre?feet. The distribution of the Shares? Net Depletions is shown in Table 1 attached hereto. 6. Segment Three: i. ii. Upper terminus: The con?uence of the Little Cimarron River and the Cimarron River. Lower terminus: The confluence of the Cimarron River and the Gunnison River. Maximum rate of ?ow: The rate of ?ow will be based on the Shares? Net Depletions to preserve and improve the natural environment. The average annual Shares? Net Depletions are estimated by the Co-Applicants' engineers to be 273.7 acre-feet. The distribution of the Shares? Net Depletions is shown in Table 1 attached hereto. B. Remarks: i. The Shares were historically diverted and used to irrigate 194.5 acres. The historically irrigated lands are depicted on Figure 1 attached hereto. A summary of historical diversion records is attached hereto as Table 2. The irrigation return ?ows accrued to the Little Cimarron River, with the water diverted through the McKinley Ditch being entirely depletive to the Little Cimarron River to the lower terminus of Segment One. Accordingly, the Co- Applicants claim the right to use the full diversion amount of the Shares, less any amount remaining in the ditch to maintain historical ditch losses, for instream ?ow purposes in Segment One, but only the net historical depletion amount in Segments Two and Three. ii. Operational Scenarios: Under this application, the preferred use of the Shares will be a split season use with irrigation in the first part of the irrigation season, and instream ?ow use by the CWCB in the second part of the season,. This application also requests the option of years of full-season irrigation use or fulluseason Instream Flow Use. 5. Use: During years in which the Shares are used for instream ?ow use, either for a partial or full season, the Co-Applicants retain the right to bring about a beneficial use of the historical consumptive use of the Shares of Segment Three as fully consumable reusable water pursuant to section C.R.S. (2014). 6. Name and address of owners of land on which structures are located: The McKinley Ditch headgate is located on land owned by: Sharon A Barber and James Barber PO BOX 422386 Kissimmee, FL 34742-2386 7. Retention of Right to Use Historical Irrigation Return Flows: If and to the extent that any of the historical irrigation return ?ows attributable to the Shares are not required to be provided to any water rights senior to the date of the application in this case, Applicants claim the right to use such historical irrigation return ?ows for all beneficial uses described in this application with an appropriation date of December 31, 2014. WHEREFORE, the Trust and CWCB request the Court to award a decree that confirms the addition of the use of instream ?ow by the CWCB of the Shares, pursuant to section 37-92- 102(3), C.R.S., to preserve and/or improve the natural environment in the segments and at the rates set forth in this application. Respectfully submitted this 3 day of December, 2014. BUSHONG LLP Michael Brownin?g: ?8217 Attorneys for Colorado Water Trust COLORADO WATER TRUST w. kw?z A?Iny Beatie, #3235?1 Zachary Smith, #41575 JOHN W. SUTHERS Attorney General Kaa' SUSAN J. (#13961)* First Assistant Attorney General Water Conservation Unit Natural Resource Environmental Section Attorneys for Colorado Water Conservation Board *Counsel of record ATTORNEYS FOR APPLICANT, COLORADO WATER CONSERVATION BOARD E-FILED PURUSANT TO C.R.C.P. 121 Duly signed original on file at the offices of Porzak Browning Bushong LLP. VERIFICATION STATE OF COLORADO ss. COUNTY OF BOULDER Michael F. Browning, attorney for Co?Applicant Colorado Water Trust, being first duly sworn upon his oath, deposes and says that he has read the foregoing Application for Change of Water Right, knows the contents thereof, and that the same are true to the best of his knowledge and belief. Michael F. Browning?? 5F SUBSCRIBED AND SWORN to before me this 3 day of December, 2014. Witness my hand and official seal. VAN BELOHRAD NOTARY PUBLIC STATE OF COLORADO NOTARY #0 20094031505 Notary MY COMMISSION EXPIRES SEPTEMBER 18. 2017 . My commission expires: /l 7 .29? J51,