ATTACHMENT A 11/13/2015 PROPOSED RULING Offer of Settlement – Subject to CRE 408 ! " # District Court, Water Division No. 5 Garfield County, Colorado Court Address: 109 8th Street, Suite 104, Glenwood Springs, CO 81601 (970) 945-5075 CONCERNING THE APPLICATION FOR WATER RIGHTS OF COURT USE ONLY Applicant: HIGH VALLEY FARMS, LLC IN PITKIN COUNTY Case Number: 14CW3095 Division: Courtroom: FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT This matter comes before the Water Referee for Water Division No. 5 upon the application for underground water right, surface water right, water storage right and plan for augmentation and exchange filed by High Valley Farms, LLC (“Applicant”). The Water Judge of this Court has referred the matter to the Water Referee for Water Division No. 5 in accordance with the Water Right Determination and Administration Act, C.R.S § 37-92-101, et seq. The Referee has reviewed all pleadings, considered the Division Engineer’s Summary of Consultation Reports, and made such investigations as are necessary to determine whether the statements in the application, as amended, are true, and being fully advised in the premises hereby finds as follows: I. 1. FINDINGS OF FACT Applicant. The name, address and telephone number of the Applicant and the owner of the land upon which the structures are located: In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 2 of 19 High Valley Farms, LLC 24480 Highway 82 Basalt, Colorado 81621 Phone: (970) 274-0890 With copies of all pleadings to: Rhonda J. Bazil, Rhonda J. Bazil, P.C., 230 E. Hopkins Ave., Aspen, CO 81611. 2. Filing. Applicant filed a properly verified Application for Underground Water Right, Surface Water Right, Water Storage Right and Plan for Augmentation and Exchange on August 15, 2014. Applicant subsequently filed its First Amended Application for Underground Water Right, Surface Water Right, Water Storage Right and Plan for Augmentation and Exchange on August 24, 2015. The application, as amended, is hereinafter referred to as the “Application.” The statements in the Application are true. 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of this proceeding has been given in the manner required by law after publication of the application, including the amendment thereto, in the resume as directed by the clerk of the water court. The Water Referee sitting in this Court has jurisdiction over the subject matter of this proceeding and over all who have standing to appear as parties, whether they have appeared or not. 4. No Designated Groundwater. The land and water rights involved herein are not included within the boundaries of any designated groundwater basin. 5. Objector. The Roaring Fork Club timely filed a statement of opposition to the Application. No other Statements of Opposition were filed in this matter and the time for filing Statements of Opposition has expired. 6. Stipulation. Applicant entered into a Stipulation with the Roaring Fork Club on ________ and through that Stipulation the Roaring Fork Club consented to entry of this Ruling and Decree. The Court approved the Parties’ Stipulation on _________. 7. Summary of Consultation. The Division Engineer’s initial Summary of Consultation Report pursuant to C.R.S. § 37-92-302(4) was filed on November 12, 2014. Applicant filed a response to the initial Summary of Consultation on December 19, 2014. Following the filing of the amended application, the Division Engineer issued a second Summary of Consultation on August 31, 2015. Applicant filed a response to the second Summary of Consultation on November 13, 2015. The Referee has reviewed and has given due consideration to the Division Engineer’s Summary of Consultation Reports. 8. Overview. The purpose of this Application is to adjudicate water rights, including an appropriative right of exchange, and a plan for augmentation for a commercial greenhouse located at 24480 Highway 82 in Basalt, Colorado. A map depicting the In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 3 of 19 location of the facility and the subject water rights is attached hereto as Exhibit A and incorporated herein. FIRST CLAIM: SURFACE WATER RIGHT 9. HVF Pump and Pipeline: a. Legal description of point of diversion: The Southwest quarter of the Southeast quarter, Section 17, Township 8 South, Range 86 West of the 6th P.M., 135 feet from the South Section line and 2,300 feet from the East Section line, Pitkin County, Colorado. b. Source: Roaring Fork River, tributary to the Colorado River. c. Date of appropriation: August 15, 2014. d. Amount: 0.5 c.f.s., conditional e. Uses: irrigation within a 37,500 square foot greenhouse, augmentation subsequent to storage in the HVF Storage Tanks, and to fill and re-fill the HVF Storage Tanks as well as the HVF Operational Tank for the purposes described in Paragraphs 10 and 12, respectively. SECOND CLAIM: WATER STORAGE RIGHT 10. HVF Storage Tanks. a. Legal description: The Southwest quarter of the Southeast quarter, Section 17, Township 8 South, Range 86 West of the 6th P.M., 400 feet from the South Section line and 2,250 feet from the East Section line, Pitkin County, Colorado. b. Source: Roaring Fork River, tributary to the Colorado River. The HVF Storage Tanks will be filled through the HVF Pump and Pipeline described in Paragraph 9 above. c. Date of appropriation: August 15, 2014. d. Amount: 0.51 acre-feet, conditional, at the rate of 0.5 c.f.s. e. Uses: augmentation and replacement purposes. f. Remarks: The HVF Storage Tanks will consist of one or more underground storage tanks with a cumulative capacity of 0.51 acre-feet, all of which is active storage. If the HVF Storage Tanks water right is comprised of more than one storage tank, the In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 4 of 19 locations of all tanks must be within 200 feet of the decreed location. The tanks are interconnected and through the use of a pump, water can be directly released into the Roaring Fork River through an outlet pipe and will be lined such that no groundwater is intercepted. Any and all filling and re-filling of the HVF Storage Tanks only occurs in priority. THIRD CLAIM: UNDERGROUND WATER RIGHT 11. HVF Well. a. Legal description of point of diversion: The Southwest quarter of the Southeast quarter, Section 17, Township 8 South, Range 86 West of the 6th P.M., 730 feet from the South Section line and 2,508 feet from the East Section line, Pitkin County, Colorado. b. Source: Aquifer tributary to the Roaring Fork River, tributary to the Colorado River. c. Date of appropriation: March 20, 1972 for the absolute use and August 15, 2014 for the conditional uses, as further described in Paragraph 11.e. d. Amount: 7.56 acre-feet, at the rate of 15 g.p.m. for the uses described below in Paragraph 11.e. Of this total amount, 0.17 acre-feet (at the rate of 5 g.p.m.) has been made absolute for in-house purposes within a single-family residence. The remainder of the water right is conditional. . e. Uses: in-house purposes within a single family residence, fire protection, fill and refill of the HVF Operational Tank for the purposes described in Paragraph 12.e below as well as any and all commercial and industrial uses associated with operation of a marijuana cultivation facility, which includes, but is not limited to irrigation within a 37,500 square foot greenhouse, ,operation of evaporative cooling and odor suppression systems (collectively, the “Operation of the Mechanical Systems”), and “Commercial In-House Uses”. The term “Commercial In-House Uses” includes all toilets, bathroom sinks, hand/utility sinks, washing machines and hose bibs located within the facility. FOURTH CLAIM: WATER STORAGE RIGHT 12. HVF Operational Tank. a. Legal description: The Southwest quarter of the Southeast quarter, Section 17, Township 8 South, Range 86 West of the 6th P.M., 620 feet from the South Section line and 2,400 feet from the East Section line, Pitkin County, Colorado. b. Sources: In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 5 of 19 i. Aquifer tributary to the Roaring Fork River, tributary to the Colorado River. The HVF Operational Tank will be filled through the HVF Well, as that structure is more particularly described above in Paragraph 11. ii. Roaring Fork River, tributary to the Colorado River. The HVF Operational Tank will be filled through the HVF Pump and Pipeline, as that structure is more particularly described above in Paragraph 9. c. Date of appropriation: August 15, 2014. d. Amount: 0.10 acre-feet, conditional, all active storage. e. Uses: Fire protection as well as any and all commercial and industrial uses associated with operation of a marijuana cultivation facility, which includes, but is not limited to irrigation within a 37,500 square foot greenhouse, Operation of the Mechanical Systems and Commercial In-House Uses. f. Remarks: The HVF Operational Tank has been constructed underground and is lined such that it does not intercept groundwater. All filling and refilling of the HVF Operational Tank through the HVF Pump and Pipeline will occur in priority. Any out-of-priority depletions associated with the filling and re-filling of the HVF Operational Tank through the HVF Well will be replaced through the Plan for Augmentation set forth below. FIFTH CLAIM: APPROPRIATIVE RIGHT OF EXCHANGE 13. HVF Exchange. a. Location: i. Downstream Terminus (location where water is provided in substitution and/or exchange): (1) the confluence of the Frying Pan River and the Roaring Fork River for the exchange of Troy and Edith Ditch water; and (2) the confluence of the Roaring Fork River and the Colorado River for the exchange of Wolford Mountain Reservoir Water. ii. Upstream Terminus (location where water is diverted by exchange): The uppermost point of depletion on the Roaring Fork River that is impacted by diversions from the HVF Well, which is more particularly described as the Southwest quarter of the Southeast quarter, Section 17, Township 8 South, Range 86 West of the 6th P.M., 641 feet from the South Section line and 2,658 feet from the East Section line, Pitkin County, Colorado. In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 6 of 19 b. Sources of Substitute Supply: i. Water made available pursuant to a Water Allotment Contract with the Basalt Water Conservancy District, as more particularly described below in Paragraphs 15 and 16. ii. Water made available pursuant to a Water Service Contract with the Colorado River Water Conservation District, acting by and through its Colorado River Water Projects Enterprise, as more specifically described below in Paragraphs 15 and 17. c. Date of appropriation: August 15, 2014. d. Amount: 2.96 acre-feet per year at the rate of 0.011 c.f.s., conditional. SIXTH CLAIM: PLAN FOR AUGMENTATION 14. Name of augmented structure: HVF Well. 15. Water rights to be used for augmentation: a. Up to 0.51 acre-feet per year of water released from the HVF Storage Tank, as that water right is described in Paragraph 10 above. b. Up to 2.3 acre-feet per year of water released from Basalt Water Conservancy District (“BWCD”) owned or controlled nonfederal water rights, including the Troy and Edith Ditch, made available pursuant to a Water Allotment Contract with the BWCD, as more specifically described below in Paragraph 16. c. Up to 0.9 acre-feet per year of water released from Colorado River Water Conservation District (“River District”) owned or controlled Wolford Mountain Reservoir water made available pursuant to a Water Service Contract with the River District, acting by and through its Colorado River Water Projects Enterprise, as more specifically described below in Paragraph 17. In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 7 of 19 16. Information from previous decrees for Troy and Edith Ditch rights: STRUCTURE PRIORITY COURT CASE NO. ADJ DATE APP DATE Troy Ditch (1) Troy Ditch 1st Enlg Troy Ditch 2nd Enlg Edith Ditch Edith Ditch 1st Enlg Troy Ditch Water System aka Lower Headgate 370 427 3082 3082 08/25/1936 08/25/1936 669 4613 353 673 3082 4613 (2) W2281 (1) (2) (3) (4) (5) (6) (7) USE 05/01/1906 05/01/1928 DECREED AMOUNT (CFS) 5.10 10.80 AMOUNT SOLD, TRANSFERRED OR RESERVED (5) (6) (7) (8) (9) 0.000 0.000 0.095 0.064 0.035 0.000 0.000 0.200 0.134 0.073 AMOUNT REMAINING (10 CFS AF 4.906 N/A 10.393 N/A 06/20/1958 06/01/1942 6.20 I 0.000 0.000 0.115 0.077 0.042 5.966 N/A 08/25/1936 06/20/1958 05/01/1904 07/01/1946 2.72 3.23 I I 0.110 0.000 0.1320 0.000 0.050 0.060 0.000 0.000 0.018 0.022 2.410 3.148 N/A N/A 15.50(3) I,D,M C,P 0.110 0.1320 0.520 0.275 0.190 14.273 412.89 (4) I I Originally diverted from Miller Creek. All others originally diverted from Frying Plan River. Alternate point for all priorities of Troy and Edith Ditches. Combined amount limited to 15.5 cfs and 453 AF of consumptive use, 300 AF of which can be stored. I = Irrigation, D = Domestic, M = Municipal, C = Industrial and P = Piscatorial. Transferred to Edith Ditch Well in Case No. 80CW1 with 1.0 AF. Transferred to three springs on Cap K Ranch in Case No. 82CW189 (1.29 AF assumed to be included). Deeded to George Yates with 15.4 AF in 1983. 0.2 cfs and 10.60 cfs was included in Case No. 82CW357 for Ruedi South Shores augmentation plan. Deeded to Joan Wheeler in 1987 for diversion at the Troy Ditch 1st and 2nd Enlargement (16.9 AF assumed to be included). Reserved for augmentation of Cap K Ponds with 5.52 AF. Case No. 91CW220. A total of 40.11 AF of the original 453.00 AF has been sold or transferred. (8) (9) (10) a. In Case No. W-2281, Division 5, the Court decreed that 453 acre-feet of annual consumptive-use credits were available to these ditches, and that 300 acre-feet could be stored in an unnamed reservoir. The BWCD owns 412.89 acre-feet of the 453 acre-feet, and makes the water rights available to contract allottees for use pursuant to an approved substitute supply plan or decree of Court. b. The Troy and Edith Ditch augmentation water can be delivered to the Frying Pan, Roaring Fork or Colorado Rivers by by-passing water at the headgate on the Frying Pan River. c. Legal descriptions: i. Troy Ditch: The NW1/4 of the NE1/4 of Section 14, Township 8 South, Range 84 West of the 6th P.M., 285 feet from the South Section line and 967 feet from the East Section line (Pitkin County). UTM coordinates: Northing 4356860, Easting 350640, Zone 13. When AquaMap converts the UTM coordinates, the quarter-quarter coordinates are SE1/4 of the SE1/4. ii. Edith Ditch: The SW1/4 of the SW1/4 of Section 12, Township 8 South, Range 84 West of the 6th P.M., 326 feet from the South Section line and 981 In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 8 of 19 feet from the West Section line (Eagle County). UTM coordinates: Northing 4358454, Easting 351278.1, Zone 13. 17. Information from previous decrees for Wolford Mountain Reservoir rights: The River District owns and operates Wolford Mountain Reservoir (f/k/a Gunsight Pass Reservoir) to which the following water rights are decreed a. Case No. 87CW283: i. Decree Date: November 20, 1989. ii. Name of Structure: Gunsight Pass Reservoir. iii. Legal description of place of storage: The dam is located in the SW1/4 of the NE1/4 of Section 25, T. 2 N., R. 81 W., 6th P.M. The intersection of the dam axis with the right abutment will occur at a point which bears S. 54°54'20" E. a distance of 3,716.46 feet from the NW Corner of said Section 25. iv. Source: Muddy Creek and its tributaries, all tributary to the Colorado River. v. Amount: 59,993 acre-feet conditional; of this amount, 32,986 acre-feet were made absolute for piscatorial and recreational uses by decree entered in Water Court Case No. 95CW251, and the full amount was made absolute for all purposes by decree entered in Water Court Case No. 02CW107. vi. Appropriation Date: December 14, 1987. vii. Use: All beneficial uses, including but not limited to domestic, municipal, agricultural and recreational uses, which uses satisfy the requirements of the Windy Gap Settlement made with the Municipal Subdistrict of the Northern Colorado Water Conservancy District; use to meet the water requirements of the inhabitants of the River District for all uses, including uses in the Middle Park area; and use to meet the terms of a lease agreement executed March 3, 1987 between the River District and the City and County of Denver. b. Case No. 95CW281: i. Decree Date: August 26, 1997. ii. Name of Structure: Wolford Mountain Reservoir Enlargement. iii. Legal description of place of storage: The dam is located in the SW1/4 of the NE1/4 of Section 25, T. 2 N., R. 81 W., 6th P.M. The as-built intersection of the dam axis (Sta. D19+35.61) with the West Access Road (Sta. WR50+55.05), as shown on the Colorado River Water Conservation District, Wolford Mountain Project, Ritschard Dam construction drawing "Dimensional Dam Layout" sheet 8 of 94, occurs at a point which bears S. 53°24'56" E. a distance of 3,395.51 feet from the NW Corner of said Section 25; the bearing of said dam axis from Sta. 19+35.61 to Sta. 0+00 being S. 75° 28' 29" E. iv. Source: Muddy Creek and its tributaries, all tributary to the Colorado River. v. Amount: 6,000 acre-feet, conditional. vi. Appropriation Date: January 16, 1995. vii. Use: All beneficial uses by and for the benefit of the inhabitants of the Colorado River Water Conservation District, including but not limited to In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 9 of 19 domestic, municipal, industrial, irrigation, agricultural, piscatorial and recreational; such uses will include environmental mitigation, including environmental mitigation requirements associated with the Wolford Mountain Project; such uses will be made directly or by substitution, augmentation, or exchange. None of the water stored in the exercise of the right will be delivered directly or by exchange, substitution, or otherwise for use outside of Colorado Water Division No. 5. c. Case No. 98CW237: i. Decree Date: July 6, 2000. ii. Name of Structure: Wolford Mountain Reservoir. iii. Legal Description of place of storage: Same as for 95CW281. iv. Source: Muddy Creek and its tributaries, all tributary to the Colorado River. v. Amount: 30,000 acre feet conditional, with 15,895 acre-feet being absolute for recreational and piscatorial and flood control. vi. Appropriation Date: November 17, 1998. vii. Use: Certain of the beneficial uses previously adjudicated for Wolford Mountain Reservoir in Case No. 87CW283, District Court for Colorado Water Division No. 5 (November 20, 1989 Judgment and Decree), and Case No. 95CW281, District Court for Colorado Water Division No. 5 (August 26, 1997 Judgment and Decree). 87CW283: The reservoir will be used to satisfy the requirements of the Windy Gap Settlement made with the Municipal Subdistrict of the Northern Colorado Water Conservancy District. This will involve all uses, including but not limited to domestic, municipal, agricultural, and recreational uses. The reservoir will also be used to meet the water requirements of the inhabitants of the River District for all uses, including uses in the Middle Park area. 95CW281: All beneficial uses by and for the benefit of the inhabitants of the Colorado River Water Conservation District, including but not limited to domestic, municipal, industrial, irrigation, agricultural, piscatorial and recreational; such uses will include environmental mitigation, including environmental mitigation requirements associated with the Wolford Mountain Reservoir Project; such uses will be made directly or by substitution, augmentation, or exchange. Remarks: The Refill Right described herein will be exercised to provide supply for the Western Slope uses of water from Wolford Mountain Reservoir described above, including flood control, other operational purposes, and environmental mitigation and enhancement for the benefit of uses within the District. The Refill Right will not be used in conjunction with the Reservoir capacity (24,000 acre-feet) which is allocated for the supply of water to the Denver Board of Water Commissioners under Applicant's contractual relationship with Denver, In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 10 of 19 or the Reservoir capacity (6,000 acre-feet) which is allocated for Colorado River endangered fish releases. d. PLSS: The dam is located in the SW1/4 of the NE1/4 of Section 25, T. 2 N., R. 81 W., 6th P.M. The as-built intersection of the dam axis (Sta. D19+35.61) with the West Access Road (Sta. WR50+55.05), as shown on the Colorado River Water Conservation District, Wolford Mountain Project, Ritschard Dam construction drawing "Dimensional Dam Layout" sheet 8 of 94, occurs at a point 1,940 feet South of North section line and 2,760 feet East of the West section line of said Section 25. 18. Description of plan for augmentation. The purpose of this plan for augmentation is to provide replacement water for out-of-priority depletions resulting from operation of the HVF Well. The anticipated water demands and depletions are summarized in Tables 1 and 2. Total annual diversions are expected to be up to 7.56 acre-feet. Total annual depletions are expected to be up to 6.37 acre-feet. The anticipated monthly distribution of depletions is shown on Table 2; however, Applicant may change the amount of water diverted for each specific use within the two depletion categories of 100% and 15% so long as the total amount of monthly depletions within each depletion category is not exceeded. Applicant shall replace all out-of-priority depletions at or above the location of the calling right. Augmentation water will be provided, either directly or by exchange, from one or more of the augmentation sources identified in Paragraphs 15 and 36.a. Augmentation water provided through contracts with the River District or BWCD will be delivered through exercise of the appropriative right of exchange described above in Paragraph 13. Table 3 provides an example of how the augmentation plan is anticipated to operate under a dry-year scenario. 19. Conditional Rights. Applicant has demonstrated a specific plan and intent to appropriate water for the conditional water rights, including the appropriative right of exchange, described above and has taken a substantial first step towards such appropriations in the amounts and for the purposes specified above. The conditional water rights can and will be completed with diligence and within a reasonable time. 20. Finding of No Injury –Water Rights. The water rights decreed herein, including the appropriative right of exchange, will not injure any owner or person entitled to use water under a vested water right or decreed conditional water right. 21. Finding of No Injury – Augmentation Plan. Operation of the augmentation plan, including the appropriative right of exchange, will prevent injury to any vested or decreed conditional water rights provided that the plan is operated in accordance with the terms and conditions of this Decree. The water to be provided for augmentation is of a quality and quantity so as to meet the requirements for which the water has been used by senior In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 11 of 19 downstream appropriators, and therefore meets the requirements of C.R.S. § 37-92305(5). 22. Property Ownership. Applicant owns the land upon which any new diversion or storage structure or modification to any existing diversion or storage structure will be constructed. II. CONCLUSIONS OF LAW 23. Incorporation of Findings of Fact. The provisions of the Findings of Fact above are hereby incorporated herein to the extent they constitute conclusions of law. 24. Notice and Jurisdiction. The Application is one contemplated by law. The Water Court for Division 5 has exclusive jurisdiction over the subject matter of these proceedings over all persons, owners of property and water rights that may be affected hereby, whether or not they have chosen to appear. The Application and the related resume publications placed such persons on timely and adequate notice of the relief requested by Applicant and granted by this decree. C.R.S. §§ 37-92-203, 37-92-301 and 37-92-302. 25. Application Complete. The Application filed herein is complete, covering all applicable matters required under the Water Right Determination and Administration Act of 1969, C.R.S. § § 37-92-101 to 602, and should be granted as set forth herein. 26. Summary of Consultation. The Court has given due consideration to the Division Engineer’s Summary of Consultations dated November 12, 2014 and August 31, 2015. This Decree addresses the matters raised in the Summary of Consultation Reports. 27. Applicant has fulfilled all legal requirements for a decree for the requested water rights, including C.R.S. § 37-92-302 and 37-92-305. 28. Applicant has fulfilled all legal requirements for a decree for the requested plan for augmentation, including C.R.S. § 37-92-302 and 37-92-305. 29. Can and Will. With regard to the claimed conditional water rights, including the appropriative right of exchange, Applicant has demonstrated the requisite first step to appropriate water through intent and overt acts sufficient to place third parties on notice. Applicant has demonstrated that the requested conditional water rights, including the appropriative right of exchange, can and will be diligently diverted and beneficially used for the purposes adjudicated in this Decree within a reasonable time. 30. Administration. The plan for augmentation as described in this Ruling and Decree is capable of administration by the state water officials. In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 12 of 19 31. No Injury. The terms and conditions of this Ruling and Decree are adequate to prevent injury to the vested rights of others, including the owners of, or persons entitled to use water under a vested water right or a decreed conditional water right. C.R.S. § 37-92-305. If operated in accordance with the terms and conditions of this Decree, the plan for augmentation, including exchange, described herein will prevent injury to senior vested or decreed conditional water rights. III. RULING OF THE REFEREE Now, therefore, it is hereby the Ruling of the Water Referee: 32. The Findings of Fact and Conclusions of Law set forth above are incorporated into the terms of this Ruling and Decree as if the same were fully set forth herein. 33. Approval of Water Rights. The water rights, including the appropriative right of exchange, are hereby confirmed and decreed as set forth above in Paragraphs 9-13, subject to the terms and conditions stated herein. 34. Approval of Plan for Augmentation. The plan for augmentation described above is hereby confirmed and decreed, subject to the terms and conditions stated herein. 35. Well Permit Required. A new well permit must be obtained prior to operating the HVF Well under this augmentation plan. In considering any well permit application hereunder, the State Engineer shall be governed by this Decree and shall promptly review the permit application in accordance with the provisions of this Decree. Applicant shall not be required to submit any additional proof or evidence of matters finally determined herein when making an application for a well permit to withdraw the ground water right confirmed herein. 36. Terms and Conditions. a. Use of Water Rights for Augmentation. For replacement of out-of-priority depletions, Applicant may use any source of augmentation water described above in Paragraph 15 to replace out-of-priority depletions. Applicant may also use any additional sources acquired by Applicant in the future and approved by the Water Court according to the following procedure: Additional Sources of Replacement Water. Applicant shall provide notice to Opposer under the caption of this case and the Division Engineer of Applicant’s intent to include such additional sources of augmentation water in operation of the plan for augmentation decreed herein. Opposer and the Division Engineer shall have until the last day of the second month following the month in which notice is provided to review, comment on, and/or object to the additional sources of augmentation water. The Court shall retain jurisdiction to resolve any such In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 13 of 19 objections and shall approve, disapprove, or conditionally approve use of the additional sources of augmentation water to augment out-of-priority depletions in this decree before Applicant may use such sources for such purpose. The Court shall hold such proceedings as the Court deems appropriate, but such proceedings shall be limited in scope to issues of injury to other vested and decreed water rights by use of the specific additional sources of augmentation water proposed by Applicant, and such proceedings shall not reopen the approval of the augmentation plan or the terms and conditions decreed herein. Applicant shall bear the initial burden of proof that no injury to vested water rights or decreed conditional water rights will result from the use of the specific additional sources of augmentation water in the plan. b. Operation of Exchanges. i. The HVF Exchange shall be subject to the administration of the State Engineer and may only be operated with prior notice to the Water Commissioner or the Division Engineer. ii. Replacements, including slug releases, from Wolford Mountain Reservoir and Troy and Edith Ditch require an exchange through the “Instream Flow Rights,” as that term is defined below in Paragraph 37. The exchanges shall not operate any time the CWCB has placed a valid call within Applicant’s exchange reaches for the Instream Flow Rights. At such time releases from on-site storage tanks upstream of well depletions will be made to replace any out-of-priority depletions then occurring. c. Depletions. For purposes of this plan for augmentation, diversions made for irrigation use within the greenhouse and for Operation of the Mechanical Systems are considered to be fully (100%) consumptive. Applicant is not precluded from amending this plan for augmentation in the future to seek credit for any return flows that may be associated with these uses. Applicant may only take credit for such return flows upon approval of such amended decree. d. Replacements. The volume of augmentation water required to be released each year under this plan shall be limited to the quantity of out-of-priority depletions caused by Applicant’s actual use of the HVF Well, as opposed to the estimated uses set forth in Paragraph 18, above. e. Applicant shall install measuring devices, provide accounting, and supply calculations regarding the timing of depletions as required by the Division Engineer for the operation of this augmentation plan. The applicant shall also file an annual report with the Division Engineer by November 15th following each preceding In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 14 of 19 irrigation year (November 1 through October 31) summarizing diversions and replacements made under this plan. f. Applicant and its’ successors-in-interest shall be responsible for all reporting and accounting under this Decree. Applicant shall notify the Division Engineer in the event it designates another entity to perform such reporting and accounting. g. The accounting form attached hereto is not decreed herein and may be changed from time to time so long as the information required by this decree is included in the forms and such changes are approved by the Division Engineer or Water Commissioner. 37. Previously Decreed Instream Flow Rights. Applicant recognizes that the Colorado Water Conservation Board’s existing instream flow water rights decreed in Case Nos. 85CW646, 85CW639 and 10CW184, District Court, Water Division No. 5 on the Roaring Fork River (collectively, “Instream Flow Rights”) were decreed prior to the filing of this case, 14CW3095. Notwithstanding the foregoing and pursuant to C.R.S. § 37-92-102(3)(b), Applicant and the Colorado Water Conservation Board (“CWCB”) acknowledge that the instream flow rights decreed in Case Nos. 85CW646 and 85CW639 are subject to Applicant’s use of the HVF Well for in-house purposes within a singlefamily residence in the amount of 5 g.p.m. because such use was in existence prior to the date these instream flow rights were appropriated. 38. Except as provided above in Paragraph 37, the water rights decreed herein are subject to administration within the priority system based on the appropriation dates confirmed herein and on the filing of the Application in the Water Court in 2014. 39. The subordination of the instream flow water rights decreed in Case Nos. 85CW646 and 85CW639 to 5 g.p.m. diversions from the HVF Well pursuant to C.R.S. § 37-92102(3)(b) in this case shall not interfere with the administration of that diversion as against other water rights. The foregoing shall not and does not result in a general subordination of the CWCB’s decreed instream flow rights to any other water rights junior to the instream flow water rights. 40. The conditional water rights decreed herein shall be administered as being senior to the recreational in-channel diversion water right decreed to Pitkin County in Case No. 10CW35, pursuant to the terms of Paragraph 24.F. of that same decree. 41. Retained Jurisdiction. a. Pursuant to C.R.S. § 37-92-304(6), the Court shall retain continuing jurisdiction over the plan for augmentation on the question of injury to the vested rights of others for a period starting at the date of the Decree and continuing until five years after the Applicant provides written notice to the parties, the Division Engineer and the Court In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 15 of 19 that the augmentation plan has become fully operational and that the proposed uses are all in place. Such notice must confirm that the decreed augmenting sources are all in place, that the terms and conditions necessary to operate the plan as required by the Decree have been met, and that the augmented uses and augmentation have been initiated. For any storage tanks to be used for augmentation, the notice shall also include an as-built stage capacity table, an estimate of the active capacity of the storage tank, a profile of the storage tank showing the elevation of inlet and outlet structures, and confirmation that an operable and lockable outlet structure has been installed. b. Any person may invoke retained jurisdiction within the time period provided under this Decree by filing a petition to do so with this Court. Such petition shall be filed under the caption and case number of this case and shall be served on counsel of record for all parties who have appeared. Any petition to invoke retained jurisdiction shall set forth the factual basis upon which it is asserted that injury has occurred or will occur. The petitioning party shall have the initial burden of going forward to establish the facts alleged in the petition. Applicant shall bear the ultimate burden to show (a) that no injury claimed by the other party has occurred or will occur, or (b) that any modification to this Decree sought by the other party is not required, or (c) that any term or condition proposed by Applicant in response to the petition is adequate to avoid injury. 42. The conditional water rights remain in full force and effect for the next diligence period. Should the Applicant desire to maintain the conditional water rights confirmed herein, an Application for Findings of Reasonable Diligence shall be filed in the same month of the sixth calendar year following entry of this decree, unless a determination has been made that such conditional rights have been made absolute by reason of the completion of the appropriation, or are otherwise disposed of. 43. Transfer of Ownership. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or other transfer of the conditional water rights decreed herein, the transferee shall file with the Division 5 Water Court a notice of transfer which shall state: a. The title and case number of this Case No. 14CW3095; b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owner of said conditional water rights shall also notify the Clerk of the Division 5 Water Court of any change in mailing address. The Clerk shall place any notice of transfer or change of address in the case file of this Case No. 14CW3095 and in the case file (if any) in which the Court first made a finding of reasonable diligence. In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 16 of 19 IT IS ACCORDINGLY ORDERED that this Ruling shall be filed with the water clerk subject to judicial review. IT IS FURTHER ORDERED that a copy of this Ruling shall be filed with the Division Engineer for Water Division No. 5 and the State Engineer. Within twenty days after the date of this Ruling, any person who wishes to protest the Ruling shall file a pleading in protest with the Water Clerk. In the absence of any Protest being received, the Judge of Water Division 5 may incorporate the Referee’s Ruling into the Decree, which will be entered on or after twenty days of the date of this Ruling. DATED this ____ day of _________________. BY THE REFEREE ____________________________ Holly Strablizky Water Referee Water Division 5 DECREE OF THE WATER COURT The Court finds that no protest was filed in this matter. The Court hereby confirms the foregoing Ruling of the Referee, and enters the same as the Judgment and Decree of this Court. Dated this day of _______________ . BY THE COURT __________________________ Water Judge Water Division No. 5 State of Colorado In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 17 of 19 TABLE 1 Total Demands - Initial & Full Build-out all values are in acre-feet Initial Demands Month Full Build-out Demands Irrigation Fog & Mist Systems InHouse Total Demands Irrigation Fog & Mist Systems InHouse Total Demands (1) (2) (3) (4) (5) (6) (7) (8) Jan 0.33 0.04 0.09 0.46 0.43 0.05 0.12 0.59 Feb 0.30 0.03 0.08 0.42 0.39 0.04 0.11 0.54 Mar 0.33 0.04 0.09 0.46 0.43 0.05 0.12 0.59 Apr 0.32 0.04 0.08 0.44 0.41 0.05 0.12 0.58 May 0.33 0.09 0.09 0.50 0.43 0.11 0.12 0.65 Jun 0.32 0.13 0.08 0.53 0.41 0.16 0.12 0.69 Jul 0.33 0.13 0.09 0.55 0.43 0.17 0.12 0.71 Aug 0.33 0.13 0.09 0.55 0.43 0.17 0.12 0.71 Sep 0.32 0.08 0.08 0.49 0.41 0.10 0.12 0.63 Oct 0.33 0.07 0.09 0.49 0.43 0.08 0.12 0.63 Nov 0.32 0.06 0.08 0.46 0.41 0.07 0.12 0.60 Dec 0.33 0.06 0.09 0.48 0.43 0.07 0.12 0.62 Total 3.92 0.89 1.01 5.82 5.04 1.11 1.40 7.56 Notes: (1) = Column 1, Initial Demand (AF/month) (2) = Column 2, Fog and Mist Systems Demand * days in month / 325,850 (3) = Column 3 + 1 EQR (350 gallons per day) residential demand * days in month / 325,850 (4) = Column (1) + Column (2) + Column (3) (5) = Column 5, Full Build-Out Demand (AF/month) (6) = Column 6, Fog and Mist Systems Demand * days in month / 325,850 (7) = Column 7 + 1 EQR (350 gallons per day) residential demand * days in month / 325,850 (8) = Column (5) + Column (6) + Column (7) In re: the Application of High Valley Farms, LLC Case No. 14CW3095 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, AND DECREE OF THE WATER COURT Page 18 of 19 TABLE 2 Total Depletions - Initial & Full Build-out all values are in acre-feet Initial Depletions Fog & Mist Systems InHouse Full Build-out Depletions Total Depletions Total Lagged Depletions Irrigation Fog & Mist Systems InHouse Total Depletions Total Lagged Depletions Month Irrigation (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Jan 0.33 0.04 0.01 0.38 0.38 0.43 0.05 0.02 0.49 0.49 Feb 0.30 0.03 0.01 0.35 0.35 0.39 0.04 0.02 0.45 0.45 Mar 0.33 0.04 0.01 0.38 0.38 0.43 0.05 0.02 0.49 0.49 Apr 0.32 0.04 0.01 0.37 0.37 0.41 0.05 0.02 0.48 0.48 May 0.33 0.09 0.01 0.43 0.43 0.43 0.11 0.02 0.55 0.55 Jun 0.32 0.13 0.01 0.46 0.46 0.41 0.16 0.02 0.59 0.59 Jul 0.33 0.13 0.01 0.48 0.48 0.43 0.17 0.02 0.61 0.61 Aug 0.33 0.13 0.01 0.48 0.48 0.43 0.17 0.02 0.61 0.61 Sep 0.32 0.08 0.01 0.42 0.42 0.41 0.10 0.02 0.54 0.54 Oct 0.33 0.07 0.01 0.41 0.41 0.43 0.08 0.02 0.53 0.53 Nov 0.32 0.06 0.01 0.39 0.39 0.41 0.07 0.02 0.50 0.50 Dec 0.33 0.06 0.01 0.40 0.40 0.43 0.07 0.02 0.52 0.52 Total 3.92 0.89 0.15 4.96 4.96 5.04 1.11 0.21 6.37 6.37 Notes: (1) = Table 4, Column (1). Assumed 100% consumptive. (2) = Table 4, Column (2). Assumed 100% consumptive. = Table 4, Column (3) x 0.15. 15% consumption based on assumption that wastewater will be treated by an on-site wastewater treatment system. (3) (4) (5) = Column (1) + Column (2) + Column (3). = Column (4) lagged. 95% of depletions occur within a month with remaining depletions lagged to the following month based on Glover analysis. (6) = Table 4, Column (5). Assumed 100 % consumptive. (7) = Table 4, Column (6). Assumed 100 % consumptive. = Table 4, Column (7) x 0.15. 15% consumption based on assumption that wastewater will be treated by an onsite wastewater treatment system. (8) (9) (10) = Column (6) + Column (7) + Column (8). = Column (9) lagged. 95% of depletions occur within a month with remaining depletions lagged to the following month based on Glover analysis. Month Calling Rights Instream Carbondale Cameo Flow RICD (3) Total Lagged Depletions all values are in acre-feet Full Build-out Out-of-Priority Depletions & Augmentation TABLE 3 Example of Out-of-Priority Depletions Initial & Full Build-out Dry-Year Scenario Initial Out-of-Priority Depletions & Augmentation (15) (16) 0.09 (17) 0.15 (18) 0.09 0.32 0.71 0.61 3.47 0.00 0.01 0.66 0.71 0.32 0.35 1.30 0.59 0.29 0.19 0.89 0.18 0.29 0.27 0.08 0.00 0.00 (19) New New Wolford Mtn New Wolford Total Total BWCD New Wolford Mtn Total Total Out-of- Onsite Wolford Mtn BWCD Reservoir Mtn Reservoir Augmen- Lagged Augmen- (Contract BWCD Reservoir AugmenPriority Reservoir Contract (CW14005) Contract tation Depletions Depletions tation No. 643) Contract (CW14005) tation Contract (13) Total Out-ofBWCD Onsite Priority (Contract Augmentation Depletions No. 643) (12) (14) (11) 0.00 (10) 0.00 (9) 0.49 (8) 0.45 (7) 0.00 (6) 0.00 (5) (2) 0.00 (4) (1) 0.00 0.38 0.03 0.08 0.35 0.24 0.08 0.30 0.13 Jan 0.48 0.49 0.22 0.09 Feb 0.21 0.06 0.08 0.04 0.10 0.30 0.13 0.09 0.59 0.55 0.02 0.23 0.10 0.06 0.15 0.06 0.19 0.08 0.04 0.06 50% 0.23 0.10 0.37 7% 16% 0.46 0.43 0.38 Apr Mar 50% 23% 0.17 0.44 9% 0.13 0.09 23% 0.54 0.01 0.61 0.53 0.61 0.54 0.01 0.61 0.53 0.00 0.61 0.55 0.50 3.04 0.55 0.52 0.52 0.48 0.01 6.37 0.19 0.00 0.51 2.71 0.19 0.23 0.82 0.42 0.29 0.19 0.89 0.18 0.29 0.32 Jun 0.48 0.48 0.09 May 0.48 0.48 0.07 100% 0.13 100% 0.10 16% 0.42 0.01 31% 0.41 16% 0.42 0.01 Jul 100% 0.41 Aug 30% 0.39 33% 100% Sep 2% 25% 0.40 Total (Gallons) 167,190 0.00 Total based on refill after March/April (Gallons) 132,234 2.37 129,684 0.40 102,494 4.96 Total (Gallons) - Total based on refill after March/April (Gallons) - Oct - Nov Dec Total Notes: (1) = Percent of month during 2002 in which a call (CWCB Instream Flow) on the Roaring Fork River could have been active. (2) = Based on exceedance charts from Case No. 06CW77 engineering report. (3) = Percent of month in which a call on the Colorado River (Cameo) could occur in a severe drought year. (4) = Table 5, Column (5). (5) = Column (4) x Column (1) or Column (2) or Column (3), whichever is greater. (6) = Column (5) when augmentation supply is not provided by BWCD (March and November), Column (4) x Column (2) when Carbondale RICD may call and augmentation supply is not provided by BWCD (April and October), and Column (4) x Column (1) - (1 EQR(350gpd)) when instream flow may call (August and September). (7) = Contract water as distributed in BWCD Contract No. 643 for 1.0 AF per year, or 0.95 AF per year after 5% transit loss. (8) = Column (5) - Column (7), additional water for months May through September. New BWCD Contract will need to account for 5% transit loss for a total of 0.86 AF/yr. (9) = Contract water from Wolford Mtn. Reservoir. Contract CW14005 monthly allocation of 0.09 AF, after transit loss of 10%. (10) = Column (5) - Column (9), additional water for monthsof April and October. New Wolford Mtn Reservoir Contract will need to account for 10% transit loss for a total of 0.6 AF/yr. (11) = Column (6) + Column (7) + Column (8) + Column (9) + Column (10) (12) = Table 5, Column (10). (13) = Column (12) x Column (1) or Column (2) or Column (3), whichever is greater. (14) = Column (13) when augmentation supply is not provided by BWCD (March and November), Column (12) x Column (2) when Carbondale RICD may call and augmentation supply is not provided by BWCD (April and October), and Column (12) x Column (1) - (1 EQR(350gpd)) when instream flow may call (August and September). (15) = Contract water as distributed in BWCD Contract No. 643 for 1.0 AF per year, or 0.95 AF per year after 5% transit loss. (16) = Column (13) - Column (15), additional water for months May through September. New BWCD Contract will need to account for 5% transit loss for a total of 1.37 AF/yr. (17) = Contract water from Wolford Mtn. Reservoir. Contract CW14005 monthly allocation of 0.09 AF, after transit loss of 10%. (18) = Column (13) - Column (17), additional water for monthsof April and October. New Wolford Mtn Reservoir Contract will need to account for 10% transit loss for a total of 0.7 AF/yr. (19) = Column (14) + Column (15) + Column (16) + Column (17) + Column (18)