District court, water division 3, state of colorado



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DISTRICT COURT, WATER DIVISION 3, STATE OF COLORADO
TO: ALL PERSONS INTERESTED IN WATER APPLICATIONS FILED IN WATER DIVISION 3.
Pursuant to C.R.S. 37-92-302(3), you are notified that the following is a resume in Water Division 3, containing notice of applications and amended applications or requests for correction filed in the office of the Water Clerk during the month of May, 2015.
The names and addresses of applicants, description of water rights, or conditional water rights involved, and description of ruling sought, are as follows:



CASE NO. 2015CW6, TERESA GONZALEZ NEUERBURG, 2691 SHERMAN AVE., MONTE VISTA, CO 81144-9415, neuerburgt@vwhs.org, 719-850-9934, VERIFIED APPLICATION TO ABANDON WATER RIGHTS IN RIO GRANDE COUNTY 2. Petitioner is the owner of the following described water rights: Case No.: W1458, A. Name of structure: W-1458 Well No. 1, Well Permit No.: 19398, WDID: 2010781; B. Legal description of each point of diversion: UTM coordinates: Northing 4159232 Easting 401250 Zone 13, Source of UTMs: Colorado Division of Water Resources; Legal description using the Public Land Survey System: SW1/4 SE1/4 Section 32 Township 38 Range 8 New Mexico Principal Meridian, 100 Feet from South and 1580 Feet from East, Source of PLSS: Decree; C. Source: Tributary to Rio Grande 3. The water rights are decreed for the following uses and amounts: Domestic, 300 gpm, absolute; Irrigation, 300 gpm, absolute; Fish culture, 300 gpm, absolute; 4. At the time the most recent decree for these water rights entered Petition was not the owner of these water rights. 5. B. The following uses and/or amounts of those listed in Section 1 above are to be retained and not abandoned: Domestic including irrigation of less than one acre yard and garden, 50 gpm, absolute.

(4 pages with attachments)



2015CW3016 APPLICATION FOR CHANGE OF WATER RIGHTS AND APPROVAL OF PLAN FOR AUGMENTATION IN RIO GRANDE AND ALAMOSA COUNTIES. Attorney for Applicants: Gilbert Y. Marchand, Jr., #19870, Gilbert Y. Marchand, Jr., P.C., 2737 Mapleton Avenue, Suite 202, Boulder, Colorado 80304, 303-444-4256, gym@gymlaw.com. 1. Name, mailing address, e-mail address, and telephone number of Applicants: Bryan Malouff and Brenda Ann Malouff, 6349 County Road 106.65 South, Alamosa, CO 81101, phone: 719-588-4263, e-mail: bmalouff2002@yahoo.com. 2. Description of application: Applicants seek approval of an augmentation plan associated with pumping of up to three irrigation wells to serve their land located in Sections 19, 20, and 29, Township 38 North, Range 9 East, N.M.P.M., Alamosa County, Colorado (the “Land”). Five wells on the Land were permitted and drilled in the 1960s and 1970s, but the wells were never pumped, and the permits expired. Applicants will seek new permits for up to three of the wells. As an augmentation source, Applicants propose to change the water rights represented by their ownership interest in nine shares of Commonwealth Irrigation Company (“9 Shares”) and to place water made available by the changed 9 shares into one or more recharge facilities to be located on the Land. In accordance with the bylaws of the Commonwealth Irrigation Company, Applicants have made written request for approval of the change. The wells will only pump against the amount of recharge credited from the changed 9 shares. The location of the Land and wells are shown on Figure 1, attached to the application and incorporated in the application by this reference. Applicants also own the well with permit number 10273-F, located in the southwest quarter of the northeast quarter of Section 19, Township 38 North, Range 9 East, N.M.P.M., Alamosa County, which well is the subject of a petition for inclusion in the Rio Grande Sub-District No. 2, and is not included in the plan for augmentation described in this application. CHANGE OF WATER RIGHTS. 3. Decreed water rights for which change is sought: 3.A. Name of structure: The Commonwealth Irrigation Company’s water rights are diverted through the Empire Canal. The 9 Shares are diverted from the Empire Canal and then into the Loveland Ditch lateral. The Empire Ditch and Loveland Lateral are depicted on Figure 2 which is attached to the application and incorporated in the application by this reference. 3.B. Decree information: 3.B.(1) Original decree: The water rights were originally adjudicated in a decree dated May 1, 1896, modified on April 4, 1900, in the Matter of the Adjudication of Priorities of Right to the Use of Water in Water District No. 20, by the District Court, Costilla County, Colorado, for irrigation purposes. 3.B.(2) Abandonment decree: A portion of the water rights were declared abandoned pursuant to the decree entered by the District Court, Alamosa County, Colorado, in Case No. 1084, on October 21, 1931, aff’d, Commonwealth Irr. Co. v. Rio Grande Canal Water Users Ass’n., 45 P.2d 622 (Colo. 1935). 3.B.(3) Change decree: Priority nos. 361-A and 361-B, described in paragraphs 3.E.(4) and (5) below, were changed by the decree entered in Case No. 95CW18 by the District Court, Water Division No. 3, on November 21, 1997. 3.C. Legal description: The decreed point of diversion is a headgate located in the southeast quarter of the northwest quarter of Section 33, Township 39 North, Range 8 East, N.M.P.M., Rio Grande County. See Figure 2. 3.D. Source: the Rio Grande. 3.E. Priorities, appropriation dates, and amounts: 3.E.(1) Priority No. 236-A, August 10, 1882, 312.3 cubic feet per second (“cfs”). 3.E.(2) Priority No. 310-A, May 16 1887, 6 cfs. 3.E.(3) Priority No. 335-A, May 16, 1888, 2.3 cfs. 3.E.(4) Priority No. 361-A, October 30, 1889, 92 cfs. 3.E.(5) Priority No. 361-B, January 31, 1890, 291.3 cfs, of which 125.98 cfs was abandoned (see paragraph 3.B.(2), above), with 93.32 cfs remaining. 3.E.(6) Priority No. 364, August 4, 1890, 29 cfs, all of which was abandoned (see paragraph 3.B.(2), above). 3.F. Uses: The water rights were originally decreed for irrigation purposes. The decree in Case No. 95CW18 granted alternate points of diversion for storage for Priority Nos. 361-A and 361-B, and also approved use of those priorities for recharge, stating: “The practice of applying the subject irrigation water rights to the surface to enhance the unconfined aquifer is hereby approved. This decree does not entitle Applicant to any credits for use in a change of water right or augmentation plan without further court action. The area where the subject irrigation water rights may be applied to the surface to enhance the unconfined aquifer is limited to that area within Applicant’s service area under the Empire Canal between the Rio Grande and Rock Creek.” 3.G. Amount of water that Applicants intend to change: Applicants intend to change all the water represented by the 9 Shares, and all the priorities described in paragraph 3.E., above. Based on their ownership of the 9 Shares, Applicants are entitled to a pro-rata portion of the Commonwealth Irrigation Company’s water rights and the water made available from exercise of those rights. For the years 1967 through 1992, Applicants’ 9 Shares constituted 1.11 percent of the Commonwealth Irrigation Company’s water rights. For the years 1993 through the date of this application, Applicants’ 9 Shares constituted 1.23 percent of those water rights. 4. Detailed description of proposed change: 4.A. Historical use: The 9 Shares have historically been diverted from the Empire Canal and used for flood irrigation. Applicants have historically diverted the 9 shares from the Empire Canal into the lateral known as the Loveland Ditch. The water was then applied via flood irrigation to the Land. For purposes of this application, the conveyance efficiency of the Empire Canal and Loveland Ditch is assumed to be 75 percent, and the flood irrigation efficiency is assumed to be 60 percent for the Land. A summary of diversion records for the 9 Shares for the years 1967 through 2013 is attached to the application as Appendix A and incorporated in the application by this reference. Based on those diversion records, the historical irrigation season was April through October. Based on the diversion records, and using the above-described ditch conveyance efficiency, it is estimated that an annual average amount of 450.4 acre-feet is available for delivery to the Land. Based on the same diversion records, the above-described flood irrigation efficiency, and Applicants’ irrigation practices, it is estimated that the consumptive use portion of such deliveries is an average annual amount of approximately 270.3 acre-feet, with an average annual amount of approximately 180.16 acre-feet of return flows. 4.B. Proposed change: Applicants seek to continue diverting the water available under the 9 Shares through the Empire Canal into the Loveland Ditch and onto the Land, at the times and in the amounts that the water is available. All or a portion of the water will then be placed into one or more ponds and allowed to recharge the unconfined aquifer. The approximate location of the proposed recharge pond(s) is on the Land in the south half of Section 19, Township 38 North, Range 9 East, N.M.P.M. Any water that is not placed into recharge may be directly delivered for irrigation purposes, and/or Applicants may also pump some water directly from the recharge pond(s) for irrigation purposes. Applicants will measure the water used for irrigation via direct delivery, the water used for irrigation via pumping from the recharge pond(s), and the water placed into recharge. Of the water placed into recharge, some will be used to maintain return flows associated with Applicants’ historical use of the 9 Shares, and some will be fully consumptive water available for augmentation and/or replacement purposes associated with Applicants’ proposed well pumping. Applicants propose to determine the respective portions of return flow and fully consumptive water based on the above-described 60 percent historical flood irrigation efficiency factor. Accordingly, 40 percent of the water placed into recharge during a given irrigation season will be used to maintain return flows associated with Applicants’ historical use of the 9 Shares, while the other 60 percent will be deemed to be fully consumptive water that is available for augmentation and/or replacement purposes during that season. If any of the fully consumptive portion is not used for augmentation or replacement purposes during that season, then the unused portion will be available for augmentation and/or replacement during the next irrigation season. To further insure that there is no expansion of use associated with use of Applicants’ 9 Shares for recharge, augmentation, and replacement purposes, Applicants will limit their well pumping (see paragraph 8, below) and irrigated acreage to such amounts that will result in a consumptive use that does not exceed the amount of fully consumptive water available from the recharge of the 9 Shares. The location of Applicants’ historical use and proposed changed use is the Land depicted on Figure 1. APPROVAL OF PLAN FOR AUGMENTATION. 5. Names and locations of structures to be augmented: Up to three out of the following five wells that were drilled on the Land but never pumped. All five wells are being listed until the final wells are determined. 5.A. Well with expired permit number 10274-F, located in the southwest quarter of the southeast quarter of Section 29, Township 38 North, Range 9 East, N.M.P.M., Alamosa County. 5.B. Well with expired permit number 10275-F, located in the southeast quarter of the southwest quarter of Section 29, Township 38 North, Range 9 East, N.M.P.M., Alamosa County. 5.C. Well with expired permit number 10276-F, located in the southwest quarter of the southeast quarter of Section 20, Township 38 North, Range 9 East, N.M.P.M., Alamosa County. 5.D. Well with expired permit number 10277-F, located in the southeast quarter of the southeast quarter of Section 19, Township 38 North, Range 9 East, N.M.P.M., Alamosa County. 5.E. Well with expired permit number 10278-F, located in the southeast quarter of the southwest quarter of Section 19, Township 38 North, Range 9 East, N.M.P.M., Alamosa County. 6. Source, depth, and amount: The source of each well to be augmented is the unconfined aquifer, tributary to the Rio Grande. The depth of each well is approximately 60 feet. The proposed maximum pumping rate of each well is 900 gallons per minute. 7. Water right(s) or sources to be used for augmentation: The 9 Shares. Applicants also seek the right to use such other water as may become available to Applicants from any other source legally available for augmentation or replacement and which can be provided in the amount, at the time and at the location required for augmentation. 8. Complete statement of plan for augmentation: Once permitted and placed into operation, up to three of the wells described in paragraph 5, above, will be connected to a sprinkler system. Water pumped from the wells into the sprinkler system will be applied to irrigation purposes on the Land. The water pumped from the wells will be metered. Based on the efficiency of the sprinkler system, a portion of the water applied from the wells will be consumed, and a portion will return to the stream system. Applicants currently estimate that the sprinkler system has an 83 percent efficiency, meaning that 17 percent of the water applied from the wells will be return flow, and 83 percent will be consumed. Applicants will limit their well pumping and irrigated acreage to insure that the amount of water consumed does not exceed the available recharge credits pursuant to the change of the 9 Shares described in paragraph 4, above. Appropriate records will be maintained and proper reporting and accounting will be done to insure that Applicants’ pumping does not exceed the amount available from recharge and to allow for administration of the change of water rights and plan for augmentation. Pursuant to C.R.S. § 37-92-305(8)(c), Applicants also request that the decree to be entered herein provide procedures to allow additional or alternative sources of replacement water that may become available to Applicants, including water leased on a yearly or less frequent basis, to be used in the plan after the initial decree is entered if the use of said additional or alternative sources is part of an approved substitute water supply plan or if such sources are decreed or otherwise lawfully available for such use. 9. Name(s) and address(es) of owner(s) or reputed owner(s) of the land upon which any new diversion or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool: Same as Applicants, whose address is described above. WHEREFORE, Applicants request the Court to enter a decree approving the claimed change of the 9 Shares, including all priorities associated with the 9 Shares; approving the claimed plan for augmentation, including the right to operate the wells pursuant to such augmentation plan; finding that the claimed change of the 9 Shares and plan for augmentation will not cause injury to any owner of or person entitled to use water under a vested water right or decreed conditional water right if granted on the terms and conditions proposed and/or to be determined herein; and to grant such other relief as the Court deems proper under the circumstances.

THE WATER RIGHTS CLAIMED BY THESE APPLICATIONS MAY AFFECT IN PRIORITY ANY WATER RIGHTS CLAIMED OR HERETOFORE ADJUDICATED WITHIN THIS DIVISION AND OWNERS OF AFFECTED RIGHTS MUST APPEAR TO OBJECT WITHIN THE TIME PROVIDED BY STATUTE OR BE FOREVER BARRED.
You are further notified that you have until the last day of July, 2015, to file with the Water Clerk, a verified statement of opposition setting forth facts as to why a certain application should not be granted or why it should be granted only in part or on certain conditions or a protest to the requested correction. A copy of such a statement of opposition or protest must also be served upon the Applicant or the Applicant’s attorney and an affidavit or certificate of such service must be filed with the Water Clerk. A $130.00 filing fee is required.

PLEASE NOTE: WATER DIVISION 3 HAS MANDATORY E-FILING FOR ALL PARTIES REPRESENTED BY AN ATTORNEY.


You can review the complete applications or requests for correction in the office of the Alamosa Combined Court, 702 Fourth St., Alamosa, CO 81101.
Witness my hand and seal of this Court this 12th day of June, 2015.

______________________________________

Shirley Skinner, Clerk of the Court

Alamosa Combined Courts

Water Court, Water Division 3

702 Fourth Street, Alamosa, CO 81101



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