q District Court
Water Division No. 1, Douglas County, Colorado
Post Office Box C
CONCERNING THE APPLICATION FOR WATER RIGHTS OF:
Charles H. Bucknam and Jerri L. Hill
12460 North Third Street, Parker, Colorado 80134
for Underground Water Rights
IN DOUGLAS COUNTY.
COURT USE ONLY
FINDINGS OF FACT, CONCULIONS OF LAW, JUDGEMENT AND DECREE
This matter is before the Court upon an application for water rights. The Court having considered the application and other materials hereby makes the following findings of fact, conclusions of law, judgment and decree, proposed the twenty ninth day of March, 2002.
FINDINGS OF FACT
1. Name, Address and Telephone of Applicant:
Charles H. Bucknam and Jerri L. Hill
12460 North Third Street
Parker, Colorado 80134
2. History of Case and Opposition:
2.1. The Application was filed with the Court on July 18, 2001.
2.2. A statement of opposition was timely filed by Colony Investments, Inc. (Colony) on September 27, 2001. Colony consents to the entry of a ruling and decree in this case no less restrictive than Applicants’ this proposed decree dated the twenty ninth day of March, 2002, attached hereto in Exhibit B.
2.3. The State Engineer submitted a Determination of Facts Report on September 21, 2001, in accordance with Section 37-92-302(2), C.R.S. as amended by Senate Bill 5 in 1985, including a determination of facts concerning Applicants’ claims for water rights from the Arapahoe and Laramie Fox-Hills aquifers, which the Referee has considered by the Court in accordance with 37-92-305(6) C.R.S.
3. Subject Matter Jurisdiction:
Timely and adequate notice of these proceedings has been given in the manner prescribed by law. The Court has jurisdiction over all persons who have standing to appear as parties, whether they have appeared or not. The land and water rights involved herein are not included within any designated ground water basin, and the Court has jurisdiction of the subject matter of the application. See 37-92-203 and 37-92-302 C.R.S.
4. Application for Underground Water Rights
4.1. Description of Claims, Wells and Overlaying Land
4.1.1. Applicant’s parcel location is in NE 1/4 SW 1/4 Section 7 Twp 6S Range 66 W 6th P.M., 2 acre parcel, Lot 4, Block 16, Subdivision: Grandview Estates; 12460 North Third Street, Parker, Colorado 80134. Applicants request the right to construct wells as described in Section 37-90-137(4) C. R. S., anywhere on the Subject Property to recover the entire allowable annual amounts from the Arapahoe and Laramie-Fox Hills aquifers as claimed herein or as determined by the Court pursuant to its retained jurisdiction. Applicants will not place a well within 600 feet of another well within the Arapahoe or Laramie-Fox Hill aquifers, unless it is an exempt well, producing 15 gallons per minute or less.
4.1.2. Well permit applications for the wells to be constructed pursuant to this application and subsequent decree will be applied for at such time as Applicants are prepared to construct such wells in accordance with the terms of the decree to be entered in this matter. Applicants may wish to exercise these rights by participation in well field operations; such as those described in the Building and Restrictive Protective Covenants of Grandview Estates which state: “There will be a charge of approximately $350.00 to $400.00 at such time that the water is made available to each building site.” Such well fields are described in the Statewide Nontributary Groundwater Rules 2 CCR 402-7 Rule 14 and Applicants shall have the right to participate in well field operations for well fields on parcels of land contiguous with the Applicants’ parcel or have cylinders of appropriation which overlap Applicants’ parcel as described in Statewide Nontributary Groundwater Rules 2 CCR 402-7, Rule 11B, subject to paragraph 4.8.2 of this decree.
4.2. Annual Amount, Estimated Pumping Rates and Well Depths
4.2.1. Applicants have the right to all ground water determined to be available from the Arapahoe and Laramie-Fox Hills aquifers underlying the specified 2 acres of land, more or less, described herein, based upon a statutory aquifer life of 100 years. Applicants are the owners of such overlying land area as described herein and may adjudicate and use the ground water rights claimed herein and such rights are vested property rights of the Applicants. The withdrawal in the average annual amounts determined to be available from the Arapahoe and Laramie-Fox Hills aquifers can be made pursuant to Section 37‑90‑137(4), C.R.S., without causing material injury to the vested rights of others.
4.2.2. The estimated average annual amounts of withdrawal available from each aquifer, as indicated below, are based upon interpretations of information contained in the Denver Basin Rules, 2 C.C.R. 402‑6 and confirmed by the State Engineer’s Determination of Facts:
Aquifer Acres Sat. Sand Specific Annual Amount
Thickness Yield(%) (Acre‑Feet)
Arapahoe 0.7 275’ 17 0.3
Laramie‑Fox Hills 2 191’ 15 0.6
4.2.3. The State Engineer’s Determinations of Fact are entitled to a presumption of validity. See 37-92-305(6) C.R.S. The Referee finds that groundwater underlying the Property is available for withdrawal in the amounts stated in the foregoing table over the 100-year statutory life of the aquifers.
4.2.4. The final average annual amounts available from each aquifer will depend upon the actual hydrogeology and the legal entitlement of the Applicants to all ground water in the subject aquifers underlying the described property. Adjustments were required to account for prior appropriations. The California Arapahoe Well No. 1 (CA-1, permit 17691-F, decree W-7609), recognized by the State Engineer as a Section 37-90-137 (5) well, with a cylinder of appropriation of approximately 3070’ in the Arapahoe aquifer, overlaps about 1.4 acres of the Subject Property. This prior appropriation reduced the appropriable water in the Arapahoe aquifer to approximately 0.3 acre-feet annually, since the appropriation of that well is attributed solely to the Arapahoe aquifer by the State Engineer. Attributing the appropriation solely to the Arapahoe aquifer prevents material injury to right holders in the Denver aquifer, according to the State Engineer’s determination in case 99CW127, even though it is a dual aquifer well, producing unspecified amounts of water from both the Arapahoe and Denver aquifers.
4.2.5. The pumping rates for each well are to be specified on the well permit. Applicants are granted the banking of water rights as of the date of this decree, in accordance with 2 CCR 402.7 Rule 8 A. The allowed average annual amount of withdrawal shall be based on an aquifer life of 100 years in accordance with Section 37-90-137 (4)(b)(I), C. R. S. The allowed average annual amount of withdrawal for all of the wells in the overlying land shall not exceed one percent of the total amount of water, exclusive of artificial recharge, recoverable from the Arapahoe (33 acre-feet) and Laramie-Fox Hills (57 acre-feet) aquifers beneath the overlying land. However, the allowed annual amount of withdrawal may exceed the allowed average annual amount of withdrawal as long as the total volume of water withdrawn from the well or wells does not exceed the product of the number of years since the date of the decree sought, times the allowed average annual amount of withdrawal.
4.2.6. The wells shall be located to withdraw water from the depth of approximately 1290 feet to 1770 feet below the land surface from the Arapahoe aquifer and from approximately 2,120 feet to 2,380 feet below the land surface from the Laramie-Fox Hills aquifer, in accordance with the Denver Basin Rules.
4.3. Source of Groundwater and Limits on Consumption
4.3.1. The sources of the groundwater are the Arapahoe and Laramie-Fox Hills Aquifers. The ground water in the Arapahoe and Laramie‑Fox Hills aquifers at this location is classified as nontributary ground water as defined at Section 37‑90‑103 (10.5), C.R.S and the withdrawal will not, within 100 years, deplete the flow of a natural stream, including a natural stream as defined in 37-82-101(2) and 37-92-102(b) C.R.S., at an annual rate greater than one tenth of one percent of the annual rate of withdrawal.
4.3.2. Applicants may not consume more than 98% of the annual quantity of water withdrawn from the nontributary Arapahoe and Laramie-Fox Hills aquifers. The relinquish of two percent (2%) of all such nontributary ground water withdrawn to the stream system required by Rule 8, 2 C.C.R. 402-6, may be satisfied by any method selected by the Applicants satisfactory to the State Engineer, so long as it can be shown that an amount equal to 2% of such withdrawals (by volume) has been relinquished to the stream system. Otherwise, such water may be fully consumed to extinction for all beneficial uses.
4.3.3. In determining the amount of ground water available for withdrawal annually form these aquifers, the provisions of 37-90-137(4) C.R.S were applied and pursuant to section (b)(I) annual withdrawals shall be allowed on the basis of an aquifer life of 100 years.
4.4. Final Average Annual Amounts of Withdrawal
4.4.1. Applicants shall have the right to withdraw more than the average annual amount estimated in section 4.2.2 above pursuant to Rule 8A of the Statewide Rules, 2 C.C.R. 402‑7, and the right to revise the above estimate of the average annual amounts available for withdrawal in each aquifer upward or downward, based on better or revised data, without the necessity of amending this decree.
4.4.2. Final determinations of the applicable average saturated sand thickness and resulting average amounts available to the Applicants for withdrawal shall be governed by the Court’s retained jurisdiction. In the event the Court’s decree in this action is not reopened for further quantitative determination, the findings herein are final and controlling.
4.5. Well Locations
4.5.1. The Applicants shall have the right to locate wells anywhere on the subject parcel filed in accordance with Section 37‑90‑137(10), C.R.S. Applicants shall not locate a well within 600 feet of another well in the same aquifer without providing the notice required by the Statewide Nontributary Groundwater Rules 2 C,C.R. 402-7 Rule 11 C.
4.5.2. As additional wells are planned, well permit applications will be filed in accordance with Section 37‑90‑137(10), C.R.S.
4.6.1. Applicants shall have the right to use all ground water subject to the Application. Such water is to be used, reused, successively used and, after use, leased, sold or otherwise disposed of for the following beneficial purposes: domestic, agricultural, irrigation, stock watering, recreational, fish and wildlife, fire protection, and any other beneficial purposes, to be used on or off the land described herein. Such water will be produced for immediate application to said uses, for storage and subsequent application to said uses, for exchange purposes, for replacement of depletions resulting from the use of water from other sources, or for augmentation purposes.
4.6.2. Included in the authorized uses is the right to use, re-use to extinction, subject to the Denver Basin Rules 2 C.C.R. 402-6, which limits the consumption of the nontributary groundwater in the Arapahoe and Laramie-Fox Hills aquifers to 98% of withdrawals.
4.7. Owners of the Overlaying Land: The owners of the approximately 2-acre parcel, together with the underlying Denver Basin Groundwater which is the subject of this Ruling, are the Applicants, Charles H. Bucknam and Jerri L. Hill. A description of the overlaying land is attached in Exhibit A.
4.8. Well Fields:
4.8.1. Applicants shall have the right to withdraw all of the legally available ground water in the subject aquifers underlying the land described herein through any well(s) initially permitted in such aquifer and any additional well(s) which may become part of the Applicants' well field. Applicants request that the initial well(s) permitted in each aquifer, along with any additional well(s) on the subject property completed into the same aquifer permitted on or after July 6, 1973, shall be treated as a well field.
4.8.2. Applicants shall also have the right to participate in well field operations; such as those described in the Building and Restrictive Protective Covenants of Grandview Estates which state: “There will be a charge of approximately $350.00 to $400.00 at such time that the water is made available to each building site.” Such well fields are described in the Statewide Nontributary Groundwater Rules 2 CCR 402-7 Rule 14 and Applicants request the right to participate in well field operations for well fields on parcels of land contiguous with the Applicants’ parcel or have cylinders of appropriation which overlap Applicants’ parcel as described in Rule 11B, with the consent of the well field operator. Applicant’s participation in such well fields shall require an application for a change of water right and amendment of this decree.
4.9. Banking: The allowed average annual amount of withdrawal for all of the wells in the overlying land shall not exceed one percent of the total amount of water, exclusive of artificial recharge, recoverable from a specific aquifer beneath the overlying land. However, the allowed annual amount of withdrawal may exceed the allowed average annual amount of withdrawal as long as the total volume of water withdrawn from the well or wells does not exceed the product of the number of years since the date of the decree, times the allowed average annual amount of withdrawal.
4.10. Nature of Rights: Applicant’s rights shall not be administered in accordance with priority of appropriation in accordance with Section 37-92-306 (11) C. R. S. The determination of the water rights need not include a date of initiation of the withdrawal and the rights to use the groundwater from the Section 37-90-137 (4) wells pursuant to all such determinations shall be deemed to be vested property rights. Accordingly, the subject rights are not conditional water rights as defined in 37-92-103(6), 10 C.R.S., and the requirements for periodic findings of diligence are not applicable to these rights.
CONCLUSIONS OF LAW
5. The Application is one contemplated by law and the Court has subject matter jurisdiction over this proceeding. See 37-90-137(9)(c )(I) C.R.S., 37-90-137(6) C.R.S. and 37-90-305(11) C.R.S.
6. The Court has jurisdiction over the Application and over all persons whether appearing or not, all notices required by law having been given and the Court having jurisdiction over the subject mater of this proceeding. See 37-92-203 C.R.S. and 37-92-302 C.R.S.
7. The rights to groundwater determined herein are vested property rights and shall not be administered in accordance with the priority of appropriation. See 37-92-305 (11) C.R.S.
8. The quantities of groundwater in the Arapahoe and Laramie-Fox Hills aquifers underlying the overlaying land are available for withdrawal in the amounts discussed above, in accordance with 37-90-137(4) C.R.S.
RULING OF THE REFEREE
The foregoing Findings of Fact and Conclusions of Law are incorporated into this Ruling of the Referee, and given full force and effect of the law.
9. Right to Withdraw Groundwater: The Applicants are hereby decreed the vested right to withdraw nontributary groundwater from the Arapahoe and Laramie-Fox Hills aquifers through wells to be located on the overlaying land described and through wells to be located on contiguous parcels and or have cylinders of appropriation which overlap Applicants’ parcel as described in the Statewide Nontributary Groundwater Rules 2 CCR 402-7 Rule 11B, through future modification of this decree by a change of water right application, as necessary for the full production of the subject water, in the average amount specified herein subject to the limitations described above and the retained jurisdiction of the Court. The Applicants may withdraw their fully-decreed entitlement to the Arapahoe and Laramie-Fox Hills aquifer groundwater underlying the approximately 2-acre parcel.
10. Retained Jurisdiction:
10.1. The Court retains jurisdiction as necessary to adjust the average annual amount of groundwater available from the Arapahoe, and Laramie-Fox Hills aquifers underlying the overlaying land to conform to actual local aquifer characteristics as determined from adequate information obtained from wells, pursuant to 37-92-305(11) C.R.S.
10.2. At such time as adequate data is available, any party to this case, including the State Engineer, may invoke the Court's retained jurisdiction to make a final determination of water rights. Within four months of notice that the retained jurisdiction for such purpose has been invoked, the State Engineer shall use the information available to him to make a finding of a final determination of water rights. The State Engineer shall submit such finding to the Water Court and to the Applicant.
10.3. If no protest to such finding is made within 60 days, the final determination of water rights and shall constitute the Final Decree of the Court. In the event of a protest, or in the event the State Engineer makes no determination within four months, such final determination shall be made by the Water Court after notice and hearing.
11. Well Permits: The State Engineer shall issue well permits for the withdrawal of the subject Arapahoe, and Laramie-Fox Hills aquifers groundwater at such time as the Applicant or its successors or assigns submits well permit applications to withdraw said groundwater. In issuing such permits, the State Engineer shall be bound by this Ruling.
Entered this ____________ day of ____________, 2002.
Hon. Raymond S. Liesman
Water Division No. 1
THE COURT DOTH FIND THAT NO PROTEST TO THE RULING OF THE REFEREE HAS BEEN FILED. THE FOREGOING RULING IS CONFIRMED AND APPROVED, AND IS HEREBY MADE THE JUDGMENT AND DECREE OF THIS COURT.
Date:______________ BY THE COURT:
Hon. Jonathan W. Hayes
Water Division No. 1
I certify that a copy of the FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGEMENT AND DECREE was mailed by first class mail to the following, addressed as follows, on (date) ________________________________.
SUBJECT PROPERTY DESCRIPTION