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This hearing has been requested by the Town of Limon pursuant to C.R.S. 37-90-
131 as a party adversely affected or aggrieved by an act of the District Board.
C.R.S. 37-90-131(1)(c) states:
This hearing was requested because of actions of the Board of Directors of the
Upper Big Sandy Ground Water Management District (The “Board of Directors”)
associated with but not limited to an application by Cedar Point LLC.
The application of Cedar Point LLC was submitted by Chris Thorne, Attorney for
Cedar Point LLC on January 14, 2008 requesting an export for no more than 35
acre-feet of water from the District.
As we will show, the certain interpretations of both Colorado Revised Statute and
District rules that have been discussed between the parties of this hearing and
others which continue to be the policy of the District Board which adversely
affect and aggrieve the Town of Limon.
Prior to the Application for Approval of Temporary Water Use Outside District
Boundaries for the Cedar Point Wind Power Project, the Upper Big Sandy
Ground Water Management District approved Resolution 2004-07-02 on July 14,
2004 establishing a one (1) year moratorium on processing or hearing applications
that could result in exportation of ground water from the district. That
moratorium has been renewed by Resolution No. 2005-07-02 on July 13, 2005,
Resolution 2006-07-06 in July, 2006, Resolution 2007-09-02 on September 12,
2007, and Resolution No. 2008-12-5 in December of 2008 for 2009.
During the period of the moratorium resolutions, the District Board also approved
three exemptions to the Moratorium by Resolution No. 2006-5-4 on May 10,
2006, Resolution No. 2007-09-02 on September 12, 2007, and Resolution No.
2007-12-6 on December 12, 2007.
This last resolution provided an exemption from the moratorium under these
criteria:
Application was made to the District by Cedar Point, LLC on January 14, 2008 to
export up to 35 acre feet of water to be purchased from the Town of Limon
The Cedar Point LLC Application identified the criteria for exemption and
demonstrated that it met that criteria and the District scheduled a hearing on
March 12, 2008 at which four directors voted to approve the application and one
director voted to deny the application.
At the March 12, 2008 hearing, the Town of Limon testified that it had adequate
water rights that had already been put to beneficial use having addressed the
question of injury to other users in the permitting process to allow the use of an
amount not to exceed 35 acre-feet in one year.
During the March 12, 2008 hearing, the Town of Limon testified that it has the
appropriation and legal right to divert through its wells up to 2,087 acre feet per
year and that over the past several years, which included years of severe drought
that Limon’s pumping has varied between 850 and 940 acre-feet per year.
Testimony also indicated that this was less than 50% of the total amount of Limon
permitted water rights.
Testimony from Thomas M. Dea, during the March 12, 2008 hearing testified to
the same facts as the Town of Limon and his conclusions were documents in
Exhibit D which states:
Upon the closing of the March 12, 2008, a vote of the Board of Directors was
taken on the application and four directors voted to approve the Application and
one director voted to deny the Application.
At the beginning of the March 12, 2008 hearing, as the Attorney for the District,
Scott Krob introduced the process for the hearing he stated:
“There is one point that I did want to emphasis and that is according to
the district rules, the decision of the Board must be unanimous tonight in
order to approve the exportation of water, so that’s – and the burden of
proof is for the applicant to convince the board by a preponderance of
evidence that it has been established that the exportation will not
materially affect the rights required by permit by any owner or operator of
land within the district and will not result in injury to other (inaudible) in
the district”
The Town of Limon believes it was adversely affected and aggrieved by this
interpretation of District Rule No. 3.
Following the vote, Attorney Krob indicated that the requirement for a unanimous
vote was based on an interpretation of the rule. When he stated:
“At this point according to the interpretation of the rule that this would
not support the application but I would to the board that they allow the
applicant – I don’t know (inaudible) to submit an argument to suggest the
(inaudible).”
The hearing held on March 12, 2008 was continued to May 14, 2008 to allow
Cedar Point, LLC to present further argument as to why a majority vote would be
sufficient instead of a unanimous vote.
The May 14, 2008 hearing was continued to June 4, 2008 when the UBSGWMD
Board of Directors voted that a unanimous vote was required and the application
by Cedar Point, LLC was denied.
The Town filed on July 3, 2008 three claims for relief including one under
C.R.C.P 106(a)(4) and two under C.R.S. 13-51-1-1, et seq. and C.R.C.P. 57 and
District filed a Motion to Dismiss on November 12, 2008. The matter came before
Lincoln County District Court for oral argument, review, consideration and
resolution of the Motion to Dismiss on July 6, 2009. The Lincoln County District
Court granted in Motion to Dismiss with prejudice on July 9, 2009 in a written
Order. The July 9, 2009 Order concluded that the Town should exhaust all
remedies provided by law, including requesting its own hearing before the
UBSGWMD Board of Directors concerning its claims for relief.
Before I continue, let me reiterate that the Town of Limon continues to support
the ongoing study of the water system in the UBS aquifer and wishes to see the
District take reasonable actions on behalf of the users of the District to protect this
important resource from large long term exportations. The time spent in
defending interpretations that create questions of use through bulk water sales by
municipalities, requirements for unanimous votes and the creation of a situation
where there is no reasonable way to measure the potential injury from a potential
export do little to protect the taxpayers of the Upper Big Sandy Ground Water
Management District except expend their tax dollars.
Introduction of Petition
I would like to submit the Petition from the Town of Limon which outlines the
determinations requested by the Town of Limon
Claim for Relief No. 1 -- Municipal Bulk Water Sales – Not an Export.
Colorado law grants every municipality in Colorado the power “to operate
and maintain water facilities . . . for its own use and for the use of public
and private customers and users within and without the territorial
boundaries of the municipality . . .” § 31-35-402(1)(b), C.R.S. The
diversion and use of water consistent with the foregoing power has been
recognized as a beneficial use under Colorado water law. See State Dept.
of Natural Resources v. Southwestern Colorado Water Conservation Dist.,
671 P.2d 1294, 1322 (Colo. 1983), superseded by statute on other grounds
(“Thus, we have recognized municipal use, which includes a variety of
uses incident to governmental activities, as a beneficial use.”). The
Colorado Ground Water Commission has issued permits for wells within
the Upper Big Sandy Designated Ground Water Basin authorizing
municipal use, including for municipal use by Limon.
Retail bulk water sales, which transactions occur within the service area of
a municipality and include small quantities of water for temporary use, are
distinguished from deliveries of water that occur outside the service area
of a municipality via a pipeline outside the District – such outside
deliveries and sales are distinguishable and not within the scope of the
policy requested by Limon.
Upon taking possession of the water, the customer may utilize it for any
number of purposes including domestic, irrigation, industrial, commercial,
or others. Certain of these purposes will fully consume the water, while
others may eventually return a portion of the water back to the custody of
the municipality, via its sewer system. Water delivered to customers may
also be transported far beyond the boundaries of the municipality by the
customer; for example, a town resident or visitor may fill up containers for
use while traveling, a gas station may use water from its tap to fill the
radiators of vehicles passing through on the interstate, a fire truck may use
the water to extinguish a fire outside the municipal boundaries, or a
cannery, bottling plant or brewery may use the water to produce products
and beverages for transport to grocery shelves across the country. The
variability of water consumption by customers of a municipality is
recognized and contemplated as part of any municipality’s appropriation
of water for treatment and sale to its customers. Therefore, the
consumptive disposition of the water following sale to a customer,
whether delivered by single-purpose tap or by bulk sale, is irrelevant to the
consideration of the policy requested by Limon.
Issue 1 Conclusion
Issue 2 Conclusion
Colorado law requires that the decisions of a public body represent the
deliberate will of majority, and not be negated by a single or minority
vote. Section 37-90-130(2), C.R.S., vests the board, not any single
individual, with the authority to prohibit the export of water from the
District. The unanimity requirement of Rule 3 is contrary to Colorado law
and increases the likelihood of unnecessary appeals and expenses to the
District. Therefore, Rule 3 should be interpreted to ensure that approval or
denial of export requests be made by majority vote of the board.
Claim for Relief No. 3 -- Approval of Limited Bulk Water Sales by Limon.
The proposed limited use of water from Limon’s municipal wells for
temporary uses outside of District boundaries should be approved by the
board because there is no competent evidence proving that such uses
materially affect other specific rights within the District as required by
statute.
Limon requests the Board to approve the export of water from the
boundaries of the District, where such water is from an existing Town of
Limon municipal well, for temporary use, and within the allowed annual
amount of withdrawal of the permit for the municipal well. Limon’s
existing wells have permits granting the right to pump up to 2700 acre-feet
annually from the Upper Big Sandy alluvial aquifer, Limon has not
previously used more than 947 acre-feet of such appropriations on an
annual basis, temporary delivery of up to 35 acre-feet of water per year for
export from Limon’s municipal wells will not cause Limon to exceed its
annual appropriations, and Limon’s wells are located at the “downstream”
end of the Upper Big Sandy Designated Ground Water Basin where water
is flowing out of the District boundaries. Section 37-90-130(2)(f), C.R.S.,
authorizes the District Board to prohibit exports only where export would
materially affect other water rights in the District. In the absence of
competent evidence proving that such limited exports materially affect
other specific rights within the District, the District shall approve the
proposed use for the limited and temporary purposes.
As documented, the Town of Limon has never used more than 33% of the
total amount of rights it has. When you consider that the Town returns
about 55% of the amount pumped back to the aquifer as discharge from
the WWTP their impact is fairly insignificant. The average consumptive
use (difference between amount pumped and amount returned) the Town
has averaged over the last 6 years would be less than the amount that
would be expected to be used in the irrigation of 150 acres of alfalfa
during that same period.
Issue 3 Conclusion
The export of water consistent with the limits described above should be
approved by the District Board. Section 37-90-130(2)(f), C.R.S., requires
such an export to be approved without competent evidence establishing a
material affect on other specific rights in the District.
The Town of Limon provided the District with a copy of its Resolution
No. 01-10-06 which consists of findings developed from a public meeting
on the current status of the Limon water resources. That resolution
suggests amending Rule 3 in its entirety to read:
Issue 4 Conclusion
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