Barton, Melinda B.

English

University of Denver

Water Law Review Volume 3 Issue 1 Article 77 9-1-1999 Application from Coors Brewing Company ("Coors") for an Amended Application: (X) For Sexennial Finding of Reasonable Diligence for Conditional Right of Exchange, in Jefferson County, Colorado. Melinda B. Barton Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Melinda B. Barton, Water Rights Application, Application from Coors Brewing Company ("Coors") for an Amended Application: (X) For Sexennial Finding of Reasonable Diligence for Conditional Right of Exchange, in Jefferson County, Colorado., 3 U. Denv. Water L. Rev. 216 (1999). This Colorado Water Rights Appplication is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COLORADO WATER RIGHTS APPLICATIONSWATER COURT DIVISION 1APPLICATION FROM COORS BREWING COMPANY ("COORS") FOR ANAMENDED APPLICATION: (X) FOR SEXENNIAL FINDING OF REASONABLEDILIGENCE FOR CONDITIONAL RIGHT OF EXCHANGE, IN JEFFERSONCOUNTY, COLORADO. Case No. 99CW062 (89CW234) (Water Division1, June 1999). Applicant: Coors Brewing Company ("Coors") (Attys.Jack F. Ross, Esq. and Joanne Herlihy, Esq., Dufford & Brown, P.C.)1. ApplicationCoors Brewing Company ("Coors") seeks a finding of reasonablediligence on a conditional right of exchange. In Water Court Case No.89CW234, the court decreed the exchange on April 30, 1993. Manyobjectors filed letters of opposition at that time.The location of Coors' exchange reach lies between the headgateof the Farmers High Line canal which diverts from Clear Creek on thenorth bank of Clear Creek in the NW/4 of the SW/4 of Section 27,Township 3 South, Range 70 West, of the 6th P.M. This is only a shortdistance below the Ford Street Bridge across Clear Creek in the City ofGolden, Jefferson County, Colorado. It is approximately 950 feet Eastand 1,500 feet North of the Southwest corner of said section andCoors' easternmost reservoir of the Jefferson Storage System, beingProspect Park Lake, located in the W1/2 Section 21, Township 3South, Range 69 West of the 6th P.M.Clear Creek is the source of the water at issue. Coors can store ordivert this water right as it was changed by Decree in Case No.89CW234. The original appropriation date for this water is December29, 1989. The amount of water currently at issue is up to 13.2 c.f.s. foran annual volume of up to 1,500 acre-feet. This water may be used forall the purposes for which water may lawfully be used through thestructures to which the exchanges are made.Coors has been engaged in the use, construction, and completionof the diversion facilities and water rights involved. Coors has alsobeen involved in the legal defenses and protection of these waterrights. It has continued in the planning, designing, and exploration ofthe physical and business problems associated with the constructionand use of the diversion facilities and water rights involved throughthe following activities: (1) installation of new pumps; (2) metering;(3) continual operation of water systems; (4) storage and beneficialuse of the water; (5) regular inspection of the reservoirs; (6)construction of a lake; (7) installation of aeration systems; (8)maintenance; (9) entering into a gravel lease; (10) completion of aCOLORADO WATER RIGHTS APPLICATIONSseparate case focused on continuing the development and protectionof the water rights; (11) objections in numerous cases to protect thewater rights from injury; (12) spending approximately $2,000,000during the due diligence period in continuing to develop the system;and (13) completing the transfer of a gravel mining lease.The Original Application for Diligence did not include specificidentification, including a full legal description, of the structuresinvolved in the exchange. Coors then filed this Amended Applicationwhich includes detailed legal descriptions of the structures includingFarmers High Line, the Wannamaker Ditch, the Agricultural Ditch,numerous Coors' Underground Springs, and Jefferson Storage Systemreservoirs and lakes.Coors also filed a Motion for Determination that republication isunnecessary pursuant to Water Court Rule 4(c). This Rule states thatthe court may determine it unnecessary to republish Applicant'sAmended Application for Diligence if it decides that it will cause noinjury. Water Court Rule 7 sets forth seven enumerated instanceswhen the republication of an Application or an amendment thereto isrequired: (1) a change of over 200 feet in structure location; (2) achange casing the well to come within 600 feet of an existing decreedwell; (3) a change or moving of a structure to a different quartersection; (4) an increase in amount of use or addition of type of use;(5) a request for an earlier date of appropriation; (6) a change in thesource of water; or (7) any other change not specifically described thatthe court deems material.Coors argues that amending the Application to include specificidentification, including full legal descriptions of the structuresinvolved in the exchange, is not one of the instances that requiresrepublication. First, Coors argues that republication is unnecessarybecause the Application for Diligence is only to prove that theapplicant has been diligent in seeking to place the conditional waterright already decreed to beneficial use. Second, Coors argues that thecourt should not deem this Amended Application a material changebecause all interested parties have reasonable inquiry notice.Colorado law requires no more than inquiry notice. The OriginalApplication was sufficient to inform or put any interested party oninquiry of the nature, scope, and impact of the proposed application.The Original Application included detailed descriptions of thediligence conducted on various components of the structures involvedin the exchange; therefore, an interested party had sufficient notice ofthe involvement of those structures. The attorneys ask that the courtfind that Coors has made a showing that no person will be injured as aresult of not publishing the Amended Application and asks that thecourt make a determination that republication of the AmendedApplication is unnecessary.On August 16, 1999, a consultation was held with the Office of theState Engineer. At this time, the Division Engineer could notrecommend approval of the application. It requested that Coorsprovide the court with proof that the work claimed for diligence wasIssue IWATER LAW REVIEWtoward the completion of this water right and occurred in thisdiligence period. No action has been taken on either the motion orthe consultation disapproval.2. OppositionNo letters of opposition were filed against the AmendedApplication.Melinda B. BartonWATER COURT DIVISION 2APPLICATION FOR UNDERGROUND WATER RIGHTS FROMNONTRIBUTARY SOURCES AND FOR APPROVAL OF A PLAN FORAUGMENTATION FOR REPLACEMENT OF EVAPORATION OF IMPOUNDEDSURFACE WATER, EL PASO COUNTY, COLORADO. Case No. 99CW109(Water Division 2, Sept. 1999). Applicant: Gene and Diane Melssen(Atty. Robert E. Schween).1. ApplicationGene and Diane Melssen ("Applicant") seek to adjudicate,quantify, and vest the groundwater rights in Denver, Arapahoe, andLaramie-Fox Hills aquifers underlying their property and toadjudicate a plan for augmentation for replacement of evaporativelosses for the pond on their property.The location of wells is unknown and depends upon build-outconfigurations not yet determined. The location of the wells, whichwill withdraw groundwater from the nontributary Denver, Arapahoe,and Laramie-Fox Hills aquifers, is part of the Applicant's overlyingproperty. The overlying land area consists of 10.2 acres, more or less,located in the SE of the NE 'A, Section 9, T.11 S., R.67 W of the 6thP.M., El Paso County, Colorado. The location of the pond is thecentral part of the Melssens' property. The pond is approximately 12feet deep at its deepest point. The groundwater in the Denver,Arapahoe, and Laramie-Fox Hills aquifers is nontributarygroundwater as defined in Colorado Revised Statute section 37-90-103(10.5). The water impounded in the pond is a combination ofgroundwater and tailwater from irrigation and surface run-off water.The Melssens' nontributary groundwater may also fill the pond. TheMelssens will withdraw the subject groundwater through wells locatedanywhere on their property. They seek confirmation of the absoluteright to withdraw all of the legally available groundwater in theclaimed aquifers lying below their property.The Melssens' propose to use all water withdrawn from theaquifers in a water system and after use lease, sell, or otherwise disposeof the water for the following beneficial purposes: domestic, industrial,commercial, irrigation, livestock watering, recreational, fish andwildlife, and fire protection. They will use the water for immediateapplication, both on and off the property, for storage and subsequentVolume 3

Application from Coors Brewing Company ( Coors ) for an Amended Application: (X) For Sexennial Finding of Reasonable Diligence for Conditional Right of Exchange, in Jefferson County, Colorado.

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Application from Coors Brewing Company ( Coors ) for an Amended Application: (X) For Sexennial Finding of Reasonable Diligence for Conditional Right of Exchange, in Jefferson County, Colorado.

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