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HomeMy WebLinkAbout20-103 Native Water Dedication Policy 10-28-2020Firestone Native Water Dedication Policy It is the Policy of the Board of Trustees (the "Board") of the Town of Firestone (hereinafter the "Town" or "Firestone") that the following guidelines shall be used to inform the Board when considering agreements for the acceptance of water rights for compliance with the requirements Firestone Municipal Code (the "Code") §§1.08.050 & 13.08.0100 1. This Policy is meant to guide the Board in its ability to enter into an agreements with a land use applicant ("applicant") for the acceptance of water rights other than C-BT units or "water credits" as that term is defined in the Code § 1.08.050(C). The primary source of these other water rights will be "Native Water." For purposes of this policy "Native Water" is used to describe water rights which were appropriated and historically diverted from the South Platte and its tributaries (particularly Boulder Creek and St. Vrain Creek) and which were used for purposes other than municipal uses (primarily irrigation). These often include water rights associated with certain shares of stock in mutual ditch and reservoir companies. An agreement for Firestone to accept Native Water from an applicant (a "Native Water Dedication Agreement") will cover additional aspects of water rights transfers which may not be defined in this policy and for which the Board should consider in consultation with Firestone staff and Firestone's engineering and legal consultants. 2. The Board, by adoption of this Policy, authorizes the Town Manager and the Town Manager's designee(s) to negotiate Native Water Dedication Agreements with applicants on behalf of Firestone, in accordance with the principles described in this Policy, subject to final approval of any Native Water Dedication Agreement by the Board. All negotiations and other actions taken prior to the date of this Policy by the Town Manager and the Town Manager's designee(s) with regards to Native Water Dedication Agreements are hereby ratified and approved by the Board. 3. To assist applicants with the dedication of Native Water, the Board adopts Addendum A to this Policy, which is a list of the preliminary information which should be furnished to the Town Manager for any applicant interested in entering into a Native Water Dedication Agreement with Firestone. 4. It is the policy of the Board that any Native Water Dedication Agreement shall include a description of the property for which the applicant shall use the Native Water to meet the requirements of §§ 1.08.050 & 13.08.010 of the Code. Unless otherwise recommended by Firestone staff and agreed upon in the Native Water Dedication Agreement, the Native Water, once dedicated, shall not be transferable for use in meeting the requirements of §§ 1.08.050 & 13.08.010 of the Code on any property other than the property described in the Native Water Dedication Agreement. 5. Native Water which is dedicated to Firestone will need to go through a legal process to change its permissible use from irrigation or other uses, to Firestone's municipal use in order for the water to be usable by Firestone. This process requires the Native Water be included in an application for a change of use of water right, which is filed in Water Court, Division 1. Firestone will prosecute any change in use of Native Water dedicated to Firestone unless otherwise recommended by Firestone staff and agreed upon in the Native Water Dedication Agreement. Through the change in use process, Firestone will incur legal and engineering fees. It is the policy of the Board that any Native Water Dedication Agreement shall require the applicant to pay a fee of $250,000.00 to cover these costs. This fee may be changed from time to time by resolution of the Board. 6. When considering whether to accept dedication of Native Water, the primary consideration for the Board should be whether the water rights are readily available for use by Firestone after the change in use process described above. Native Water which was not historically diverted and/or used near Firestone may be difficult for Firestone to utilize. The following list of ditch companies historically delivered water rights near Firestone: a. The Godding Ditch Company b. The Last Chance Ditch Company c. New Coal Ridge Ditch Company d. The New Consolidated Lower Boulder Reservoir and Ditch Company e. The Rural Ditch Company Native Water dedicated in the form of shares from these ditch companies should be readily available for use by Firestone after the change in use process, unless staff identifies other issues with their potential use by Firestone. The Board shall give preference to Native Water Dedication Agreements that propose to dedicate Native Water from these ditch companies. If an applicant proposes to dedicate Native Water from sources other than those described in the list above, the Board will seek advice from Firestone staff as to whether the Native Water would be readily available for use by Firestone after the change in use process. A Native Water Dedication Agreement which dedicates Native Water from sources other than those described in the list above may require the applicant to cover the cost of any additional infrastructure necessary to make the Native Water useable by Firestone, in addition to the Storage and Infrastructure Investment Fee described below. 7. The final determination for the amount of water credited to an applicant by a Native Water dedication ("Final Native Credit") shall be reserved until after the legal process to make the Native Water usable by Firestone is completed. The amount of water that is useable by Firestone from Native Water may vary for each dedication. It is the policy of the Board to consult with Firestone staff and Firestone's engineering and legal consultants for guidance on the estimated amount of Native Water which will be physically and legally available for use by Firestone ("Estimated Native Credit") prior to approving a Native Water Dedication Agreement. It is the policy of the Board that none of the Estimated Native Credit shall be available for conversion to water taps unless otherwise recommended by Firestone staff and agreed upon in the Native Water Dedication Agreement, 8. In order to make IN Water capable of meeting Firestone's year round water demands, Firestone will need to acquire additional water storage and build additional water conveyance infrastructure. It is the policy of the Board that any Native Water Dedication Agreement will include a Storage and Infrastructure Investment Fee to be paid by the applicant. The Storage and Infrastructure Investment Fee shall be set by the Board by resolution and may be amended from time to time by subsequent resolution. 9. Firestone shall retain all rights and interests to any fully consumable return flow credits from dedicated Native Water, which may be generated in the future. It is the policy of the Board that no return flow credits will be provided to or otherwise usable by an applicant unless recommended by Firestone staff and agreed upon in the Native Water Dedication Agreement, 10. The Board reserves the right to decline to accept any Native Water or enter into any Native Water Dedication Agreement with an applicant in its sole and absolute discretion. The Board will not enter into a Native Water Dedication Agreement with an applicant that does not provide the information in Addendum A to the Town Manager or provides insufficient information to the Town Manager. Additionally, it is the policy of the Board to reject the dedication of Native Water where the Town Manager, the Town Manager's designee, and/or Firestone's engineering and legal consultants determine that the Native Water would not be readily usable by Firestone including, but not limited to the following issues: infrequent river diversions, lack of evidence of historical beneficial use, insufficient dry up of lands, low water quality, unavailability of necessary water conveyance or augmentation infrastructure and/or legal restrictions on change in the beneficial -use of the Native Water. ADDENDUM -A to the Firestone Native Water Dedication Policy In order to begin the negotiation of a IN Water Dedication Agreement with the Town of Firestone, any applicant that seeks to make a dedication of Native Water must, as a preliminary step, furnish the Town Manager or the Town Manager's designee the following information regarding the Native Water to be dedicated and the associated property the Native Water will be used for dedication: 1. A copy of the share certificates evidencing ownership of the Native Water (if part of a ditch or reservoir company). Z. A deed or other document evidencing most recent conveyance of the Native Water to the applicant. 3. A share trace (if part of a ditch or reservoir company) evidencing the clear chain of title to the current owner of the Native Water or a letter from the current owner authorizing Firestone or its agents to conduct a share trace on the Native Water, 4. Any liens or encumbrances on the Native Water, 5. Any decrees in which the Native Water was changed, including a change in use, change in point of diversion or change in location of use. 6. Any substitute water supply plans which have included the use of the Native Water. 7. Any engineering analysis conducted on the historical use of the Native Water which is in the possession of the applicant. 8. Affidavit of historical use of the Native Water to be dedicated. 9. Dry -up Agreement or other documents evidencing dry -up of the land historically irrigated with the Native Water to be dedicated. 10. The annexation agreement or other information showing the land the applicant intends to use any Native Credit received to support development upon. 11. Any easements, liens or encumbrances on the historically irrigated lands which could affect the title and/or use of the Native Water by the Town of Firestone.