HomeMy WebLinkAbout24-50 Acting by and through Firestone Water Activity Enterprise Approving Filing Water Court Application for Change ofRESOLUTION IN "a
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, COLORADO, ACTING BY AND THROUGH ITS TOWN OF
FIRESTONE WATER ACTIVITY ENTERPRISE APPROVING THE FILING OF A
WATER COURT APPLICATION FOR CHANGE OF CERTAIN SHARES OF DITCH
COMPANIES OWNED BY THE TOWN OF FIRESTONE WATER ACTIVITY
1�►�111 �1:�' : �
WHEREAS, Pursuant to Resolution No. 21-109, dated and adopted November 17th, 2021,
Firestone entered into a Purchase and Sale Agreement with Barefoot, LLC for the purchase of
certain shares of stock in the Rural Ditch Company represented by Stock Certificate Nos. 391, 393
and 3 94; and
WHEREAS, Pursuant to Resolution No. 21-207, dated and adopted December 8th, 2021,
Firestone entered into a Purchase and Sale Agreement with Jaimie Bybee for the purchase of
certain shares of stock in the New Consolidated Lower Boulder Reservoir and Ditch Company
represented by Stock Certificate No. C110; and
WHEREAS, Pursuant to Resolution No. 22-17, dated and adopted January 13th, 2022,
Firestone entered into a Purchase and Sale Agreement with Lakeview Holdings, LLC for the
purchase of certain shares of stock in the New Consolidated Lower Boulder Reservoir and Ditch
Company represented by Stock Certificate No. C136; and
WHEREAS, the Rural Ditch Company Shares and the New Consolidated Lower Boulder
Reservoir and Ditch Company Shares (collectively the "Shares") are currently decreed for
irrigation use within the service area of the respective ditches; and
WHEREAS, the Board of Trustees finds it in the best interest of the Town of Firestone and
its citizens to change the use of the water rights associated with the Shares for use in the Town of
Firestone's municipal water system, including by lease to other parties, by filing an application
with the Division One Water Court (the "Application"); and
WHEREAS, prosecution of the aforementioned Application is consistent with the powers
and authority of the Town of Firestone and the furtherance of the public interest.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORADO:
1. The above Recitals and Findings of the Board of Trustees are hereby incorporated into
this Resolution.
2. The Board of Trustees authorizes the filing of a Division One Water Court application to
change the use of the Shares for use within the Town of Firestone's municipal water
system, including by lease to other parties.
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3. The Town Manger and other officers, employees and agents of the Town are further
authorized to do all things necessary and desirable on behalf of the Town to file the
application and prosecute the same to completion, including settlement with parties and
appealing any final decision of the Water Court.
4. All actions taken by the Town Manager, employees and agents of the Town in
furtherance of the objectives set forth herein prior to the date of this resolution are hereby
ratified and endorsed by the Board of Trustees.
PASSED AND ADOPTED this 8th day of May 2024.
ATTEST:
MT 4ia una onzalez, Interim Town Clerk
TOWN OF FIRESTONE, COLORADO
APPROVED AS TO FORM:
William P.
Attorney
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DISTRICT COURT, WATER DIVISION 1,
WELD COUNTY, COLORADO
901 9"' Ave.
P. O. Box 2038
Greeley, CO 80632
♦ COURT USE ONLY
CONCERNING THE APPLICATION FOR WATER
RIGHTS OF:
TOWN OF FIRESTONE
IN BOULDER and WELD COUNTIES.
Bradley C. Grasmick, #35055
Wesley S. Knoll, #48747
Linda P. Bower, #17954
Case No. 24CW
Lawrence Custer Grasmick Jones & Donovan LLP
5245 Ronald Reagan Blvd., Suite 1
Div.: 1
Johnstown, CO 80534
Courtroom$ 1
Telephone: (970) 622-8181
E-mail: brad@lcwaterlaw.com; wes@lcwaterlaw.com;
linda@lcwaterlaw.com
APPLICATION FOR CHANGE OF WATER RIGHTS
1. Name, mailing address and telephone number of Applicant: The Town of Firestone, 9950 Park
Ave, Firestone, CO 80504, 303-833-3291.
CHANGE OF WATER RIGHTS
NEW CONSOLIDATED LOWER BOULDER RESERVOIR &DITCH COMPANY
SHARES
2. Decreed water right for which change is sought:
2.1. Name of Structure: Lower Boulder Ditch
2.2. Date of original decree: CA 1282, June 2, 1882, Boulder County District Court
2.3. Legal description of location: On Boulder Creek in the SW'/4 of the SW `/a of Section 16,
Township 1 North, Range 69 West of the 6t�' P M., Boulder County, Colorado.
2.4. Source: Boulder Creels
Town of Firestone
Case No. 24 CW
Page 2 of 9
2.5. Appropriation Dates: October 1, 1859 and June 1, 1870
2.6. Total amount decreed to structure: 25 cfs (1859) and 97 cfs (1870)
2.7. Decreed use: Irrigation
2.8. Amount of water that Applicant intends to change: 6.75 Common Shares of the New
Consolidated Lower Boulder Reservoir and Ditch Company ("LBDC") represented by
stock certificate nos. C141 (for 3 shares) and C142 (for 3.75 shares) (collectively "LBDC
shares") owned by the Town of Firestone.
3. Historical use: Three LBDC shares were historically used to irrigate land on the Bybee Farm
(62 acres) located in the S 1/2 of the NE 1/4 of Section 27, Township 2 N, Range 68 West of the
6t' P.M. in Weld County, Colorado and 3.75 shares historically irrigated the Moore Farm (70
acres) located in the W 1/2 of the NE 1/4 of Section 24, Township 2 N, Range 68 W of the 6th
P.M. in Weld County, Colorado,
4. Proposed change:
4.1. Use. In addition to the presently decreed uses, Applicant seeks to change the use of the
water rights represented by the LBDC shares to include uses for direct flow and storage
with the right to totally consume the consumable portion of the water, either by first use,
successive use, or disposition for all beneficial uses of the municipal water system of
Firestone as it currently exists or exists in the future, including, but not limited to,
municipal, domestic, irrigation, commercial, industrial, recreation, fish and wildlife,
augmentation, replacement, exchange and storage for these purposes. All diversions
attributable to the shares shall be made through the river headgate of the Lower Boulder
Ditch. The LBDC shares may be leased to others for both the presently decreed or new
uses.
4.2. Additional Future Places of Storage. The LBDC Shares maybe stored in additional places
of storage on any ditch or diversion structure described in this Application. Applicant
specifically claims the right to take delivery of and store the LBDC shares for subsequent
release for the uses described herein at the following reservoirs:
4.2.1.Firestone Reservoir No. 1. Firestone Reservoir No. 1 is a lined water storage
reservoir, initially decreed in Case No. OSCW335, Water Division 1, located in the
NW 1/4 of Section 6, Township 2 North, Range 67 West of the 6th P.M. in Weld
County, described therein as the Carbon Valley Water Storage Cell on the
Lohmann/Brooks parcel and to be known as Firestone Reservoir No. 1. Firestone has
acquired Firestone Reservoir No. 1;
Town of Firestone
Case No. 24 CW
Page 3 of 9
4.2.2. Firestone Reservoir No. 2. Firestone Reservoir No. 2 is a lined water storage reservoir
located west of and adjacent to Firestone Reservoir No. 1 in the NW '/4 of Section 6,
Township 2 North, Range 67 West of the 011 P.M. in Weld County, to be known as
Firestone Reservoir No. 2. Applicant and L. G. Everist, Inc. have entered into a
contract for the acquisition of Firestone Reservoir No. 2.
4.2.3.Firestone Reservoir No. 3. L.G. Everist, Inc. is in the process of mining and
constructing a lined storage reservoir in Section 32, Township 3 North, Range 67
West on property which is currently owned by the Town of Firestone as further
described in Case No. 23CW3009.
4.2.4. Central Parls Reservoir. Central Park Reservoir is a water storage reservoir located at
Firestone's Central Park located in Section 18, Township 2 North, Range 67 West of
the 6t1i P.M. as further described in this Application.
4.3. Diversion Period. May 1 through August 31.
4.4. Ditch -wide Determination. In Case No. 90CW 108 this Court determined that shares in the
Lower Boulder Ditch had an overall irrigation efficiency of 57.5 percent of the water
diverted at the Lower Boulder Ditch headgate. This determination was upheld in
subsequent Case Nos. 94CW284 and 97CW195. Firestone intends to rely on this Court's
determination in 90CW 108 to quantify the historical consumptive use of the LBDC shares.
There have been no changed circumstances on the Lower Boulder Ditch System which
would warrant re -consideration of the Court's determination in 90CW108. See Williams
v. Midway Ranches Prop. Owners'Ass'n, Inc., 938 P.2d 515, 525-526 (Colo. 1997).
4.5. Historical Consumptive Use. The average historical consumptive use of the LBDC Shares
was determined to be an average of 36.1 acre-feet per year. This amount is preliminary
and subject to modification upwards or downwards as additional information becomes
available to Applicant.
4.6. Return Flows. The return flows from the LBDC Shares historically accrued to Godding
Hollow.
5. Replacement of Return Flows: As needed to prevent injury to vested water rights and decreed
conditional rights, Applicant will replace the historical return flow portion of the water rights.
6. Proposed terms and conditions for delivery of the LBDC shares through the Lower Boulder
Ditch:
6.1. The LBDC shares will continue to be diverted at the headgate of the Lower Boulder Ditch
Company on Boulder Creels.
Town of Firestone
Case No. 24 CW
Page 4 of 9
6.2. Applicant may take delivery of the LBDC shares from the Lower Boulder Ditch to any of
the points of delivery shown on Exhibit 1, described as:
6.2.1.1. A turnout to the Godding Hollow from the Lower Boulder Ditch in the NE 1/4
of Section 2, T 1N, R 68W, of the 6th P.M. for delivery to the Godding Hollow
and St. Vrain Creek; and
6.2.1.2. Through the Lower Boulder Ditch to the Coal Ridge Ditch for delivery to the
locations described herein; and
6.2.1.3. At Firestone's Public Works (off the Coal Ridge Ditch) to deliver water to
Central Park Reservoir for all uses described in this Application, located in
Section 18, T 2 N, R 67W, of the 6th P.M., after delivery to the Coal Ridge Ditch;
and
6.2.1.4. At Firestone Reservoir Nos. 1 and 2, for storage or direct release to St. Vrain
Creek for all uses described in this Application; and
6.2.1.5. At a turnout on the Coal Ridge Ditch in the W '/2 of Section 9, Township 2
North, Range 67 West of the 01' P.M. for delivery to St. Vrain Creek and/or
Firestone Reservoir No. 3.
6.2.1.6. Any other location below the headgate of the Lower Boulder Ditch and/or Coal
Ridge Ditch that the Shares can physically be delivered, provided Applicant first
obtains approval of the LBDC and/or Coal Ridge Ditch Company for such
delivery location.
6.3. The LBDC shares shall be subject to transit loss in the Lower Boulder Ditch as determined
by the ditch rider, applying the same percentage to all shareholders. The LBDC Shares
may also be subject to a reservation of water by LBDC to fulfill demands of holders of
"Leyner" and `Briggs" contracts. The transit loss assessment and the contract reservation
may be referred to collectively as a "TCA assessment."
6.4. The diversion season applicable to the LBDC Shares shall be the same as the season for
all shareholders.
7. Decreed water right for which change is sought:
7.1. Name of Structure: Rural Ditch
7.2. Date of original and subsequent decrees: CA 1336, June 2, 1882, Boulder County District
Court; Case No. 84CW412, August 30, 1985, Water Division No. 1.
7.3. Legal description of location: On Boulder Cr•eelc in the NE'/4 Section 20, Township 2
North, Range 68 West of the 6th P.M., Weld County, Colorado.
Town of Firestone
Case No. 24 CW
Page 5 of 9
7.4. Source: Boulder Creels
7.5. Appropriation Dates: May 5, 1862 and March 105 1863
7.6. Total amount decreed to structure: 22.75 cfs (1862) and 60.25 cfs (1863)
7.7. Decreed use: Irrigation
7.8. Amount of water that Applicant intends to change: 3 shares out of the outstanding 50
shares of the Rural Ditch Company ("RDC") represented by stock certificate no. 430 (the
"Rural Shares" or "RDC Shares"). Firestone owns the Rural Shares.
8. Historical Use: One of the three RDC Shares (referred to herein as the "Guertner Share") was
used with an additional 1.0 RDC Share (previously quantified in Case No. 17CW3202) to
irrigate up to approximately 45 acres on the Guertner Farm. The Guertner Share was
historically used to irrigate land in the W '/2 of the NE 1/4 of Section 2, Township 2 North,
Range 68 West; and the W 1/2 of the SE 1/4 of Section 35, Township 3 North, Range 68 West,
6th P.M., Weld County, Colorado. The remaining 2.0 RDC Shares (referred to herein as the
"Adler Shares") were historically used with an additional 3.0 RDC shares (previously
quantified in Case Nos. 03CW306 (2 shares) and 17CW3202 (1 share)) to irrigate the Adler
Farm in the West 1/2 of Section 35, T. 3N, R68 W; the NW 1/4, E 1/2 of the SW 1/4, and the W 1/2
of the SE 1/4 of Section 2, T 2N, R. 68 W of the 6th P.M., in Weld County, Colorado. Prior
estimates of the irrigated acreage of the Adler Farm have varied between 299.3 acres
(03CW306) and 199 acres (17CW3202).
9. Proposed change:
9.1. Use. In addition to the decreed irrigation use, Applicant seeks to change the use of the
water rights represented by the Rural Shares to include uses for direct flow and storage
with the right to totally consume the consumable portion of the water, either by first use,
successive use, or disposition for all beneficial uses of the municipal water system of
Firestone as it currently exists or exists in the future, including, but not limited to,
municipal, domestic, irrigation, commercial, industrial, recreation, fish and wildlife,
augmentation, return flow replacement, exchange and storage for these purposes. All
diversions attributable to the Rural Shares shall be made through the river headgate of
the Rural Ditch. The Rural Shares may be leased to others for such uses.
9.2. Additional Future Place of Storage. The Rural Shares may be stored in additional places
of storage on any ditch or diversion structure described in this Application. Applicant
specifically claims the right to take delivery of and store the Rural Shares for subsequent
release for the uses described herein at the following reservoirs:
Town of Firestone
Case No. 24 CW
Page 6 of 9
9.2.1.Firestone Reservoir No. 1, which is alined storage reservoir, originally decreed in
05CW335, located in the NW '/4 of Section 6, Township 2 North, Range 67 West of
the 6th P.M.
9.2.2. Firestone Reservoir No. 2: Firestone Reservoir No. 2 is a lined water storage reservoir
located west of and adjacent to Firestone Reservoir No. 1 in the NW '/4 of Section 6,
Township 2 North, Range 67 West of the 6` P.M. in Weld County, to be known as
Firestone Reservoir No. 2. Applicant and L. G. Everist, Inc. have entered into a
contract for the acquisition of Firestone Reservoir No. 2.
9.2.3.Firestone Reservoir No. 3: L.G. Everist, Inc. is in the process of mining and
constructing a lined storage reservoir in Section 32, Township 3 North, Range 67
West on property which is currently owned by the Town of Firestone as further
described in Case No. 23CW3009.
9.2.4. Firestone Central Park Reservoir is a water storage reservoir located in Section 18,
T 2N5 R 67W of the 6th P.M. The Rural Shares may be delivered to Central Park
Reservoir after initial delivery to Firestone Reservoir No. 1.
9.3. Recharge. Water from the Rural Shares may be delivered to the FAST Recharge Pond to
generate recharge accretions to St. Vrain Creek. Water recharged to the FAST Recharge
Pond will return to St. Vrain Creek at a point in the W `/7 NW '/4 of Section 31, Township
3 North, Range 67 West of the 6th P.M. In addition to generating recharge credits for use
in the Applicant's augmentation plan, water recharged at this site will sustain well yields
from Applicants nearby well(s).
9.4. Dry up. The historically irrigated area of the Guertner and Adler Farms has been
developed and is no longer capable of agriculture irrigation.
9.5. Diversion Period. April 1 through October 31.
9.6. Farrrr Headgate Delivery. Farm headgate deliveries attributable to the Rural Shares
historically averaged a total of 95.53 acre-feet per share per year. This amount is
preliminary and subject to modification upwards or downwards as additional information
becomes available to Applicant.
9.7. Historical Consumptive Use. The average consumptive use for the RDC Shares
historically averaged 51.03 acre-feet per share per year. This amount is preliminary and
subject to modification upwards or downwards as additional information becomes
available to Applicant.
9.8. Return Flows. The return flows from the historical use of the RDC Shares averaged 44.5
acre-feet per share per year. This amount is preliminary and subject to modification
upwards or downwards as additional information becomes available to Applicant.
Town of Firestone
Case No. 24 CW
Page 7 of 9
10. Diversion Records: Applicant's engineering consultants have reviewed records of diversions
by the Rural Ditch Company and Applicant will rely on the records in the quantification of the
historical use of the water rights.
11. Proposed terms and conditions for delivery of the Rural Shares through the Rural Ditch:
11.1. The Rural Shares will continue to be diverted at the headgate of the Rural Ditch on
Boulder Creek, to be used by Firestone for all uses within the Town's municipal system
for all municipal uses as described in this application.
ll .2. Applicant may take delivery of the Rural Shares from the Rural Ditch to any of the points
of delivery described as:
11.2.1.1. At Firestone Reservoir Nos. 1, 2, and 3 for storage or direct release to St.
Vrain Creels for all uses described in this Application;
11.2.1.2. Firestone Central Park Reservoir, for storage or release for all uses described
in this Application;
11.2.1.3. The FAST Recharge Facility located on the FAST parcel in the SW 1/4 of the
SW 1/4 of Section 31, Township 3 North, Range 67 West of the 6th P.M., and as
described in the 19CW 3236 Decree, for all uses described in this Application;
11.2.1.4. An augmentation structure currently located near the downstream end of the
Rural Ditch at a point in the NE 1/4 of the NW 1/4 of Section 1, Township 2 North,
Range 68 West, 6th P.M., Weld County, Colorado-; and
11.2.1.5. The Last Chance Ditch, to be delivered to any of the locations described
above;
11.2.1.6. At an existing augmentation structure constructed by the Company near its
river headgate on Boulder Creek; and
11.2.1.7. Any other location below the headgate of the Rural Ditch that the Shares can
physically be delivered, provided Applicant first obtains approval of the Rural
Ditch Company for such delivery location.
11.3. The Rural Shares shall be subject to transit loss in the Rural Ditch as determined by the
ditch rider, applying the same percentage to all shareholders. In the event that Applicant
takes delivery of the Rural Shares at the future augmentation station at the river headgate,
the ditch loss portion of the delivery shall remain in the ditch.
11.4. The diversion season applicable to the Rural Shares shall be the same as the season for
all shareholders. Firestone shall not take delivery of its Rural shares prior to April 1 or
after October 31.
11.5. The Operating Agreement with the Rural Ditch Company, including all amendments
thereto, will govern Applicant's deliveries of the Rural Shares.
12. Names and addresses of owners, if other than Applicant, of land on which structures are
located:
Town of Firestone
Case No. 24 CW
Page 8 of 9
12.1. New Consolidated Lower Boulder Reservoir and Ditch Company, PO Box 1826,
Longmont, Colorado 805024826.
12.2. New Coal Ridge Ditch Company, 10879 Weld Co. Rd. 17, Longmont, CO 80504
12.3. Rural Ditch Company, 735 Bowen, Longmont, CO 80501.
12.4. Last Chance Ditch Company, P.O. Box 119 Longmont, CO 80502-0119
Dated
LAWRENCE CUSTER GRASMICK JONES &
DONOVAN LLP
Bradley C. Grasmick, #35055
Wesley S. Knoll, 448747
Linda P. Bower, #17954
E-filed per Ride 121 duly signed copy on file at the Law Offices of
La�n•ence Jones Custer Gras�nick LLP
VERIFICATION
STATE OF COLORADO )
)ss.
COUNTY OF )
Town of Firestone
Case No. 24 CW
Page 9 of 9
Julie Pasillas, being first duly sworn upon oath, deposes and states that she is the Director of Public
Works for the Applicant, that she has read the foregoing and that the contents contained therein
are true and correct to the best of her information, knowledge and belief.
Julie Pasillas
E-fried per Ra�le 121 dui}� signed copy on file at the Law Offices of
Lawrence Jones Custer Grasmick LLP