1041 Water Permit Application Hearing for Will-O-Wisp Metropolitan District
Wednesday, Dec. 6th, 2006

(Revised Transcription (07 March 2007)

Tape #1

Walker:  Good morning everybody.  Today is Wednesday, December 6, 2006.  Calling the Park County Board of Commissioners meeting to order and Sue how about if you lead the pledge this morning.  Would everyone please rise.  Thank you, that brings us to approval of the agenda.  Do we have any changes?  Etc., etc.

Walker:  Brings us to a public hearing 1041 water permit application for Will-O-Wisp Metropolitan District and um our guy stepped out to the hallway.  The applicant’s not here (laughter) to a date set uncertain. 

Mr. Toussaint:  Good Morning!

Walker:  Nice of you to join us.

Mr. Toussaint:  I do apologize.  We were just meeting with Mr. Wyatt and he was suggesting – first of all, Richard Toussaint, attorney for the Will-O-Wisp Metropolitan District.  Uh and ah what else do you like?

Walker:  Well nothing right now –we have a few administrative things that we need to go over here before we start anything.

Toussaint: Ok, that’s fine, all right.

Walker:  But you are here.  Would you spell your last name please?

Toussaint:  Toussaint.

Walker:  Thank you.  So before we start our discussions for the record, we have commissioner-elect with us, Doc McKay.  We felt that Doc McKay needed to sit here with us on this meeting um, in as much as he may be hearing a portion of this and it would be great for him to do that.  So, for the record, commissioner-elect Doc McKay is up here at the table with us and I understand strictly to observe.  Is that correct?

McKay:  That’s correct.

Walker:  Thank you.  Um, just so we all kind of have an idea of how this meeting is going to be today, the way we should proceed or the procedure that I think would be most efficient, if everybody is in agreement here at the table, if it’s the Board’s pleasure, the staff would make their first presentation.  That’ll put a lot of the questions on the table that the applicant is probably already aware of but it’ll make them part of the record for your response, so we would expect Tom Eisenman, Lane Wyatt to make a presentation first.  After that happens and the Board of Commissioners may have some questions, staff may have some more comments, county attorney’s may have more comments, our other water attorney and our 1041 specialist, who I will introduce here in a moment, uh, will have an opportunity at that time to ask any questions.  I would expect after all that, that we’ll need a recess.  So after that happens, I would think a brief recess would be in order.  After that, then the applicant would have the opportunity to make a presentation, answer any of the questions that are going to be put out in front of the board here today.  We would then have the opportunity, I would hope, time permitting,  to ask any questions for clarification.  I’m going to say right here and right now that I want to announce lunch today so people won’t be wondering if we’re going to have lunch.  Five to twelve, five after twelve anywhere as close to twelve as we can make that happen and then reconvene again at 1:15.  That way everybody will kind of know, yes we are going to take a lunch break, cause sometimes people wonder what we’re doing up here.  Uh, we come back from lunch, I’m hoping that we will be close to being ready for public comment, uh we may have a few more questions right after lunch and then we would like to do public comment.  I’m going to ask the Board of Commissioners around 4 o’clock what the Board’s thoughts are on making a decision on this case or not making a decision or what everyone feels where we are on this case around 4 o’clock, so we will know what’s happening with that.  Um, for the record then today, I’m Commissioner Leni Walker, District 2.  Um, I’m just going to ask people who are with us here today to introduce themselves as a lot of folks may not know everyone here at the table.  We do have our specialist here with us today as well.  So would you----

Tighe:  I’m John Tighe, District 1 Commissioner.

Wissel:  I’m Commissioner Lillian Wissell, District 3.

McKay:  I’m Doc McKay, Commissioner-elect, District 3.

Green:  I’m Barbara Green with Sullivan, Green, Seavy and I’m special counsel to the Board on land use and 1041 issues.

Berryman:  Sandy Berryman, Chief Administrative Officer.

Groome:  Steve Groome, Park County Attorney.

Kahn:  Jeff Kahn.  I’m special water counsel for Park County.

Groome:  Commissioner, with your permission, I think now would be an appropriate time to remind everyone, please make sure that you are making comments that you want to be on the record that you must speak to a microphone so they can be recorded.  Comments from the audience are not picked up and will not be part of the official record, so it’s imperative and I remind the Commissioners to please do the same thing.  I’ve had the pleasure in the last 6 months of listening to past Commissioner meeting tapes in regards to some challenges and we’ve had problems trying to reconstruct the record because people are not appearing to talk into the microphone.  So it’s imperative that we keep a good record of these proceedings.  By law we are required to and I’m  asking everyone’s cooperation to speak to the microphone and enough said.

Walker:  We have two microphones that have fairly long cords on them, this one here that we can stretch out over there.  The podium microphone is wrapped up.  It has a fairly long cord if anybody feels like they need to walk around, but again ----- um, correct, we need to make sure we set a good clean record here today.  I will ask the applicant at this time, and I meant to tell you that we had not had, I personally haven’t had and I can’t speak for my other Board members, an opportunity to discuss and I do have a couple legal questions, so I’m going to ask for an Executive Session right when we’re done making introductions here today.  It’ll be very brief but before we do that, I’m going to ask the applicant to introduce people with you here today and before we do that, we have Tom Eisenman here, Planning Dept. and Lane Wyatt, our consultant for our 1041 permits.  Would you please introduce anyone you need to?

Toussaint:  Again, Richard Toussaint, general counsel for Will-O-Wisp, um we will be having present, at least in our initial presentation and then we have other people who can present comments and answer questions, but let me just introduce the speakers that we have planned for today.  First, Rick Angelica, President of the Will-O-Wisp Board, Brian Zick um who is the engineer with Engineering Company out of Ft. Collins who has produced the application, Tom Williamsen, the Water Rights Engineer that we have for today, um Lee Johnson our Water Attorney um and then we also are going to request that Roger Mlodzik from the State to speak to the issues that have been raised by Mr. Eisenman and Mr. Wyatt. So, those are the people we have um ready to speak.  We have some other people but um I don’t think we need to go through them, they may or may not speak.

Walker:  Thank you.  Do we have any other administrative matters that we need to deal with here today?

Wissel:  Yes, I would like to put on the record that I am the Recording Secretary for the Upper South Platte Water Conservancy District; however, I have no vote on this Board, I’m just the recording secretary and um we have not discussed this case whatsoever in any of the meetings that I’ve been to that I’ve recorded, so just for public record, I want everybody to know that I am their secretary and have no problem hearing this case.

Walker:  Do we have any other administrative matters?  May we have a motion then  - um do you need the cheat sheet over there? 

Tighe:  I move to uh go into Executive Session discussion of specific legal questions for the attorney who represents the public body for the purpose of receiving legal advice 24-6-402 sub 4 sub b Colorado Revised Statutes.

Walker:  Will that be all the attorneys we have?

Tighe:  All the attorneys?  Yes, with all the attorneys that are representing Park County.

Some laughter ----

Walker:  We have more than one here today and our consultant as well.

Tighe:  Sure, and our consultant.

Walker:  Thank you.

Wissel:  Is that all, before I second this?

Walker:  I think so.

Tighe:  Not unless you have anything to add.

Walker:  Unless you want to add anything to it. 

Wissel:  Second.

Walker:  Okay, we have a motion and a second to go into Executive Session pursuant to Colorado Revised Statute subsection 24-6-402 (4) (b).  All those is favor?

Tighe/Wissel:  Aye

Walker:  Aye.  We need to clear the room folks.  Thank you. 

(Gap in Tape - nothing on rest of tape #1, side A after coming out of Executive Session).  Tape #1, Side B nothing.

Tape #2, Side A

 Zick:  ------ removal for our old treatment plant, which is not as efficient as the new ones, cause we currently haul somewhere between 8, 7 to 9 trucks every 6 months out of the district, so we are on twice a year, every 6 months schedule whenever the tanks, which are 20 some feet deep within the treatment plant itself, gets to that certain point we go through a drying process, drain it, drain as much moisture out of it as possible, then haul the heavy sludge away.  So right now we’re on about like, I think the last hauling was about 7 trucks that we pull out of there.  We do see, obviously, that going up and being hauled off from the district but then we also see it won’t be exact one to one correlation between the current homes and any planned future homes because of the better treatment facilities in the newer treatment plant.  What we have right now is obviously a plant that was built in the ‘80’s.  It’s not the most efficient plant.

Green(?):  And how much do those trucks transport out of there?

Zick:  6,000 gallons approximately.  5-6,000 gallons.  They look like your oil tanker trucks or milk tanker trucks but they’re not full of either one of those.  As heavy sludge, it costs us – I can’t remember the numbers but I think our budget for that is $15,000 a year or so.  It costs us a little under $1,000 a truck to have that sludge hauled away, taken to some remote location where they actually turn it into fertilizer.  (some background noise I can’t understand) Okay.

Green(?):  Just for clarification, you talked about a small little diversion structure and a pump station.  Could you just maybe elaborate a little bit on what exactly a small little diversion structure and pump station is?

?? Yeah, this, the exhibit that you’re looking at there is our preliminary plan for the, for the facilities and that the diversion structure would require a series of probably 4 lateral lines that are going to be six inch diameter that would extend across the stream bed approximately 25-30 feet long, each lateral, by separated distance of 7 to 10 feet so we’ve then created a 30 by 30 area of infiltration underneath the stream bed.  We would probably then have a small uh rock check structure in the stream that would go across the existing stream just to create a small pool of water back upstream of that.  We’ll probably have one box that’s going to be like 4 by 4 that is going to allow for a pipe that is going to stick out into the stream so that’ll be still generally within that 30 by 30 area, so that’s the stuff underground that’s going to be all covered up, probably this disturbance is 60 by 60 or something like that.

Walker:  Since it’s underground, you’re saying there’ll be no visual impact.

Zick:  Yeah.  The only thing that you’ll really see down there is a small manhole-type structure that will be flush with the ground and a small little check structure that may go across the stream just to create an increase in the water level by 6 inches or so, um, and it’ll be very natural looking that the water will kind of flow through and trickle down through.  Um, the pump station, we can get by with a pump station of dimensions probably 10 foot by 10 foot.  Uh, depending upon how we can figure that for access and things like that, it if we bury it, we may have some stairs down to it that would have a hatchway that would sit on the ground and maybe have a double, two double doors, access doors that would open up and those would probably be like 5 by 5 or something of that nature.  But, the whole intent when we originally looked at what we have in the 1041 is a 10 by 10 building and having it look like a, you know, an esthetically pleasing building, we tried to, our thought was to maybe have 4 feet or so sticking up above ground and have the rest below ground so that you would kind of walk down into an area where you could open a door and then walk into that pump station. 

Walker:  And the access you’re describing is how you would do any repairs or maintenance on it.

Zick:  Correct.  For inspections, for repairs, that sort of thing.  We actually have a hatch, one or two smaller hatches, that we need to pull pumps.  These are going to be pumps that are gonna be vertical, called vertical turban pumps, that would have to be pulled out of the pump station if they ever need to be repaired or replaced.  So we would have to have some access to those pumps to get those things up out of the pump station.

Tighe:  Can I make a suggestion right now since we’re getting real close to lunch, I think that a good time to break would be right now and probably have a few more questions for Mr. Zick when he comes back.

Walker:  With the Board’s pleasure then, we’ll recess til 1:15.

Tighe:  Thank you.

Lunch Break

Walker:  Hello everybody, we’re back on the record.  When we parted ways, Mr. Zick was up at the podium.

Board, do you have any more questions or comments for Mr. Zick?

Tighe:  Yes, I’ve had a lot of time to think but I’ll allow my fellow commissioners to go first if they’d like.

Wissel:  I don’t have a question right now.  Let’s hear what you have to say.

Walker:  All right John.

Tighe:  Okay, I appreciate that.  Uh, I think this is probably going to be for Lane also.  Uh, it’s going to come down to the flows on Elk Creek and that.  It appears to me from all the information that we’ve received, we don’t have a baseline for that, that creek.  And what I mean by baseline is that we don’t know where bugs are in that, in that and how much bugs do we have all the way down to the North Fork of the South Platte.  Uh, somethin’ that I kind of put together is that today Park County and its partners have successfully restored over 10 miles of stream in riparian habitat.  For any given restoration project, existing riffle pull(?) ratio of a stream is one of the most important considerations in an attempt or, excuse me, in estimating the extent and cost of work required to meet the State restoration objectives and that.  And we haven’t done that on this stream.  We haven’t done any of that, so at this time I think that’s where we put it to actually to, to see where we should be at with this.  And, hopefully, you can answer some those questions or statements I just made with this.  I mean, we have a legal we have a legal standing here to say they have the water there but then we also have an impact on this creek.  And we haven’t been able to actually tell, at least this Board, what that impact is.  And would like to know and since we haven’t set up a base line and we kind of put the horse behind the cart or the cart in front of the horse at this point with that, that creek.

Walker:  So do you want staff to answer or did you want Mr. Zick to attempt to answer that?

Tighe:  Yes, well either one would be fine.

Zick (?):  I think one of the things that I looked at when I tried to present in our presentation was that uh right now, if we start diverting water out of the stream, we have very little, very little impact if noticeable in any proportion at all.  There are these extreme worst-case conditions of extreme drought.  At full build out of the project, we have a small window of potential impact.  That’s kind of how we see that.  I think that the Will-O-Wisp will be a steward of their water system, they’ll be a steward of their watershed.  And over the period of time that things are occurring, I believe that they will always look at impacts that they will be having there.  We don’t have any mitigation planned at this point, other than optimizing what we’re looking at our diversion and making that as environmentally acceptable and as suitable for fish habitat as we can.  Um, whether in the future, cooperation with the district, the county, adjacent property owners occurs, uh I believe that that’s something that can happen in the future.  But at this point, we’re wanting to look at the realty of the situation right.  We don’t have base lines, we know that the stream has fish due to our preliminary survey and it’s a viable live aquatic stream. 

Wyatt:  This is Lane Wyatt.  Uh, I think Brian’s right that what we know is that there’s fish and macrovertibrates(?) there.  We don’t have a very good analysis of what the habitat is and then, of course, what’s really missing is some understanding, as Brian described, that there will be a potentially gradual increasing of diversions out of Elk Creek and I guess the question is at what point does it become an impact?  It’s more complicated than that because there’s all the natural stream variability that goes along with weather and those kinds of things, so we’re, as staff we’ve been trying to look at sort of worst case but I think there’s an opportunity to develop that information prior to anything that the project would impact.  I mean, you suggested base line and there’s probably some opportunities to get base line information, try to understand when an impact would occur, there’s the, I guess, other unanswered question of, if you identify a certain place a certain stream flow, for example, where beyond that the stream is impacted, you lose pool riffle ratios or whatever it is that’s the determination for that, the question is then, what are you going to do?  And that’s, that’s a pretty hard question, too.  So I think that’s where we are right now.

Tighe:  So as a commissioner sitting here, um, and I’d like to a lot of times mitigate situations like this, I don’t have enough information to mitigate this.  How can you mitigate with pools, I think that was in the study here, if we don’t know if pools actually can help what we’re looking at there?

Wyatt:  Well, I think that’s sort of the same conclusion that William Walsh had in his memo to me that you all have seen, is that it’s hard to figure out what the mitigation is when you haven’t really projected what the impact is yet, and at what level that impact occurs.  So it seems like we’re missing a little bit of information now.

Tighe:  Thank you.

Walker:  Do you want to add anything to that?

Wyatt/Zick(?):  I guess I don’t have a lot more to add – I think that, yes, there could be baseline data.  There are some things that may not be as apparent as we sit here today.  I, I think from an engineering standpoint and how this is going to move forward, we have the opportunity to develop some of those base lines and some of those mitigation strategies as the project goes on.

Tighe:  Since this impacts Jefferson County also and I think being good neighbors to our neighbors, other counties, have you had any conversation whatsoever with Jefferson County concerning the impacts possibly on their stream?

Wyatt/Zick(?):  Uh, we have not.  There has not been any discussions there regarding that.

Toussaint:  Richard Toussaint, they did a ---

Walker:  Do we need to take a break?  (some discussion in background) Do we need a recess?

Tighe:  Do we need to go into Executive Session?

Walker:  Are you asking for an Executive Session then?  May we have a motion then?

Tighe:  I need the cheat sheet.  #1?  Actually it is 2 – that was a joke.  Um, I’m going to make a motion to go into Executive Session to discuss specific legal questions with the attorney who represents the public body for the purpose of receiving legal advice, also like to sit with us would be all attorney’s for the county and also staff and this is pursuant to Statute 24-6-402 (4) and (b).

Walker:  Second?  I have a motion and a second to go into Executive Session for legal questions based on CRS 24-6-402 (4) (b).  All those in favor?

Tighe/Wissel:  Aye, aye.

Walker:  Aye.

Walker:  Okay, we’re back on the record everybody.  Hello, hello.  Okay, go ahead.

Tighe: I move to come out of Executive Session.

Wissel:  Second

Walker:  I have a motion and a second to come out of Executive Session.  All those in favor?

Tighe/Wissel:  Aye, aye

Walker:  Aye.  And we discussed?

Groome:  We were off the record in Executive Session to discuss specific legal questions from our Board, the contents of which you’ll be personally aware of in a little while.  Also, we discussed legal issues and no action was taken.

Walker:  You had a question, John?

Tighe: I do, this is for Lane Wyatt.  I have a submittal question, it refers back to pretty much what we discussed here.  It’s about our regulations and I’ll direct everybody to our regulations.  It’s 3-101k and also I’ll let everybody go back to also the submittal by William A. Walsh and also placed in the Aqua Sierra & Co. study that was done for the applicant.  And my question is, are we in compliance with those regulations and I’ll read this:  “During the effects of the proposed water diversion, diversion is impossible until accurate flow regime data is determined.  Impacts due to water withdrawal will vary depending upon time, volume” and it continues on, and I’ll also refer then to William A. Walsh and “towards the impacts the aquatic habitat and communities”.  In addition to the biology components of the Aqua Sierra report, we find there is limited discussion on the effects or impacts from the proposed water diversion.  In fact, they state that determining the facts of the proposed water diversion is impossible until accurate flow regime data is determined.  Do you understand what I’m asking there?  Lane?

Wyatt/Zick:  You’re asking me?  As I understand it, you’re asking me if there’s information to determine if the aquatic environment is impacted by the proposed project?

Tighe:  Right.

Wyatt/Zick:  Um, and in the submittal requirements portion, I think you’re asking about is, where is that information requested or?

Tighe:  Well, actually, in our 1041 um, um permit requirements, have we complied with those?    And I’ll refer to k and that would be 101.  3-101 k.  Can we show ---

Wyatt/Zick:  Can you tell me which page you’re on?

Tighe:  Yes, 42.  I’m on 42 within our 1041.

Wyatt/Zick:  I think what, well there’s two questions there.  One of them is that section deals with your criteria for making a decision and then I think also imbedded in that question is do you have information on the record to base that decision on whether it meets this criteria or not?

Tighe:  Yes.

Wyatt/Zick:  And I guess to the second part of that, the regulation says and I was flipping through here, um I’m on page 25.  So this is the submittal requirements and it would be under F terrestrial and aquatic animals and animal habitat uh # parenthesis 6 on page 25.  A description of, no excuse me, parentheses 4 description of stream flows and lake levels needed to protect the aquatic environment.  Am I going in the right direction here?

Tighe:  Yes.

Wyatt/Zick:  And um, I might ask the applicant, in the final application there is a section that describes that um a response to that on page 27, I think I’m here, and of course this is supplemented by the information that’s submitted in the supplement but I guess the crux of the question you’re asking is in the Aqua Sierra report, their consultant is saying “we don’t have enough infor, we can’t answer that question, we don’t, it’s impossible for us to tell what the impact will be” I think is the words that they used.  Am I anywhere where you want me to be?

Tighe:  Yes, go ahead.

Wyatt/Zick:  Um, so

Tighe:  So to make our decision on, I guess I’ll pose this back to our attorneys.  To make our decision on this then, we’d have to be in compliance with our 1041 permit here and that we need to have that study.

Green:  Would you like me to address this?

Tighe:  Please, would you do that?

Green: Um, I think that, again going back to the burden of proof, the burden of proof is on the applicant to demonstrate compliance with each of the standards and these regulations are designed for an applicant to describe the impacts to the affected environment, in this case, the aquatic environment, and then where there is an impact, to propose mitigation.  You were reading from their consultant’s report, which says that’s impossible to do.  So I think given that conundrum, perhaps since the burden of proof is on the applicant, it would be appropriate to ask the applicant what do you intend to do about the fact that you’re saying it’s impossible to do this.

Tighe:  Great.

Walker:  So who of the applicant wants to take this one? 

Wyatt/Zick:  I would like to add something and I think the stance of impact is what we are looking at and our opinion is that there, the impact is uh minimal or non-existent in the system as a whole.  We looked at the diverted stream flows over a drought condition on actual stream flow measurements that we had.  The 2001-2003 period.  When we took out our stream flows at full build out, our diversions at full build out, compared those to stream flows, we averaged 14% diversions out of the stream.  That’s the worst case situation.  Most of the time, it’s less than 1% or even a percentage of a percent of affect on diversions out of the stream.  Uh, we look at that situation occurring infrequently in a drought situation and that’s the basis for our determination that the impact is minimal or non-existent.  And I think that’s a definite consideration that needs to be looked at. Um we feel that that one in, I haven’t done the probability on that but that’s an interesting, you know, that’s a very low probability that those situations occur and, in most situations, there will not be an impact. 

Green:  And that was based on what?

Zick: That was based on the actual stream flow measurements that we had.  When we compared that to how much diversion water, how much water we were taking out of the diversion at full build out of the district, in that on an average basis for a year, it was 14%.  Uh, most cases, starting right now through build out, you’re going to have very small impacts of the percentage of water withdrawn from the creek versus the stream flow and that small percentage of depletion um is a more common and ongoing occurrence than that extreme situation. 

Green:  Madam Chair.

Walker:  Yes ma’am.

Green:  I just had a question then, so are you ----

Walker:  State your name.

Green:  I’m sorry, Barbara Green, special counsel to the Board.  Are you then disagreeing with your consultants’ conclusions in which they say determining the effects of the water diversion is impossible?

Your saying that from some other information, you did determine the effects and they were minimal.

Zick:  Um

Green:  I’m not trying to trick you, I’m trying to make a record now as to where your other information’s coming from.

Zick:  Yes, I’m stating that based on the preparation that we have, the information that was submitted by the uh the other the Aqua Sierra was opinion, basically a very snapshot of what they saw there.  They really didn’t, had no information regarding the flow regimes that we were looking at, the percentage of diversions.  They had no basis in their study with the information that we have.  We didn’t share that information with them, we didn’t talk about any of that information.  They did a stand-alone, go out for one day and study the stream and that’s what they came back with without really any understanding of what it is that, you know, quantification of the numbers we had, both measured and imperical(?).

Green:  But can you point the Board to the part of your application materials where the analysis has been done of the impact to the aquatic environment and what levels of mitigation are required to address that impact, because right now they’re focused on the Aqua Sierra report.

Someone talking in the audience ----

Walker:  Excuse me, you can’t do that from the floor.


Walker:  What was your name?

Schwartz: Bill Schwartz.

Walker:  Bill Schwartz.

Green:  And again, the um just in the structure of the application submittal requirements, the applicant has more responsibility than to just present raw stream data to the Board.  The applicant is supposed to have provided an analysis of that stream data and what it does to the aquatic environment and that’s where, we’re asking for where that might be in the application ‘cause there’s a lot of material to plow through and it would be great to have it on the record.

Zick:  Um, we addressed those on page 27 of the 1041 permit in paragraphs 2-206, 5, F1, F2

Green:  Page 27?

Zick:  Page 27 and on page 28 Section 2-206, 5, F7.  Description of impacts and net affects the proposed project would have on terrestrial and aquatic animals and habitat.  This reiterates my point that withdrawal of water from Elk Creek for the proposed project will have minimal negative impact, if any, on aquatic animals and habitat um flows to Elk Creek are quickly replenished after diversion point from small tributaries allowing withdrawals from Elk Creek to have minimal impacts and no affect on the aquatic and animal habitats.  That was our statement concerning impact.

Green:  Thank you.

Zick:  Um, if I could maybe give some history to that as well.  We uh had submitted the application uh with every intent to, you know, provide the necessary information.  What we did when we were notified that we needed more information, we basically came back and looked at quantification of flows versus what is that impact to flows, how much water are we diverting, what’s really happening out there in terms of the actual operation of the, of the diversion and how that affects the stream.  We then wanted to quantify, what is the habitat out there and that’s really the basis of what our study was, is to look at, you know, are there fish out there are there threatened and endangered species.  Um, we wanted to determine that um, with so we’re kind of extracting that from an operational standpoint from the district’s perspective of we have some fish population there, we know that that in worst case conditions, that a whole fishery systems and will be affected by low flows.  Um, but those conditions are very small.  In addition, you know, the district will best manage their diversion and utilize their resources and conserve water as best as possible during those times of low flow.  So that’s where I stand on it in terms of I think the impacts are minimal or non-existent in this type of situation.  I think the district, as an entity, would always consider any types of things that betters the environment and looks at mitigation types of aspects.

Walker:  I would ask Lane, would you concur with that, with what Mr. Zick was just saying?

Wyatt:  I’m well, I’ll start out saying that I’m not the fishery expert here.  I think what the point that Mr. Zick is making is that on average, the diversions are minimal and I think the point that has been brought out by the assessment during low flows in their figures and um, probably by Aqua Sierra, is that um on average they may be correct but in more extreme situations they’re likely to be impacts um but nobody’s really evaluated what those impacts are because the habitat necessary to protect those aquatic life, which would be pools to protect from temperature and stuff like that, have never really been assessed and so that’s where you come back to William Walsh’s statement where, or maybe it’s actually in the Aqua Sierra report that says it’s impossible to tell what the impacts are because we don’t really know what’s there, we don’t have a projection of how the project will affect it, but I think that’s qualified by a little bit by on average when you look at average flows and stuff like that at 14% removal, it may not be an issue but the flip side is it may be an issue at ah in worst case scenarios peak flows, low flows in the stream we don’t know the answer to that.  I guess a little colloqualism is if there’s an impact it’s sort of like saying to us, well in worst case situations you’re not going to be able to breathe for awhile, but it’ll get replenished later on.  The impact’s still there and so um it’s a little bit of the Board’s discretion to determine if it happens one in a hundred years or one in twenty years, is that an impact.  I think that’s what I’m trying to get at is the impact would probably occur more infrequently but we still haven’t figured out if it will occur because a large, their information is projecting that the stream will be dried up essentially below the diversion.  The extent of that, how far downstream that goes, what’s there to protect aquatic life when that happens, we don’t really have that.  Does that help?

Walker:  Just for clarification then, what I’m understanding or what I’m seeing here is that the study that we have wherein they say they don’t have enough information to make a determination on impacts, which is then also commented upon by Mr. Walsh and we have the explanation that on pg. 29 and I know we have some other questions to ask, on pg. 29 of the application, from Mr. Zick that the impact will be minimal and so it was considered a non-issue as far as the application is concerned, I’m not asking you to say yes or no to any of this, I’m just asking you if that’s your understanding of the issues that we’re looking at now.

Wyatt:  Whether this is adequate to cover, to address the decision criteria?

Walker: Is it, in your mindset, and I wanted to ask a couple of other questions of our attorney’s, too.

Wyatt:  Well, again, I’m a lay person in this area of aquatics and stuff so but it’s hard to imagine when their own objections are the stream is going to be, at least at the point of diversion dried up, that there won’t be some level of impact and we have their consultant and Park County’s consultant saying “we don’t really know if there’s going to be an impact”.  Nobody’s given us the information, it’s impossible to predict, you know, different words coming out on the same issue.  What we have is that on average, in the application is on average, if you look at the percentage of flows, it’s probably not an impact but we still don’t even know the answer to that.  But, certainly, based on worst case, we don’t have enough information to say if there’s appropriate mitigation, if there’s an impact, how extensive is the impact.

Walker:  Okay.  I’ll let you off the hook here for a minute and Mr. Kahn, I’m curious about what your remarks might be.

Kahn:  I’ve just got some questions.  Is this on?  Jeff Kahn, special water counsel, Park County, acting as part of the staff.  Ryan, I was just gonna ask because you know these materials much better than I do.  The 14% number you’re referencing, can you tell me how you got there if it’s in here?  If you can reference me a calculation here or in the alternative, give me the math.

Zick:  There was a memo uh memorandum sent to Lane on October 4th of 2006, which was a predecessor really to the supplemental information and in there, there was a table that basically calculated, tabulated all of the flow data and subtracted diversions and calculated then a percent removed on an average basis and a percent removed on a peak basis. 

Kahn:  What was the source of flow data?

Zick:  That was the actual flow data that’s measured that was on the table that was in the supplemental ---

Kahn:  Tell me again ---

Zick:  I believe it’s figure, figure 3. Let me see in the supplemental.  Figure 4 of the supplemental data is the source of the stream flow.

Kahn:  And what was the date of the memo, Brian?

Zick:  The date of the memo was October 4, 2006.  And at the bottom of that table, the median calculation of average flows was 14.02% on average. 

Kahn:  Does that memo address then the aquatic effects of that reduction? 

Zick:  The timing of the memorandum and the supplemental condition were really concurrent with us understanding that more information may need to be developed from the aquatic standpoint.  Yes, the aquatic report was subsequent to this, but they were done in parallel tracks.  They weren’t done sequentially, uh, so this information wasn’t the basis for what we were looking at when we did the aquatic study.  We really took the aquatic study independent of our flow and depletion percentage analysis.

Walker:  Do you have a copy of that memo?

Kahn:  I’m sure I do.  It’s not in the ------------ (some background discussion indicating a member of the audience has a copy)

(Not sure who’s talking):  Why don’t we move on and I can look at this, thank you.

Walker:  So the question then on the table still is, are we in compliance with the regulations concerning this between the application that we have in front of us, referring to pages 27 and 29.  In light of the study that the applicant provided and our own Mr. Walsh’s response to that, that’s the question on the table.

Green:  Maybe I can just refine it a little bit more.

Walker:  And you are who?

Green:  I’m sorry.  I’m Barbara Green, special counsel to the Board, beginning to feel embarrassed by forgetting my name.  Does the presentation to the Board, of an independent flow study that shows the changes to the stream flow and an aquatic analysis report provide you with the information necessary to determine what the impacts will be to the aquatic environment and then, I mean that’s your analysis as decision makers as to whether the report on what the reduction will be, coupled with the Sierra Aquatics analysis of the aquatic environment for you as decision makers, is that sufficient?  That’s the decision you need to make.

Walker:  I understand that, but when the aquatic report seems to be in conflict, that’s still ---

Green:  Independent from ----

Walker:  Any more questions at this point? 

Tighe:  Yes, I do and um, sorry, we’ve talked about the stream drying up; however, does this report address then the temperature of the water at the diversion on the aquatic life that’s in the water?  So the temperature will actually go up, won’t it, after the point of diversion?  And correct me there if I’m wrong but have we had any study on that aspect of it?  And the reason, it goes back to the question, has my questions been adequately answered here?

Green:  Madam Chairman?

Walker:  Yes.

Green:  Barbara Green again, special counsel.  Perhaps, commissioner, at this point since Mr. Wyatt has several times said that he is not an aquatics expert, it would be best to allow the applicants’ experts to answer your questions.

Tighe:  Thank you.

Walker:  We do have somebody here from the consulting firm, do we not?  Aqua?  Perhaps they would care to step up to the podium and address some of these questions.

Tighe:  I don’t have anything against you, Lane, honest.  Just have questions.

Walker:  And would you state your name for the record please.

Logan:  My name’s Bill Logan and I’m the President of Aqua Sierra Fisheries and Water Consultants.

Walker:  And would you spell your last name?

Logan:  L-O-G-A-N.

Walker:  And you’ve listened to the conversation?

Logan:  I have listened to the conversation.

Walker:  Have some comments to make about that?

Logan:  I do.  On a couple of levels, first of all as somewhat of an introduction, we were called in to take a look at Elk Creek somewhat on a rather quick basis.  As my understanding was, there was a request to provide some aquatic background on the creek and it was about 3 or 4 days before the next commission meeting.  We were asked to come in and basically take a snapshot, take a look at what we could report on in that aquatic system.  I fielded a crew of fisheries biologists out there.  We had some luck in contacting property owners who would allow us on their property to electroshock the stream and take water flow measurements and also to collect some insects.  I emphasize the fact that this really was a snapshot study.  I’ve been a fisheries biologist now since about 1974.  I’ve been actively working professionally since that time and I recognize that the requirement for a detailed environmental impact statement is certainly something of merit.  I also recognize that the amount of experience I’ve had with these types of creeks and diversion projects and impacts, if you will, I can fairly easily summarize expectations as to consequences, what happens.  You de-water a creek, the fish tend to want to go either upstream or downstream.  They will try to avoid it.  They’re looking for a couple of things that make them happy in life.  They’re looking for the appropriate temperature. They’re looking for the appropriate water flow, which will sustain adequate amounts of oxygen to keep them in good condition.  Generally, when you see a stream flow condition decrease, fish will try to find, find the currents and go someplace else.  Lacking the currents, they’ll go find the holes where the water is still cool and will still support them.  Under the circumstances that I saw, again I did not have stream flow information at the time, we did not walk through the entire reach of that system because there are quite a few property owners that need to be contacted and we essentially just didn’t time.  So, we were somewhat structured to the ideas saying okay, what type of fish are in this reach and what is the health of the fish and what’s the health of the insects.  And from our observations, we found a fairly classic small stream fishery.  It wasn’t what I’d call a trophy fishery, it wasn’t what I’d call a degraded fishery.  It had a breeding population of brown trout.  I believe brown trout have come into that area from upstream migration from the Platte River and also there are records to show that brown trout have been stocked in the area by homeowners.  Currently, it is a reproducing population.  With the expected impact of water diversion as I would expect from my experience of between say 10 & 15%, it’s pretty unlikely in most conditions that you’re going to see an impact on that fishery or the aquatic food base, the macroinvertebrate(?) community.  The caveat to that is that during an extreme drought year, if you lose your relationship of adequate pools and riffles that will allow the trout to escape upstream or downstream to an area where it’s not de-watered, then for approximately a mile reach of that stream, if indeed worst case did happen and it did get de-watered, fish would in essence be eliminated from that section.  But, again, the caveat to this is a common sense approach to looking at any of these actions in an aquatic system is these animals come and go.  They tend to repopulate just as easily as they ? (couldn’t hear what he said because someone coughed near a microphone and drowned out what was being said).  The quality of the fishery in there, like I say, it’s average.  It’s not a gigantic, what I call a high quality fishery.  The Division of Wildlife doesn’t consider it really a high quality fishery and they really don’t have any management plans for it.  This is a typical Colorado high country small creek and from my professional experience, I would say that during a drought year, if that creek were dewatered, then you would see a loss of population.  But, keep in mind that as a natural occurrence, as that stream level goes down, water temperatures do go up, fish do tend to move in and out, and you’re not necessarily  ???? (tape ended). 

Tape 2, Side B

Logan (continued):  There might be that one point where it becomes especially critical for one or two weeks during an absolute drought year that we saw in 2002. Um, I can’t predict the weather and no one else can.  But from talking with the operators and understanding the stream flows and the withdrawals that they’re looking at, I came up with a couple of ideas for potential mitigation.  If something did go wrong, and again, like I said, this wasn’t a full blown study but I’ve got enough experience to say okay, “what if”?  And, what if this stream had to go through that kind of a drought condition?  Well, there are a variety of options to look at.  You can consider the idea of stream improvement within that mile section to increase the depth of pools, to improve the riffle ratio, to make sure that if the population was, for a one or two week period, impacted by low flow that they would have a place to go.  My experience tells me most fish, when they start to feel the water getting warmer or the water going low, because they don’t like it to get low then predators above them have a chance to see them, makes them pretty uncomfortable.  They like to leave the area and they typically will leave the area rather than die, if you will, in that stream.  That’s the most typical response fish have.  They don’t want to die either, I mean they’ll find places where it’s happy and they’ll move out.  So, improving the stream is one concept.  Another concept is, say worst case, the water flow is going down and the property owners were able to create an augmentation reservoir where they stored water during high flow and released water during low flow.  As stewards of the stream, they would actually be improving it and beating the effect of a normal drought.  So there are ways to mitigate this without necessarily having to believe that their actions would absolutely go for de-watering the creek.  But, again, I can’t talk to that.  That would have to be the stewardship responsibility of the people who are promoting the project.  But, again, to reiterate, a 15% withdrawal in a normal stream like that is probably going to have very little consequences on the aquatic system, except during that very, very low period during a drought.  Questions?

Tighe/Wissel:  I don’t have one.

Walker:  Questions from any staff?  Any more comments from the applicant about this particular issue?

Toussaint:  Richard Toussaint um, our studies have been driven by our understanding of your regulations and our interaction with Mr. Wyatt and Mr. Eisenman.   When we were asked to do a fish study was in late September early October and we did one, we did the best we could and it’s an honest one and it is a good study but it is what it is, which is a photograph in time of the stream.  We’ve also studied the quantities of water and the flows and the impacts.  To state now that we have not met the burden is possibly, and I guess we need to talk about the practicalities of that, I don’t think the county has the right to commission us to go and go up and down private property to check pools and riffles and things like that, and that’s all private property along the stream there.  We asked the permission we could for the people, uh, Mr. Windemiller he’s here today and so we’re down in and along, and I guess the team met with Mr. Shaffer and I guess he gave some permission as well.  We were in that area of the point of diversion.  The 2002 drought, you know, you’ve got to say okay is there going to be an impact under those extreme conditions.  Possibly, but and I certainly can’t answer that.  I’m not a fisheries biologist; however, you better look at what we can provide and what we bring to the table as well.  We bring to the table 12 acre-feet of storage water inside the district that we will be relying upon.  We also bring our wells to which we can utilize for 90 some days at full build out, so you’ve got a lot of things that don’t necessarily require any impact and as I think Mr. Logan made very clear, is that if you take a stream that often runs at 5cfs and you take it down to .39, those fish are going to be reacting to that anyhow and whether we take it to .1 or something like that, I mean it doesn’t have to happen.  I mean we don’t have to, this is a metropolitan district that will, has the best interest in mind for the public and its public and de-watering the stream just to cause fish some headaches is not in our service plan.  We want to go forward with a viable stream system so we can continue to take water to provide water supply throughout.  So I don’t, I do believe that we have responded to the requirements.  Are there more studies that can be done?  Well, some of the studies that I’m kind of hearing that might want done in Mr. Walsh’s report, I don’t know that we have the legal rights to be able to some of that.  You know, going through that of a mile of where the stream is going to be impacted, if we were to draw it down in a worst cast scenario because that’s what we’re focused on right now, we draw it down, how is that impact going to be measured and is that impact, and here’s another question and a physical impossibility even if you pass the legal impossibility---until you get down into another 100 year drought as in 2002, how are you going to be able to measure what the impacts are going to be if you take a small amount of water when there is only a small amount of water?  And I think that’s, we’ll have to wait until there is another 100 year event to be able to, you know, fully be able to measure that.  And I think that’s a huge physical problem for any study.  Yeah, there’s computer modeling, there’s all kinds of things that can be done, but I do believe that the application with the supplement as requested by Mr. Wyatt, by our fish expert for this, you know, what kind of fish do we have in there are they non-native population of brown trout and that population already is going to fluctuate with the stream.  That, I think, is the response that we have.  I don’t know that it, it certainly doesn’t answer your questions about pools and riffles downstream.  We don’t have it – we don’t have it upstream either, you know, that data.  I mean I can tell you just from Google aerials that there’s ponds upstream but I can’t get close enough, you know, on a computer study or computer photographs of the kind of riffles and little ponds you’re talking about – all of the manmade ponds the Harris Park Reservoirs 1 and 2, the 3 Magness Reservoirs and the reservoirs that are downstream all show, but I think what you’re asking for is a much more detailed thing than we can get off current satellite technology.

Tighe:  And it is.  And the reason why I ask the question and this is the decision I have to make here and that is from our 1041 permit and that is “proposed project will not significantly deteriorate terrestrial and aquatic animals, including wildlife”, and it goes on from there.  So from the information you’ve given me, I have to make a decision with it.

Toussaint:  And we’re saying it doesn’t because as Mr. Logan said, the fish will move out and then they’ll move back in after the drought event is over.  They’re going to do that regardless of if we’re taking one drop of water or at our point of diversion or not.  I mean,  you’ve got to remember that, while we have rights to take that, we also have other water rights on which we can rely and I mean, the reservoirs that we contemplate are the Woodside Reservoir, which is in this area but, you know, is not part of this 1041 and the 12 acre-foot worth of reservoirs which are tiered throughout the development itself.  Four hundred people have been operating under this same plan for augmentation for 23 years. 

Tighe:  Where are you at now with the Woodside Reservoir?

Toussaint:  Woodside Reservoir, we are in negotiations with two of the landowners who are interested in having the Woodside Reservoir located on their property and we have instructed water counsel to take care of some of these extraneous issues with regard to the water rights under the Glassman Ditch, which is what it takes to fill the Woodside Reservoir and to make up for the evaporative loss under our water decrees.  So, it’s, it’s and the reason it’s not part of this 1041, the reason it never has been intended to be part of this 1041, is it’s on down the line and we are still negotiating.  It’s a 50 acre-foot reservoir on paper, but I don’t know that it will ever be that size, and, in fact, the negotiations are not contemplating a reservoir of that size.  It may still come to that, it’s just currently we’re not, we’re not doing it but we’re a long way from making any decisions.  None of this has gone before the decision makers, which in a sense is going to be you for the 1041 that has to do with that and um, of course the Board of Directors for the metropolitan district and at this point, we have a conditional water right for 50 acre-feet and that’s what we’re trying to develop.  They’re in negotiations trying to look at other alternatives than the full 50 acre-feet.  So, they’re on this.

Tighe:  Are you going to draw on this creek before the reservoir?

Toussaint:  Yes.

Tighe:  You are?

Toussaint:  Yes.

Tighe:  Okay.  And um –

Toussaint:  Well, not necessarily.  But let’s assume since we’re doing this 1041 this way, I have to say “yes” because you haven’t given me the permit for the next 1041 for the reservoir, so I have to say “yes”, we could based on, but do we want to and is it and you have seen  the development agreement that the metropolitan district has with the developer because it’s part of the plat and you attached it in this part of the recorded documents to that plat and that agreement says that the developer must develop the 50 acre-feet of the Woodside Reservoir.

Tighe:  What happens if the reservoir is not built and you have to draw upon the stream then?  There isn’t any ability for mitigation there at that point then.  ‘Cause I did it, the reservoir is actually a way of mitigating the effects on that waterway then.  On the aquatic life and that sort of thing.  So what you’re asking me to do then is to give you a 1041 on this, okay, without any mitigation whatsoever concerning the impacts possibly on the stream then.

Toussaint:  Well, we’ve suggested there can be mitigation and one of the mitigations is to put in pools, or put in a pool at the point of diversion.  That has to be because to draw off some of the water we have to have ----  Which, you know, let’s see – there is a need for an additional pond or pool in there.  We get into water rights issues and that gets fairly complicated.  But there is certainly a possibility that we can do that below where we are diverting water as well.  Um it comes down to water rights and Mr. Kahn can speak to that and, if necessary, Mr. Johnson.  And it also comes to negotiations with the landowner, which is Mr. Magness and his team and we have not asked for, I mean if you look at the maps, we’ve made it as tight as we could in trying to stay right along the boundary between 134 and the Hidden Valley Ranch, so we impacted people’s property as little as we could.  So, if we need to acquire additional water, I mean land, so we could put in additional water, then I guess we could do that but then it comes down to a question of, if that’s a condition of the 1041, then we’ll do it.  If you want to see a pond put it in below our point of diversion, along with the pond that’s going to be there at the point of diversion, that’s certainly something but I need to know that pretty soon because we’re filing the condemnation action and I’d like to get, amended I guess, but I’d like to the legal description to cover everything.  Thank you.

Wissel:  Are there senior water rights on this stream or are they senior to Tanglewood?

Toussaint:  First of all, Tanglewood owns no water rights that I’m aware of.  All the water rights are the districts’ and they go back to the 1981 and 1983 decrees, which are in those large binders, which I’m sure everybody’s read cover to cover.  But in there, those are the water rights.  We have testimony that has been presented at the planning stage which neither you nor Doc were able to hear which says and that’s one of the reasons Mr. Mlodzik is here to explain how the stream is administered.  Because of the way the water rights are, Mountain Mutual Reservoir Company, of which we’re if not the largest shareholder, one of the largest shareholders, owns a bunch of water, including water in Spinney Mountain.  That water is released out of Spinney Mountain as we use it and as all the other people in that mutual reservoir company use the water.  The water was then replaced on, at the confluence of the North Fork and the main stem of the South Platte River.  At that point, if there are calls on the stream, they are downstream.  The senior water rights are downstream and those senior water rights will have called out intervening water rights on Elk Creek.  So, while there are some senior water rights between our point of diversion and where the confluence with North Fork, if you want to go there, those people would be called out by the senior water rights downstream and therefore and we’re supplying the water that we would be taking in Elk Creek because the water is coming out of Spinney Mountain and is in the system and is supplying the only senior water rights in ????  So, we cannot be called out by any of the senior water rights on Elk Creek because they would also be called out at the same time we would be.  But, because there’s a live stream there, we are able to run this plan for augmentation and that’s what the 1981 and 1983 decrees say we can do and with under and in cooperation with Mountain Mutual Reservoir Company.  That was fairly long winded, but sorry.  But that is the answer, but they’re called out, we would be called out but we’re not called out because the water is getting to the senior water rights users.  Um, Jeff maybe you would  want to ---

Jeff:  Why don’t we wait on that?

Toussaint:  Okay.

Jeff:  I’m not disagreeing but let’s not extend it right now.

Toussaint:  Okay.

Walker:  I’m wondering, I’m wondering from the Board, when we kind of got off on this particular question on this particular issue about the question of compliance based on the information that we have in front of us and the testimony and the evidence and what the Board’s pleasure is with respect to that question. Can it be mitigated, can it be conditioned, is it out of compliance?  Does the applicant have an opportunity to cure if there’s considered to be a defect there in where we want to go?  I think that there was more presentation that the applicant may have had.  Did you have other presenters?

Toussaint: Yeah, we’ve got 4 more.

Walker:  So the question then since we were asking the first original question about compliance and considering the time and the fact that the applicant hasn’t had a chance to present, do you want to table it, do you want to take more information?

Toussaint:  I mean, if you have questions, and if I may interject and I know you’re asking Board members, but I don’t want to mislead you.  We don’t have more presenters on that particular issue.

Walker:  But you have more presenters on some of the other issues.

Toussaint:  On a lot of other issues.

Walker:  So the question I’m trying to get the Board to address then is, do we want to let the applicant continue with their presentation and table this one question?

Wissel:  My personal opinion is we should go on ahead and table this and let the presentation continue so if there’s other questions along with that, we can catch them all and they can answer them, too.

Tighe:  Looking at the time then, there’s an hour and 15 minutes.  So it looks like we want to end at 4.  How much more presentation do you have?

Toussaint:  I think we can get it in in an hour and 15 minutes.

Walker:  One other thing is that we have public comment today, too.  And I imagine that’s going to be --- How many people in the room are going to make public comment or desire to make public comment?

Tighe:  Um, yes, I can do a little bit more thinking on this and haven’t made a decision concerning it yet, so we can table it and go on to the next presentation.

Walker:  Okay, let’s move on.  Do you have a bit of information you want to share?

Toussaint:  Me?

Walker:  Well not you, but your applicant.

Toussaint:  Mr. Williamsen, our water rights engineer, is going to address the water rights issue at this point.

Williamsen:  Good afternoon, my name is Tom Williamsen, WILLIAMSEN.  I am President of  Helton and Williamsen P.C.  We are a consulting firm specializing in water resources and, in particular, water right matters.  Our cliental include municipalities, water and sanitation districts, metropolitan districts, irrigation ditch companies, developers and other individuals throughout much of Colorado.  We have worked for Will-O-Wisp since 1995 on their water right issues.  The water rights that are part of my discussion include the water right for the Glassman #2 Ditch.  It was decreed in case #83CW002 for the rate of  0.7 cfs for municipal and other purposes and has an appropriation date of August 31, 1981.  Being decreed as a 1983 case, it has a 1983 priority.  One of the things that’s come up about the location of the Glassman #2 Ditch – I prepared this map of Elk Creek that’s on the easel there that points out the point of diversion as decreed in that case number that I mentioned.  It was a, I took the, you know, measured it off using the coordinates or the bearing of distance provided in that decree and spotted it on Deer Creek, I’m sorry, Elk Creek, where the point of diversion is and um there was some discussion about the location of the Glassman Ditch as it’s shown in the State Engineer’s tabulation of water rights.  There is coordinates that are provided in that tabulation that are erroneous.  As I understand, there was no field verification of the coordinates to show where that actual point was.  But this is based on a decree and a description of the location of the diversion in the decree.  In case #81CW144, this is a plan for augmentation.  The plan for augmentation is required because the Glassman Ditch #2 is a relatively junior water right.  And it often times will be out of priority, so in this case number, they developed a plan for augmentation and that plan allows the continued diversion of water as long as they make up the depletions with another source of water.  Now, the source of  --- let me define depletion first.  The depletion at any time is the difference between the diversion and the return flow.  In this case, the diversions out of Elk Creek and from the wells, well field, goes to the community for their domestic uses.  The return flow is the wastewater that goes back through the wastewater plant to Wisp Creek.  (Brian can you flip the chart around)  That’s kind of a map of the upper South Platte River Basin with a portion of the area described there as being, showing where Elk Creek is and the point of diversion for the Glassman #2.  Wisp Creek is shown.  The return flows from the wastewater plant will run down Wisp Creek to the North Fork of the South Platte River.  The, I hope everybody can see, maybe if somebody can point at these things.  Brian has identified where Wisp Creek is.  Wisp Creek flows into the North Fork and then on down the river.  So the wastewater will come in at that point.  It’ll run to the North Fork, down to the confluence with Elk Creek, then on down to the South Platte River at Two Forks.  The augmentation supply in this case is purchased from Mountain Mutual Reservoir Company.  The Will-O-Wisp is a shareholder in that company and obtained their shares by buying this water from Mountain Mutual.  The water that Mountain Mutual Water Company has is located in Spinney Mountain Reservoir down here on the South Middle Fork and also some senior irrigation rights in the Upper Middle Fork Basin.  That water would then run down the creek or run down the river to make up depletions at the point where the two rivers coincide.  Now, Mountain Mutual has developed several of these plans for augmentation for water users in Park County, Teller County and Jefferson County.  Now, at the confluence with Elk Creek and where Wisp Creek comes into, well, I’m sorry, the confluence where Elk Creek and the North Fork of the South Platte come together, the depletion at that point is equal to the difference between the diversions and the return flow.

The return flow from in-building uses will run about 95% of the diversion or the water use.  So, at that point on the North Fork, our depletion is essentially equal to 5% of the total diversion and that’s the amount of depletion then that the water from Mountain Mutual makes up.  Now, that’s just for in-building uses.  The augmentation plan contains certain terms and conditions that allow to prevent injury to other users in the South Platte basin.  In particular, you saw the graphic that Brian presented this morning that shows what we’re limited to in the way of pumping the wells.  The volumetric limitations there of the particular one that I look at is the running total of  10 year cumulative pumping cannot exceed 350 acre-feet, which works out to an average of 35 acre-feet per year.  But they can also pump up to 69 acre-feet in any one year and that allows some flexibility in meeting their water demands and provide some flexibility in using their wells to supplement their direct-flow water.  Now the Water Court in their decision, in their decree, found that the imposition of the terms and conditions that were described in the decree presented no injury to any other water user in the South Platte basin and that implementing those terms and conditions would not injure anybody else in the South Platte River basin.  I’d also like to talk a minute about the in stream flow water right held by the Colorado Water Conservation Board.  That is a water right.  It has a priority date and appropriation date.  It was filed and it has an appropriation date of January 6, 1984.  It’s a water right – it goes into the same priority system of all other water rights.  It is junior to the Will-O-Wisp’s the Glassman Ditch #2, as well as junior to the Will-O-Wisp’s plan for augmentation.  Now, in 1995, the augmentation plan was amended in order to limit the amount of consumptive use that could happen within the subdivision.  That limitation was set at 13.35 acre-feet, which corresponds to the amount of water that they purchased from Mountain Mutual.  So there is an equation in that decree that determines how many units can be developed to stay within that depletion amount.  The equation includes components for single and multi-family residential units, livestock watering, irrigated landscape and commercial uses.  Currently, there are no livestock being watered, there’s no irrigation and there’s no commercial use.  So, right now, it’s all in the residential component.  So, under that equation that we used there for the 689 equivalent residential units, I mean for the full project, the depletion total is 10.8 acre-feet.  That’s 2.55 acre-feet less than our maximum allowable of 13.35.  So, there’s still some flexibility there to develop these other uses including irrigation, and that was one thing I heard this morning about a development of the wetland on sight.  The wetland has to be irrigated and we have the means in this decree to irrigate it up to the limitation or the net remaining consumptive use that we could use would be 2.55 acre-feet.  Using the ratio that’s within the decree, they say the consumptive use of irrigation would be 1.6 acre-feet per acre, so that results in about 1.6 acres of irrigation if needed.  Which I think greatly exceeds what was expected here as a pencil(?) wetland development.  I would also like to speak about the stream flow monitoring program.  This was something that I suggested to them back in 2000/2001.  We got started in 2001, so I, me and my staff (I guess that’s not proper English but) my staff would go up and measure the stream flow there near the diversion on Elk Creek.  We used current meter and standard techniques for those measurements.  Shortly thereafter, we installed, well we didn’t, but PEC(?) and staff from Will-O-Wisp installed a flume, which is just a way to channel the water from the stream through this narrower constriction and installing a way to measure the depth.  We measured the flow with our current meter and that developed a relationship between depth through the flume and the flow through the flume.  Then the staff from the Will-O-Wisp and volunteers from Will-O-Wisp would go and read the staff gauge and measure the depth of the water through the flume.  We were then able to take that measurement of depth with our calibrations of flow and depth through the flume to develop these flow rates for these weekly to bi-weekly measurements by the staff.  Now, at that time in 2001 when we started this program, I could not have forecast the 2002 drought.  I’d like to think that our program was not the cause of the drought but we were fortunate or unfortunate because that drought did happen and we got some good records, good data to look at in that extremely drought year.  We continued the monitoring program through 2003 to observe the stream flows and we learned a lot about what happens on Elk Creek in those severe droughts.  That’s all that I have to present.  Do you have any questions?

Walker:  I think we do have a question because I had a question about one of our attorneys’ memorandums concerning the location of the Glassman Ditch and so why don’t, Jeff why don’t you, since you’re the one who wrote the memo addressing that issue if you wouldn’t mind stating that.

Kahn:  Jeff Kahn, special water rights counsel for Park County.  Um, Tom, um, is there an existing Glassman Ditch diversion structure to-date? 

Eisenman:  There are remnants of an earlier diversion structure.  Meaning, there’s a pile of rocks, partial flume that’s been there but the actual ditch itself has not been used. 

Kahn:  Do you have any idea how long it’s not been used?

Eisenman:  I don’t have a personal knowledge of it.  It’s not been in use since I’ve been working with Will-O-Wisp.

Kahn:  And so about how long is that?

Eisenman:  Since 1995.

Kahn:  And, um, --

Eisenman:  And remember, Mr. Kahn, that is the Glassman Ditch we’re talking about here.  The water right that is obtained was for the Glassman Ditch #2.

Kahn:  You’ve anticipated my next question.  Thank you.  (Mr. Kahn says something else that I couldn’t quite understand)

Eisenman:  Sorry, I didn’t follow the script.

Kahn:  No, any time.  That’s helpful.  So, the Glassman Ditch that you’re referring to is separate from the proposed diversion that we saw in the photo that was up in the morning?  That showed the fence and where, I think it was Brian that said that’s where the construction was going to be.

Eisenman:  Yes, it, the decreed point of diversion for the Glassman Ditch and the decreed point of diversion for the Glassman Ditch #2 are at the same point.

Kahn:  Okay, I understand that.  Do you know, so are you then saying that the Glassman Ditch is not at its decreed location? 

Eisenman:  No.  Are we talking about the coordinates from the State’s database?

Kahn:  No.  I’m talking about decreed location.  In the original Glassman or, you know, have you ever surveyed the location of the existing Glassman Ditch or the one that you found the remnants of?

Eisenman:  I have not.  But I know from the bearing and distance given from quarter to quarter measured off the map, it places the points of diversion at the same place.

Kahn:  As the decreed location of  the existing Glassman Ditch?

Eisenman:  Yes.

Kahn:  Okay.  (the backside, yeah).  The point that’s on the map on the easel that’s labeled the, a location map, Tom.  The point there – is that the decreed location of the Glassman #2 Ditch?

Eisenman:  Yes.

Kahn:  Okay.  Is that the same point that was shown in the photograph that was part of Mr. Zick’s presentation?

Eisenman:  I believe so, yes.

Kahn:  Okay.  Can you show us on this map, then, where the remnants of the existing Glassman Ditch are or is?

Eisenman:  In that same spot that I’ve identified there.

Kahn:  Okay.

Eisenman:  It’s in that same area, that same spot.

Kahn:  Okay.  I couldn’t see any remnants in that photo.  Am I then to assume that they were sort of below grade where ---

Eisenman:  The remnants were piles of rocks in the stream and the flume along a line of the (?) ditch.

Kahn:  Okay.  It’s there but we really couldn’t see it in the photo?

Eisenman:  That’s correct.

Kahn:  Okay.  I’m jumping forward, but then if there were third parties other than the Magness interests who claimed an ownership interest in the Glassman Ditch, it would be at this point.  The same point as the, that’s on this map?

Eisenman:  Yes, that’s the decreed point of diversion for the Glassman Ditch.

Kahn:  Okay.  Um, and I’m going over this again.  I just want to try to make it absolutely clear because I’ll tell you it’s been a source of great confusion to me, maybe partly because the State, you position as the State Engineer’s coordinates and the tabulation is wrong.  Andy maybe Mr. Mlodzik can also speak to that.  But just to make absolutely clear, what you’re stating is is that the Glassman Ditch, which has a relatively senior priority and the Glassman #2 Ditch that has a very junior priority, the decreed points of diversion for both structures are at the same point.

Eisenman:  Yes.

Kahn:  Okay.  Um, slightly different track but related.  There are third, in the augmentation plan, the Blatchley’s claimed an ownership interest in the Glassman Ditch – I think it’s case #83CW44.  Is that your understanding of the claim made in that decree?

Eisenman:  It’s been awhile since I’ve looked at that particular decree.

Kahn:  Okay, and you’ve not, and there’s been competing claims voiced in this proceeding and I think even before this proceeding, for the ownership of the Glassman Ditch.  Have you done any work to determine the validity of either the Blatchley’s ownership claim or the competing claims for the Glassman Ditch?

Eisenman:  No, I haven’t.

Kahn:  Okay.  Um, The, you indicated, I’m sort of clumsy – I have a hard time calling people I know “Mr.”, so I’ll continue to call you “Tom”, you’re welcome to call me “Jeff”.  Um, you indicated that under the decree #83CW44, there was some excess water available beyond what you anticipated at full build out for the residential demand.

Eisenman:  Did I get that case number right?  It’s case #81CW144 as amended in 1995.

Kahn:  I’m sorry. Great, thank you.  Um, and yet, you indicated that at full build out, I believe, that you would expect 10.4 acre-feet per year of demand for residential.

Eisenman:  10.8 acre-feet for the residential.

Kahn:  I’d like to move through this quickly.  Um, that left, and there’s 13.35 allowed in the augmentation plan?

Eisenman:  Yes.

Kahn:  Okay, which leaves 2.55.

Eisenman:  Yes.

Kahn:  Is the difference.  That’s what the augmentation plan allows but, would you agree that in the applicant’s materials presented today in the 1041 permit proceeding, that all the demand is simply based on residential in-house use?

Eisenman:  That’s correct.

Kahn:  So that if this additional 2.55 acre-feet of annual demand for wetlands or outside irrigation was included, the demand on Elk Creek would increase over what has been presented to the County Commissioners today.

Eisenman:  Well, not necessarily.  The water that could be used on the wetland could be wastewater affluent, which would be second use that would have to be counted as additional depletion and made up from the Mountain Mutual water supply.  It could be used from the wells to provide the water to that mitigation area.

Kahn:  You would agree that’s not what’s been presented previously?  Those suggestions.

Eisenman:  I agree with that, yes.

Kahn:  Okay.  Those are the questions that I have.

Walker:  Just a second, I had one, if I can find ---- (can’t hear what Leni is saying).  (Some whispering in background). 

(Don’t know who is talking here)may be Eisenman:  Mr. Kahn, I was reminded that, you know, we talked about the equivalent residential units and so that does include some commercial portion that has been, for this calculation, has been equated to a residential unit.  So, it’s 689 equivalent residential units but part of that is commercial.

Kahn:  Which is, which leads me to something I was going to ask Mr. Zick, and but I’ll ask you or Brian if you want to answer it ---  you don’t have to get up.  Listen to the question first, um, when I reviewed the 1041 permit application, all the demand projections were based on initially 280gpm and then per 280gpm per residence per day.  Gallons per day, thank you, not gallons per minute.  I won’t identify the audience member but thank you.  Um, and then in the supplemental report, that was reduced to, do you remember what the number was?  One hundred seventy-five gallons per day.  That’s based on looking back at the history of use in the existing residential development.  Am I correct in stating that?

Eisenman:  Yes.

Kahn:  And, so there’s no history of commercial use demand at Will-O-Wisp, is there?

Eisenman:  Not that I’m aware of.  I don’t think there’s any commercial development in Will-O-Wisp.

Kahn:  And, and so I guess my question is, and again, maybe I shouldn’t be asking you, maybe I should be asking Brian, is what’s the basis, how are we converting a residential tap that now we’ve got nailed at 175 based on residential history.  What’s the basis because I haven’t seen anything that allows me to figure out how we’re converting that into equivalent taps?

Zick:  Brian Zick, um, again, to go back to 175 gallons per tap per day, we’re not revising out design numbers, we’re merely looking at operational, historical operational numbers.  What is the residential usage over a period of recorded time that we have information that’s available. 

Tape #3, Side A

Zick (continued):  So we’re looking at a historical perspective of what is the actual water use.  This kind of goes back clear to the impacts to the aquatic life.  That’s why we came up with that number.  Not more than other to look at.  What’s really going to be the impact on this, this, this stream flow.  Uh, we’re still looking at 280 gallons per day.  Water rights projections are based on 280 gallons per day per tap.  Commercial is a unique component, unique to the type of use that is going to occur at that time.  The district will calculate the usage based on the type of commercial application, convert that to residential units, equivalent residential units and that is a standard way to do that.  Basically, you’re going to say that a certain facility equals 3 residential taps and that will have some basis of flow.  Those numbers are not quantified, other than the district has the duty to maintain those numbers within their management.  There is no relation or calculation of those in the 1041 application.

(Don’t know who is speaking here)  Are you asking that the commissioners approve, as part of this 1041 permit, commercial taps in the development?

(same person who spoke above) No, I think the 1041 permit is looking, is asking for the commissioners to approve that the facilities that the district is, are building in relation to the improved infrastructure for Will-O-Wisp aren’t affecting the impacts that need to be addressed which include those that were previously mentioned in Aquatics include wildlife include the noise and vibrations and odors.  That’s what we’re looking at here.  We have much more detailed studies that support master plans, support water resource evaluations that are not part of this submittal that we’ve gone into detail in calculating those types of flows.  We really don’t even have projections in here for size of facilities, other than in a general sense.  We got into more detail related to the diversion due to the perceived impacts there. 

??? That’s correct, but as part of your statements concerning the impacts on the aquatic environment, you’ve used the demand of 175gpm for residential tap.  175 gallons per day.  There’s no information that I’m aware of that includes the demand for commercial taps.  Is that correct?

That, due to, yes.  There’s no information that you have seen that has, that we provided that you would see that


I don’t, at this point, have any further questions.

There’s one thing I want to clarify.

Walker:  Would you state your name?

Williamsen:  Tom Williamsen, I’m sorry.  The equation that we included in the 95 amendment is based on 280 gallons per day per household for the residential use, and so that kind of slaps a maximum on us, regardless if the use is less than our aug plan, we’re still limited to that number of units. 

??? I understand in the aug plan.  I’m, I agree with you.  What I’m concerned about is even the statements in the THE or the engineering company’s  report about minimal effects on the aquatic environment are all based, at least in the supplement, on 175 gallons per day per residential tap.  And there’s absolutely nothing that’s been  presented to the commissioners in this proceeding about the demand per commercial tap and yet, now I’m hearing that the applicant wants to maintain the flexibility to convert some residential taps into commercial taps.  We don’t have any information as to what the actual demand for those commercial taps will be.

Williamsen:  I believe there are limitations in the amount of water that the district can use and whether those are commercials taps, whether those are residential taps, there’s no necessary distinction other than 570 equivalencies.  That’s really what we’re talking about here.

At 175 gallons per day.

At 175 gallons per day.  The district will then, no 570 residential equivalent taps and then, yes, we looked at that from aquatic impact.  Correct.  Uh commercial very variable in terms of the water usage and it would be very difficult to preclude to determine what that water use is at this time.

Walker:  Just a minute while you’re up there, while everybody’s still up there.  And Mr. Angelica, part of your application wants to make a comment, I guess.  Mr. Kahn, in one of your memorandums, this one dated August 31st, you referenced a legal description SE of Section 26 versus the SW of Section 26 and I’m wondering if a discussion concerning the point, the location there on that map addresses that particular question that you raised earlier, cause I’m thinking that it does but I want to make sure for clarification that you’re satisfied.

Kahn:  I believe that it does.  I think the confusion was generated and the applicant has explained that it’s simply an error that the state engineer places it (not sure what was said) ---------in the SE and the applicant is saying that’s simply an error. 

Walker:  Also, it’s been alluded to another question of ownership.  I think the name Dunwoody, Durnwoody, something along those lines, that hasn’t been discussed here today as it concerns the Glassman Ditch facilities.  We’ve talked about different ownerships but we haven’t touched on that one in particular, and it’s also referenced about the Glassman Ditch and that question of ownership and I’m wondering if the applicant wants to address that Dunwoody claim as it pertains to this application at all.

Kahn(?):  Mr. Johnson will do it, do you want it now?

Walker:  That’d fine as long as we’re on the topic.  I know it throws the whole proceeding---- (laughter).

We’re ready.

Johnson:  I’m Lee Johnson, J-O-H-N-S-O-N and I am here on behalf of the Will-O-Wisp district.  I am a water attorney by trade; I’m at Carlson, Hammond and Paddock.  It’s a water rights firm in Denver and I’ve represented the district for a long time, probably 10 years or so, or more.  Um, and I think the issue of the Dunwoody claim, and I understand the Dunwoody’s are here today, is certainly an interesting claim.  I don’t feel that it’s relevant to this discussion at all.  The issue of title and who owns what, obviously they claim they own the water right, the senior water right.  I believe the district claims it owns the senior water right and the question of whether who owns that water right is really a question, to the extent it ever gets hashed out, is in the District Court; it’s not in a 1041 hearing.  Um, the other issue that I’d add is that I don’t think it’s relevant to this hearing.  I think the issue that’s really going on here is the Glassman Ditch, or the Glassman 2 water right and the augmentation plan under 81CW144.  And that particular case, the issue of who owns the senior water right is really not relevant to our discussion here today.  So that’s my response on that issue.  I suspect that the Dunwoody’s will have some comment as well.

Some discussion in background by Barbara Green to Leni Walker.

Walker:  Sure, pull up the microphone.

Green:  Barbara Green, special counsel.  One of the decision criteria is for the applicant to demonstrate that it has all the necessary property rights.  Could you restate what you just said in that context?

Johnson?:  Sure.  In that context, we own, we are the applicant and we are an owner of water rights in 81CW144.  We are the owner of the water right 83CW022.  There’s no dispute, as I understand it, that they claim that they own the junior water right, which is the 83 water right.  That’s what’s before the issue, that’s what’s before the case here and the issue here is, can we operate this?  And one of the things I want to talk to that Mr. Kahn, and we’ll call him Jeff, I’ll try to remember that, raised is the physical issues and the legal issues.  And I want to address both the legal and the physical issues. To some extent, I think the physical’s been addressed a lot already, but from a legal standpoint, we are, the district proverbial “we” own shares in Mountain Mutual.  We’re an applicant, we’re a co-applicant in that original application.  I can’t claim to be around in 1981 practicing water law.  It was a little longer than that but that decree was written in a very smart way, in my view.  And Mr. Kahn was involved in that case, actually, when he was working at the State.  There are a lot of very good water lawyers who worked on that case, Mr. Kahn included. 

Green:  Objection --- pandering.  (followed by laughter).

Johnson:  Sustained. 

Walker:  For the record, that was Barbara Green --- (too much laughter to know what was actually being said)

Kahn:  Jeff Kahn, for the record, also shows I’m older than Mr. Johnson.

(Don’t know if this is Johnson or Williamsen speaking):  But we do, the district owns those water rights and they are in the process of owning the actual physical structures that we’ve been talking about that show on this map and, and Mr. Toussaint will talk to this issue later on but the issue of who owns the Glassman senior water right is not an issue for this body at this time at all.  And I submit that the proper venue for that issue, to the extent it ever is relevant and not to the 1041 hearing, is in district court in a quiet title action.

Walker:  Go ahead.

Kahn:  Jeff Kahn, special water rights counsel for Park County.  Mr. Johnson, I agree with your statement as concerning the senior Glassman water right.  That’s not, as far as I understand it, an issue here.  But would you agree with my statement that the ownership, excuse me, of the diversion structure at that location was not at issue in the plan for augmentation decreed in 1981.

Johnson:  I would agree with you, yes.

Kahn:  Nor when the junior right was adjudicated in 1983.

Johnson: Well, I, I think.  Are you asking me, did the water court have jurisdiction to determine land ownership with respect to that?  Or are you asking me ---

Kahn:  I’ll ask you that question first.

Johnson:  Yeah, I mean, I think the issue that was before the court in that case was the ownership of the adjudicated water right, was who, who was claiming the water right and whether or not it was up to snuff.

Kahn:  So the ownership of the, in the 1983 adjudication when the junior, when the appropriation was confirmed---

Johnson:  The junior appropriation.

Kahn:  Right.  The ownership of the diversion structure for the senior water right was not at issue.

Johnson:  No.

Kahn:  Okay.  And so if there’s a third party, including the Dunwoody’s who own whatever’s left of that diversion structure, their rights were not affected neither the ’81 adjudication or the ’83 adjudication.

Johnson:  Well, I think the ’81 adjudication, there was a claim that the Glassman Ditch senior water rights were at issue, and those rights were changed in that case.

Kahn:  Do you think that was a quiet title action?  I’m sorry.

Johnson:  I, I, I do not.  As I suspect you don’t either.

Kahn:  Okay.  And so if  ----

Johnson:  But, but may I add that if somebody thought that they owned those water rights, it would behoove them to get in that case and argue that fact because as a practical matter, as I think you and I would agree, that, that you don’t have standing to change the water right unless, you know, you have to demonstrate ownership.  Ownership is part of the change case, in my view.  I mean I’m in the minority there.

Kahn:  I won’t debate that –

Johnson:  But you’re not quite in title in that instance.

Kahn:  May not agree but under the regs, the commissioners have to consider, or directed to consider affects on property rights of others, as a result of the construction that they are permitting here.  You agree, to the extent that the Dunwoody’s have an ownership interest to a point of diversion at that location, you would agree that that could be affected by the construction that you are, that the applicant is proposing.

Johnson:  I think that’s a difficult question to answer because I think the qualification you just made is huge, to the extent that they claim that they have an ownership interest in the diversion structure.

Kahn:  Well, and they’ve certainly –

Johnson:  And that diversion structure’s not been used in at least 15 years since I’ve been around.

Kahn:  They, they have – I mean, I don’t think they’ve been quiet about their claim ---

Johnson:  No.

Kahn:  ----- to ownership.  And I, except for your statements, and I’m just – I mean, tell me if there’s something else out there that, that shows me, other than those 2 decrees, that their claims are baseless.

Johnson:  You know, I don’t know that, I can’t answer that question.  I’ve certainly not done the title work at this point to determine if anybody’s claim in this room is baseless with respect to a particular water right.  That’s not ---

Kahn:  Or a diversion structure.

Johnnson:  Or a diversion structure.  That’s, that’s not, that’s beyond the scope of what I’ve been asked to do.  But I will say that, to the extent that a condemnation action is going forward, that, that, that the district is condemning whatever rights are out there on that property.

Kahn:  Okay, but the only --- this goes to another question, ok.  But, and probably needs to be directed to Mr. Toussaint, but the only party that’s been contacted so far as a potential defendant in a condemnation action are the Magness interests.

Johnson:  I can’t, I can’t answer that question.  I, I don’t know.

Kahn:  Okay.

Toussaint:  Richard Toussaint, uh we are, the Magness interests are the only property rights that we are aware of.  The Dunwoody property rights, as I understand them, are downstream.  That they are claiming that they have consistently used the water rights and that they divert downstream at a different point on the Glassman Ditch.

Johnson:  If, if that is so.  See, that’s the whole purpose of my questions to Mr. Williamsen.  If, if the Dunwoody’s divert to the East of that point, then we should try to get that established because it, I mean it, it’s the applicant’s burden.  And it seems to me that it behooves the applicants to establish then that the Dunwoody’s claim for their diversion point does not conflict with, or is not at the same point, and does not conflict with what the applicant is claiming.

Johnson:  I, I don’t know if I can satisfy that burden or not, but let me try.  I mean, my response to you is that, as I have been to that property and as Tom Williamsen has been to that property and as Richard Toussaint has been to that property and maybe a host of others, I will tell you that there’s been no evidence, in my mind, of diversions going on at that point of diversion. 

Kahn:  Okay. 

Johnson:  In fact, Mr. Windemiller is here and I can testify um, that he’s shown me where he blocked off the Glassman Ditch some years ago, um, um with a shovel.  Um, and put dirt in there right in the, right at the point where the rocks are in the stream and right before you get to the partial (?).  So.

Kahn:  And just to be absolutely –

Johnson: At, at that point on the map.

Kahn:  And the, the same point that we saw on the photograph that was part of Mr. Zick’s presentation ---

Williamsen (?):  That’s correct and Mr. Mlodzik  is here and he’s actually been to that point and will also speak to that as part of our thing, and it’s hard for us, but let’s get back to one important point that we’ve identified and have credible testimony and will have more, that the point, that the tradition point of diversion and the decreed point of diversion are where we say it is, as opposed to what the state decision support document says it is.  Um, in that um that point, we’ve, many of us have physically um approached that point and have, you know, determined it is there, it is the tradition, you can see the point of diversion.  Now, um, that, however, what you’re looking at, is all the Glassman one.  Part of the reasons that some of this hasn’t been resolved is that Glassman one is not really what is at issue here, it’s the Glassman two, so as long as we can identify that point and get to that point, now you’re saying, well if there’s um, um, if there is ownership, we’ve seen no evidence of it but it’s, it’s fairly easy to resolve with regard to the condemnation.

Kahn:  I, I just want to make it clear, I’m not saying that there’s a dispute as to the ownership of the Glassman Ditch water rights, okay.  I think Mr. Johnson got it --- what I’m saying is there appears to me to be the potential for a dispute over this whatever structure and the right to divert water at that point and a potential conflict.  And, and but let’s not belabor this point – you’ve got more evidence and I’m sure the Dunwoody’s have something to say.  You know, my suggestion is we try to move on because you say you’ve got more evidence on it and again, I’m sure the Dunwoody’s have something to say and may not even get there today.

Williamsen:  Okay.

Walker:  But I have another quick question for the attorney, Mr. Johnson.  Since we’re talking about claims of ownership, did you ever get a copy of the letter concerning the Glen Elk Association? 

Johnson:   Not that I’m aware of, but I may have, I, I’m not ----

Walker:  Well, what they’re saying is that they have, they’re concerned about, um, the application and how it will affect the flow on Elk Creek.  They have a water decree from 1972, where they have 4 acre-feet of water rights and a copy of their letter here, along with a copy of the court decrees are here.  Mr. Toussaint, are you familiar with this one at all?

Toussaint:  Can I look at it?

Walker:  I don’t think so --- (laughter).  Yes, as a matter of fact, why don’t you take this and look at this one as well and when the time comes, you’ll have to get on to the microphone to discuss that.

Toussaint:  Thank you and I have not seen this (can’t understand what else was said).

Johnson:  If I might just add one more thing, I, I do have more to talk about but I think, in the interest of letting Mr. Mlodzik speak, cause he sat here all day and he’s with the State, maybe we should move ahead to him and then I can come up again, with your permission.

Walker:  Yes, that’d be fine because ---

Johnson:  Then maybe I can look at that as well.

Walker:  Take a chance to review that.

Mlodzik:  I’m Roger Mlodzik, M-L-O-D-Z-I-K.  I’m the water commissioner for Districts 9 and 80.  I’ve been the water commissioner uh, District 9 17 years, assisted in District 80 since ’89 and the commissioner there since ’94.  Uh, as to the location and the state engineer’s tabulation of the Glassman Ditch, uh, in-house, we use a program, a computer program, that was designed in-house that determines a point generally within a quarter, quarter from data that is put in by the, the operator of that program.  It would then plot a point as to the center of that quarter, quarter section, so we’re looking at the center of a 40-acre section, or it may default to only a center of a quarter section, looking at 160 acres.  So it is not a defined point, it’s just data from a quarter quarter that’s put it in.  The computer plots out a location into the center of the quarter quarter and that’s what we list as the location.  The default on that is most those listings in depth as you dig back through our data default that the listing is from our PLSS Locator Program.  That data is just very rough and very crude.  It is not field checked, it is not legal, it is not used as a legal data.  The legal point of, for the diversions default back to the decrees.  The 1913 decree for the original Glassman Ditch and the 1980’s, ’81 and ’83 decree for the Glassman #2 Ditch which is spelled out.  That is the legal location, so our tabulation does not represent a legal location.  It is just an approximate from a computer program.  I have been out to the site.  I have GPS’d the site with a GPS system that the State provides, that, that for me to use.  It is not a survey instrument, so it does not give me an absolute definite point; it gives me a rough field location for that location of the ditch.  That data from the GPS is then put into, again, our PLSS Locator Program and converted to get a location.  Again, this is not a surveyed point.  That point would generally not be used for court proceedings and it could be used or more specific data could be used, so I am not a surveyor, I do not have survey instruments, I cannot say that the point of the ditch is the absolute point that is described in the decree.  But, that said, let me explain our administration of the water rights.  Generally, we look for water rights to be within 200 feet of the decreed location, which I believe that this location is, and we look at situations are there other water rights within the decreed location and the physical location that would be injured or that could injure this water right.  There are no other water rights there that would interfere with this water right.  We look at, is there additional water that would be available at this location, as opposed to the decreed location, and again, I believe we’re within 200 feet of the decreed location.  We are fine, we are legal with that.  There are no additional water flows available to this structure and so as for administration, I have no problem with the physical location of this ditch and I cannot verify that it is definitely within a 200 foot location but it is an irrelevant point as far as my administration and the operation of this ditch. 

Walker:  So, after all that, you’re saying that there are no other water rights being injured.

Mlodzik:  Right, with this ditch at its location or the operation of, for the augmentation plan.

Walker:  And that they are acting within their decree.

Mlodzik:  Right.

Walker:  And that was your main concern here today.

Mlodzik:  That was the main issue was to explain, yes, that our tabulation is not legal or a survey document.  It is just a rough estimate.

Walker:  And you are with Denver Water Commission?

Mlodzik:  I’m with the State Water Resources.

Walker:  State Water Resources.

Mlodzik:  I’m the water commissioner for Districts 9 and 80 out of Division 1, the South Platte.

Walker:  Okay.

Mlodzik:  So that was the main issue I was asked to talk about, uh, issues were covered as far as the operation of the augmentation plan, the flows of the river, the other water rights on the river system.  All of that comes into the administration and the priority system.  We have other water rights on Elk Creek, uh, they are what we call “semi-junior”.  The Elk Creek is subject to river calls on the downstream South Platte River.  Generally, one metropolitan intake, two would be farms, irrigation demands below Denver.  They would generally call out all of the water rights that exist on Elk Creek, as our flows diminish, not only on Elk Creek but on the entire Platte River drainage system.  So, yes there are other water rights there.  Generally, they would be in priority in the spring-time with the runoff or at periods of high river stream flow from rainfall.  As our flows diminish, they are called out from the downstream river system, and at that point, we would be operating the augmentation plan.  The exchange system would be releasing water out of Spinney Mountain Reservoir, bringing it on down to Denver or below to meet those river calls.  And so the other, the other water rights on Elk Creek would be out of priority, would not be entitled to take water.

Walker:  And you’re familiar with all those water rights?

Mlodzik:  Yes.

Walker:  What about the Glen Elk one that I just talked about a little while ago?

Mlodzik:  Glen Elk is a junior water right for storage for a pond, I believe.  And I would, I would have to go in depth, I believe it’s just for storage, I don’t believe there’s consumptive use for irrigation or other uses.  I believe it’s just the one.

Walker:  Looking at their document, there’s a, it’s for a storage facility but they also claim to get their water from Elk Creek.

Mlodzik:  Uh, the flow for the pond is from Elk Creek.  Uh, uh ----

Walker:  But it’s strictly storage you’re saying, not for use, not for consumptive use?

Mlodzik:  I would have to review that, but I believe it is strictly for storage.  It is not for consumptive, i.e. for a municipal pipeline system to serve the houses, for use for irrigation of lawn or gardens.  I believe it is just storage for the pond or recreation.

Walker:  Other documentation from the courts are in the back there if you’d care to look at them will quick and ---

Mlodzik:  That’s what I’m seeing here, strictly for storage.  We do have recreation and irrigation, I’m sorry. 

Walker:  And is it 4-acre feet, is that what I saw on there when I looked at it?

Mlodzik:  4-acre feet.

Walker:  And you’re saying that, that 4-acre feet from Elk Creek won’t be affected by this project?  In your expert opinion.

Mlodzik:  The, the, this, this water right was first used in 1937.  I believe the dates here of the water right 1972, so it defaults to a 1972.  Excuse me, 1972 water right, 1972 water right would be in priority generally for a few weeks in the springtime, typically end of May first part of June.  With peak runoff flows, may come back into priority for a period in August or September, depending upon what’s called the “Monsoon Rains” when, when we have plenty of rainfall and lessen the demand for irrigation on a river system.  At that point, generally, we would have high flows in Elk Creek and at that point, the 1983 Elk Creek or Will-O-Wisp water right may also be in priority.  It would take a very small amount of water, I would say, estimate that we’d have more than 5 cfs in Elk Creek when this water right would be in priority and both could take water and they would and there would still be plenty of water for all users on Elk Creek at that time with that flow rate.

Walker:  That’s all I have.

(?):  Just real quick.  You’re missing this, this is the additional water rights.

Walker:  Okay, so I was just handed a document by somebody who didn’t identify herself, and I’m going to hand this to, since this is the first time I’ve seen that, um, I’m not sure how relative that might be.  Mr. Toussaint, Mr. Toussaint may want to have a look at that as well.   I don’t want to get, you know, too far off track on this.  I did want to address that Glen Elk claim since we were talking about people claiming ownership or rights to the water, and I assume Mr. Johnson had a chance to review the letter and the other attachments with that that I handed to Mr. Toussaint.

Toussaint:  Okay, the first case we were talking about was for Glen Elk case #W2549.  The decree that was just handed to me is for Glen Elk case #W2535.  (some background discussion)  The first case dealt with a reservoir, 4-acre foot storage.  This case appears to be dealing with wells, ground water tributary to Elk Creek.  Just quickly glancing through it, there are several wells listed, most of them appear to be from ground water, ground water that would be tributaried to Elk Creek.  They are not direct diversions from Elk Creek.

Walker:  Now for the purposes of this, could we get some copies made of that document that was just handed to me for the benefit of the applicant, so everyone can have some of those.  I’m sorry ----  Copies of both documents.  Mr. Johnson, would you step up there for a minute while we’re getting those made. 

Johnson:  Yes.

Walker:  Okay, on the water decree, case #CW144 and I see a received April 30, 1993 on here.  On page 3, it references contemplated that part of the development there will be watering of a many as 50 head of livestock, including cattle and horses which would be kept in a single corral and stable complex based on the requirement of 10 gallons per day per animal.  So the question that’s been raised here with this development with the usage of the water, is this 10 gallons per day per animal as part of the water decree still?

Johnson:  That decree was actually amended in 1995.  And under the amendment, there was a formula that was adopted that, that would deal with what the depletion would be.  Remembe,r the depletion is the difference ---

Are you okay with that one?

Walker:  Uh huh.

Johnson:  What the depletion would be with respect to livestock.  And that depletion is for every head of livestock, under the formula, you multiply times .011201 to come up with the total amount of depletion associated with that livestock.  I’m not an engineer and I can’t tell you if that corresponds to the 10 gallons that was in the original decree or not, but I think the ’95 amendment supercedes that.

Walker:  Can’t you just do the math in your head?

Johnson:  I wish I could.

Walker:  We’ve reached kind of an interesting point here.  It’s, it’s a – Board I’m going to ask you the question, it’s 10 to 4 and I’m going to ask the Board the question on making a decision on this case.  We haven’t had even public comment.

I think – Jeff Kahn, special water rights counsel.  It may be helpful if maybe we could finish any questions anybody had of Mr. Mlodzik because he may not want to return if there’s additional testimony, and I did have a couple of questions of Mr. Mlodzik.

Walker: And you’re, you’re not enjoying this?  You had somebody that you brought with you that’s gonna replace you?  We should make him stand up and introduce himself.

Dan Garner.

Mlodzik;  Dan Garner, deputy water director.

Walker:  And Dan Garner may be here for more testimony or?

Mlodzik:  No, I brought Dan along to experience uh  (laughter) the procedures.

Walker:  Well, welcome to the fray, Mr. Garner.

Mlodzik:  Hopefully, and in a few years and maybe sooner, he could replace me.

Walker:  Alright and as a courtesy here then, we have questions from staff?

Kahn:  Jeff Kahn again, special water rights counsel.  Mr. Mlodzik have you ever recorded in the last 10 years or any time during your tenure, diversions under the senior Glassman water right?

Mlodzik:  I believe I recorded, in error, a diversion in that probably in about ’94; my first year as commissioner in District 80.  I don’t know that that has been corrected.  And again, I’m saying I believe I may have reported that in error.  But to my knowledge, no water has ever been taken in the Glassman Ditch at this structure.

Kahn:  And are you aware of a separate location where the, and I’m sure the Dunwoody’s are going to speak to this, but I’ll ask you because we’re not going to get you back (hopefully for you), where a separate location where the Dunwoody’s divert water?

Mlodzik:  Okay, I have not been out to the Dunwoody property in recent years.  I have been by that area in the past.  In talking with Mrs. Dunwoody, she explained a natural spring that is used for irrigation.  Natural flow from that spring, sub-irrigating and that water is diverted into a reservoir and may be used from that reservoir for irrigation; but I have not been on-site to see that.

Kahn:  And to your understanding, those diversions are not from Elk Creek?

Mlodzik:  The diversion from, to the pond would be from Elk Creek. 

Kahn:  Are not from Elk Creek?

Mlodzik:  The diversion from the pond is from Elk Creek.  The diversion to their pond is from the actual Elk Creek stream, and that goes into their pond.  The diversion from the spring or the natural spring and the natural runoff of that spring, that they get the benefit of sub-irrigation is not from Elk Creek.

Kahn:  And the diversion from Elk Creek that goes into their pond?  Is that at the point marked on this map called “location map” that is here?  Can you tell?

Mlodzik:  No, it is much farther downstream.

Kahn:  Okay, and do you know what the name of the structure is that they use to divert water into their pond?

Mlodzik:  To my knowledge, there is no water decree, there is no structure name for that point of diversion into their pond.  In other words, that diversion to their pond is out of compliance.

Kahn:  Has no water right associated with it?

Mlodzik:  Has no water right at all.

Kahn:  Thank you.

Walker:  Any one else?  Does anyone else here have a question for Mr. Mlodzik?  We’d like to invite you back for our next hearing.

Mlodzik:  I enjoyed being up hear but I do have many other things to do and many other issues to take care of.  Perhaps, getting out and doing some more field work and verification.

Walker:  Perhaps on this case.

Mlodzik:  Perhaps. 

Walker:  Thank you.  Board, it’s going on 4 o’clock and I know that one of our attorney’s has to leave for a previous engagement in Denver and also one of our commissioners needs to leave.  So what I would ask the Board then, at this point, what your pleasure is.  We need to establish a date, I would expect.  I don’t believe we’re finished with this hearing by any stretch of the imagination.

Tighe:  I don’t think we are either.  I think we need to continue this to another date.

Walker:  I agree, we need to continue it to another date.  There’s no way we’re going to get through everybody in four minutes.  Okay.  Do we want to try to establish that date here at this point?  We have our attorney’s here.  You need a microphone.

Toussaint:  Richard Toussaint.  Certainly we should try and establish another date.  I just shudder to think about that, but with this number of people, but.

Walker:  Do we want to try to establish that date now or can we?

Green(?):  After the 9th of January, preferably.

Walker:  I don’t know, I was thinking of something prior to that (laughter).  Does anybody, does anybody have, should we just continue this date and allow the attorney’s then at some point to get together and make their own determination?  Go ahead.

Green:  Madam Chairman, I defer to the County Attorney on this, but I’m pretty sure to continue a hearing, it has to be to a date certain.

Walker:  Okay.  And we have to do it within 60 days. So.

Groome:  Unless, unless the applicant agrees to waive the 60 day requirement, but you can only, without their consent, under our regulations continue this not to exceed 60 days.  So we have to pick a date certain, number 1, or start all over again.

Walker:  Well, let’s pick a date certain because um.  Okay, we’re pretty sure it’s not going to happen in December.  We’re looking into January.  So we have the 3rd is another consent agenda.

Berryman:  This is your land use date for December and I would recommend you do not choose that date cause it’s pretty full.

Tighe:  You’ve got a full calendar that day.

Walker:  So, we have the 3rd –

Tighe:  Any other Wednesday would work.

Berryman:  The 3rd  ---

Walker:  --- is another consent agenda.

Berryman:  Yes it is, maam, but a Mr. ---

Tighe:  Tighe took that time off.

Berryman:  Yes, he did.  Mr. Tighe took that time off.  Plus our new commissioner, commissioner McKay, will be sworn in on the 9th.  He will be in new commissioner training on the 10th, 11th and 12th.

Walker:  Is that what I said?  Well, I’m just trying to ---

Groome:  So the 20, Wednesday the 24th or Wednesday the 31st is on the table.

Walker:  How does Wednesday the 24th or Wednesday the 31st sound for everyone?  That works for some members of the audience.  24th, January 24th.  Mr. Kahn, Barbara?

Green:  I’ll do what I can do to make it work, I’m just, I forgot to bring my calendar.  But just go ahead and do it at your convenience.

Walker:  Okay, we’re going to contemplate the 24th.  10:00 AM, 9:30?  It’s not a regular land use day so we could go ahead and schedule this for 9:30 and get it going.  If that’s good for people who are traveling here from Denver.  9:30 on the 24th.  Board, may we have a motion please?

Tighe:  I’d like to make a motion to move, or continue this item to January 24th at 9:30 AM for further, and I’d also like to put in that motion that we will continue this with public comment still open, so no, no one has a misunderstanding that it is not.

Walker:  January 24th at 9:30 AM. 

Wissel:  January 24th,  07 at 9:30 AM ?  Second. 

Walker:  Okay, we have a motion and a second to continue this item til January 24th 9:30 AM, with an additional comment that we haven’t heard public comment and we certainly do intend to take public comment in this case.  Further discussion?  All those in favor?

Tighe:  Aye.

Wissel:  Aye.

Walker: Aye.  Thank you.  Do we have any patron’s comments? 

End of Tape #3

Tape #3, Side B

Walker:  We have a motion and a second to close patron’s comments.  All those in favor?

Wissel/Tighe:  Aye, Aye

Walker:  Aye.  Do we have anything for Executive Session?  We don’t have anything for Executive Session?

Tighe:  No.  I move we adjourn.

Walker:  Second?  We have a motion and a second to adjourn.  All those in favor?

Wissel/Tighe:  Aye, Aye

Walker:  Aye.

End of Tape #3, Side B

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