April 9, 2007

Roger Mlodzik, Water Commissioner
Water Districts 9 and 80
13959 Stone Chimney Lane
Pine, CO 80470

Re: Glasman Ditch No.2, Case No. 83CW002

Dear Roger:

As you know, I am special water rights counsel to Park County. In that capacity, I have been asked to advise the county commissioners concerning water rights issues in an application to the County for a 1041 permit for the Will-O-Wisp Metropolitan District. The District seeks the permit to construct a diversion from Elk Creek in Park County, to treat the water and supply it to a proposed residential development. The State has previously commented on the water supply for this development.
See Attachment 1.

The question I am presenting to you by this letter is not addressed in Attachment 1. The question is whether the proposed diversion point from Elk Creek for the Glasman Ditch No. 2 is at the decreed point of diversion or requires a change of water right decree changing the point of diversion. The District’s position is that the proposed point of diversion does not require a change of water right while certain persons have made statements at the continued 1041 permit hearing on March 28, 2007 that it is a change. Those persons have submitted documents to the county commissioners claiming to support their position that the proposed point requires a change of water right.

The Glasman Ditch No. 2 was decreed in Case No. 83CW002. See Attachment 2. The legal description for the point of diversion is contained in paragraph 3 of the decree. That description is identical to the point of diversion for the Glasmann Ditch as adjudicated on May 22, 1913 in CA1678.[1]   A copy of Exhibit A from the adjudication, a map showing the point of diversion, is attached as Attachment 3.[2]  The District has proposed to augment diversions by the Glasman Ditch No. 2 by the augmentation plan decreed in Case No. 81CW144 as amended.

Attached as Attachment 4 is slide 2 from a presentation made by Robert Nevadomski to the Park County Commissioners at the 1041 permit hearing on March 28, 2007. It claims to show, on Lot 133, the approximate location of the headgate of the Glasmann Ditch and the Glasman Ditch No. 2 as described in the decrees. Mr. Nevadomski states that the red dot to the west, and on the present course of Elk Creek and approximately on the boundary between Hidden Valley Ranch and Lot 134, represents the proposed location of the diversion of the Glasman Ditch No. 2 by the District. Apparently, Elk Creek has moved over time. Attachment 5 is a 1956 aerial photo, slide 7, showing the 1956 course of Elk Creek in black on the photo with the present location imposed in blue. The dots are at the same locations as they are on the previous photo. Similarly Attachment 6, slide 8, is a 1938 aerial photo. I believe there was a faint indication of where the original Glasmann Ditch was which I enhanced in light blue. Attachment 7, a two page attachment, is a reduced version of a drawing that the Dunwody’s had a surveyor complete. The document is the basis for the claimed location of the decreed point of diversion of the Glasman Ditch No. 2. There are notes on the first page that explain how the surveyor prepared the document. Because it is reduced, it is not to scale, however, the surveyor determined that the distance from the described point of diversion for the Glasman Ditch No. 2 to the proposed diversion point on Elk Creek is 331 feet. The District may not agree with the location of the decreed point of diversion for the Glasman No. 2 Ditch or the calculation of the distance between the two points, but until more accurate information is presented, this is the best information available. 

It is important for the commissioners to know whether or not a change of point of diversion is required because, although there are no intervening water rights that divert in this stretch of stream, there is a CWCB in-stream flow right for 5 cfs. See Case No. 84CW646. That right is now junior to the 1983 Glasman Ditch No. 2 water right as augmented but could potentially become senior if the point of diversion is changed. As part of the 1041 permit hearing, the Applicant must have obtained all of the property rights necessary to complete the project. See Section 3-1O1(1)(a), Park County Regulations For Special Development Projects Designated As Matters Of State Interest.

I am attaching for your convenience an unofficial transcript of your testimony from December 6, 2006 (page 1 and pages 21-26 of the unofficial transcript) as Attachment 8. At the time of this testimony, these documents were not available and the question you were addressing may have been different.

It is apparent that Elk Creek has moved between the time of the 1938 and 1956 aerial photos and the 1996 photo. It may also have moved since the original adjudication of the Glasmann Ditch. Exhibit A to the adjudication, Attachment 7. The District points out that Section 37-86-111 C.RS. allows the head of a ditch to be extended upstream in certain circumstances that may apply here. For your convenience, and the convenience of others, I have attached a copy of the statute as Attachment 9.

In summary, Park County staff is requesting your response as to whether you believe diverting the Glasman Ditch No. 2 at the point proposed by the District constitutes a change of water right. The 1041 permit hearing has been continued to Wednesday, April 11, 2007 so any response, if possible, would be appreciated. I realize this is a very short time frame, and I apologize in advance for that.

Let me know if you have additional questions or comments or will require additional information to respond.

Sincerely yours,

BERNARD LYONS GADDIS & KAHN, PC

 

By__________________________________
Jeffrey J. Kahn
jkahn@blglaw.com

cc:

Lane Wyatt, Park County 1041 Permit Coordinator (VIA E-MAIL: qqlane@colorado.net)

Barbara J. B. Green, Park County Special Counsel, 1041 Permit Matters (VIA E-MAIL: lawgreen@earthlink.net)

Steve Groorne, Park County Attorney (VIA E-MAIL: pcattorney@parkco.us)

Tom Eisenmann, Park County Development and Environmental Coordinator (VIA E-MAIL: TEisenman@parkco.us)

Lee Johnson, Water Counsel for Will0-Wisp Metropolitan District (VIA E-MAIL ljohnson@chp-Iaw. corn)

Richard W. Toussaint, General Counsel for Will-0-Wisp Metropolitan District (VIA E-MAIL: rtoussaint@tnclaw.com)

Robert V. Trout, Counsel for Dunwody’s (VIA E-MAIL: rtrout@troutlaw.com)

Drayton and Vera Dunwody (VIA E-MAIL: )

Michael Schaefer (VIA E-MAIL: schaefermc@ecentral.com)

Robert Nevadomski (VIA E-MAIL: robertnevadomski@aol. corn)

James W. Culichia (VIA E-MAIL: jwc@frncwater.com)


[1]  The original or senior Glasmann Ditch was spelled with double “n” at the end while, as indicated, in 83CW002 the Glasman Ditch No. 2 was spelled with only one “n”.

[2]  There is also pending the complaint filed in the water court, Case No. O7CW_ entitled Drayton Dunwody and Vera Dunwody v. Will-0-Wisp Metropolitan District claiming that the Dunwody’s, not the District are the owners of the senior Glasmann Ditch water right. I do not believe that that lawsuit has any effect on the question posed herein.

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