HomeMy WebLinkAboutMemo - Mail Packet - 2/1/2022 - Memorandum From Eric Potyondy Re: Montava: Summary Of The Developers Pending Water Court Case
City Attorney’s Office
300 Laporte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6520
970.221.6327
fcgov.com
MEMORANDUM
TO: Mayor and City Councilmembers
FROM: Eric Potyondy, Assistant City Attorney
THRU: Carrie Daggett, City Attorney
DATE: January 27, 2022
RE: Montava: Summary of the Developer’s Pending Water Court Case
______________________________________________________________________________
This memo responds to a request from Leadership Planning Team this week. It summarizes the
pending case filed by HF2M, Inc. (“Developer”) in the State of Colorado District Court for Water
Division 1 (“Water Court”). This case concerns water rights (rights to use the waters of the State)
to serve a development generally referred to as the Montava PUD (“Development”), depicted on
the attached map. It does not concern determinations regarding rights to infrastructure or land, or
whether the proposed water supply is adequate for the Development.
BOTTOM LINE:
The Developer has filed an application in Water Court seeking approval to pump groundwater
through two proposed new wellfields in the shallow, alluvial aquifer that contributes water to
Boxelder Creek and the Poudre River (“Tributary Wellfields”). Groundwater from the Tributary
Wellfields would be used for indoor and outdoor uses on the Development.
The application includes additional claims, primarily to provide augmentation water to the Poudre
River to offset depletions from the Tributary Wellfields. One such claim is that certain
groundwater in a deeper, bedrock aquifer under the Development is nontributary.
The case is unresolved. The City and over 25 other entities have filed statements of opposition to
protect their water rights. The City Attorney’s Office’s is representing the City with the Fort
Collins Utilities Water Resources Division taking the staff lead with consultant support. It is
anticipated that later this year the Water Court will schedule a trial in the case, likely in 2024.
Below is explanation and discussion for those seeking more background and details.
Mayor and City Councilmembers
January 27, 2022
Page 2 of 3
DISCUSSION:
The Developer filed an application in Water Court on December 30, 2020. The core of the case is
the Developer’s claim requesting approval of an augmentation plan. If approved, this plan would
authorize the Developer (or a successor metro district) to pump groundwater through the Tributary
Wellfields. The Developer disclosed the attached map in the pending case to show the general
location of the Tributary Wellfields, ponds, and other structures. The Developer claims that the
groundwater pumped by the Tributary Wellfields will be used on the Development for:
• indoor uses following treatment at a proposed new water treatment plant; and
• irrigation uses following storage at two new ponds.
The application includes additional claims. They are primarily to provide augmentation water to
the Poudre River to offset depletions from the Tributary Wellfields so that other water rights are
not deprived of water they are entitled to. The claims include:
• Claims for water rights at the Seaworth gravel pit reservoirs near Laporte;
• Claims to change the use of the water rights represented by the Developer’s 1.5 shares of
the Water Supply and Storage Company, a ditch and reservoir company;
• Claims to use other augmentation water supplies, including produced water from oil and
gas operations near Wellington; and
• Claims that the groundwater underlying the Development in the deeper Dakota Formation
is nontributary; in other words, that it is so disconnected from surface waters that it is
legally separate and can thus be pumped without augmentation or regard for other water
rights on the Poudre River. (This deeper groundwater would be pumped through separate
wells not included in the Tributary Wellfields.)
The City filed a “statement of opposition” to participate in the case as an Opposer.1 The City’s
primary concerns relate to potential injury and adverse impacts to the City’s water rights on and
near the Poudre River that are managed by Fort Collins Utilities, the Natural Areas Department,
and the Parks Department. The City has also retained BBA Water Consultants, Inc. for additional
technical support. Twenty-five additional statements of opposition were filed by other Opposers.2
At this point, the Developer has not settled with any of the Opposers.
After the application was filed, the Water Judge referred the case to the Water Referee, which is
the standard practice. In the proceedings before the Water Referee, the Developer and the
1 The City actively monitors Water Court cases in Water Divisions 1, 5, and 6 and participates, as necessary, to
protect its water rights.
2 The other entities are: Boxelder Ditch Company; Cache la Poudre Irrigating Ditch Company; Cache la Poudre
Water Users Association; Central Colorado Water Conservancy District; City of Aurora; City of Greeley, acting by
and through its Water and Sewer Board; City of Thornton; Colorado Water Conservation Board; Division Engineer
for Water Division 1; East Larimer County Water District; Fort Collins Loveland Water District; GWIP, LLC;
K & M Company, LLLP; Lake Canal Company; Lake Canal Reservoir Company; Larimer and Weld Irrigation
Company; Larimer and Weld Reservoir Company; Martin Marietta Materials, Inc.; New Cache la Poudre Irrigating
Company; North Weld County Water District; North Poudre Irrigation Company; Northern Colorado Water
Conservancy District; Poudre School District R-1; Seaworth Augmentation LLC, William O. Seaworth and Paulette
M. Seaworth; State Engineer; Town of Wellington; United Water and Sanitation District; Water Supply and Storage
Company; and WRCC, Inc.
Mayor and City Councilmembers
January 27, 2022
Page 3 of 3
Opposers exchange information in a relatively informal manner. The information includes draft
decrees, initial engineering reports, and other technical information.
To date, the City and the other Opposers have provided the Developer with two sets of comments,
with a third set scheduled for later this spring. The City has been coordinating with some Opposers
and may do so more as the case progresses. The kind of issues raised by the Opposers include:
various issues with the specificity and form of the proposed decree; various issues associated with
the claimed augmentation water, including amounts and availability; disagreement that deeper
groundwater in the Dakota formation has been or can be established to be nontributary; issues
regarding how Tributary Wellfields groundwater pumping will be limited to the amount of
augmentation water; and various measurement and accounting issues.
It is anticipated that after July 2022, the Water Referee will re-refer the case to the Water Judge.
The Water Judge will then schedule a trial along with various other pre-trial litigation and
discovery deadlines. The earliest that trial would likely be set would be late 2023, though 2024 is
more likely.
Attachment:
General location map
pc: Kelly DiMartino, Interim City Manager
Tyler Marr, Assistant City Manager
Theresa Connor, Interim Executive Director, Fort Collins Utilities
Liesel Hans, Deputy Director, Fort Collins Utilities
Donnie Dustin, Water Resources Engineer, Fort Collins Utilities
Caryn Champine Director, Planning Development and Transportation
Paul Sizemore, Deputy Director, Planning Development and Transportation
Rebecca Everette, Manager, Planning
Jenny Axmacher, Senior Planner, Community Development and Neighborhood Services
Scott Benton, Planner, Community Development and Neighborhood Services
Seve Ghose, Community Services Executive Director
Katie Donahue, Director, Natural Areas Department
Jen Shanahan, Watershed Planner, Natural Areas Department
Kurt Friesen, Director, Park Planning and Department
Mike Calhoon, Director, Parks Department