This article shall be known and may be cited as the "Town of Collbran Water Rights Dedication Ordinance."

(Code 1994, § 15.13.010; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

(a)

It is the intent and purpose of this article to require the dedication of water rights prior to the extension of treated or raw water service to new customers or to existing customers with increased demand for water service and to thereby ensure an adequate and stable supply of water to the Town service area; to prevent the abandonment of water rights to the detriment of the Town; to ensure the financial stability of the Town water utility; and to promote the general welfare of the public.

(b)

This article, in part, provides a supplemental requirement for annexation as provided by State Statutes and also supplemental requirements to the subdivision requirements of the Town, and does not eliminate, modify or replace any requirements set forth in other statutes or ordinances.

(Code 1994, § 15.13.020; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Annexation means the act of attaching, adding, joining or uniting a parcel of land to the legal entity known as the Town.

Appurtenant means belonging to, accessory or incident to, adjunct, appended, annexed to or used in conjunction with.

Conveyance of water rights means the legal process by which legal title to the water rights to be dedicated is transferred to the Town by appropriate deed, stock assignment or both.

Dedication means an appropriation of an interest in land or water to some public use, made by the owner, and accepted for such use by or on behalf of the public.

Equivalent residential unit (EQR), as used in this article, means a number related to the volume of water consumptively used by a single-family residential unit housing a statistical average of 3 1/2 persons and having not more than 2,500 square feet of irrigated lawn or garden; that water consumption being 0.2 acre-feet per year. The consumptive use of all other uses is considered to bear the same ratio to the consumptive use of an average single-family residence as the EQR value assigned to that use in the table of EQRs as set forth in CTC Chapter 34.

Extensions of service means any extension of the municipal water utility for which a tapping or other capital reimbursing charge or services charge are assessed.

Historical use affidavit means a document, which sets forth the following information concerning the water rights proposed for dedication:

(a)

The name and address of the owner of all water rights owned by the party seeking extensions of service;

(b)

A legal description of the land to be annexed or provided with municipal water service;

(c)

The total number of acres to be annexed or provided with municipal water service;

(d)

The total number of acres presently being irrigated and/or intended to remain in irrigation;

(e)

A copy of all decrees concerning all water rights appurtenant to the property and all other rights owned or controlled by the party seeking extensions of service;

(f)

A copy of any legal decree or judgment which affects the title of those water rights entered since the owner received title to the water rights appurtenant to the property and/or proposed for dedication;

(g)

A copy of the documents by which the owner received title to the water rights appurtenant to the property and/or proposed for dedication;

(h)

A copy of all diversion records of the water rights proposed for dedication;

(i)

The owner's statement as to the historic use of the water rights appurtenant to the property and/or proposed for dedication.

Lease means any grant for permissive use, which results in the creation of a landlord-tenant relationship.

Plat is an accurately surveyed map or chart of a piece of land subdivided into lots with streets, alleys, roads and other such avenues of transportation delineated thereon and drawn to a scale.

Replat means to make a change in the original plat.

Subdivide means to separate into smaller divisions a tract of land into two or more lots, tracts, parcels, sites, separate interests in common, condominium interests or other divisions for the purpose, whether immediate or future, of transfer of ownership, or for building or other development, or for street use by reference to such subdivision or a recorded plat thereof.

Sufficient legal priority means that the water rights proposed for dedication may reasonably be expected to provide a dependable water supply throughout the season of use in the amount for which they are decreed. In making this determination, factors to be considered shall include, but not by way of limitation, the adjudication date and appropriation date of the water rights, the decreed use, the historic use of the water under the decree, the physical flow available, and the administration practices of the office of the State Engineer.

Transfer of water rights means the conveyance of legal title to water rights of the Town in addition to referring to all actions required under the laws of the State to be brought in the water court, Water Division No. 5, to ensure that the dedication requirement is fulfilled. Such action may include, but not by way of limitation, a change in the type, place or time of use, a change in the point of diversion, a change from a fixed point of diversion to alternate or supplemental points of diversion, a change from alternate or supplemental points of diversion to a fixed point of diversion, a change in the means of diversion, a change in the place of storage, a change from direct application to storage and subsequent application, a change from storage and subsequent application to direct application, a change from a fixed place of storage to alternate places of storage, a change from alternate places of storage, or any combination of such changes. The term "transfer of water rights" includes transfer of conditional as well as absolute water rights.

Water right means a decreed right to use in accordance with its priority a certain portion of the waters of the State by reason of the appropriation of the same.

(Code 1994, § 15.13.030; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

(a)

A dedication or transfer of direct flow and/or storage water rights to the Town shall be required prior to the approval of the annexation of any land to the Town, prior to all extensions of municipally treated water service outside the Town limits as said boundaries exist on the effective date of the ordinance codified in this article, and prior to the subdivision or replatting of any land now located within the Town if such subdivision or replatting requires a change of zone district or increases the demand for municipal water service.

(b)

The dedication requirement shall be calculated in accordance with the table of equivalent units as set forth in CTC Article 34.12, as such table may be amended, on forms provided by the Town. Such forms shall be accompanied by a historical use affidavit. For those persons whose compliance with this section results in a total EQR of greater than 30 EQR, no historical use affidavit shall be required, but an engineering analysis, acceptable to the Town, of the historic use of the water rights proposed for dedication shall be required.

(c)

The basic requirement shall be 0.2 AF/year of historic consumptive use of a water right of sufficient legal priority for each EQR calculated pursuant to Subsection (b) of this section. For raw water uses or other uses not calculated under the table of EQRs, the basic requirement shall be the quantity of water to be required ultimately in the satisfaction of those use as contemplated by the new user. If a party required to dedicate water pursuant to this article can establish by a preponderance of the evidence that such party's actual use will be less than that calculated by reference to the table of EQRs, such party shall be required to dedicate only the lesser amount, it being the intent of this article that the quantity of water dedicated be that quantity of water required ultimately in the satisfaction of the consumptive use or uses contemplated by the party.

(d)

The basic requirement shall be satisfied by the person seeking approval of annexation, subdivision, replatting or the extension of municipally treated water service, whether or not that person will be the ultimate user.

(e)

Sufficient water rights shall be dedicated so as to enable the Town to divert a quantity of water at any point of diversion it may determine, which will allow for the total consumption by the Town of the quantities set forth in Subsection (c) of this section.

(Code 1994, § 15.13.040; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

(a)

The Town may substitute or waive any conditions or requirements deemed necessary to meet the purposes of this section.

(b)

This article does not apply to the extension of new municipal treated water service or raw water service for which the basic dedication requirement has been previously complied with by any person and where no increase in demand is constituted.

(Code 1994, § 15.13.050; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

The owner of any property proposed to be annexed or subdivided who dedicates property to the Town pursuant to any other ordinance of the Town to be used for open space, park, aesthetic, recreation or irrigation purposes, shall also comply with the provisions of this article.

(Code 1994, § 15.13.060; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

(a)

In accordance with the basic requirements set forth in CTC 18.52.040, the Town shall determine, after consultation with a person skilled in the knowledge of water rights, whether the water rights proposed for dedication pursuant to the provisions of this article will be of sufficient legal priority under the laws of the State to ensure the Town's ability to meet the service demands of the new user. This determination will be aided by an historic use affidavit and/or engineering report, which must be provided by the new user.

(b)

The Town shall have the right, in its sole discretion, to accept or reject any water rights proposed for dedication pursuant to the provisions of this article that the Town has determined do not have sufficient legal priority. If the Town determines that the water rights proposed fail to satisfy the basic dedication requirement, the following alternatives, or combination thereof, may be used to otherwise satisfy the basic dedication requirement:

(1)

The person required to comply with the basic dedication requirement may pay to the Town a cash amount equal to the fair market value of the water rights necessary to satisfy the basic dedication requirement, which the Town shall set, in its sole discretion, from time to time.

(2)

The Town may, in its discretion, negotiate with the new user to establish other terms or conditions, which shall constitute compliance with the basic dedication requirement of this article.

(c)

The new user shall dedicate the water rights determined by the Town by filing with the Town an offer thereof. It is the intent of this article that no water service shall be extended to a new user until the agreed-to water rights have been dedicated to the Town; however, if there are matters pending resolution in the water court concerning the water rights to be dedicated, or if there is other delay beyond the control of the new user, the Town Board shall have the discretion to approve the extension of such water service prior to the dedication of water rights to the Town by the new user or person seeking approval of annexation, subdivision or replatting, new extension of municipal treated water service, or extension of raw water service which will thereafter be used for beneficial purposes.

(d)

All costs and expenses attendant to the conveyance and transfer of water rights dedicated to the Town shall be borne by the new user.

(e)

Any decision made by the Town Board designate under the delegation of powers contained within this article shall be submitted by such designate to the Town Board of Trustees at its next regular meeting, and the decision shall not become final until the same has been ratified by the Board of Trustees. Any interested parties shall have the opportunity to be heard with respect to the decision.

(Code 1994, § 15.13.070; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

If the owner of the property proposed to be annexed or subdivided desires to retain the land, or any portion thereof, in agricultural production or as open space prior to development, such owner shall be permitted to lease back, on an annual basis and for irrigation, aesthetic and recreational purposes only, the water rights transferred pursuant to this article. The terms of the lease shall be negotiated with the Town Board of Trustees or their designate.

(Code 1994, § 15.13.080; Adopted by Ord. 02 Series of 2023 on 12/5/2023)

(a)

Time. Any person required to comply with the basic dedication requirement shall also grant to the Town the option to purchase any and all water rights which are appurtenant to the land to be annexed but which are in excess of the basic dedication requirement. The option may be exercised by the Town at any time for a period of one year following the date of the grant to the Town with regard to any or all of the water rights subject to the grant.

(b)

Price.

(1)

The option price shall be that price agreed upon by the parties. If the parties do not agree upon an option price within 30 days after notice of the Town's intent to exercise its option is received by the owner, appraisal at the Town's expense will establish the price that reflects the fair market value of the water right.

(2)

The appraisal shall be conducted by one appraiser appointed by the Town, one appraiser appointed by the owner of the water rights, and a third appraiser who shall be appointed by both parties. The average of the three appraisals shall be the option price.

(c)

Right of first refusal.

(1)

Grant of right. In addition to the grant of the option to purchase by the new user, there shall be a grant to the Town by the user of a right of first refusal regarding the water rights subject to said option to purchase. If the Town for any reason should choose not to exercise its option to purchase, it shall retain the right of first refusal in the event the water rights are sold independently of the land, for a period of ten years following annexation or final approval, or replatting, or extension of water service to a subdivision.

(2)

Notice period. If the owner of the water rights subject to the right of first refusal wishes to sell the water rights to a third party, such owner shall give to the Town at least 90 days' notice of such owner's intention to effect a sale of the water rights by delivering to the Town a bona fide written offer to purchase made by a third party.

(3)

Exercise of right. During the 90-day notice period provided for in this subsection, the Town shall enjoy its right of first refusal entitling it to purchase the water rights proposed for sale. If within 90 days following notice by the owner of such owner's intention to sell such owner's water rights, the Town chooses to exercise its right to purchase, then the Town shall pay to the owner the fair market price of the water rights prevailing at the time of the offer, which price shall be at least equal to the amount tendered to the owner in the bona fide offer by the third party. In the event that the Town determines not to exercise its right to purchase the water rights offered for sale, the owner shall be free to sell the water rights to a third party; provided, however, that any such sale to a third party shall be for a price which is at least equal to that price which was tendered to and refused by the Town.

(Code 1994, § 15.13.090; Adopted by Ord. 02 Series of 2023 on 12/5/2023)