[Ord. No. 2020-189, 12-21-2020]
The ordinance codified in this Article shall be known and may be cited as the Town Water Rights Dedication Ordinance.
[Ord. No. 2020-189, 12-21-2020]
It is the intent and purpose of this Article to require the dedication of water rights to the Town sufficient to satisfy any new or additional demand for Town water service resulting from the extension of water service, annexation of land to the Town or any change in land use, within or outside the limits of the Town, which will require new or additional water supply from the Town, and thereby to assure an adequate and stable supply of water to all Town water users, ensure the financial stability of the Town water utility and promote the general welfare of the public.
[Ord. No. 2020-189, 12-21-2020]
As used in this Article, unless the context otherwise requires,
Means the act of attaching, adding, joining or uniting a parcel of land to the legal entity known as the Town of Johnstown.
Means any individual, partnership, association, organization or corporation requesting water service from the municipal water system of the Town.
Means belonging to, accessory or incident to, adjunct, appended, annexed to or used in conjunction with.
Shall include expansion of an existing use.
Means the amount of water consumed that does not return to the stream system after use.
Means the process by which legal title to water rights is transferred by appropriate deed, stock assignment, allotment contract or other record transfer.
Means to appropriate an interest in land or water rights to some public use, made by the owner, and accepted for such use by or on behalf of the public.
Means any extension of the Town water service for which a tapping charge is assessed or any increase in Town water service resulting from a change in use of property, an increased use of property or an increase in irrigated area.
Means a notarized written statement on a form approved by the Town, which sets forth, among any other information that may be requested by the Town, the following information concerning each water right proposed for dedication to the Town:
The name and address of the owner;
The amount of each water right or the number of shares of stock;
If the water right is used for irrigation, the number of acres presently being irrigated and a legal description and/or map of the acreage irrigated;
A copy of the stock certificate in any ditch or reservoir company which furnishes water and, unless this requirement is waived by the Town, all decrees or judgments determining or adjudicating each water right proposed for dedication to the Town and any other water rights appurtenant to the property;
A copy of the document by which the present owner of each water right received title to the water right proposed for dedication to the Town and any other water rights appurtenant to the property;
A copy of all diversion records for each water right proposed for dedication or transfer to the Town, unless this requirement is waived by the Town; and
A description of the historical use of the water right, including the amount and time of diversions and, if the use was irrigation, the type of irrigation, the number of acres irrigated, the crops grown and a description of any other water rights used on the land irrigated.
Means any grant for permissive use which results in the creation of a landlord-tenant relationship.
Means the property owner, annexor or developer, as the case may be and the context indicates, and shall include any part owner, joint owner, tenant in common or joint tenant.
Means that a water right has a date as of which it is entitled to use water in relation to other water rights deriving their supply from the same source which is sufficiently senior that it may reasonably be expected to provide a dependable water supply for the requirements of this Article. Factors to be considered in making this determination shall include, but not by way of limitation, the appropriation date and adjudication date of the water right, the decreed use, the historical use of the water right, the physical flow available and the administrative practices of the office of the State Engineer.
Means the number of SFEs for which dedication credit is provided by the Town for the dedication of a particular acceptable water right to the Town.
Means a number related to the volume of water necessary to meet the demand and consumptive use requirements of an average dwelling unit housing not more than three and one-half (3.5) persons and having not more than three thousand (3,000) square feet of irrigated area. The SFE unit value assigned to such average dwelling unit is one (1.0). The SFE unit value assigned to any particular dwelling unit may be greater than, equal to or less than one (1.0). The SFE unit value assigned to other uses shall be based on the Town's estimated volume of water demanded and consumed by such uses as compared to the volume of water demanded and consumed by such average dwelling unit.
Means treated water service or raw water service furnished by the Town for any purpose, including but not limited to domestic, commercial, and industrial uses.
Means the conveyance of legal title to water rights to the Town.
Means the estimated cost per SFE of court filing fees, publication fees, professional fees and other reasonable and customary costs associated with required proceedings in the water court for the Town to make full and lawful use of water rights dedicated to or acquired by the Town for use in its municipal water system, the amount of which is set forth by resolution of the Town Council in the Town Fee Schedule.
Means the number of acre-feet, or the number of SFEs, for which dedication credit is provided by the Town for the dedication of a particular acceptable water right to the Town.
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. It shall include both direct-flow and storage rights.
[Ord. No. 2020-189, 12-21-2020]
(a)
Any person who seeks approval of any of the following:
(1)
An extension of water service;
(2)
Annexation of land to the Town; or
(3)
Any change in land use, within or outside the limits of the Town, if such change in land use will increase the demand for Town water service, shall dedicate surface water rights to the Town of an amount and priority to produce, after dedication of such water rights to the Town and completion of any necessary water court transfer proceedings, a sufficiently reliable source of water acceptable to the Town to supply at least the amount of water needed to supply the additional deliverable and fully consumable water per year for each SFE, which water will be available for diversion at such point or points of diversion as the Town may designate for use and consumption by the Town for municipal purposes.
(b)
If wastewater from in-house or in-building uses will not be treated by the Town's municipal wastewater treatment facilities or other wastewater treatment facilities of equal efficiency and which provide similar return flow patterns, the Town shall increase the dedication requirement so that, after dedication of such water rights to the Town, the water rights to be dedicated will produce an amount of deliverable and fully consumable water per year for each SFE that is sufficient to ensure an adequate supply of water to satisfy the proposed use or uses.
(c)
Any person required to dedicate water rights to the Town shall designate, on forms prescribed by the Town, all water rights proposed to be dedicated to the Town with proof of ownership or otherwise show the legal ability to dedicate the water rights, and shall provide a legal description of the land for which the extension of water service is requested or for which approval of annexation or a change in land use is sought; and, in addition, shall specify the proposed use or uses for which Town water service is requested and the number of SFE units required for such use or uses. The form shall be accompanied by a historical use affidavit, except that, if the total number of SFE units is greater than thirty (30) SFE units, the Town may, in its discretion, require, in addition to the historical use affidavit, an engineering report prepared at said person's expense by an engineer experienced in water rights matters to analyze the historical use of the water rights proposed for dedication to the Town.
(d)
Upon receipt of the foregoing, the Town, in its sole discretion, shall determine whether the water rights are acceptable to the Town and whether the water rights are sufficient to satisfy the requirements of Article. In making such determination, the Town shall consult with persons knowledgeable in water rights matters.
(e)
The water dedication requirement shall be satisfied by the person seeking approval of the extension of water service, annexation or a change in land use, regardless of whether that person will be the ultimate user of the Town water service.
(f)
All costs and expenses to dedicate water rights to the Town to satisfy the water dedication requirements contained in this Article shall be paid by the person required to dedicate such water rights. Costs and expenses necessary to change dedicated water rights so they can be diverted and used by the Town for municipal use shall be paid by the person required to dedicate water rights to the Town in the form of payment of a water court transfer fee or as otherwise required by the Town. Payment of the water court transfer shall not create an ownership interest in the dedicated water.
(g)
Prior to commencing a project that requires water or sewer service, the owner shall be required to enter into a water and sewer service agreement with the Town.
[Ord. No. 2020-189, 12-21-2020]
Town Council may, in its discretion, accept cash-in-lieu of the required water dedication. If cash-in-lieu is approved, the rate shall be based on a per SFE standard and shall at a minimum be equal to the fair market value of water rights required to satisfy the water dedication requirement provided in this Article, determined as of the date of actual cash-in-lieu payment.
[Ord. No. 2020-189, 12-21-2020; Ord. No. 2025-273, 7-7-2025]
(a)
A single-family equivalent without a separate non-potable irrigation system shall require the dedication of 0.50 acre-feet of water per residence for a landscaped lot consisting of less than or equal to 3,000 square feet. The 0.50 acre-feet per residence consists of 0.33 acre-feet of water for in-home use and 0.17 acre-feet of water for irrigation. This shall be the basis for a single-family equivalent (SFE).
(b)
Unless otherwise approved or required by the Town, in its discretion, the required water dedication for the uses set forth below, which are based on the anticipated annual water usage and account for treatment system losses, distribution system losses, contractual assessments and drought protection, shall be as follows:
(1)
A single-family detached dwelling unit shall require the dedication of 0.33 acre-feet of water for indoor use.
(2)
A single-family attached, townhome, or multifamily dwelling unit shall require the dedication of 0.29 acre-feet of water for indoor use.
(3)
The dedication requirements for zoning districts and land use types other than those listed above shall be determined by the Town on a case-by-case basis based on proposed uses.
(4)
Irrigation of dwelling unit lots consisting of less than or equal to 3,000 square feet that do not contain a non-potable system shall require the dedication of 0.17 acre-feet of water for outdoor use.
(5)
Spray irrigation for seed and sod shall require the dedication of 2.5 acre-feet of water per irrigated acre.
(6)
Drip irrigation shall require the dedication of 1.5 acre-feet of water per irrigated acre.
(7)
Xeriscape irrigation shall require the dedication of 1.0 acre-feet of water per irrigated acre.
[Ord. No. 2020-189, 12-21-2020]
(a)
The applicant shall include with any annexation petition, subdivision or development plan submittal or other land use request that involves an extension of water service, a written analysis sufficient to allow the Town to fully evaluate the probable water demand and consumption and the sewer service requirements for the subject property. The analysis shall include the entire property and shall specify the use of all land in the property. Water demands and consumption shall be estimated separately for each use category (e.g. single-family residential, multifamily residential, commercial, office, industrial, parks or others), and irrigation demands and consumptive use shall be set forth separately for each use category which is applicable to the property.
(b)
Subject to Town approval, the applicant may use historical water service(s) from similar projects based on their use and size for both consumptive and irrigation use in preparing the water and sewer demand analysis.
(c)
In lieu of the analysis described above, the Town may elect to provide its own water and sewer demand analysis if the Town has sufficient information and experience with other similar developments to adequately evaluate the probable water demands and consumption and the sewer service requirements for the property.
[Ord. No. 2020-189, 12-21-2020]
(a)
If land is dedicated to the Town for park, open space or recreation uses, the owner shall also dedicate water rights sufficient to irrigate said land, as provided in this Article.
(b)
Where the Town enters into an agreement to accept cash-in-lieu of in-kind land dedication for parks, open space or recreation uses, and the Town is unable to specifically determine the irrigation demand for the public project for which the cash is contributed, the amount of water rights dedication, or cash-in-lieu of water rights dedication, in the Town Council's discretion, required to meet the water dedication requirements shall be equal to the amount required to irrigate eighty percent (80%) of the land area which otherwise would have been required for in-kind land dedication by the Code or the Town.
[Ord. No. 2020-189, 12-21-2020]
If a property is served by the Little Thompson Water District or the Town determines that all or part of a property would be better served by the Little Thompson Water District, either temporarily or permanently, and the Little Thompson Water District agrees to provide water service, Town Council may, in its discretion, permit such property to receive water service from the Little Thompson Water District upon such terms and conditions set forth in an agreement between the Town and the property owner.
[Ord. No. 2020-189, 12-21-2020]
(a)
At the time of annexation, the annexor shall identify all water rights appurtenant to the property to be annexed and shall not, after the filing of the petition for annexation, transfer, assign or sell any such appurtenant water rights without the written consent of the Town.
(b)
Unless otherwise agreed by the Town, at the time of annexation, the annexor shall dedicate to the Town all water rights appurtenant to the property to be annexed. The Town may, in its discretion, permit the annexor to defer dedication of the water rights until a subsequent date, consistent with the provisions of this Article. The Town may also, in its discretion, permit the annexor to dedicate water rights that are not appurtenant to the property, in addition to or in lieu of, water rights that are appurtenant to the property.
[Ord. No. 2020-189, 12-21-2020]
(a)
Unless otherwise agreed by the Town, no extension of water or sewer service, including any new or additional service, shall be furnished by the Town until adequate water in a sufficient amount to provide the services is dedicated to the Town and there has been full compliance with the provisions of this Article.
(b)
The Town shall evaluate any water rights offered to the Town for dedication. The Town shall determine whether said water rights are to be accepted based upon the following criteria: priority date, historical point of diversion, location of historical use, historical yield, historical consumptive use, the contribution to historical consumptive use of other water rights or sources of water supply, future use of the land historically irrigated, including future irrigation, considerations with respect to title, anticipated difficulties with transferring the water rights to appropriate points of diversion, places of storage and municipal uses, the Town's contractual obligations and arrangements, expected needs of the Town and of the Town's municipal water supply system, composition of the Town's water rights portfolio at the time of the proposed annexation and any other appropriate factors.
(c)
The Town reserves the right, in its discretion, to accept, reject or accept in part any water rights proposed for dedication to the Town. If the Town determines that the water rights proposed for dedication to the Town are unacceptable to the Town, or insufficient to comply with the dedication requirements, the Town may, in its discretion, determine whether the Town will accept cash-in-lieu of dedication to satisfy all or part of the dedication requirement.
(d)
Unless otherwise permitted by the Town based on extraordinary circumstances, no final plat or development plan for residential uses-shall be approved by the Town unless sufficient water rights dedications and/or cash-in-lieu payments have been accepted by the Town to provide sufficient water supply for the demands projected for all proposed uses within the platted area. Non-residential subdivisions may be approved prior to full water rights dedication, however no building permits shall be issued prior to completing all necessary analysis, acceptance, and dedication of water rights as set forth in this Article to meet the water demands of said use.
(e)
A change in land use or expansion of an existing use may, in the Town's determination, require updated water demand information and the dedication of additional water, in accordance with this Article.
(f)
The Town reserves the right to review actual water usage at a point in time after water usage has been established to confirm the adequacy of the water demand projections and executed water and sewer service agreement, and to require additional water rights dedication and/or cash-in-lieu payments based on actual water usage. If additional water rights are not dedicated in a timely manner, as required by the Town, the Town may, in its discretion, disconnect water service to the subject property. (Prior contractual water and sewer service agreement references to "Section 13-68(h)" of the Ordinance or the Code shall be deemed to mean and include this Subsection.)
(g)
All costs and expenses related to the dedication of water rights to the Town shall be borne by the person required to dedicate the water rights to the Town pursuant to this Article.
(h)
Any decision or recommendation made by the Town Manager or other Town agent or designee under any delegation of authority or responsibility contained in this Article or otherwise relating to water rights dedication shall be submitted to the Town Council for determination or ratification, as the case may be. No such decision or recommendation shall be of any force or effect until finally determined or ratified by the Town Council.
(i)
In the event the water rights offered to the Town for dedication provide raw water credits in excess of those required by this Article, the Town may, in its discretion, purchase the surplus water upon terms that are agreeable to the owner.
(j)
The Town shall not require that groundwater wells or their appurtenant water rights be offered to the Town for dedication or purchase, nor shall the Town provide any raw water credits for such structures or water rights.
(k)
All determinations provided for herein shall be made by the Town in the exercise of its reasonable judgment.
(l)
All dedications of water rights to the Town hereunder shall be effected by delivering to the Town sufficient warranty deeds, stock certificates with appropriate stock assignments, written approval of the transfer of allotment contracts or by other acceptable means, as is appropriate to the particular transaction. All title documents shall be subject to approval by the Town. No water rights dedication shall be considered completed until the Town has accepted sufficient documents transferring title to the Town.
(m)
The provisions contained in this Article shall apply retroactively to existing water dedications, water and sewer uses and water and sewer agreements. No person shall be entitled to assert that he or she is not required to comply with the provisions contained in this Article by the mere fact of recodified numbering.
[Ord. No. 2020-189, 12-21-2020]
Water court transfer fees, calculated on a per SFE basis and based upon whether water has been decreed for municipal use, are hereby levied and assessed. Water court transfer fees shall be paid in the amount set forth by resolution of the Town Council in the Town Fee Schedule and, unless otherwise agreed by the Town, at the earlier of the time of approval of a final plat, execution of a water and sewer service agreement or the extension of water service.
[Ord. No. 2020-189, 12-21-2020; Ord. No. 2025-273, 7-7-2025]
(a)
Evaluation of Water Rights. Based on the provisions of this Article, the Town shall evaluate water rights offered to the Town for dedication.
(b)
Consolidated Home Supply Ditch & Reservoir Company. The Town has commenced three water court cases in the District Court, Water Division No. 1, to adjudicate Consolidated Home Supply Ditch & Reservoir Company water for municipal use: (i) Concerning the Application for Water Rights of the Town of Johnstown in the Big Thompson River and its Tributaries in Larimer and Weld Counties, Case No. 98CW410 ("1998 Water Litigation"); (ii) Concerning the Application for Water Rights of the Town of Johnstown in the Big Thompson River and its Tributaries in Larimer and Weld Counties, Case No. 06CW224 ("2006 Water Litigation"); and (iii) Concerning the Application for Water Rights of the Town of Johnstown in Larimer and Weld Counties, Case No. 20CW3011 ("2020 Water Litigation"). The raw water credit provided to Consolidated Home Supply Ditch & Reservoir Company shares shall depend upon whether the water is decreed for municipal use and the water court case in which the shares were changed.
(1)
Decreed for Municipal Use in 1998 Water Litigation and 2006 Water Litigation. If the shares are accepted by the Town and are decreed for municipal use in the Town pursuant to the 1998 Water Litigation or 2006 Water Litigation, the Town shall provide a raw water credit in the amount of sixteen (16) SFEs [eight (8) acre-feet yield] per share.
(2)
Decreed for Municipal Use in 2020 Water Litigation. If the shares are accepted by the Town and are decreed for municipal use in the Town pursuant to the 2020 Water Litigation, the Town shall provide a raw water credit in the amount of eight (8) SFEs [four (4) acre-feet yield] per share.
(3)
Not Decreed for Municipal Use. If the shares are accepted by the Town and are not decreed for municipal use in the Town, the Town shall provide a raw water credit in the amount of six (6) SFEs [three (3) acre-feet yield] per share.
(c)
Colorado Big Thompson Project Units. If Colorado Big Thompson Project Units are accepted by the Town, the Town shall provide a raw water credit in the amount of seven-tenths (0.7) SFE [thirty-five hundredths (0.35) acre-feet yield] per unit.
(d)
Other Water. For water rights acceptable to the Town for dedication that are not set forth in the tables above, the Town, at its discretion, shall determine the raw water credit.
[Ord. No. 2020-189, 12-21-2020]
If the owner of property to be annexed, subdivided or otherwise subsequently developed desires to retain land, or any portion thereof, in agricultural production or as open space prior to development, the owner may, pursuant to written agreement with the Town, lease back, on an annual basis and for irrigation, aesthetic and recreational purposes only, all or part of the water rights dedicated to the Town pursuant to this Article. Unless otherwise agreed by the Town, the terms of any such leases shall be at fair market value, as determined by the Town, and on such other terms and conditions as required by the Town. The owner shall pay, at a minimum, all assessments due and owing on the water. Said leases shall provide that, in the event any portion of the land for which the water is leased is platted during the term of the lease, the Town may cancel the lease, in whole or in part, to the extent a portion of the leased water is determined by the Town to be necessary for water service to the property so platted.
[Ord. No. 2020-189, 12-21-2020]
The Town shall have dominion and control of all water supplied through its water system, subject to reasonable use thereof by its water users in compliance with applicable agreements, leases, licenses and the Code. Such dominion and control shall continue without interruption as to all wastewater, return flows, runoff, sewage, or tail water attributable to or originating in water supplied through Town-owned or controlled water rights or facilities. Except as otherwise agreed by the Town in writing, the Town shall have the exclusive right to recapture such return flows or claim credit therefrom for reuse, successive use, exchange, replacement, augmentation, substitute supply or any other lawful purposes, and the Town's dominion and control over water shall continue to attach to all such return flows, regardless of form, even after they return to the groundwater aquifers or the surface stream systems. All return flows from water supplied through Town-owned or controlled water rights or facilities remain the property of the Town.
[Ord. No. 2020-189, 12-21-2020]
The Town Council may by resolution assign unallocated raw water from the Town's water stock to a Town water bank to be used, in the Town Council's discretion, for any reasonable and acceptable purpose within the Town and upon such terms and conditions as Town Council imposes.
