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HomeMy WebLinkAboutR21-036 Special Use Permit TNT Botanicals DBA PotZero File No. 009014-2019 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91B79AFC7D5E Commissioner McQueeney moved adoption of the following Resolution: BOARD OF EAGLE COUNTY COMMISSIONERS COUNTY OF EAGLE,STATE OF COLORADO RESOLUTION NO.2021- 036 RESOLUTION FOR THE APPROVAL OF THE SPECIAL USE PERMIT FOR Gypsum Creek Marijuana Cultivation TNT Botanicals dba PotZero Eagle County File No.ZS-009014-2019 RECITALS WHEREAS,on or about February 20, 2019,the County of Eagle, State of Colorado,accepted for filing an application (as amended,the"Application") submitted by TNT Botanicals, LLC dba Pot Zero (the "Applicant") for approval of a special use permit for the Gypsum Creek Marijuana Cultivation Project,located at 11157 Gypsum Creek Road,and legally described as PARCEL A:NE 1/4 NE 1/4 OF SECTION 26, TOWNSHIP 6 SOUTH, RANGE 85 WEST,OF THE 6TH P.M.,COUNTY OF EAGLE, STATE OF COLORADO. PARCEL B: THE W1/2 OF THE NW 1/4, NW1/4 OF THE SW1/4,AND THAT PART OF THE E1/2 OF THE SW1/4 AND THE SE1/4 OF THE NW1/4 OF SECTION 25, TOWNSHIP 6 SOUTH, RANGE 85 WEST, OF THE 6TH P.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AS A POINT ON THE SOUTH BOUNDARY OF SAID SECTION 25, WHENCE THE SOUTH ONE- FOURTH CORNER OF SAID SECTION 25 BEARS N 89 DEGREES 55'E,278.00 FEET DISTANT;THENCE N 7 DEGREES 28'W,879.50 FEET;THENCE N 9 DEGREES 49'W,215.50 FEET;THENCE N 9 DEGREES 33' W, 515.80 FEET; THENCE N 9 DEGREES 32' W, 2396.59 FEET;THENCE S 89 DEGREES 50' W, 409.58 FEET TO THE NORTHWEST CORNER OF SAID SE1/4 OF THE NW14 OF SECTION 25; THENCE S 00 DEGREES 01' E, 3960.00 FEET; THENCE N 89 DEGREES 55' E, 1039.03 FEET TO THE PLACE OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL C: THE NW1/ 4 OF SECTION 36, TOWNSHIP 6 SOUTH, RANGE 85 WEST, OF THE 6TH P.M., COUNTY OF EAGLE,STATE OF COLORADO, recorded June 3, 1984(the"Property");and WHEREAS,the Applicant has the right to operate an outdoor marijuana cultivation operation and other associated activities pursuant to the special use permit approved under File No.ZS-5032, which approvals are memorialized in Resolution 2015-031 (the"2015 Special Use Permit"). WHEREAS,the Applicant proposes to expand the uses permitted under the 2015 Special Use Permit as detailed in the Application. In general, the Application requests expansion of an existing two-acre marijuana outdoor cultivation operation to a 40-acre outdoor cultivation operation. In addition to the expanded acreage,as further detailed in the Application Materials and presentation at the Board of County Commissioners' meetings, the Application includes an 8,500 square foot Marijuana Infused Product processing facility(the"MIP"),a 1,500 square foot greenhouse,two 3,000 square foot barns,and 30 320 square foot shipping containers,22 parking spaces,an existing 12 acre- foot water storage pond,a 20 kilowatt hydroelectric turbine,and three new water storage ponds(the "Special Use");and Eagle County, CO 202115269 Regina O'Brien 07/01/2021 Pgs: 10 09:47:54 AM REC: $0.00 DOC: $0.00 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E WHEREAS,the Property is zoned Resource (R) and marijuana cultivation may be approved in the R zone district through review and approval of a Special Use Permit Application;and WHEREAS,in accordance with Eagle County Land Use Regulations(the"ECLUR"),Section 5- 210.E - Notice of Public Hearings, notice of the proposed Special Use application was mailed to all owners of property adjacent to the proposed Special Use and was duly published in a newspaper of general circulation throughout the County concerning the subject matter of the application and setting forth the dates and times of meetings for consideration of the applications by the Eagle County Planning Commission(the"Planning Commission")and the Board of County Commissioners of the County of Eagle(the"Board"),and WHEREAS, at its public hearing held on August 5, 2020; August 19, 2020; and January 6, 2021,the Planning Commission,based upon its findings,recommended approval with conditions of the proposed Special Use;and WHEREAS,at its regular public hearing of February 23,2021,March 1,2021,March 16,2021, and April 4, 2021,the Board considered the proposed Special Use; associated plans; the statements and concerns of the Applicant,the Eagle County Community Development and Engineering staff,and other interested persons;and the recommendation of the Planning Commission;and WHEREAS,based on the evidence,testimony,exhibits,and study of the Comprehensive Plan for the unincorporated areas of Eagle County and the Future Land Use Map (the "FLUM") for Eagle County, as well as the comments of the Eagle County Department of Community Development, comments of public officials and agencies, recommendation of the Planning Commission, and comments from all interested parties,the Board,finds as follows: 1. THAT, proper publication and public notice was provided as required by the ECLUR and state law for the hearings before the Planning Commission and the Board. 2. THAT, the Board finds that the application shall be reviewed pursuant to ECLUR§ 5-250,Special Uses. 3. THAT,the application for Special Use for the Property complies with the standards in ECLUR Section 5-250.B-Standards for Special Use,as set forth below: A. Consistent with the Comprehensive Plan. Pursuant to Section 5-250.B.1,the Special Use, as conditioned, is in substantial conformance with the policies of the 2005 Eagle County Comprehensive Plan including the goals of General Development, Economic Resources, Water Resources,Wildlife Resources,and Environmental Quality.Specifically,as set forth in the staff report,the Special Use meets a preponderance of the master plan goals,policies and objectives, while adhering to the FLUM designation and prescribed uses. Areas of conformance include: preservation of scenic resources, quality of life options, preservation of agricultural uses,impacts on natural and built environment,location of appropriate uses, recruiting of new industries, helping existing businesses remain vigilant, protection of surface and ground water resources, protection of wildlife habitat and migration corridors, impacts on adjacent properties,preservation of rural character,environmentally friendly and sustainable practices, and cluster development. To preserve rural character of the area, Condition 1 is applied to ensure the MIP is constructed to be generally consistent with the surrounding rural character and agricultural uses.Thus,as conditioned,the Special Use is in 2 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E substantial conformance with applicable policies within the Eagle County Comprehensive Plan. B. Compatibility. Pursuant to Section 5-250.B.2, the Special Use is compatible with the surrounding land uses and does not have substantial impacts related to odor, visual and traffic. Due to the higher elevation of the upper bench and distance between property lines and adjacent residences, the impacts related to odor are likely to be minimal. Scenic and visual impacts are met through Condition 1.At its peak of operations,which occurs during the harvest period which is about four weeks in the fall,the Special Use will employ up to 20 people which will generate up to 30 vehicle trips per day. Due to the rural context of the Property and the low traffic numbers of the Special Use, impacts to adjacent infrastructure and services are not anticipated. Thus, as conditioned, the Special Use will be generally compatible with the existing and currently permissible future uses of adjacent land and other substantially impacted land,services,or infrastructure improvements. C. Zone District Standards. Pursuant to Section 5-250.B.3, staff reviewed the Special Use for all applicable zone district standards related to reservoirs and dams, water impoundment, Marijuana Cultivation including Manufacturing or Testing, and the Resource zone district dimensional limitations.To meet all applicable zone district standards Conditions 2,3,4 and 6 are applied. Condition 2 ensures that the construction of the three water storage ponds protect natural resources and complies with the request of the Memorandum from the Colorado Division of Water Resources dated March 5,2020.Condition 3 ensures all buildings follow the stream setback requirements at the time of a building permit.Condition 4 ensures that the Special Use has a legal water supply for its potable and non-potable water requirements and such water supply meets water quality requirements.Condition 6 ensures that the Applicant obtain a variance from improvement standards for the Property's driveway prior to the issuance of a building permit on the Property.Thus,the Special Use,as conditioned,does comply with the standards of the zone district in which it is located and the standards applicable to the particular use,as identified in ECLUR. D. Design Minimizes Adverse Impact.Pursuant to Section 5-250.B.4,the design of the Special Use reasonably avoids adverse impacts, including visual impacts of the Special Use on adjacent lands, including trash, traffic, service delivery, parking and loading, odors, noise, glare,and vibration and it will not otherwise cause or create a nuisance.For this type of use, noise,glare,and vibration are not anticipated to be impacts.The parking and loading to serve the Special Use are located completely within the Property,adequately screened,and meets the requirements of the ECLUR.The Proposed Special Use will ensure that all trash will be secured in an on-site bear proof dumpster. Items that can be recycled will be taken to the recycling center in Gypsum by employees.The need for larger service or delivery vehicles is limited with less than one vehicle per week over the course of the year as described in the application materials.The roadway is adequate for the existing use and the Special Use.Thus, the Special Use,as conditioned,does minimize adverse impacts on adjacent lands. E. Design Minimizes Environmental Impact.Pursuant to Section 5-250.B.5,the design of the Special Use minimizes environmental impacts and will not cause significant deterioration of water and air resources,wildlife habitat,scenic resources,and other natural resources.The Special Use incorporates a drainage plan to minimize water quality impacts. Due to the Special Use's proximity to the Gypsum Creek confluence, ECLUR regulations that protect water quality, including stream setback requirements and the storm drainage regulations, apply.These standards will be reviewed at the time of building permit,per Conditions 2 and 3 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E 3. The proposed 20kw turbine and pipe inlet are not anticipated to have impacts to water resources as the Applicant committed to developing the turbine and inlet in compliance with the requirements of ECLUR Section 3-310Cc - Small Hydroelectric Energy and will demonstrate that riparian and wildlife habitat will not be adversely affected at the time of a building permit application. The MIP is intended to be a 'closed system' that produces no contaminants or hazardous materials into the air.The Special Use utilizes a pellet boiler that consumes beetle kill pellets to heat the shipping containers and barns on the upper bench. The pellet boiler was implemented without proper permitting,which is an ECLUR violation;therefore,it must have a retroactive building permit as required through Condition 9. A fence consistent with the recommendations of Colorado Parks and Wildlife will be installed to prevent wildlife from entering the outdoor cultivation area and will incorporate bear proof trash facilities at the upper and lower benches.The natural topography and vegetation of the Property as well as visual screening efforts of the Applicant significantly reduce the likelihood of impacts to scenic resources.Thus,the Special Use,as conditioned,will minimize environmental impacts, and will not cause significant deterioration of water and air resources,wildlife habitat,scenic, and other natural resources. F. Impact on Public Facilities. Pursuant to Section 5-250.B.6, the Special Use will be adequately served by public facilities and services, including roads, potable water and wastewater facilities,police and fire protection,and emergency medical services.Due to the rural location as well as the proposed uses,adequate pedestrian paths,schools,and parks are not applicable.To meet all applicable related impacts on public facilities,Conditions 4,6,7,8, and 10 are applied. Conditions 4 and 6 are described above under Zone District Standards. Condition 7 ensures that the bridge located on the Property designed meets all Eagle County Standards for access including but not limited to loading and hydraulic capacity. Condition 8 ensures that a road impact fee is paid prior to the issuance of a building permit on the Property. Condition 10 ensures the secondary driveway used to access the MIP meets all Eagle County Road standards.Thus,the Special Use,as conditioned,will be adequately served by public facilities and services, including roads, pedestrian paths, potable water and wastewater facilities, parks, schools, police and fire protection, and emergency medical services. G. Site Development Standards. Pursuant to Section 5-250.B.7, the Special Use is in conformance with this standard with Conditions 5, 6, 7, 8, 10, and 12. The Special Use can satisfy most of the Site Development Standards found in Article 4 of the ECLUR including the Off-Street Parking and Loading Standards, Landscaping and Illumination, Sign Regulations, and the Commercial and Industrial Performance Standards. Conditions 6, 7, 8, and 10 are explained in the above sections.Condition 5 ensures a geological hazard study is completed for all structures located on the Property. Condition 12 ensures that the pond proposed on the Property for fire suppression includes analysis of whether slopes greater than 30% are impacted.Thus,as conditioned,the Special Use will comply with all applicable standards in the ECLUR,Article 4,Site Development Standards. H. Other Provisions. Pursuant to Section 5-250.B.8, the Special Use was reviewed for compliance with Chapter III of the ECLUR-Eagle County Building Resolution to evaluate the existing unpermitted buildings on the Property. The Special Use can be considered in conformance with the Eagle County Building Resolution with condition 9. Condition 9 ensures the existing and proposed buildings on the Property apply for building permits 4 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E within 90 calendar days following the date of the Board of County Commissioners'approval of this file,ZS-9014.Condition 9 also allows the Special Use to expand cultivation to a total of ten acres and conduct such other activities as the State of Colorado may require in connection therewith. The Special Use was also reviewed for future compliance of the standards for approval of a special use permit and,therefore, Condition 11 is applied.Condition 11 limits the approval to one year to ensure that the operation of the special use complies with all conditions of the Special Use and ECLUR standards. Thus, the Special Use, as conditioned, does comply with all standards required by all other applicable provisions of the ECLUR for use,layout,and general development characteristics. RESOLUTION NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of the County of Eagle,State of Colorado: THAT the foregoing Recitals are incorporated herein. THAT this application for a Special Use Permit is hereby approved,subject to the following conditions, and that violation of any condition shall be the basis for revocation of the Special Use Permit pursuant to the ECLUR: 1. In order to ensure that the special use satisfies the ECLUR 5-250.B.1 standard that it be in substantial conformance with the Eagle County Comprehensive Plan and the ECLUR 5-250.B.2 standard that it be compatible with the existing and currently permissible future uses of adjacent land, the Applicant has voluntarily agreed to construct the MIP Extraction Facility (MIP)in an architectural style that is generally consistent with the surrounding rural character and agricultural uses. In general,the MIP shall be constructed of concrete or wood,of an earth- tone color, and with a brown metal roof consistent with the roofing on other structures on Applicant's property (collectively the "Design Characteristics"). Applicant agrees to submit plans for such MIP facility to the County Community Development Director(CDD)not less than fourteen (14)days prior to submission of an application for a building permit for such facility. The CDD's review will confirm that the MIP facility plans conform with the Design Characteristics and such review shall not exceed this purpose. The CDD will respond to the Applicant within 21 calendar days of submission of the plans with a determination as to whether the plans conform with the Design Characteristics. If the plans do not conform with the Design Characteristics, Applicant shall revise such plans to bring them into conformance within a timeframe agreed upon by CDD and Applicant. 2. In order to ensure that the special use satisfies the ECLUR 5-250.B.5 standard that it minimize environmental impacts and does not cause significant deterioration of water and air resources, wildlife habitat,scenic resources and other natural resources,at the time of grading or building permit application for excavation of the two ponds adjacent to Gypsum Creek, the Applicant shall comply with the continuing paragraph at the top of page two of the Memorandum from the Colorado Division of Water Resources dated March 5,2020,attached as Exhibit A. 3. In order to ensure that the special use satisfies the ECLUR 5-250.B.3 standard that it comply with the standards of the zone district in which it is located, at the time of grading or building permit application for any improvements or structures(including shipping containers) used in operation of the special use on the lower bench of the Property,the Applicant shall provide plans, 5 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E prepared by a Colorado licensed engineer, demonstrating that all such improvements and structures (including shipping containers) meet the requirements of the applicable Eagle County stream setback regulations in place at that time of the submission. 4. In order to ensure that the special use satisfies the ECLUR 5-250.B.6 standard that it be adequately served by public facilities including water,at the time of building permit application for any improvement or structures (including shipping containers) used in operation of the special use which require potable water, the Applicant will provide evidence that such water sources (i) are legal and in compliance with Colorado law, and (ii) satisfy the water quality requirements imposed by the Colorado Department of Public Health and Environment or other governing authority. In the event the water source is not of a permanent nature, the Applicant shall submit to the County by June 1 of each year the special use permit is in effect documentation adequate to demonstrate that: (i) the special use is served by a legal water source; (ii) the effective period of such water source;and(iii)that the special use is served by adequate potable water. 5. At the time of building permit application for any improvements or structures (including shipping containers)used in operation of the special use on the lower bench,the Applicant shall include a report prepared by a licensed geotechnical engineer assessing the geologic hazards at the proposed improvement or structure location and any mitigation measures to be implemented if necessary. 6. In order to ensure that the special use satisfies the ECLUR 5-250.B.6 standard that it be adequately served by public facilities and services including police and fire protection, and emergency medical services and the ECLUR 5-250.B.7 standard that it comply with the appropriate standards in Article 4,Site Development Standards, at the time of building permit application for any improvements or structures (including shipping containers) used in operation of the special use, the Applicant shall demonstrate that the special use is adequately served by public facilities and services, including roads and police and fire protection and emergency medical services.At the time of such building permit application,Applicant shall also file an application requesting approval of any necessary Variances from Improvement Standards regarding grade and emergency vehicle turnaround pursuant to the Eagle County land use regulations in effect at time of submission. The Building Department shall not issue building permits for any improvements or structures (including shipping containers) used in operation of the special use, unless and until the Applicant has obtained approval of such Variance from Improvement Standards. 7. At the time the bridge providing access to the upper bench is substantially rehabilitated or replaced, such rehabilitated/new bridge must be designed to meet all applicable standards at that time including but not limited to Eagle County Standards for access design, loading, and hydraulic capacity. 8. The Applicant shall pay the road impact fee of$5,977 prior to issuance of the first building permit for any improvement or structure used in operation of the special use. 9. The Applicant shall apply for and obtain approval of building permits and any other applicable permits for all existing structures(including shipping containers)which require F-1 Industrial Structure permitting and for any associated electrical, plumbing and mechanical systems (including pellet boilers) used in operation of the special use on the Property ("Required 6 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91B79AFC7D5E Permits") within 90 calendar days following the date of the of the Board of County Commissioners' approval of this file, ZS-9014, or such later date as agreed to between the Applicant and the Eagle County Building Official. Applicable permits include mechanical, electrical, plumbing and grading permits. No new uses approved under File ZS-9014 shall be commenced until issuance of all Required Permits. Notwithstanding the foregoing, upon Applicant's submittal of an application for the Required Permits,Applicant shall be authorized under this permit to expand its cultivation to a total of 10 acres and conduct such other activities as the State of Colorado may require in connection therewith, including without limitation, fencing. In the event this Permit expires under Condition 11 below,Applicant's ability to plant expanded acreage shall also terminate. 10. Upon approval of File ZS-9014,Applicant will have the right to construct a secondary driveway from the lower bench MIP facility at grade to connect to Gypsum Creek Road at approximately Mile Marker 11.The driveway shall meet all ECLUR road standards,as the same may be modified by an approved variance. This secondary driveway shall be in addition to the internal connection/driveway between the lower bench and the existing driveway near the main house, as shown on the LKP Engineering,Inc.plans dated May 7,2020. 11.In order to ensure that the operation of the special use complies with all of the applicant's representations,the terms of the Special Use Permit and the conditions of approval(collectively the "Permit"), the term of this Permit shall be limited to one year from the date of approval of the Permit by the Board of County Commissioners or through April 6, 2022 (the "expiration date"),subject to continued compliance therewith. Not less than ninety(90)calendar days prior to the expiration date of the Permit, the applicant shall submit a written report to the Community Development Director ("Director") demonstrating that the special use complies with the terms of the Permit. Following receipt of such report, the Director may inspect the Property for compliance. The Director, within thirty (30) calendar days of submittal of the report,shall determine in its reasonable discretion whether the special use is in compliance with the Permit.If the Director determines that the special use is in compliance with the Permit,then the Permit shall be extended as set forth in the Duration and Compliance section of the ECLUR regarding special use permits. If the Director reasonably determines that the special use is not in compliance,then the Director shall provide written notice to the applicant,not less than forty-five(45)calendar days prior to the expiration date of the Permit, to correct the non-compliance within ten(10)calendar days after the date of such notice.Such written notice shall identify with specificity the nature of the non-compliance and the corrective action required. The Director shall inspect the non- compliance not less than eleven (11) and no more than fifteen (15) calendar days after the notice to confirm that such non-compliance has been corrected. If the Director reasonably determines the non-compliance persists, the Permit shall expire as of the date of the Director's written determination of such continued non-compliance. The applicant may appeal the Director's determination pursuant to the applicable provisions of the ECLUR. If,after the notice and correction, the Director determines that the special use is in compliance with the Permit, then the Permit shall be extended as set forth in the Duration and Compliance section of the ECLUR regarding special use permits. 12.At the time of building or grading permit application for the fire suppression pond used in operation of the special use permit on the upper bench of the Property, the Applicant shall provide a detailed geotechnical and geohazard evaluation for the design prepared by a 7 DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E Colorado licensed engineer. This evaluation shall include an analysis of whether slopes greater than 30%are impacted and any recommendations to be incorporated into the design. If the fire suppression pond or any related improvements are on a slope of 30%or greater,Eagle County will refer the fire suppression.pond evaluation to the Colorado Geologic Survey ("CGS")for review. Based on CGS review, the County Engineer will determine whether Applicant must provide additional information prepared by a Colorado licensed engineer to address the CGS concerns if any prior to approval of the building or grading permit. THAT,this Special Use Permit shall be subject to review as provided for by the ECLUR. THAT, the Board directs the Department of Community Development to provide a copy of this Resolution to the Applicant. THAT,the Board hereby finds,determines and declares that this Resolution is necessary for the health,safety and welfare of the citizens of Eagle County. MOVED, READ AND ADOPTED by the Board of County Commissioners of the County of Eagle,State of Colorado,at its regular meeting held the 29th day of June ,2021, nunc pro tunc to April 6,2021. COUNTY OF EAGLE,STATE OF 1/411.,:c EAGiiC�� COLORADO,By and Through Its BOARD OF COUNTY COMMISSIONERS ATTEST: • ,—DocuSigned by: Co[OR A©° B r—DocuSigned by: 41'1° wt, ykoLIf ScLuvv' ClM t1ieoard Matt S-c lie 'NP718E0473... County Commissioners Chair ,—DocuSigned by: r[1�lr,V-l�,'ryN I vIJ - K thy''Cni Hater Henry Commissioner ,—DocuSigned by: '/gC! Jeanhn1Ceney Commissioner Commissioner Chandler-Henry seconded adoption of the foregoing resolution.The roll having been called,the vote was as follows: Commissioner Scherr Aye Commissioner Chandler-Henry Aye Commissioner McQueeney Aye DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E R C,. Division of Water Resources DNR Department of Natural Resources MEMORANDUM Date: March 5, 2020 To: Tez Hawkins, Staff Planner, Eagle County Community Development From: Megan Sullivan, P.E., Water Resource Engineer Re: Gypsum Creek Marijuana Cultivation, Special Use Permit; ZS-009014-2019 We have reviewed the proposal for a special use permit to allow for the expansion of an existing outdoor marijuana cultivation facility from 2 acres to 40 acres. The expansion is also proposing to add a 5,000 square foot marijuana infused product (MIP) extraction facility, a 3,500 MIP storage structure, two barn structures, and thirty shipping containers to the property. The property is a 389.9 acre parcel located at 11157 Gypsum Creek Road on Gypsum Creek in Eagle County. Water use estimates were not provided in the submittal materials. According to the information in the application, the applicant intends irrigate the 40 acres of the outdoor grow with water diverted under decreed irrigation water rights for the Y Et V Ditch No. 4. At times when those decreed direct flow irrigation rights are not in priority and must be curtailed, the applicant will request an administrative exchange authorized by the Division Engineer to release water from White Hawk Pond, which is located on the applicant's property, to Gypsum Creek and then divert that water through the Y Et V Ditch No. 4 diversion structure. White Hawk Pond does not have a decreed storage right and therefore must be operated as the most junior structure on the stream system. This means that typically the only time it can be filled is when there is no call from senior water rights to curtail junior diversions - aka a period of "free river", which is usually during the spring run-off. However, even if water is stored during a free river period, in order to release that water and then divert at the Y Et V Ditch No. 4 diversion structure, the applicant must have the Division Engineer approve an administrative exchange. Administrative exchanges are not perpetual and there is no guarantee each time that the exchange will be approved even if one had been approved previously. The approval of the administrative exchange depends on the hydrologic conditions as the time of the request. If an administrative exchange cannot be approved and the direct flow irrigation rights are not in priority, the applicant will have to find another legal source of water to keep the 40 acres irrigated. The applicant has indicated that they may construct two more ponds on the property. These ponds will also be junior structures within the stream system and therefore will likely only be able to be filled during periods of free river. However, it's not clear from the information provided what the water stored in these proposed ponds will supply. If the water is to be used in a similar manner as White Hawk Pond, then an administrative exchange must be approved for these structures as well. Furthermore, the applicant should be aware that any excavation during construction that exposes groundwater is a well by statutory definition and 1313 Sherman Street, Room 821, Denver,CO 80203 P 303.866.3581 www.cotorado.gov/water 47(4 t.-., Jared S. Polls,Governor I Dan Gibbs, Executive Director I Kevin G. Rein,State Engineer/Director (f ; ,; )*) "iale.,* DocuSign Envelope ID:7842EDEF-OAAA-4F44-9412-91 B79AFC7D5E Tez Hawkins, Eagle County Community Development March 5, 2020 Gypsum Creek Marijuana Cultivation Facility, Special Use Permit; ZS-009014-2019 Page 2 of 2 would require a well permit. If groundwater is exposed during the excavation of the ponds, in order to store surface water in the pond, the pond would either have to be lined to prevent infiltration of groundwater or backfilled to an elevation above the water table. Otherwise the exposed groundwater would be subject to evaporation causing an out-of-priority depletion on the stream system requiring a plan for augmentation. The applicant has indicated that the MIP facility will require water for cleaning the facility, washing of materials and hand washing, and a toilet room. There was no discussion of a drinking water supply and the source for the facility is "water from the Colorado River". The applicant should provide the county with additional detail regarding the supply for the MIP facility. Please note that the decreed water rights for the Y £t V Ditch No. 4 are for irrigation purposes only and cannot be used for manufacturing or commercial purposes including drinking and sanitary uses. These water rights are also direct flow rights and cannot be stored in a pond for more than 72 hours. However, the White Hawk Pond is not a decreed storage structure and any water stored during a period of free river is not limited to a specific use. Though the applicant should coordinate with the Division Engineer and Water Commissioner regarding administration of Gypsum Creek and the subsequent use of water stored under free river conditions. Finally, according to our records, a well permit was issued to construct a well on the applicant's property in 2000. Permit No. 225738 was issued on May 17, 2000 with an expiration date of May 17, 2002. The permitted use of groundwater is limited to ordinary household purposes inside not more than three single family dwellings, the irrigation of up to one acre of home lawn and gardens and the watering of domestic animals. Evidence of construction prior to the expiration date has not been received and therefore at this time, this permit is not considered to be valid. If the well has been constructed, in order to reinstate this permit the applicant must either provide a Well Construction and Yield Estimate Report (GWS-31) or Post-Construction Well Inspection Report (GWS-68). Please note, this well cannot be used to supply the MIP facility or used for the outdoor cultivation without a permit that specifically allows for those uses and an augmentation plan may likely be required. Please feet free to contact me at 303-866-3581 if you or the applicant has any questions.