Notice: District Court, Water Division No. 2 - Case No. 2021CW3015

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Published Friday, April 23, 2021

DISTRICT COURT, WATER DIVISION NO. 2, COLORADO

 

TO:  ALL INTERESTED PARTIES

 

Pursuant to C.R.S. 37-92-302, you are hereby notified that the following case is a portion of the resume of applications and amendments filed and/or ordered published during the month of March 2021, in Water Division No. 2.  The Water Judge ordered this case be published in the Kiowa County Press in Kiowa County, Colorado. This publication can be viewed in its entirety on the state court website at: www.courts.state.co.us.

 

The name(s) and address(es) of applicant(s), description of water rights or conditional water rights and description of ruling sought as reflected by said application, or amendment, are as follows.

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CASE NO. 2021CW3015; CITY OF COLORADO SPRINGS, acting by and through its enterprise, Colorado Springs Utilities ("Utilities"), c/o Abigail Ortega, PE, Water Resources Manager, 1521 Hancock Expressway, MC 1825, Colorado Springs, CO 80903 (Please address all pleadings and inquiries regarding this matter to Applicant's attorneys: Michael J. Gustafson, Senior Attorney, City Attorney's Office - Utilities Division, 30 South Nevada Avenue, MC 510, Colorado Springs, CO 80903, Phone: (719) 385-5909; and David W. Robbins, No. 6112, Matthew A. Montgomery, No. 44039, Hill & Robbins, P.C., 1660 Lincoln St., Suite 2720, Denver, CO  80202, Phone: (303) 296-8100)  

Application for Conditional Appropriative Rights of Substitution and Exchange 

BENT, CROWLEY, KIOWA, OTERO, AND PUEBLO COUNTIES

2. Summary of Application: Colorado Springs Utilities ("Utilities") is an enterprise of the City of Colorado Springs and is a four service public municipal utility that provides, among other things, municipal and industrial water service to the City of Colorado Springs, Colorado ("Colorado Springs"), and several areas within the vicinity of Colorado Springs.  Areas served by Utilities are referred to as the "Service Area" as it exists now and or as it may exist in the future.  Utilities is the owner of 2,500 shares of common stock in the Lower Arkansas Water Management Association ("LAWMA") which is represented by LAWMA Share Certificate No. 829, attached to the application as Exhibit A ("Utilities' LAWMA Shares"). (All exhibits mentioned herein are incorporated by reference and may be inspected at the office of the clerk of this Court.) Each year the LAWMA Board of Directors allocates a certain amount of fully consumable water to each share of LAWMA common stock under the procedures set forth in LAWMA's Bylaws and Articles of Incorporation (individually, an "Annual Allocation" and collectively, the "Annual Allocations").  In 2018, LAWMA and Utilities entered into a Water Sharing Agreement under which the Annual Allocation of water attributable to each of Utilities' LAWMA Shares will be used to implement an Alternative Transfer Method (also known as an "ATM") pursuant to which Utilities will, in five out of every 10 consecutive years, forgo the Annual Allocation to each of Utilities' LAWMA Shares in exchange for, in the other five out of every 10 consecutive years, the direct delivery from LAWMA of fully consumable water decreed for all beneficial uses in Utilities' Service Area in an amount equal to the Annual Allocation to each of Utilities' LAWMA Shares. This water is a "Temporary Use Agreement Water" or "TU Water" and may be exchanged or used under any existing or future decree or administrative approval that provides for the exchange of TU Water, subject to the terms and conditions of the appropriate decree, including, but not limited to, the Decrees entered in Case Nos. 05CW96, 07CW122, 16CW3056, and the Decrees entered in pending Case Nos. 19CW3052 and 19CW3053 (Water Div. 2).  In the five out of every 10 consecutive years that Utilities forgoes the Annual Allocation of water to each of Utilities' LAWMA Shares, the foregone allocation will be available to LAWMA's other shareholders. The Water Sharing Agreement provides that Utilities can exchange the TU Water upstream into Pueblo Reservoir or Lake Meredith, for subsequent delivery to Utilities' municipal system including, without limitation, into the storage components of that system. The Water Sharing Agreement is attached as Exhibit B. The Water Sharing Agreement contemplates that, in years when Utilities takes delivery of fully consumable water in an amount equal to the Annual Allocation to each of Utilities' LAWMA Shares, LAWMA will deliver the TU Water to the Arkansas River or its tributaries in or upstream of John Martin Dam. The Water Sharing Agreement further contemplates that the TU Water will be derived from 3,303 shares of stock in the Fort Lyon Canal Company owned by LAWMA, water available to LAWMA's Highland Canal water rights changed in Case Nos. 02CW181 and 10CW85 (Water Div. 2), or other source(s) of fully consumable water owned or controlled by LAWMA that are mutually acceptable to LAWMA and Utilities. In 2019, LAWMA filed an application with the Water Court for Water Division 2 in pending Case No. 19CW3036, which seeks, among other things, to change the use of 3,303 shares of stock in the Fort Lyon Canal Company to permit LAWMA to deliver TU Water to the Arkansas River or its tributaries in or above John Martin Dam for subsequent use by Utilities. This Application seeks judicial confirmation, pursuant to C.R.S. SSSS37-80-120, 37-82-106, 37-83-104, and 37-92-302, of conditional appropriative rights of substitution and exchange, under which the TU Water will be delivered to the Arkansas River or its tributaries upstream of John Martin Dam and an equivalent amount of water will be diverted and stored upstream in the Colorado Canal System or Pueblo Reservoir; or diverted and directly delivered to the intake to the Fountain Valley Conduit ("FVC") and the intake to the Southern Delivery System ("SDS"), either directly, or by stepped, intermediate exchange(s), to the headgate of the Colorado Canal, the headgate of the Fort Lyon Canal, or the headgate of the Fort Lyon Storage Canal. The TU Water will be subsequently delivered to Utilities' municipal system, where it will be stored, used, reused, successively used and/or used to extinction, directly, after storage, and/or by exchange, using any structure now existing or hereafter constructed that is lawfully available for use by Colorado Springs for all decreed uses of the TU Water. LAWMA will deliver TU Water attributable to LAWMA's 3,303 shares of stock in the Fort Lyon Canal Company to the Arkansas River via the Horse Creek Augmentation Station, the Gageby Creek Farm 36 Augmentation Station, the Gageby Creek Farm 27 Augmentation Station, or the Hasty Gate 145 Augmentation Station. When Utilities takes delivery of TU Water attributable to LAWMA's 3,303 shares of common stock in the Fort Lyon Canal Company, the TU Water will be exchanged upstream from the confluence of Horse Creek and the Arkansas River or the John Martin Dam.  Utilities acknowledges that it does not have any present right to store water in John Martin Reservoir and that any use of John Martin Reservoir may be subject to subject to local, state, or federal permitting or approvals beyond the scope of this application. LAWMA will deliver TU Water attributable to LAWMA's Highland Canal Water Rights to the confluence of the Purgatoire River and the Arkansas River. When Utilities takes delivery of TU Water attributable to LAWMA's Highland Canal Water Rights, the TU Water will be exchanged upstream from the confluence of the Purgatoire River and the Arkansas River. When the TU Water is exchanged to the headgate of the Fort Lyon Canal or the headgate of the Fort Lyon Storage Canal, such water may be stored in Adobe Creek Reservoir (including a future enlargement of Adobe Reservoir) prior to subsequent exchange upstream. Water exchanged to the headgates of the Fort Lyon Canal and the Fort Lyon Storage Canal, including water stored in Adobe Creek Reservoir, will be subsequently released to Gageby Creek, and exchanged upstream from the John Martin Dam. Utilities acknowledges that any use of the Fort Lyon Canal, the Fort Lyon Storage Canal, or Adobe Creek Reservoir is subject to the approval of and an agreement with the Fort Lyon Canal Company and may be subject to local, state, or federal permitting or approvals beyond the scope of this water court application. When the TU Water is exchanged to the headgate of the Colorado Canal, such water may be stored in Lake Meredith, Lake Henry, or a future reservoir to be constructed on or near Haynes Creek prior to subsequent exchange upstream. TU Water stored in Lake Henry and Lake Meredith will be subsequently exchanged into Utilities' municipal system under the Decree entered in Consolidated Case Nos. 84CW62, 84CW63, and 84CW64 (Water Div. 2), subject to the terms and conditions of that decree.  TU Water stored in the reservoir to be constructed on Haynes Creek will be released into the Colorado Canal Wasteway and subsequently exchanged upstream from the confluence of the Colorado Canal Wasteway and the Arkansas River. Utilities acknowledges that any use of a future reservoir to be constructed on Haynes Creek is subject to the approval of and an agreement with the Colorado Canal Company, the owner(s) of the reservoir, and may be subject to local, state, or federal permitting or approvals beyond the scope of this water court application. Utilities acknowledges that the use of FVC and SDS may be subject to local, state, or federal permitting or approvals beyond the scope of this water court application.  Utilities acknowledges that the use of Pueblo Reservoir may be subject to local, state, or federal permitting or approvals beyond the scope of this water court application. II. Application for Conditional Appropriative Rights of Exchange. 3. Name of structures, legal description of exchange from points, exchange to points, and exchange reach: 3.1. Structures from which substitute supplies will be measured or released to the Arkansas River or its tributaries: 3.1.1 Horse Creek Augmentation Station (WDID 1701000) (Station ID ARF049CO):  Located in the SW1/4 of the NE1/4 of Section 33, T22S, R53W in Bent County, Colorado3.1.2. Gageby Creek Farm 36 Augmentation Station (WDID 6701006) (Station ID ARF125CO ): Located in the SE1/4 of the SW1/4 of Section 14, T22S, R51W in Bent County, Colorado3.1.3. Gageby Creek Farm 27 Augmentation Station (WDID 6701002) (Station ID ARF126CO): Located in the NW1/4 of the SE1/4 of Section 26, T22S, R51W in Bent County, Colorado3.1.4. Hasty Gate 145 Augmentation Station (WDID 6701005) (Station ID ARF145CO): Located in the SW1/4 of the SE1/4 of Section 36, T22S, R50W in Bent County, Colorado. 3.1.5. Purgatoire River Below Highland Dam Near Las Animas Stream Gage: (WDID 1700900): Located in the NE1/4 of the SW1/4 of Section 1, T25S, R 53W in Bent County, Colorado. 3.1.6.  Adobe Creek Reservoir (WDID 1703546):  In T20S and T21S, R52W of the 6th P.M.  UTM coordinates for dam:  650655.6 E, 4233245.9 N. 3.1.7. Haynes Creek Reservoir (WDID 1403621): To be constructed in Sections 5, 8 and 9, T21S, R61W. UTM 565517.0 E 4233461.0 N (Digitized). 3.2. Locations from which substitute supplies will be exchanged ("Exchange from Points"): 3.2.1. John Martin Reservoir Dam: John Martin Reservoir (WDID 6703512) is located in all or portions of Sections 24, 25, 26, 27, 33, 34, 35, and 36, T22S, R51W; Sections 28, 29, 30, 31, 32, 33, 34, and 35, T22S, R50W; Sections 5, 6, 7, 8, 17, and 18, T23S, R49W; Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, and 30, T23S, R50W; Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 17, and 18, T23S, R51W; and Sections 1, 12, and 13, T23S, R52W; all of the 6th P.M., in Bent County, Colorado.  The dam is located in Sections 5, 8, and 17 of T23S, R49W of the 6th P.M., in Bent County, Colorado. UTM coordinates for dam:  680795.0 E, 4215646.0 N. 3.2.2. The Confluence of the Purgatoire River and the Arkansas River: Located in the SW1/4 of the NW1/4 of Section 7, T23S, R51W in Bent County, Colorado. UTM 659871.4 E, 4214598.6 N (Digitized). 3.2.3. The Confluence of Horse Creek and the Arkansas River: Located in the SE1/4 of the SW1/4 of Section 2, T23S, R53W. UTM 647337.6 E, 4214948.4 N (Digitized). 3.2.4. The Confluence of the Colorado Canal Wasteway and the Arkansas River: On the north bank of the Arkansas River in the NW1/4 of the SE1/4 of Section 8, T21S, R61W of the 6th P.M., in Pueblo County, Colorado. UTM 565998.4 E, 4231966.5 N (Digitized). 3.2.5. Supplemental Locations: Any other location on the main stem of the Arkansas River or its tributaries at or above John Martin Dam where LAWMA is capable of delivering water. A map depicting the approximate locations of the release points and Exchange from Points is attached as Exhibit C to this Application. 3.3 Locations to which substitute supplies will be exchanged ("Exchange to Points") and stored: 3.3.1. Pueblo Reservoir (WDID 1403526): The Reservoir is located at a point at the intersection of Pueblo Dam axis and the Arkansas River whence the NE corner of Section 36, T20S, R66W of the 6th P.M. bears north 61o21'20" east a distance of 2,511.05 feet, in Pueblo County, Colorado.  Said Reservoir will inundate all or portions of Sections 7, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36, T20S, R66W; Sections 1, 2, 3, 4, 5, 9, 10, and 11, T21S, R66W; and Sections 5, 8, 9, 13, 14, 15, 16, 22, 23, 24, and 25, T20S, R67W; all of the 6th P.M. in Pueblo County, Colorado. UTM coordinates for dam:  524076.0 E, 4235362.0 N. 3.3.2. The Inlet to the Southern Delivery System: The inlet to the SDS Pipeline is in Pueblo Reservoir.  The location of Pueblo Reservoir is described in paragraph 3.3.1., above. 3.3.3. The Inlet to the Fountain Valley Conduit: The Inlet to the FVC Pipeline is in Pueblo Reservoir. The location of Pueblo Reservoir is described in paragraph 3.3.1., above. 3.3.4. Headgate of the Fort Lyon Canal (WDID 1700553):  On the north bank of the Arkansas River in the SW1/4 of the SE1/4 of Section 29, T23S, R55W of the 6th P.M., in Otero County, Colorado. UTM 623873.7 E, 4207975.0 N (GPS). TU Water diverted at the headgate may be delivered through the Fort Lyon Canal System to storage in Adobe Creek Reservoir, described in subparagraph 3.3.6 below. 3.3.5. Headgate of the Fort Lyon Storage Canal (WDID 1700648):  A point in the county of Crowley, state of Colorado, on the north bank of the Arkansas River, in the NW1/4 of the SE1/4 of Section 20, T22S, R57W of the 6th P.M., UTM 604443.0 E, 4219543.8 N (GPS). TU Water diverted at the headgate may be delivered through the Fort Lyon Canal System to storage in Adobe Creek Reservoir, described in subparagraph 3.3.6 below. 3.3.6. Adobe Creek Reservoir (WDID 1703546):  In T20S and T21S, R52W of the 6th P.M.  UTM coordinates for dam:  650655.6 E, 4233245.9 N. 3.3.7. Headgate of the Colorado Canal (WDID 1700540):  On the north bank of the Arkansas River in the NW1/4 of the NW1/4 of Section 11, T21S, R62W, in Pueblo County, Colorado.  UTM 560241.3 E, 4233243.3 N (GPS). TU Water diverted at the headgate may be delivered through the Colorado Canal System to storage in Lake Meredith, Lake Henry, and Haynes Creek Reservoir described in subparagraphs 3.3.8, 3.3.9, and 3.3.10 below. 3.3.8. Lake Meredith(WDID 1403525): Located in all or portions of Sections 15, 16, 19, 20, 21, 22, 27, 28, 29, 30, 31, 32, and 33, Township 21 S, Range 56 W; Sections l and 12, Township 22S, Range 57W; Section 6, Township 22 S, Range 56 W; and Sections 24, 25, and 36, Township 21 S, Range 57 W; all in the 6th P.M., in Crowley County, Colorado. Lake Meredith Reservoir dam axis and the centerline of the outlet canal intersect at a point located in the NW1/4 of the SW1/4 of Section 12, Township 22S, Range 57W of the 6th P. M., at a point from which the W1/4. 3.3.9. Lake Henry (WDID 1403524): In Sections 31 and 32, T20S, R56W, and Sections 5 and 6, T21S, R56W. UTM 612088.0 E, 4234275.1 N. 3.3.10. Haynes Creek Reservoir (WDID 1403621): To be constructed in Sections 5, 8 and 9, T21S, R61W. UTM 565517.0 E 4233461.0 N (Digitized). A map depicting the approximate locations of the Exchange to Points and storage locations is attached as Exhibit D to this Application. 4. Stream Reaches of Exchange:  The exchange reaches requested herein extend from the Exchange from Points described in paragraph 3.2, above, to the Exchange to Points described in paragraph 3.3, above. 5. Sources of Water to be Exchanged: The TU Water that will be delivered to Utilities by LAWMA pursuant to the Water Sharing Agreement which includes, but is not limited to, water derived from LAWMA's pro rata interest in the Fort Lyon Canal Company water rights described in Exhibit E that are subject of the change Case filed by LAWMA in District Court, Water Division 2, Case No. 19CW3036, hereto, and the Highland Canal water rights described in Exhibit F, hereto. 6. Exchange Operation: Fully consumable water derived from the sources described in paragraph 5, above, will be released from the release points and delivered to the Exchange from Points on the Arkansas River and an equal amount of water will be diverted by exchange upstream at the Exchange to Points for subsequent storage, delivery, use, reuse, successive reuse, and/or use to extinction in Applicant's municipal water supply system and Service Area. Use in Applicant's municipal water supply system includes all beneficial uses including, without limitation, all decreed uses, all places of use, and places of storage of the source of the substitute supply, such as all decreed uses recognized in LAWMA's Decree in Case No. 19CW3036 or in a future change decree obtained by LAWMA for its Highland Canal water rights.  Transit losses shall be assessed by State water administration officials as necessary. 7. Appropriation: 7.1 Appropriation Date: June 26, 2018. 7.2 How Appropriation was Initiated:  Approval of a resolution by the Colorado Springs City Council directing the filing of an application requesting the proposed exchanges. 7.3 Date Water Applied to Beneficial Use: Not applicable as the requested appropriative rights of exchange are conditional. 8. Amount Claimed: The exchanges described herein will operate on the Arkansas River and its tributaries from the Exchange from Points identified in paragraph 3.2 to the Exchange to Points identified in paragraph 3.3. The proposed rates of the exchanges requested herein are the lesser amount of the maximum rate of release of the TU Water from the Exchange from Points or the maximum rate of inflow into the Exchange to Points: 8.1 Maximum Release Rates from Structures from which substitute supplies will be released to the Arkansas River or its tributaries: 8.1.1 Horse Creek Augmentation Station:  22.91 cfs. 8.1.2 Gageby Creek Farm 36 Augmentation Station: 33.10 cfs. 8.1.3 Gageby Creek Farm 27 Augmentation Station: 67.10 cfs. 8.1.4 Hasty Gate 145 Augmentation Station: 6.78 cfs. 8.1.5 Purgatoire River Below Highland Dam Near Las Animas:  36.16 cfs.  8.1.6 Adobe Creek Reservoir:  400 cfs. 8.1.7 Haynes Creek Reservoir:  400 cfs. 8.2 Maximum Release Rates from the Exchange From Points: 8.2.1. The John Martin Reservoir Dam: 506.98 cfs. 8.2.2. The Confluence of the Purgatoire River and the Arkansas River: 36.16 cfs. 8.2.3. The Confluence of Horse Creek and the Arkansas River: 22.91 cfs. 8.2.4. The Confluence of the Colorado Canal Wasteway and the Arkansas River: 400 cfs. 8.3 Maximum Inflow to Exchange to Points using sources claimed herein: 8.3.1 Pueblo Reservoir: 966.05 cfs. 8.3.2 SDS Pipeline: 120.68 cfs. 8.3.3 FVC Pipeline: 19.80 cfs. 8.3.4 Headgate of Fort Lyon Canal: 566.05 cfs. 8.3.5 Headgate of Fort Lyon Storage Canal: 566.05 cfs. 8.3.6 Headgate of the Colorado Canal: 566.05 cfs. 9. Use or Proposed Use:  The water diverted pursuant to these appropriative rights of substitution and exchange will be stored, used, reused, successively used and/or used to extinction, directly, after storage, and/or by exchange, using any structure now existing or hereafter constructed that is lawfully available for use by Colorado Springs for any decreed beneficial use of the TU Water. 10. Place of Use: The place of use of water diverted pursuant to the exchanges shall include Applicant's service area as it exists now and as it may exist in the future, including any areas served by Applicant by extraterritorial agreement or other contract; for replacement of depletions on Fountain Creek accruing between Colorado Springs and the confluence of Fountain Creek and the Arkansas River; and in any location within the Arkansas River Basin for which water may be delivered by Applicant for augmentation, sale, or lease, and for such other uses as may be allowed by law.  Applicant's current service area is located as shown on Exhibit G. 11. Substituted water: The substituted water identified in paragraph 5 above is of a quality and continuity to meet the requirements for which the water of the senior appropriation normally has been used. 12. Integrated System: The Applicant owns and operates an integrated system for water diversion, transmission, storage, treatment, and distribution, as well as collection and treatment of the resultant wastewater for release, exchange, or reuse.  The conditional appropriative exchange rights that are the subject of this Application are a part of this integrated water system comprising all water rights decreed and used for development and operation of the Colorado Springs' municipal water supply system.  Applicant requests that reasonable diligence in the development of one component of the system comprises reasonable diligence in the development of all components. III. Name and Address of Owner of Land Upon Which Structures are Located. 13. Structures described in subparagraphs 3.1.1 - 3.1.4: Arkansas River Farms, LLC, 1400 16th Street, Suite 320, Denver, CO 80202. 14. Pueblo Reservoir:  U.S. Department of Interior, Bureau of Reclamation, Eastern Colorado Area Office, 11056 West County Road 18 E, Loveland, CO 80537-9711. 15. John Martin Reservoir: U.S. Army Corps of Engineers, Reservoir Manager, 29955 County Road 25.75, Hasty, CO 81044; Caddoa Sands LLC, 2010 Fox Mountain Point, Colorado Springs, CO 80906. 16. Lake Meredith: Lake Meredith Reservoir Company, 331 Main Street, Ordway, CO 81063.  17. Lake Henry: Lake Henry Reservoir Company, 331 Main Street, Ordway, CO 81063. 18. Colorado Canal: Colorado Canal Company, 331 Main Street, Ordway, CO 81063. 19. Haynes Creek Reservoir: Steven L. Fossel, 708 Soda Creek Drive, Evergreen, CO 80439. 20. Fort Lyon Canal, Fort Lyon Storage Canal and Adobe Reservoir: Fort Lyon Canal Company, 750 Bent Ave., Las Animas, CO 81054. 21. Purgatoire River Below Highland Dam Near Las Animas Stream Gage:  Davidson Ranch, LLP, 6145 County Road V1/2, Las Animas, CO 81054.

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THE WATER RIGHTS CLAIMED BY THE FOREGOING APPLICATION(S) MAY AFFECT IN PRIORITY ANY WATER RIGHTS CLAIMED OR HERETOFORE ADJUDICATED WITHIN THIS DIVISION AND OWNERS OF AFFECTED RIGHTS MUST APPEAR TO OBJECT AND PROTEST WITHIN THE TIME PROVIDED BY STATUTE, OR BE FOREVER BARRED.

 

YOU ARE HEREBY NOTIFIED that any party who wishes to oppose an application, or application as amended, may file with the Water Clerk a verified statement of opposition setting forth facts as to why the application should not be granted, or why it should be granted only in part or on certain conditions, such statement of opposition must be filed by the last day of May 2021, (forms available at Clerk's office or at www.courts.state.co.us, must be served on parties and certificate of service must be completed; filing fee $192.00).  The foregoing are resumes and the entire application, amendments, exhibits, maps and any other attachments filed in each case may be examined in the office of the Clerk for Water Division No. 2, at the address shown below.

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Witness my hand and the seal of this Court this 12th day of April 2021.

 

/s/ Michele M. Santistevan

Michele M. Santistevan, Clerk

District Court Water Div. 2

501 N. Elizabeth Street, Suite 116

Pueblo, CO 81003

 (719) 404-8832

 

(Court seal)

Published April 23, 2021

In The Kiowa County Press

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The Kiowa County Press is an independent newspaper published in Eads, Kiowa County, Colorado, and to the world at KiowaCountyPress.net.


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