Prraa Ii/ab DISTRI CT COURT VVATER DIVISION 5 DATE FELED: February 3, 2014 3:14 PM FILING ID: COLORADO CASE NUMBER: ZOIUCWBUS 109 8th Street, Suite 104 Glenwood Springs, CO 81601--3361 _c A I- Concerningfizhe Appiieation fo'r'VVa't'er'Right'so'f: THE BOARD 0F COMMISSIONERS FOR THE I A COURT USE ONLY Attorneys for the Colorado Water Conservation Board: Case No. 10CW305 JOHN W. SUTHERS, Attorney General SUSAN J. SCHNEIDER, #199611' Div. 5 First Assistant Attorney General EMA I. G. SCHULTZ, #40117* Assistant Attorney General 1300 Broadway, 7'31 Floor Denver, CO 80203 (720) 508-6311 and (T20) 508-6307 ""Counsel of Record susan.schneider@state.co.us ema.schul.tz@state.co.us ysnroar or AMENDED FINDINGSOF coroanno WATER CONSERVATION BOARD The Colorado Water Conservation Board by and through its undersigned counsel, hereby reports that on January 27, 2014 the CWCB, after deliberation in a public meeting, unanimously adopted the following abbreviated Amended Findings of Fact: - 1. The adjudication and administration of the proposed recreational in- Channel diversion will not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; 2. Material injury to existing instream flow water rights is not a basis for denial of the RICD, but should this RICD be constructed, the Applicant should consult with the Colorado Division of Parks and Wildlife before and during construction and maintenance of the RICD structures to assure that these actions 'clai'm'e'd,' will promote the maximum utilization of the Waters of the State. Report of Amended Comprehensive Findings of the Colorado Water Conservation Board Case No. IOCWBO5 Page 2 of 4 will not injure the natural environment that the instream flow water rights protect; and 3. The adjudication and administration of the RICD, in the amounts The CWCB's unanimously adopted Amended Comprehensive Findings of Fact .. are. a.ttach.ed-hereto.. - -- pursuant to the provisions of section C.R.S. (2013). Dated this 3d day of February, 2014. JOHN W. SUTHERS Attorney General Signed original on file the Office oftne Attorney General for the State of Colorado. 3/Ema I. G. Schultz EMA I. G. SCHULTZ, #40117* Assistant_Attorney General Natural Resources and Environment Section Attorneys for the CWCB *Counsel of Record - Report of Amended Comprehensive Findings of the Colorado Water Conservation Board Case No. 10CW305 Page 3 of 4 CERTIFICATE OF SERVICE This is to certify that on the 3d day of February 2014, I caused a true and correct copy of the foregoing REPORT OF AMENDED COMPREHENSIVE FINDINGS OF THECOLORADO CONSERVATION BOARD to be served via t1rsfElass to each of iili? following: Party Type Attorney Name Aspen, City Of Opposer Andrea Benson Covell Basalt Water Conservancy District Opposer Christopher Geiger David Hallford Colorado River Water Conservation Distri Opposer I Jason Turner Peter Fleming Colorado Water Conservation Boa rd Opposer . Ema Schultz Susan -Sclmeider Div. 5 Engineer Division Engineer Division 5 Water Engineer Elk Mountain Lodge Lie Opposer Danielle Van Arsdale Paui Noto Fall Line Properties l,lc Opposer Alison Eastley Mark Hamilton William Caile Grand County Board OI'County Commission Opposer David Taussig Matthew Merrill Mitra Pembelion Report of Amended Comprehensive Findings of the Colorado Water Conservation Board Case No. 10CW805 Page 4 of 4 Party Type Attorney Name Gre Ii Opposer Danielle Van Arsdale 3 Kevin Patrick Mountain Valley Cabin Opposer Alison Eastley William Caile Pitkin County Board OfCounty Commission Pt Ranch Barn Southeastern Colorado Water Conservancy Starwood Metropolitan District Applicant Anne Bensard Timothy Beaton Opposer Arthur Ferguson Meghan Winokur Opposer Alix Joseph . Gavin Wolny Opposer Sara Dunn Scott Balcoml) Slate State Engineer Colorado Division Of Water Resources Twin lakes Reservoir And Canal Company Warren Creek Opposer Karl Ohlsen Mary Hammond Opposer Alison Eastley Mark Hamilton William Caile E-filed pursuant to C.R.C.P. 121'. Duly signed original on file at the Office of the Attorney General. Pauline Wilber Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board of County Commissioners of Pitkin County Case No' 5 OCW3 05 DATE FILED: February 3, 2014 3:14 PM January 37, 2014 FILING ID: 70173EE39E16A CASE NUMBER: The Colorado Water Conservation Board (Board) submitted Comprehensive Findings of Fact to the Court for Case No. after deliberation in public meetings held on July 12 and 21, 201 1. Subsequently, the Applicant significantly revised its proposed decree for a Recreational ln--Channel Diversion (RICD) water right in the subject case. Considering the 's'peci'fic'"amounts and "activities as claimed in the revised proposed decree dated January 15, the following amended findings about the proposed RICD: 2014, and after deliberation in a public meeting held on January 27, 20l4, the Board makes a; The Board must consider whether the adjudication and administration of the RICD water right would materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements. The Board makes the finding that there remains unallocated Colorado River apportionment available for consumptive beneficial use within Colorado. The Board also finds that the adjudication and administration of the proposed RICD, for the flow amounts and time periods summarized below and specified in the proposed decree, dated January 9, 2014, would not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements but could have an impact on the manner, cost, and timing of such development: Period Flow Rate (cfs) April 15 May 17 0 240 May l8--June 10 380 June ll<< June 25 1,350- June -26 -- Aug'. 20 - 380- Aug. 21 - Labor Day 240 The Board makes the following findings about the proposed RICD for the flow amounts and time periods claimed: i. There remains unappropriated water that Colorado could place to consumptive beneficial use upstream _of the proposed RICD reach. The RICD could impair C'olorado"s ability tolfully develop and lplaceto consumptive beneficial use Colorado's compact entitlements under the Colorado River compact, the Upper Colorado River Basin compact, and the associated "Law of the River" upstream of the proposed RICD. However, effects on upstream compact development are significantly reduced because the Applicant has limited the flow rates sought by seeking less than 50% of the total average historic volume of stream flows for the RICD reach; therefore, the requirements of section C.R.S. (2013), no longer apply. The proposed decree also provides that Pitkin County cannot call for water under the RICD .1. Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board of County Commissioners of Pitkin County Case No. S-IOCWBOS January 27, 2014 water right if such call will not produce at least 60 at the control structures. Additionally, Pitkin County has agreed to only place a call for the RICD water right when such a call will produce flows at the decreed control structures during daylight hours. Furthermore, Pitkin County has included the following terms and .. reduce the impact on upstream compact development: 24.F. Pitkin 'County shall not place a call on', and the 'w'ater"'right decreed" to up to 3,000 acre~feet of depletions between April 15 and Labor Day (the latest date for Labor Day .. . .. .. .. tributaries that have diversion upstream from the Pitkin -County River Park Project stream reach, are not senior to the water right decreed herein by virtue of their year of filing, appropriation dates, or both, and are decreed by the Water Judge for Water Division No. 5 based upon applications filed between January 1, 20i I and the fifteenth anniversary of the entry of the decree herein ("Fifteenth Anniversary"), The following procedures shall be used to identify the water rights that are included in this subordination: The RICD Season volume of water assigned to a decreed water right for purposes of inclusion in the. subordination shall -be either the volume of a water right in acre-feet specifically decreed for diversion and storage, refill of such storage, and refill to replace evaporation loss from such storage, during the RICD Season or the RICD Season volume of depletions in _acre-feet expressly authorized by the decree for a direct flow water- right or, if no depletion 'volume is expressly authorized by the decree, the RICD Season volume obtained by multiplying the decreed diversion rate in cubic feet per second (cfs) times 1.98 (to convert to acre-feet) times [43 days per RICD Season, or (ii) dividing the decreed diversion rate in gallons per minute (gpm) by 449 (to convert gpm_ to cfs) and then multiplying the result times 1.98 (to convert to acre-feet) times I43. Water rights decreed as non-consumptive" as to the upstream terminus of the Pitkin County River Park Project stream reach shall be included in the subordination and shall be assigned a RICD Season diversion volume of zero. (ii) On or before April 15 of each year, Pitkin County shall prepare and file with the Division Engineer a summary of all the water rights decreed in the preceding calendar year that meet the requirements of paragraph 24.F. above, all of which will be included in the subordination, as well as a summary of all decreed water rights included in the subordination for all prior years beginning 201l."The summary shall include the identity of each water right- by decree number, name, and the annual volume of water assigned to each water 2 Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board of County Commissioners of Pitkin County Case No. January 27, 2014 (iv) right for purposes of the subordination. Pitkin County shall serve the summary on counsel of record for all opposers herein or any other person or entity requesting a copy of the summary; in addition, such summary shall be provided to all those who are on the Water Division No. 5 SWSP notice network. The opposers and a_n.y__o_t_h_er person or entity, whether a party to this proceeding or not, shall have 45 days within which to file objections to the summary with the Division Engineer. 'If no objections are filed, the summary shall be deemedfinal provided in subparagraph below. If objections are filed and the petition with the Water Judge to hold a hearing to resolve objections. After the 3,000 acre--feet per RICD Season limit on the subordination is reached or all applications tiled between January 1, 2011 and the itteenth Anniversary are decreed or otherwise disposed of, whichever occurs first, no further action by Pitkin County shall be required under subparagraph (ii) above. For purposes of administration, the priority date for water rights decreed herein shall be the earlier of the date of when the RICD Season limit is reached or the Fifteenth Anniversary. in the event that the 3,000 acre--feet RICD Season limit is reached by- virtue of a water right that "will exceed the 3,000 acre--feet RICD Season limit if included in its entirety, only that portion of the water right needed to bring the RICD Season limit to 3,000 acre--feet shall be included in the subordination, and the remaining portion of the water right shall be administeredas junior to the Pitkin County RICD water right. if any conditional water rights included within the subordination are thereafter canceled by the Water Judge or otherwise abandoned prior to the Fifteenth Anniversary, .Pitkin County shall notify the Division Engineer and the opposers of the identity and RICD. Season volume of diversions of the additional water- rights to be included in the "subordination, if any, determined using the criteria in subparagraph above, as a result of any such cancelation of conditional water rights or abandonment. After 'the Fifieen'th'An'niv'er'sary or whenthe 3,000 acre-feet RICD Season limit is reached, whichever is earlier as provided herein, and pursuant to section C.R.S-. (2013), the presumption that there will not be material injury to the Pitkin County RICD water right from subsequent appropriations or changes of water rights by any individual water right appropriations or water right changes shall be determined in. accordance with the provisions of section 37~92-- Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board of County Commissioners of Pitkin County Case No. January 27, 20l4 After the Fifteenth Anniversary or when the 3,000 acre-feet limit RICE) Season limit is reached, whichever is earlier as provided herein, Pitkin County shall notify the Water Court, the Division Engineer, and the opposers that no further 'action by Pitkin County Shall priority date for purposes of administration has been established pursuant to subparagraph above, subject to the cancellation or abandonment ofconditional -water rights' prior to the Fifteenth - -- Given these terms of the State of Colorado to consumptively use its compact entitlements. ii. In the case of compact curtailment under the "Law of the River", it may be necessary to exchange water through the proposed RICD reach in order for the beneficiaries of post-compact water rights to realize necessary beneficial use of water yielded from pre~compa_ct water rights or other water sources not affected by compact administration. Such exchanges could allow benefitted post-compact water rights to continue to divert during a compact curtailment. To address this factor, the Board finds that the following condition is an acceptable provision in the proposed decree: 24.C. During any period identified by the Upper Colorado River Commission in a finding issued pursuant to Article VIll(d)(8) of-the Upper Colorado River Basin Compact of l948 for "curtailment of Colorado River basin water uses within Colorado, which the State of Colorado' has-agreed to implement in a manner that impacts -water--diversions within Water- Division the--Pitkin County RICD water right will be administered in accordance with the compact curtailment rules adopted by the State Engineer or such other state agency as may, in the future, be empowered to adopt rules or otherwise act to assure compliance with interstate water compacts that are then in effect, if any, including any such rules intended to avoid, delay, or limit the severity of such a compact curtailment. If no such compact curtailment rules are then in effect, Pitkin County shall not exercise the Pitkin County RICD water right during the pe'r'iod'of any such Compact" cu'rtail'ment.'The Pitkin County" RICD water right shall be administered in accordance with any rules promulgated by the State of Colorado related to Colorado River compact compliance. The Pitkin County RICD water right decreed herein is not intended to' materially impair the ability of Colorado to fully develop and place to consumptive beneficial use those waters available by law and interstate compact. Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board of County Commissioners of Pitkin County Case No. January 27, 2014 The Board finds that the distance of the proposed RICD to the State line is considerable, which demonstrates that the location of the RICD will have a reduced impact on Colorado's ability to develop its compact entitlements. iv. The proposed RICD is in close proximity to potentially suitable upstream points of -- would place the water to consumptive beneficial use. However; given the limitations, terms and conditions described in paragraphs l.a.i. and l.a.ii. above, the Board finds that the 'proposed RICD does not materially "impair the use its compact entitiements. v.T he existence of suitable points of diversion for consumptive .. .. . .. .- Board to determine that the RICD should be granted under this factor. There are numerous potential diversions and potential storage reservoirs that could be used so that the State of Colorado may fully develop and place to consumptive beneficial use its compact entitlements. vi. Exchange opportunities within the State may be adversely impacted by the existence of the proposed RICD. Additionaily, the Colorado River basin is over--appropriated, or "water critical" during a portion of the proposed RICD season. However, the Board finds that these impacts will be mitigated by the limitations, terms and conditions described in paragraphs I.a.i. and I.a.ii. above. Therefore, the Board finds that the proposed RICD will not materially impair Colorado's ability to fully develop and place to consumptive beneficial use its compact entitlements. b. The Board must consider whether the exercise of the proposed RlCD.would cause materiai injury to existing iristream flow (ISF) water rights. The Board makes the following findings about the proposed RICD regarding the potential of material injury to -existing ISF water rights: - i. As summarized below, there are two existing ISF water rights held by the CWCB in or directly of the proposed RICD reach. The nature and extent of these ISF water rights do not serve as a basis to deny the proposed RICD application. CWCB Stream Amount (cfs) Approp. _Cou_nt_ies Caseilfilo. I I Date 5--85CW646 Roaring Fork 30 Eagle Pitkin River 55 (4/l-9/30) 5-SSCW639 Roaring Fork - 75 1 1/8/1985 Eagle, Garfield River 145 Pitkin ii. In addition to' the rights above, the CWCB and Pitkin County adjudicated a change of Pitkin Cou_nty"s Stapleton Brothers' Ditch water right in Case No. l0CWl84, allowing a portion of the water right to be Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board ofCounty Commissioners of Pitkin County Case No. January 27, 2014 used for instream flow purposes. "The stream segments in which the Stapleton Brothers' Ditch may be used for ISF purposes include the RICD reach. As a result, the Stapleton Brothers' Ditch water right may be used up to the amounts identified below, in" addition to the minimum ISF amounts: May June July Aug. Sept. Oct-. Maximum Flow Rate (cfs) 0.89 '"0.59 0.50 '0.40' 0.15 Should the proposed RICD be constructed, the Board finds that the proposed .. during the construction and maintenance process because the Applicant will consult with the Colorado Division of Parks and Wildlife (CPW) before and during construction and maintenance of the RlCD'structures to ensure that CPW finds that these actions will not injure the natural environment that the ISF water rights-protect. c. The Board must determine whether the adjudication and administration of the proposed RICD, in the amounts claimed, would promote maximum utilization of the waters of the State. The Board makes the following findings about the proposed RICD regarding maximum utilization ofwaters of the State: I. The Board finds that there are probable future upstream junior appropriations for direct diversion or storage that may be adversely affected by the proposed RICD. However, the Board 'finds that these impacts will be significantly reduced by the limitations','terms and conditions described in paragraphs I.a.i. and I.a.ii. above. Given these terms and conditions, the Board finds that there - should be adequateopportunity to" allow upstream junior 'appropriations for' direct diversion and storage and the proposed RICD will promote maximum utilization of the waters of the State. . The Board finds that the proposed RICD appropriation for the flow amounts sought and the time periods specified, will promote maximum utilization. The proposed RICD may impact future changes, transfers, or exchanges of water rights from points ofdiversion or "storage of the RICD to points Upstream ofthe RICD.. HOWev_er,_ the Board_.fnds that_thes_e_impacts.will_.be significantly reduced by the limitations, terms and conditions described in paragraphs i.a.i. and l.a.ii. above. "Given these terms and conditions, the Board finds that there is adequate opportunity to allow future changes, transfers, and exchanges of water from points located of the proposed RICD to points located within or upstream of the proposed RICD. The Board finds that the proposed RICD appropriation promotes maximum utilization of Colorado's water resources because the Applicant has proposed a reasonable means to use, divert, capture and control the water for the RICD Colorado Water Conservation Board's Amended Comprehensive Findings of Fact Board of County Commissioners of Pitkin County Case No. January 27, 2014 so as to minimize the call upon the river and avoid waste as described in paragraphs l.a.i. and l.a.ii. above. The Board finds that there is a reasonable demand for the recreational activities sought for the time periods and flow rates claimed in the proposed v.T he Board finds that the proposed decree, dated January 9, 2013vii. appropriate limitations upon the time of day and the time of year during which the proposed RICD would be exercised; thus promoting maximum utilization . The Board finds that the depths and individual flow rates of the proposed individual time periods. The Board finds that the frequency and "duration of the requested amounts of water for the proposed RICD for the requested periods promote maximum utilization of waters of the State. The Board finds that the relationship of the requested individual RICD flow rates to the historic appropriated and unappropriated flow rates for each time period requested demonstrate that the proposed RICD will promote maximum utilization of Colorado's water resources. The Board finds that the application meets the elements of the definition of a as defined in The application has been filed by a county government, the Applicant has shown that the water will be beneficially used at the maximum flow rates claimed, and has provided evidence that there is a demand for a reasonable recreational experience. x.T he Board finds that the proposed RICD conserves and efficiently uses the xi. xii. available stream flow, and therefore promotes maximum utilization of Colorado's water resources. The Board finds that the RICD will work together" with existing and/or future uses within the State of Colorado to "promote maximum utilization of waters 01? the State. The Applicant has included descriptions .of each recreationalopportunity sought at each flow amount sought. The Board finds that the Applicant is seeking flow rates that are the minimum amount necessary to provide for the reasonable recreational experiences sought. The Board unappropriated native flows exist in the prop_osed RICD - stream reach during the periods claimed, and the percentage of unappropriated flows claimed by the proposed RICD indicate that the proposed RICD will promote-maximum utilization of waters of the State.