DECEMBER 11, 2015 - PROPOSED RULING SETTLEMENT DOCUMENT PURSUANT TO CRE 408 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Court Address: 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601 (970) 928-3062 telephone CONCERNING THE APPLICATION OF: The CITY OF GLENWOOD SPRINGS, a Colorado home rule city, in Garfield County, Colorado Exhibit A to Stipulation ! " ▲ COURT USE ONLY ▲ ____________________________ Case Number: 13CW3109 Water Division: 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING OF THE REFEREE, JUDGMENT AND DECREE This matter comes before the Court on the Application for Surface Water rights for Recreational In-Channel Uses of the City of Glenwood Springs, Colorado (“Glenwood Springs” or “Applicant”) filed on December 31, 2013. The Water Judge referred the Application to the Water Referee for Water Division 5, in accordance with C.R.S. § 37-92-101, et seq., known as the Water Right Determination and Administration Act of 1969. The Court, having considered the matters raised by the Application, including the findings and recommendations of the Colorado Water Conservation Board (“CWCB”), and having made such investigations as are necessary to become fully advised with respect to the subject matter of the Application, hereby makes the following Findings of Fact, Conclusions of Law, and Ruling and Decree in this matter. FINDINGS OF FACT 1. The name and address of the Applicant are: City of Glenwood Springs 101 West 8th Street Glenwood Springs, CO 81601 District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 2 of 15 82838.0001 With copy to: Mark E. Hamilton, Esq. Christopher L. Thorne, Esq. Holland & Hart LLP 600 E. Main St., Suite 104 Aspen, CO 81611 2. Timely and adequate notice of the Application were given as required by statute, and the Court has jurisdiction over the subject matter of this proceeding and over all parties affected hereby, whether they have appeared or not. None of the land or water involved in the Application are within the boundaries of a designated groundwater basin. 3. Timely statements of opposition were filed by: the City and County of Denver by and through its Board of Water Commissioners, the Town of Gypsum, the U.S. Bureau of Land Management, the Glenwood Hot Springs Lodge & Pool, Inc., the Ute Water Conservancy District, Grand Valley Water Users Association, Orchard Mesa Irrigation District, the Colorado River Water Conservation District, the Colorado Department of Transportation, the Homestake Steering Committee, the Grand County Board of County Commissioners, the City of Aurora, the Colorado Water Conservation Board, the City of Colorado Springs, and the West Divide Water Conservancy District. Additionally, two other Objectors, American Whitewater and Western Resource Advocates, were permitted to intervene in this matter by order of the court dated _________________. No other statements of opposition were received. The time for filing statements of opposition has expired. 4. Glenwood Springs has entered into stipulations with the U.S. Bureau of Land Management; and _____________________________. The Court has reviewed these stipulations and entered orders approving them. The Court finds that this Judgment and Decree is consistent with the terms of the stipulations. 5. Glenwood Springs seeks confirmation of conditional surface water rights for recreational in-channel diversions (each a “RICD Water Right”) located in the Colorado River, for three proposed boating parks to be known as the No Name Whitewater Park, the Horseshoe Bend Whitewater Park, and the Two Rivers Whitewater Park, all as more fully described below. 6. RICD Water Right: No Name Whitewater Park. a. Location: The diversion structures comprising the No Name Whitewater Park will be located in the channel of the Colorado River between the following two points on the centerline of the river: District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 3 of 15 82838.0001 i. No Name Whitewater Park Upstream Extent: PLSS: NW¼ of the SW¼ of Section 1, Township 6 South, Range 89 West of the 6th P.M., at a point 1880 feet from the north section line and 85 feet from the west section line of said Section 1, Garfield County, CO. UTM: NAD 83 Zone 13S: northing 4,381,478 m, easting 303,685 m ii. No Name Whitewater Park Downstream Extent: PLSS: NW¼ of the SE¼ of Section 2, Township 6 South, Range 89 West of the 6th P.M., at a point 1475 feet from the south section line and 1290 feet from the east section line of said Section 1, Garfield County, CO. UTM: NAD 83 Zone 13S: northing 4,381,237 m, easting 303,246 m The precise locations of the structures within this reach of the Colorado River will be confirmed upon making this conditional water right absolute. Although the location for the No Name Park Whitewater Park location is not presently within the city limits of Glenwood Springs, it is only approximately one-half mile east of the present city limits of Glenwood Springs. Colorado law empowers municipalities to plan for access, utilities, waterways, waterfronts and parks within three miles of municipal boundaries. See C.R.S. 31-12-105(1)(e) (2015). b. Source: Colorado River c. Appropriation date: December 19, 2013 d. How appropriation was initiated: By formation of the requisite intent to appropriate coupled with actions manifesting such intent, including but not limited to discussions in public meetings, engineering and planning studies, preliminary design, and passage of Resolution 2013-38 by the City authorizing the filing of the Application. e. Date water applied to beneficial use: N/A (this claim is for a conditional water right) f. Amounts: Time Period April 1 through June 7 June 8 through July 23 July 24 through Sept 30 Flow Rate Days 1250 c.f.s. 68 days 2500 c.f.s 41 days 4000 c.f.s. 5 days 1250 c.f.s. 69 days District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 4 of 15 82838.0001 All of the above amounts are limited to the period between 6:00 a.m. and 9:00 p.m. each day, except during competitive events when these hours may be extended to between 6:00 a.m. and 12:00 midnight each day. The 4000 c.f.s. event flow rate is further limited to no more than 5 continuous days between June 30 and July 6. The specific event flow dates will be as follows: (1) if July 4th falls on a Sunday, Monday, Tuesday or Wednesday, the event flow rate will be in effect June 30-July 4; (2) if July 4th falls on a Saturday, the event flow rate will be in effect July 1-5; and (3) if July 4th falls on a Thursday or Friday, the event flow rate will be in effect July 2-July 6. g. 7. Uses: all recreational uses in and on the Colorado River including without limitation, boating, rafting, kayaking, tubing, floating, canoeing, paddling, and all other non-motorized recreational uses. RICD Water Right: a. Horseshoe Bend Whitewater Park. Location: The diversion structures comprising the Horseshoe Bend Whitewater Park will be located within the channel of the Colorado River between the following two points on the centerline of the river: i. Horseshoe Bend Whitewater Park Upstream Extent: PLSS: NW¼ of the SE¼ of Section 3, Township 6 South, Range 89 West of the 6th P.M., at a point 1,386 feet from the south section line and 1916 feet from the east section line of said Section 3, Garfield County, CO. UTM: NAD 83 Zone 13S: northing 4,381,318.52 m, easting 301,605.95 m ii. Horseshoe Bend Whitewater Park Downstream Extent: PLSS: NW¼ of the SE¼ of Section 3, Township 6 South, Range 89 West of the 6th P.M., at a point 1920 feet from the north section line and 2250 feet from the east section line of said Section 3, Garfield County, CO. UTM: NAD 83 Zone 13S: northing 4,381,513 m, easting 301,551 m The precise locations of the structures within this reach of the Colorado River will be confirmed upon making this conditional water right absolute. b. Source: Colorado River District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 5 of 15 82838.0001 c. Appropriation date: December 19, 2013 d. How appropriation was initiated: by formation of the requisite intent to appropriate coupled with actions manifesting such intent, including but not limited to discussions in public meetings, engineering and planning studies, preliminary design, and passage of Resolution 2013-38 by the City authorizing the filing of the Application. e. Date water applied to beneficial use: N/A (this claim is for a conditional water right) f. Amounts: Time Period April 1 through June 7 June 8 through July 23 July 24 through Sept 30 Flow Rate Days 1250 c.f.s. 68 days 2500 c.f.s 41 days 4000 c.f.s. 5 days 1250 c.f.s. 69 days All of the above amounts are limited to the period between 6:00 a.m. and 9:00 p.m. each day, except during competitive events when these hours may be extended to between 6:00 a.m. and 12:00 midnight each day. The 4000 c.f.s. event flow rate is further limited to no more than 5 continuous days between June 30 and July 6. The specific event flow dates will be as follows: (1) if July 4th falls on a Sunday, Monday, Tuesday or Wednesday, the event flow rate will be in effect June 30-July 4; (2) if July 4th falls on a Saturday, the event flow rate will be in effect July 1-5; and (3) if July 4th falls on a Thursday or Friday, the event flow rate will be in effect July 2-July 6. g. 8. Uses: all recreational uses in and on the Colorado River including without limitation, boating, rafting, kayaking, tubing, floating, canoeing, paddling, and all other non-motorized recreational uses. RICD Water Right: Two Rivers Whitewater Park. a. Location: The diversion structures comprising the Two Rivers Whitewater Park will be located within the channel of the Colorado River, above its confluence with the Roaring Fork River, between the following two points on the centerline of the river: i. Two Rivers Whitewater Park Upstream Extent: District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 6 of 15 82838.0001 PLSS: SW¼ of the NE¼ of Section 9, Township 6 South, Range 89 West of the 6th P.M., at a point 2394 feet from the north section line and 1975 feet from the east section line of said Section 9, Garfield County, CO. UTM: NAD 83 Zone 13S: northing 4,380,248m, easting 300,033 m ii. Two Rivers Whitewater Park Downstream Extent: PLSS: SE¼ of the NW¼ of Section 9, Township 6 South, Range 89 West of the 6th P.M., at a point 2075 feet from the north section line and 2330 feet from the west section line of said Section 9, Garfield County, CO. UTM: NAD 83 Zone 13S: northing 4,380,353 m, easting 299,772 m The precise locations of the structures within this reach of the Colorado River will be confirmed upon making this conditional water right absolute. b. Source: Colorado River c. Appropriation date: December 19, 2013 d. How appropriation was initiated: By formation of the requisite intent to appropriate coupled with actions manifesting such intent, including but not limited to discussions in public meetings, engineering and planning studies, preliminary design, and passage of Resolution 2013-38 by the City authorizing the filing of the Application. e. Date water applied to beneficial use: N/A (this claim is for a conditional water right) f. Amounts: Time Period April 1 through June 7 June 8 through July 23 July 24 through Sept 30 Flow Rate Days 1250 c.f.s. 68 days 2500 c.f.s 41 days 4000 c.f.s. 5 days 1250 c.f.s. 69 days All of the above amounts are limited to the period between 6:00 a.m. and 9:00 p.m. each day, except during competitive events when these hours may be extended to between 6:00 a.m. and 12:00 midnight each day. The 4000 c.f.s. event flow rate is further limited to no more than 5 continuous days between June 30 and July 6. The specific event flow dates will be as follows: (1) if July 4th falls on a Sunday, Monday, Tuesday or Wednesday, the event flow rate will be in District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 7 of 15 82838.0001 effect June 30-July 4; (2) if July 4th falls on a Saturday, the event flow rate will be in effect July 1-5; and (3) if July 4th falls on a Thursday or Friday, the event flow rate will be in effect July 2-July 6. g. 9. Uses: all recreational uses in and on the Colorado River including without limitation, boating, rafting, kayaking, tubing, floating, canoeing, paddling, and all other non-motorized recreational uses. Findings to Support the RICD Water Rights: a. Appropriate Entity. Glenwood Springs is a municipality incorporated within the State of Colorado and is entitled to appropriate surface water rights for recreational in-channel diversion water rights as defined in C.R.S. § 37-92103(10.3) (2013). b. Specific Plan and Intent. Glenwood Springs has a specific plan and intent to divert or otherwise capture, possess and control a specific quantity of water for specific beneficial uses authorized by statute. c. Available Water. Glenwood Springs has demonstrated that unappropriated water is available in the amounts set forth in this Decree from the source claimed. d. Can and Will. Glenwood Springs has sufficiently demonstrated that the water can and will be diverted and beneficially used, and that the project can and will be completed with diligence and within a reasonable time. e. Appropriate Stream Reaches. The reaches of the Colorado River in which the Glenwood Springs recreational in-channel diversions will be located are appropriate reaches of the stream for the intended RICD Water Rights. f. Control Structures. The amounts of water claimed and decreed herein will be controlled in the water’s natural course in the Colorado River during the claimed time periods by means of the RICD structures identified above. The design capacities of these structures will capture, control, and divert the flows of the Colorado River up to 4000 c.f.s., which allow flows of that amount to be fully captured by the high flow channel constructed into each structure. The structures will be designed such that the Colorado River is usable at a variety of water levels. The low flow channel constructed into each structure will provide passage for boats and a usable hydraulic feature for inner tubes and other recreational water craft or include safety bypass channels for downstream users. During runoff, the high flow channel constructed into each structure will provide a larger, more usable hydraulic feature in the form of a hydraulic jump or wave train that kayakers and other boaters may use for the intended recreational purposes. In District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 8 of 15 82838.0001 view of the foregoing, the structures are capable of efficiently diverting and controlling the water flows without waste for the claimed conditional amounts as identified above and in a manner that constitutes a diversion under C.R.S. § 3792-103(7) (2013), at all flow rates up to the maximum claimed above. g. Reasonable Recreational Experience. The claimed uses (all recreational uses in and on the Colorado River including without limitation, boating, rafting, kayaking, tubing, floating, canoeing, paddling, and all other non-motorized recreational uses) are reasonable and the proposed amounts of water that the Applicant desires to appropriate are reasonable and appropriate, under reasonably efficient practices, to accomplish without waste the purpose for which the appropriations are lawfully made. Likewise, Applicant has demonstrated that there is reasonable demand for these recreational experiences throughout the season claimed. See generally C.R.S. § 37-92-103(10.3) (2013). h. Minimum Stream Flow. The claimed flow amounts represent the minimum amount of stream flow to serve Applicant’s intended and specified reasonable recreation experiences. C.R.S. § 37-92-305(13)(d) (2013). i. Amount Below Which There Is No Beneficial Use. The flow rate below which there is no longer any beneficial use of water at the control structures for the decreed purposes is 500 c.f.s. C.R.S. § 37-92-305(13)(d) (2013). j. Stream Flow Volume. During the RICD season claimed, the total average historical volume of water for the stream segments where the diversion structures will be located has been calculated to be 1,190,499 acre-feet. Fifty percent of this total average historical volume is 595,250 acre-feet. The total volume of water represented by the flow rates decreed for the claimed recreational in-channel diversions of 581,625 acre-feet is no greater than 50% of the sum of the total average historical volume of water for the stream segments where the diversion structures will be located. Therefore, this Decree and the RICD Water Rights granted herein are not limited by sub-sections I, II or III of C.R.S. § 37-92305(13)(f) (2013). Except as otherwise limited by this decree or in stipulations or agreements related thereto, Glenwood Springs may initiate a call for any amount of water between 500 c.f.s. and the maximum decreed rate within each applicable time period specified in Sections 6.f, 7.f and 8.f, above. k. Extended RICD Season. The Applicant has demonstrated a need for the reasonable recreational experience from Labor Day to September 30 each year, as required by C.R.S. § 37-92-103 (10.3). The Court finds that there is demand for a reasonable recreation experience at the No Name Whitewater Park, the Horseshoe Bend Whitewater Park, and the Two Rivers Whitewater Park between Labor Day and September 30 each year. Without limiting the foregoing, the Court finds that District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 9 of 15 82838.0001 non-motorized boating already occurs in these areas between Labor Day and September 30 each year, and that there is present and future demand for a reasonable recreation experience on the Colorado at these locations during the period from Labor Day to September 30 each year. l. Event Flows. The Applicant has demonstrated a need for an event-flow period that shall be shorter than fourteen days, as required by C.R.S. § 37-92-103 (10.3). The Court finds that there is a need for event flows at 4000 c.f.s. for a total of five continuous days from June 30 to July 6 each year, as more specifically set forth in Sections 6.f, 7.f and 8.f, above. 10. Findings Regarding Compliance with the CWCB Review Process Pursuant to C.R.S. § 37-92-102(6) (2013) and Additional Statutory Factors Pursuant to C.R.S. § 37-92-113 (2013): a. CWCB Review Process. Pursuant to C.R.S. § 37-92-102(6) (2013), after deliberation at a public meeting on July 16, 2015, CWCB made written findings as to: (1) whether the adjudication and administration of the claimed recreational in-channel diversions would materially impair the ability of Colorado to fully develop and place to beneficial use its compact entitlements; (2) whether the adjudication and administration of the claimed recreational in-channel diversions would cause material injury to an instream flow; and (3) whether adjudication and administration of the claimed recreational in channel diversions would promote maximum utilization of the waters of the state. In making the following additional determinations, the Court has considered the CWCB’s findings as required by C.R.S. § 35-92-305(13)(a) (2013). b. Compact Entitlements. The Court finds that the adjudication and administration of the RICD Water Rights, under the conditions contained in this Decree, will not impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements. C.R.S. § 37-92-305(13)(a)(I) (2013). c. Maximum Utilization. The RICD Water Rights will support a new, valuable, beneficial use on the water of a seasonally over-appropriated stream, while allowing for continued utilization and development of the waters of the State for both consumptive and non-consumptive uses, without causing any reduction in flow, injury to downstream water rights, or injury to upstream senior water rights. The RICD Water Rights promote maximum utilization of Colorado’s water resources because Glenwood Springs has used a reasonable means to use, divert, capture, and control the water for RICD purposes so as to minimize its call upon the river and avoid waste. Based upon the evidence, the Court finds that the adjudication and administration of the RICD Water Rights, subject to the terms of this Decree, will promote maximum utilization of the waters of the State. District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 10 of 15 82838.0001 11. d. Stream Reach Appropriateness. The Court finds that the proposed whitewater parks are located in appropriate reaches of the stream required for the intended uses. C.R.S. § 37-92-305(13)(a)(III) (2013). The locations of the whitewater parks are appropriate for many reasons. These parks are all located in an already popular and active recreational use corridor accessible from I-70 and near downtown Glenwood Springs. In addition, the physical locations of the parks are appropriate due to favorable stream gradients and the adequacy of the existing river flows. e. Access for Recreational Use. The whitewater parks will be accessible to the public for the recreational in-channel use proposed by Applicant, pursuant to C.R.S. § 37-92-305(13)(a)(IV)(2013). In particular, there is existing public access to the Colorado River at the three whitewater park locations. The City or other public agencies own or control access to the whitewater park locations, and additional amenities and public access can be developed at each whitewater park. Prior to construction of whitewater park features at any of the three proposed whitewater park locations, the City will first obtain any necessary authorizations for access and land use, including any required authorizations from CDOT and/or the Federal Highway Administration for use of lands or rights-of-way owned or maintained by CDOT. f. Instream Flow Rights Injury. There are no instream flow water rights within these reaches of the Colorado River. As a result, the Court finds that the RICD Water Rights will not cause material injury to instream flow water rights. C.R.S. § 37-92-305(13)(a)(V) (2013). Additional Terms and Conditions. a. Compact Administration. During any period identified by the Upper Colorado River Commission in a finding issued pursuant to Article VIII(d)(8) of the Upper Colorado River Basin Compact of 1948 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 5, the RICD Water Rights decreed herein 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, Glenwood Springs shall not place a call for the RICD Water Rights decreed herein during the period that implementation of an Article VIII(d)(8) curtailment order affects water diversions in Water Division No. 5, unless the State Engineer or Division Engineer determines that exercise of all or part of the RICD Water Rights will not affect District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 11 of 15 82838.0001 Colorado’s ability to comply with the Compact. Otherwise, the RICD Water Rights decreed herein shall be administered in accordance with this Decree and Colorado law. b. Floodplain Regulations. Glenwood Springs will ensure that the design of the control structures complies with applicable floodplain management requirements. c. Direct Flow Water Rights—No Claim to Stored Water. The RICD Water Rights provide appropriative rights only to direct flows of the Colorado River at the boating parks specified herein. Although storage releases may flow through and be put to use in the boating parks to help satisfy the RICD Water Rights, this decree shall not give Glenwood Springs any rights to stored water, limit in any way either the amount or timing of releases of stored water, or provide any basis for Glenwood Springs to request or demand releases of such water; provided, that stored water may be delivered for beneficial use by the RICD structures described herein consistent with the terms of water court decrees or other authorizations for upstream storage rights and the consent of the owner(s) of said water rights. d. Non-Opposition. Glenwood Springs shall not use the RICD Water Rights as a basis to oppose any future application in the Water Court for Water Division 5 that proposes future development of the waters of the Colorado River or its tributaries upstream of the RICD Water Rights (including applications to confirm new water rights, changes of water rights, and/or for approval of plans for augmentation) where the proposed diversion is less than 1,000 acre-feet per year. Glenwood Springs also shall not use the RICD Water Rights as a basis to oppose any water rights applications filed to implement the Colorado River Cooperative Agreement effective September 26, 2013 (“CRCA”), or the 1998 Memorandum of Understanding Between the Cities of Aurora and Colorado Springs, Colorado River Water Conservation District, Climax Molybdenum Company, and the Vail Consortium (“Eagle River MOU”), provided that the contemplated drafts and yields of such water rights filings do not exceed the contemplated drafts or yields specified in these agreements. However, unless contrary to other provisions of this decree or related stipulations or agreements, or out-of-priority diversions are replaced in time and amount through an exchange, plan for augmentation or substitute water supply plan approved in the future, all water rights junior in priority to the RICD Water Rights may be subject to curtailment by a call for water under the RICD Water Rights, and nothing herein shall prohibit Glenwood Springs from requesting water rights administration by the State or Division Engineers or from filing statements of opposition for the purpose of protecting water rights other than the RICD Water Rights. e. CRCA. Glenwood Springs and the CWCB agree to cooperate and coordinate in good faith concerning the future operation of the RICD Water Rights and future District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 12 of 15 82838.0001 water rights appropriated for the “Upper Colorado Cooperative Project”, which is defined by the CRCA as “a water supply project located on the West Slope, agreed to by Denver Water and the signatories to this Agreement, and designed to produce water for use on the East and West Slopes, including at least 20,000 acrefeet of average annual diversions for use on the East Slope.” f. River Administration. In operating the RICD Water Rights, Glenwood Springs will regularly communicate with the Colorado River Water Conservation District (the “River District”) concerning river conditions and water rights administration within Water Division No. 5, and will make reasonable efforts to operate the RICD Water Rights with due consideration of the water supply, water exchange, and augmentation needs of the River District, and its constituents, in a manner consistent with the River District’s statutory obligations regarding the development and protection of water resources for the benefit of its constituents. Glenwood Springs will at all times operate the RICD Water Rights in recognition of prior decrees and agreements. g. Protection of New Water Project Yield. For purposes of this Section 11.g., the following determinations shall apply: i. The term “New Water Project” shall mean any water project (which may include storage projects or storage projects with direct flow components) or combination of multiple water projects that: (a) was not constructed or otherwise in operation as of December 31, 2013; (b) diverts or stores water from points that are located upstream of the RICD Water Rights; and (c) is decreed and used for beneficial use within Water Division 5. New Water Projects may include water projects that utilize decreed water rights that are either senior or junior in administrative priority to the RICD Water Rights. ii. The term “Firm Yield” shall mean the average annual yield of a New Water Project (based on a 3-year running average basis), as determined by the River District in consultation with Glenwood Springs and the owners or operators of the New Water Projects. iii. The term “Cumulative Firm Yield” shall mean the combined average annual yield of all New Water Projects (based on a 3-year running average basis), as determined by the River District in consultation with Glenwood Springs. iv. The term “Junior Protected Yield” shall mean the portion of the Cumulative Firm Yield supplied by water rights junior to the RICD Water Rights, up to a maximum of 20,000 acre-feet minus the Cumulative Firm Yield of New Water Projects supplied by water rights senior to the RICD Water Rights. District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 13 of 15 82838.0001 Glenwood Springs shall consult with the River District on or prior to May 20th of each year regarding the implementation of this Section 11.g. If this consultation process determines that, during the period from June 8 to July 23 of that year, Glenwood Springs’ placement of a call on the Colorado River for the RICD Water Rights in excess of 1,250 c.f.s. would likely impair the Junior Protected Yield, then the RICD Water Rights shall be deemed satisfied by calling, in order of priority, only those water rights necessary to produce an administrative flow rate of 1250 c.f.s. (as measured at the single measurement point described below in Section 23) from June 8 to July 23 of that year, or such portion of that period that is determined necessary to satisfy the Junior Protected Yield. This Section is intended to alleviate potential conflicts between the future operation of the RICD Water Rights and New Water Projects, but shall not be construed to require Glenwood Springs to reduce a call in the event that the Junior Protected Yield can be achieved by: (1) diverting water outside of the June 8 to July 23 time period each year; or (2) exercising water rights that are senior to the RICD Water Rights. h. CPW Coordination. Prior to initiation of a Section 404 permit application to the U.S. Army Corps of Engineers, Glenwood Springs shall consult with Colorado Parks & Wildlife (CPW) with regard to RICD structure siting, design and contemplated future maintenance. CPW may participate in the Section 404 permitting process to ensure that terms are included in the Section 404 permit(s) to protect aquatic resource values. Glenwood Springs also agrees to consult with CPW as to (1) the timing of construction and (2) the timing of any future reservoir releases for the benefit of the RICD Water Rights. CONCLUSIONS OF LAW 12. The Application filed herein was complete, covering all applicable matters required under C.R.S. § 37-92-302 (2013). 13. All notices required by law have been given, and no further notice need be given. 14. The Court has jurisdiction of this matter and of all persons, whether they have appeared or not. C.R.S. §§ 37-92-301(2) and -303(1) (2013). 15. The Court has authority to confirm the conditional surface water rights for recreational in-channel diversion as requested by the Applicant. C.R.S. §§ 37-92-103(4) and (10.3) (2013). 16. The Court concludes that the Applicant is an entity entitled to obtain a water right for a recreational in-channel diversion pursuant to C.R.S. §§ 37-92-103(4) and (10.3) (2013). District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 14 of 15 82838.0001 17. The Applicant has complied with all requirements and met all standards and burdens of proof; therefore it is entitled to a decree confirming and approving the conditional RICD Water Rights described herein. RULING OF THE REFEREE 18. The foregoing Findings of Fact and Conclusions of Law are incorporated herein by this reference. 19. The Court GRANTS the Application and hereby confirms conditional RICD Water Rights for the No Name Whitewater Park, the Horseshoe Bend Whitewater Park, and the Two Rivers Whitewater Park. The RICD Water Rights are decreed for the amounts as set forth above for the above-described recreational in-channel uses, subject to the terms and conditions set forth herein. 20. The City Council of Glenwood Springs shall determine, by resolution, up to three employees or agents of the Glenwood Springs who shall be authorized to place a call for the RICD Water Rights approved herein. Glenwood Springs shall provide the Division Engineer with a copy of the initial resolution designated the authorized individuals and each subsequent resolution changing the authorized individuals. This resolution shall be passed prior to use of the RICD Water Rights decreed herein. 21. The Application herein was filed in 2013 and the water rights herein confirmed shall be administered as filed in 2013, and shall be junior to all water rights for which applications were filed in prior years. As between water rights filed in 2013, priorities shall be determined by historical dates of appropriation and shall not be affected by the date of entry of this Decree. 22. The Applicant may seek curtailment of water rights junior to the RICD Water Rights, diverting upstream of the RICD structures, only at times when beneficial use of the RICD Water Rights for non-motorized boating is occurring. 23. As part of compromise negotiations, Glenwood Springs has agreed to install, operate and maintain a single point gage for measurement and recording of administration for the RICD Water Rights granted in this Decree. This device will be acceptable to the Division engineer for water rights administration purposes. The gage shall be installed at the location of the first RICD structure to be constructed and shall be used for measurement at all of the RICD structures granted in this Decree. Only this device will be used for administrative purposes. Applicant shall provide accounting relating to the RICD Water Rights, as required by the Division Engineer. It is ORDERED that a copy of this Decree shall be filed with the Division Engineer for Water Division No. 5 and with the State Engineer. District Court, Water Division No. 5, Colorado Case No. 13CW3109; Application of the City of Glenwood Springs Findings of Fact, Conclusions of Law, Ruling of Referee, Judgment and Decree Page 15 of 15 82838.0001 It is further ORDERED that this Ruling shall be filed with the Water Clerk, subject to judicial review. DATED this ____ day of _________________________, 20___. BY THE REFEREE: ___________________________________ Holly Strablizky, Water Referee Water Division No. 5, State of Colorado JUDGMENT AND DECREE No protest having been filed to the foregoing Ruling of the Referee and the time for filing such protest having now expired, the foregoing Ruling of the Referee is confirmed and approved and is hereby made the judgment and decree of this Court. An Application for Finding of Reasonable Diligence shall be filed on or before the end of the month, six years from the date of the Water Judge’s Order, and thereafter in accordance with the provisions of Article 92 of Chapter 37, Colorado Revised Statutes, so long as Glenwood Springs desires to maintain the conditional surface water rights decreed herein, or until such rights are made absolute. DATED this ____ day of _________________________, 20____. BY THE COURT: __________________________________ Hon. James Boyd, Water Judge Water Division No. 5, State of Colorado 6898167_19