DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, ▲ COURT USE ONLY ▲ IN PITKIN COUNTY Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alyson K. Scott, Esq., Reg. No. 41036 Alperstein & Covell, P.C. 1600 Broadway, Suite 900 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com; aks@alpersteincovell.com Case Number: 2016CW_______ (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 APPLICATION FOR FINDING OF REASONABLE DILIGENCE: MAROON CREEK RESERVOIR 1. Name, mailing address, email address, and telephone number of Applicant: City of Aspen c/o David Hornbacher, Director of Utilities and Environmental Initiatives 130 South Galena Street Aspen, CO 81611 Telephone: (970) 920-5110 email: david.hornbacher@cityofaspen.com 2. Name of structure: Maroon Creek Reservoir. 3. Description of conditional water right - previous decrees: A. Date of original decree: November 5, 1971 Application of City of Aspen Page 2 Case No.: CA 5884 Court: Colorado District Court, Garfield County B. Subsequent decrees awarding diligence: Diligence has been awarded in Case Nos. W-791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), 09CW145 (October 11, 2010). C. Decreed Location: The decreed location of Maroon Creek Reservoir is in Sections 7 and 8, Township 11 South, Range 85 West of the 6th P.M., Pitkin County, Colorado. The initial point of survey of the high water line of the reservoir on the west side of the dam is located such that the angle from the axis of the dam measured clockwise is 86E57' to Pyramid Peak and 105E56' to North Maroon Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) D. GPS Location Information in UTM format: (Required settings for GPS are as follows: Format must be UTM; Zone must be 12 or 13; Units must be Meters; Datum must be NAD83, and Units must be set to true North.) Maroon Creek Alternative Description (UTM): Northing 4330452.165; Easting 334485.678 Reservoir Were points averaged? □ Yes No □ Zone 12 Zone 13 Note: In determining the GPS Location Information from the decreed location, the point along the creek on the section line between the two sections named was used as the reservoir location as peaks could not be used as bearings. A USGS map showing the decreed location of the Maroon Creek Reservoir is attached as Exhibit A. A map created from the State Engineer’s AQUAMAP program, showing the decreed location of the Maroon Creek Reservoir, is attached as Exhibit B. Applicant and its Counsel state that the mapped locations were developed initially from the decreed location of the Maroon Creek Reservoir, and although a mapped location and legal description for the Maroon Creek Reservoir based on distances from section lines can be developed by use of the State Engineer’s AQUAMAP program, AQUAMAP may not provide an accurate description or mapped location of the decreed location of the structure. E. Source: Maroon Creek, a tributary of the Roaring Fork and Colorado Rivers. Application of City of Aspen Page 3 F. Appropriation date: July 19, 1965. Decreed Amount: 4,567 acre-feet. G. 4. Use of Water: Industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and nonconsumptive. Provide a detailed outline of what has been done toward completion of the appropriation and application of water to a beneficial use as conditionally decreed, including expenditures: Aspen owns and operates an integrated water supply system, with infrastructure currently consisting of a ditch system, Maroon Creek hydroelectric facility, water rights, diversion structures, wells, water mains, lines and distribution systems for both raw and treated water, pump systems, an operational reservoir (Leonard Thomas Reservoir located at the Aspen Water Treatment Campus), treatment plants and related infrastructure, which provides water for municipal uses, including hydropower and snowmaking uses, within the City, and extraterritorially by agreement. The Maroon Creek Reservoir is part of Aspen’s integrated water supply system, and is part of Aspen’s long-range plan to maintain a reliable water supply to meet current and future demand. Pursuant to C.R.S. ' 37-92-301(4)(b), when an integrated system is composed of several features, as is the case here, work on one feature of the system is considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire system. During this diligence period, Aspen has continued to improve, operate and maintain its integrated water supply system, of which this conditional water right is a part. To enable Aspen to more effectively provide water service to its existing and future customers the City has spent in excess of $6 million in the construction, repair and improvement of its water system infrastructure and related infrastructure and projects that are part of the efficiency, operation and maintenance of its integrated water supply system. These efforts have allowed Aspen to continue to provide reliable water service to its customers, while planning for the future. The Maroon Creek Reservoir continues to be included in Aspen’s long-range water supply planning. The significant cost of permitting, design and construction of the Maroon Creek Reservoir dictates that other long range plans be implemented first. During this diligence period, Aspen has focused its resources on development and testing of its well system and reuse system, as well as enhanced conservation measures. Application of City of Aspen Page 4 In planning for future water needs, Aspen has identified significant uncertainty due to impacts of climate change and population trends. To better prepare for this uncertainty, the City has participated during this diligence period in numerous studies and projections of supply and demand. Aspen’s Canary Action Plan, established in 2007 to set emission reduction goals, has provided on-going monitoring, data research and reporting that affirm that the temperatures in Aspen are trending upwards and the number of frost free days per year is increasing. These warmer days demonstrate that local snowpack, the primary source of the City’s water supply, is threatened. The City also participated in development of Colorado’s State Water Plan which resulted in the Colorado River Basin Implementation Plan which identified the continued due diligence for the preservation of the Castle Creek and Maroon Creek storage rights as important projects for securing safe drinking water. The City has participated in the Water Efficiency Plan for the Roaring Fork River basin, and the development of the Aspen Municipal Water Efficiency Plan, both of which contain strategies for addressing climate change, and for management and development of Aspen’s integrated water supply system. Further, the City updated its Water Supply Availability Study which considered future water supply needs under different potential climate and population scenarios, and identified supply gaps under certain scenarios. All of these studies provide some broad general planning context, but do not and cannot provide assurance of future water supplies and demands in light of changing climate and population trends. The City continues to investigate and develop more refined tools for planning its future water needs and to offset supply and demand gaps by implementing conservation measures and water system infrastructure efficiencies to continue to provide a legal, reliable water supply to its customers, even in the event of extreme climate changes. Aspen has defended its water rights, including this conditional water right, against applications filed by others in cases where Aspen has determined that injury to its water rights could occur in the absence of appropriate terms and conditions. During this diligence period, Aspen has expended over $600,000 in attorney fees (which are included in the estimated expenditure of $6 million discussed in item 4, above), of which a portion was expended specifically in opposition to water court applications filed by others, in order to protect and defend Aspen’s water rights, including, without limitation, in the following cases from the Water Court, Water Division No. 5.: Case Nos. 10CW147, 10CW286, 11CW97, 11CW198, 13CW3108, 14CW3096, 14CW3176, 14CW3179, 15CW3014, 15CW3050, 15CW3052, 15CW3053, 15CW3110, and 15CW3116. Aspen also defended important Castle Creek and Maroon Creek rights against abandonment claims in Water Court Case No. 11CW130. 5. Names and addresses of owners or reputed owners of the land upon which any new diversion structure or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool. Application of City of Aspen Page 5 The United States Forest Service White River National Forest c/o Scott Fitzwilliams, Forest Supervisor 900 Grand Avenue Glenwood Springs, CO 81601 WHEREFORE, Applicant City of Aspen, having demonstrated that it has steadily applied effort to complete the appropriation of the Maroon Creek Reservoir conditional water right in a reasonably expedient and efficient manner under all the facts and circumstances, respectfully requests this Court to find that it has exercised reasonable diligence in putting to beneficial use this conditional water right and to continue the conditional decree for another six years, or such period as may otherwise be permitted by law. Dated: October 31, 2016. Respectfully submitted, ALPERSTEIN & COVELL, P.C. By_________________________________ Cynthia F. Covell, Reg. No. 10169 Andrea L. Benson, Reg. No. 33176 Alyson K. Scott, Reg. No. 41036 ATTORNEYS FOR CITY OF ASPEN Application of City of Aspen Page 6 VERIFICATION STATE OF COLORADO . ss. COUNTY OF PITKIN David Hornbacher, being duly sworn upon oath, deposes and states he is Director of Utilities and Environmental Initiatives for the City of Aspen, Applicant herein, and he has read the foregoing application, has personal knowledge of the facts stated, and veri?es its contents to the best of his knowledge, information and belief. Dated this% I day of October 2016. David?gmbacher Subscribed and sworn to before me this 3/ day of October 2016 by David Hombacher. Witness my hand and of?cial sealin": My 00311111531011 explres[29/59 . ??3713Notary Public a i lanai? . ,1 I - nuke" {in mmH?L'