- ALPERSTEIN a COVELL, ac. ATTORNEYS AT LAW DONALD W. ALPERSTEIN 1600 BROADWAY, SUITE 2350 dwa@aipersteincovell.com F. COVELL DENVER, COLORADO 3020241921 cfc@alpersteincovell.com NEIL E. AYERVAIS nea@alpersteincavell.eom ANDREA L. BENSON I alb@aipersteincovell.cam GILBERT Y. MARCHAN D, JR. March 6 2009 - TELEPHONE (303) 894-8191 or Counsel I sax (393) 351?0420 Phil Overeynder, Water Director City of Aspen Via Email 130 South Galena Street and [Jetted States Mail Aspen, CO 81611 RE: Castle Creek Hydroelectric Plant titer Rights Dear Phil: er your request, we are providing this letter concerning the City of Asp en? 8 water. rights that will be us ed for the operation of the planned Castle Creek hydro electric plant. We understand that the Castle Creek hydroelectric plant will be operated with liver diversions from Castle Creek and Maroon C1 eek The water ?on1t11es'e creeks will be diverted thiough two pipelines into a holding facility (Thomas Reservoir) for te111p01 st01 age The Theinas Res e1 you has 21 p1 es ent cap ac-ity of approximately 15 acre- -feet and rs currently used as pa1t of the City public water system 111 the ?iture, water detained in the reservoir will be released either for diversion and use at the hydro electric plant facility or will be used for other municipal purposes. ASpen holds the following water rights that may be used for hydroelectric purposes. Castle Creek Water Rights By Special Warranty Deed and Bill of Sale, dated April 4, 1956, Holy Cross Electric Association, 1110., conveyed certain water rights 011 Castle Creek to the City of Aspen (hereinafter ?Holy Cross Deed?). The Holy Cross Deed conveyed the following water rights on Castle Creek: The Midland Flume Ditch and water right as confirmed by decree of the District Court 111 and f01 Gar?eld County, State of Color? 111 Civil Action No. 3723,611te1ed August 25, 1949, signated as No 98A 141 with Priority No 136? A to- t1 exte 03231112 feet of water per second of time as of Novelnbe 16,1885,to'gethe1 with Priority No. 207 to the extent of 100 cubrc feet of water per second oftirne as ofMay 11, 1K ALPERSTEIN a COVELL, ac. ATTORNEYS AT LAW Phil Overeynder March 6, 2009 Page 2 Priority No. l36?A, for 60 efs, was originally decreed on behalf of the Castle Creek Water Company as the ?Castle Creek Flume Ditch,? in the Garfield County District Court in Case No .493 on June 25, 1892, with a November 16, 1885 priority date, and Priority No. 207, for 100 cfs, was originally decreed on behalf of the Midland Water and Power Company as the ?Midland Flume Ditch,? in the Garfield County District Court in Case No. 494 on June 25, 1892, with a May 1 1, 889 priority date; The point of diversion for the Castle Creek Flume Ditch water right (Priority l3 was changed to the Midland Plume in 1885. Both water rights were ultimately acquired by the Mountain Utilities Corp oration, which obtained a decree confirming this point of diversion for the Castle Creek Flume Ditch in Case No 3723 011 August 25,1949. That decree also con?rms that the water had been used 1?01 gener atrn electrical ener gy, for power purposes, and for supplying water to residents of the town of Aspen, and environs for domestic purposes These are the Castle Creek water rights that will be used for the Castle Creek hydroelectric plant. However, portions of these rights are subject to other commitments. Portions of these rights are used for the City?s municipal water service (including up to 33 of Priority l36?A). In addition, the City has committed up to 0.075 of Priority l36?A to an angnentation plan decreed in Water Court Case No. 9OCW244 (Water Division 5), and, by agreement with the Colorado Water Conservation Board dated March 10, 1998, the City committed its Castle Creek water rights, including but not limited to the Castle Creek/Midland Plume Ditch rights, to assist the CWCB in maintaining the 12 decreed instrearn ?ow on Castle Creek. Assuming, however, that as much.- as 50 or 60 are used for purposes other than hydroelectric generation, the remaining decreed amounts are suf?cient to supply the planned Castle Creek hydroelectric plant. The City and its predecessors in interest have used, and the City will continue to use all of these water rights for their decreed purposes. Maroon Creek Water Rights The Holy Cross Deed also conveyed certain water rights decreed to the Maroon Ditch to the City of Aspen as follows: . The Maroon Ditch and water right (including the Nestell Ditch and water right) as con?rmed by decree of the District Court in and for Garfield County, State of Colorado in Civil Action No. 3723 entered August 25, 1949, designated as Ditch No. 143 ?3 24 with Priority No. to the extent of 3.4 cubic feet ofwaterper second of time as of ALPERSTEIN COVELL, 12c. ATTORNEYS AT LAW Phil Overeynder March 6, 2009 Page 3 July 10, 1889, and Priority No. 11 under the classification of uses other than for irrigation for and to the extent of 65 cubic feet of water per second of time dated as of August 12, 1892. The Nestell Ditch, Priority No. 208A for 3.4 cfs, was continued for domestic and power purposes, and consolidated with the Maroon Ditch in the decree entered by the Garfield County District Court in Case No. 3723 on August 25,1949. The Maroon Ditch was adjudicated in that case, and was decreed with non?inigation Pr'ionty 11 f01 65.0 ?01 generating electrical energy, fo1 power pur,poses and 1?01 supplying domestic water to the residents of Aspen and environs. The Maroon Ditch has a pnoi 1ty date of August 12,1892. - The City also holds a conditional decree in Case No. 80CW564 forthe'Maroon Creek Pipeline Intake and Diversion Darn, at the same location, for 68.4 for a-nuinber of municipal uses, including hydropower. This water right has a December 29, 1965 priority date. The foregoing Maroon Creek water rights are also used fo r. the City.? municipal water service purposes and for the Maroon Creek hydroelectric plant. The City and its predecessors in interest have used, and the City will continue to use all of these water rights for their decreed purposes. We understand from City staff and consultants that the penstock of the Castle Creek hydroelectric plant is designed for 52 cfs. The water rights described above are legally entitled to divert more than this amount. We have been advised that the City? 5 water resources consultants have determined, based on their investigation of historic river conditions 011 Castle Creek and Maroon Creek, that sufficient water from these water rights will generally be available in priority in the amounts and at the tiines necessary to Operate the Castle Creek hydroelectric plant. Sincerely yours, @smezg? F. Covell cc: Karl Kurnli, Esq. Files?xASpen?iHydro Electric?xletter re Castle Creek 'aud Midland Flume water rights 030509.wpd