DISTRICT COURT, WATER DIV. 5, COLORADO Court Address: Garfield County Courthouse 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601 Telephone: (970) 945-5075 Facsimile: (970) 945-8756 ! CONCERNING THE APPLICATION FOR WATER RIGHTS OF: MAROON CREEK LIMITED LIABILITY COMPANY in Maroon Creek and its tributaries in Pitkin County, Colorado Attorneys for the Applicant: Nicole Garrimone-Campagna, # 32088 Haley M. Carmer, #47876 Garfield & Hecht, P.C. The Denver Centre 420 Seventh Street, Suite 100 Glenwood Springs, CO 81601 Telephone: (970) 947-1936 Facsimile: (970) 947-1937 E-mail: ngarrimone@garfieldhecht.com ▲ COURT USE ONLY ▲ _____________________________ Case Number: 2016CW3063 Water Division No. 5 [SUPPLEMENTED] APPLICATION FOR DETERMINATION OF SURFACE WATER RIGHTS Information included in this [Supplemented] Application for Determination of Surface Water Rights is provided in response to the Water Referee’s Order Denying Publication issued in this case on August 16, 2016. By this Application, Applicant is not seeking a new water right or to expand the decreed amount or use of the water rights identified in this Application, but rather Applicant is requesting a determination that the scope and content of the existing decree entered in Case No. 89CW282, Water Division No. 5, includes reservoir refill, as more fully set forth herein below. Applicant, Maroon Creek Limited Liability Company, moves the Court for a determination of water rights, as more fully set forth below, confirming that the Judgment and Decree issued in Case No. 89CW282, Water Division No. 5, includes reservoir refill for the Maroon Creek Development Corporation Reservoir Nos. 1-4.1 1 A final determination regarding this Application may impact Case No. 2014CW3179 that is currently pending before the Division 5 Water Referee. By Order dated August 23, 2016, the Court granted a stay of Case No. 2014CW3179 during the pendency of this action. District Court, Water Div. 5, Colorado Case No. 16CW3063; Application of Maroon Creek Limited Liability Company [SUPPLEMENTED] APPLICATION FOR DETERMINATION OF SURFACE WATER RIGHTS Page 2 of 7 1. Name, mailing address, email address, and telephone number of the Applicant: Maroon Creek Limited Liability Company c/o Andrew Hecht 10 Club Circle Aspen, CO 81611 ahecht@garfieldhecht.com (970) 925-1936 Please direct all pleadings and correspondence in this case to the Applicant’s attorneys. 2. Names of structures: This Application applies to the Maroon Creek Development Corporation Reservoir No. 1, Maroon Creek Development Corporation Reservoir No. 2, Maroon Creek Development Corporation Reservoir No. 3, and Maroon Creek Development Corporation Reservoir No. 4, all as set forth in Case No. 89CW282. 3. 1546858-2 Legal descriptions: All as set forth in Case No. 89CW282: A. Maroon Creek Development Corporation Reservoir No. 1: situated in Section 11, Township 10 South, Range 85 West, 6th P.M., the dam outlet being located in the NW1/4 NW1/4 of said Section 11, at a point 1,040 feet south of the North line of said Section 11, and 620 feet east of the West line of said Section 11. B. Maroon Creek Development Corporation Reservoir No. 2: situated in Section 11 and Section 2, Township 10 South, Range 85 West, 6th P.M., the dam outlet being located in the NW1/4 NW1/4 of Section 11 and the SW1/4 SW1/4 of Section 2, at a point 50 feet north of the South line of Section 2, and 540 feet east of the West line of Section 2. C. Maroon Creek Development Corporation Reservoir No. 3: situated in Section 2, Township 10 South, Range 85 West, 6th P.M., the dam outlet being located in the SW1/4 SW1/4 and the SE1/4 SW1/4 of said Section 2, at a point 640 feet north of the South section line of said Section 2, and 1,410 feet east of the West section line of said Section 2. D. Maroon Creek Development Corporation Reservoir No. 4: situated in Section 2, Township 10 South, Range 85 West, 6th P.M., the dam outlet for the same being located in the SE1/4 SW1/4 of said Section 2, at a point 450 feet north of the South line of said Section 2, and 1,810 feet east of the West line of said Section 2. District Court, Water Div. 5, Colorado Case No. 16CW3063; Application of Maroon Creek Limited Liability Company [SUPPLEMENTED] APPLICATION FOR DETERMINATION OF SURFACE WATER RIGHTS Page 3 of 7 4. Sources: All as set forth in Case No. 89CW282: The sources of water for the Maroon Creek Development Corporation Reservoir Nos. 1, 2, 3, and 4 are as follows: A. Willow Creek, a tributary of the Roaring Fork River, for water diverted through the Willow Creek Ditch to the reservoirs; B. Maroon Creek, tributary of the Roaring Fork River, for water diverted through the Herrick Ditch and into the Willow Creek Ditch, and then to the reservoirs; C. Unnamed tributaries to Maroon Creek and the Roaring Fork River for local runoff captured by the reservoirs; D. Maroon Creek and Willow Creek for return flow from irrigation water diverted by the Herrick and Willow Creek Ditches. 5. Names, capacities, and legal descriptions of points of diversion of ditches used to fill reservoirs: As set forth in Case No. 89CW282: A. Willow Creek Ditch, with a capacity of 10 c.f.s., with the headgate located in Section 21, Township 10 South, Range 85 West, 6th P.M., at a point whence the NE corner of Section 21, Township 10 South, Range 85 West, 6th P.M. bears North 31 degrees, 30 minutes East, a distance of 2,700 feet; and B. Herrick Ditch, with a capacity of 60.86 c.f.s., with headgate located in Section 33, at a point whence the North quarter corner of Section 22, Township 10 South, Range 85 West, 6th P.M. bears North 31 degrees 55 minutes East, a distance of 13,862.05 feet. 6. Date of appropriation: As set forth in Case No. 89CW282: The date of initiation of appropriation is December 22, 1989, for each of the Maroon Creek Development Corporation Reservoir Nos. 1, 2, 3, and 4. 7. Amounts: A. 1546858-2 In acre-feet: All as set forth in Case No. 89CW282: i. Maroon Creek Development Corporation Reservoir No. 1: 7.7 acre-feet, conditional (such amount was later modified by decree making Reservoir No. 1 absolute in Case No. 99CW284); ii. Maroon Creek Development Corporation Reservoir No. 2: 4.6 acre-feet, conditional (such amount was later modified by decree making Reservoir District Court, Water Div. 5, Colorado Case No. 16CW3063; Application of Maroon Creek Limited Liability Company [SUPPLEMENTED] APPLICATION FOR DETERMINATION OF SURFACE WATER RIGHTS Page 4 of 7 No. 2 absolute in Case No. 99CW284); B. iii. Maroon Creek Development Corporation Reservoir No. 3: 9.2 acre-feet, conditional (such amount was later modified by decree making Reservoir No. 3 absolute in Case No. 99CW284); iv. Maroon Creek Development Corporation Reservoir No. 4: 13.6 acre-feet, conditional (such amount was later modified by decree making Reservoir No. 4 absolute in Case No. 99CW284). In c.f.s.: As set forth in Case No. 89CW282: the maximum rate of flow at which water may be diverted into storage in the reservoirs shall not exceed a cumulative total of 4 c.f.s. at any one time. 8. Uses: As set forth in Case No. 89CW282: The use of water for all of the reservoirs is domestic, commercial, irrigation, recreation, and fish and wildlife. (Such uses were later modified by decree making each reservoir absolute in Case No. 99CW284.) 9. Remarks: As set forth in Case No. 89CW282: The reservoirs may be filled and refilled in priority, as needed. 10. Purpose of current application and description of ruling sought: Applicant seeks an order from the Court confirming that the Judgment and Decree entered in Case No. 89CW282 for the Maroon Creek Development Corporation Reservoir Nos. 1, 2, 3, and 4 includes reservoir refill. The Court has authority to grant the relief requested herein under the Water Right Determination and Administration Act, C.R.S. § 37-92-101, et seq. Southern Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1237 (Colo. 2011) (“An applicant who holds a prior adjudicated decree may file an application with the water court for review and determination of the scope and content of the prior decree.”). Indeed, the Colorado Supreme Court held that applications like this one qualify as an application for “determination of a water right” under C.R.S. § 37-92-302(1)(a). Id. at 1234. Applicant requests an order from the Court confirming that the Judgment and Decree (hereinafter, the “Decree”) issued in Case No. 89CW282 (hereinafter, the “Original Case”) for the Maroon Creek Development Corporation Reservoir Nos. 1-4 includes reservoir refill under the priority decreed in that case. The Decree is silent on the matter of refill. See Judgment and Decree, attached hereto as Exhibit A. However, the application and amended application filed in the Original Case included the claim that “the reservoirs will be filled and refilled, in priority, as needed.” See Amended Application for Storage Rights, at ¶ 11, attached hereto as Exhibit B. 1546858-2 District Court, Water Div. 5, Colorado Case No. 16CW3063; Application of Maroon Creek Limited Liability Company [SUPPLEMENTED] APPLICATION FOR DETERMINATION OF SURFACE WATER RIGHTS Page 5 of 7 Statements of claim are admissible to construe or interpret a water court decree. In re Water Rights of Central Colo. Water Conservancy Dist., 147 P.3d 9, 16-17 (Colo. 2006) (quoting New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 362, 40 P. 989, 990 (1895), “‘statements may be likened to a pleading upon which a judgment is based, and they are proper to be introduced along with the decree to enable the court to interpret or constrain [a decree] in the light of the claimant's own assertion of his demand’”). Additionally, water courts “may examine documents and take evidence about the facts and circumstances surrounding entry of a decree, in order to determine the decree’s setting, intent, meaning, and effect when adjudicating the applicant’s water use right . . .” In re Tonko, 154 P.3d 397, 405 (Colo. 2007). Upon review of the Original Case application, amended application, and resume, and other relevant documents in the Court’s records, it is clear that Applicant’s predecessor-ininterest intended to and did make claims for both fill and refill of the reservoirs. The application and resume notice filed in the Original Case expressly state that “the reservoirs will be filled and refilled, in priority, as needed.”2 Exhibit B at ¶ 11. The explicit reference to reservoir refill indicates the original applicant’s intent to alter the presumptive one-fill rule with respect to the reservoirs. See City of Thornton v. Bijou Irr. Co., 926 P.2d 1, 28 n. 13 (Colo. 1996) (stating that after receiving actual notice of applicant’s claims, objectors were not entitled to rely on the onefill presumption as a basis for their challenge to refill decree). Further, the reservoirs are on-ditch structures and are part of the greater Maroon Creek Club golf course. Keeping the reservoirs full through refill is “consistent with and implicit in the normal operation” of golf course ponds, which provides further evidence that reservoir refill was intended to be a part of the final Decree in the Original Case. See id. at 25-26. By this Application, the Applicant does not seek to expand the rights decreed in the Original Case. Rather, it requests confirmation of its right to refill the Maroon Creek Development Corporation Reservoir Nos. 1-4 under their decreed priority in the Original Case, in conformity with the claims made in the Original Case and the intent of the Decree. 11. Name and address of owner of the land upon which any new diversion or storage structure or modification to any existing diversion or storage structure or existing storage pool is or will be constructed or upon which water is or will be stored: (Maroon Creek Development Corporation Reservoir Nos. 1-4 are located on lands owned or leased by the Applicant.) 2 The application and amended application in the Original Case also list the Maroon Creek Development Corporation Well Nos. 1-4 (along with the Willow Creek Ditch and Herrick Ditch) as structures used to fill the reservoirs; however, the wells were later dropped from the Original Case following the dismissal of companion Case No. 89CW281 adjudicating the wells. 1546858-2 District Court, Water Div. 5, Colorado Case No. 16CW3063; Application of Maroon Creek Limited Liability Company [SUPPLEMENTED] APPLICATION FOR DETERMINATION OF SURFACE WATER RIGHTS Page 6 of 7 A. Maroon Creek Development Corporation No. 1: Applicant; Friedl Pfeifer Aspen Real Estate Irrevocable Trust No. 1, P.O. Box 837, Des Moines, IA 50309 B. Maroon Creek Development Corporation No. 2: Friedl Pfeifer Aspen Real Estate Irrevocable Trust No. 1, P.O. Box 837, Des Moines, IA 50309 C. Maroon Creek Development Corporation No. 3: Applicant; City of Aspen, 130 S. Galena Street, Aspen, CO 81611 D. Maroon Creek Development Corporation No. 4: City of Aspen, 130 S. Galena Street, Aspen, CO 81611 WHEREFORE, the Applicant respectfully requests this Court to issue a decree confirming that reservoir refill is included as part of the right and priority decreed for the Maroon Creek Development Corporation Reservoir Nos. 1-4 in Case No. 89CW282. Respectfully submitted on the 24th day of August 2016. GARFIELD & HECHT, P.C. Attorneys for the Applicants _______________________________ Nicole Garrimone-Campagna, #32088 Haley M. Carmer, #47876 In accordance with C.R.C.P. 121 § 1-26, this document has been electronically filed via ICCES. A printed or printable copy of this document with original or scanned signatures is on file with the law firm of Garfield & Hecht, P.C. and will be made available for inspection by the Court or other parties upon request. 1546858-2 District Court, Water Div. 5, Coiorado Case No. Application of Maroon Creek Limited Liability Company APPLICATION FOR DETERNIINATION OF SURFACE WATER RIGHTS Page 7 of VERIFICATION STATE OF COLORADO ss. COUNTY OF PITKJN 1, Andrew V. Hecht, Manager of Maroon Creek Limited Liability Company, state under oath that I have read this [Supplemented] Application for Determination of Surface Water Rights, and lyerify its contents to the best of my knowledge, information, and belief. Andreyrmv. Hecht, Manager of Maroon Creek Limited Liability Company Subscribed and sworn to before me this day of August, 2016 by Andrew V. Hecht, Manager of Maroon Creek Limited Liability Company. WITNESS my hand and official seal. My Commission expires: STACY STANEK NOTARY PUBLIC STATE OF COLORADO NOTARY ID .- meef 7* 2m 1546858~2