ii`: IKE `Ir:5 I I DISTRICT COURT, WATER DIVISION NO. 5 . OF COLORADO 109 - 8?h Street, Suite 104 Glenwood Springs, CO 81601 CONCERNING THE APPLICATION FOR WATER RIGHTS FOR THE CITY OF ASPEN, PITKIN COUNTY, COLORADO A COURT USE ONLY A Case Number: 2000CW284 Water Court Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE . The above-captioned application was filed with the Water Court on December 28, 2000, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Judge by Order dated July 2, 2004. The Court, being fully advised with respect to the subject matter of the application, does - hereby make the following findings of fact, conclusions of law, and judgment and decree in this matter. FINDINGS OF FACT 1. Application. The above--capti0ned application was filed in this Court on December 28, 2000. The Applicant is the City of Aspen, a Colorado municipal corporation ("Aspen"), with the following address: c/o Phil Overeynder, Water Director, 130 South Galena Street, Aspen, CO 81611. The Court finds that the application is complete, covering all matters required by law, and that the statements in the application are true. The water rights and structures applied for herein are not located within the boundaries of a designated groundwater basin. 2. Objectors. Timely statements of opposition were filed by Trout Unlimited, the State Engineer and Division Engineer for Water Division No. 5, the Colorado Water Conservation Board, City of Aspen Case No. - Helen Stone, and the Twin Lakes Reservoir and Canal Company. Helen Stone and Twin Lakes Reservoir and Canal Company have withdrawn their statements of opposition. The time for filing additional statements of opposition has expired. 3. Stipulations. Stipulations have been entered into between Aspen and Trout Unlimited, the State Engineer and Division Engineer for Water Division No. 5, and the Colorado Water Conservation Board. The Opposers entering into said Stipulations have consented to entry of this Decree. The foregoing Stipulations have been approved by Orders of this Court. 4. Summagg of Application. Aspen designed and constructed a whitewater course on the Roaring Fork River for kayaking and other recreational boating purposes, by diverting water from the Roaring Fork River into a narrow channel that runs adjacent to the river for a distance of approximately 800 feet, and by constructing a series of drops in the channel to enhance the recreational experience. The diversion and drop structures were designed to serve the beneficial uses described herein. Aspen seeks absolute water rights for this whitewater course based upon the amount of water previously controlled and applied to beneficial use by these structures. 5. Name of Structure: City of Aspen Whitewater Course (also referred to herein as the "Course.") . 6. Description of Structure: The City of Aspen Whitewater is located adjacent to the Roaring Fork River. The entrance point to the channel bears 45 l4'36"E a distance of 2327.4 feet from the west 1/4 comer of Section 7, Township 10 South, Range 84 West of the P.M. in Pitkin County, Colorado. The exit point bears a distance of 1809.8 feet from the west l/4 corner of Section 7, Township l0 South, Range 84 West of the P.M. in Pitkin County, Colorado. The Course begins with a rock weir that channels water from the Roaring Fork River into the adjacent historic chamrel, and the channel controls, concentrates and directs the stream flow for approximately 800 feet until the exit point. A map depicting the location ofthe Course, including the entrance point and exit point, is attached hereto as Exhibit A and incorporated herein by reference. 7. Historic Chammelz The Course is located within a natural river charmel that has historically been part of the braided Roaring Fork River at that location. Prior to construction of the Course, water flowed naturally into the channel, particularly during times of higher flows in the Roaring Fork River. The Colorado Water Conservation Board holds an instream llow water right in the Roaring Fork River in the reach ofthe Course. This instream flow, which is decreed for the reach of the Roaring Fork River from Difficult Creek to Maroon Creek, was decreed in Case No. W-2948 for 32.0 with an appropriation date of January 14, 1976, and has historically flowed in both the main channel of the Roaring Fork River and the historic charmel where the Course is located. The historic chamrel was widened and deepened, and structures were added to create the City of Aspen City of Aspen (`ase No. - 2 - Whitewater Course. Water is directed into this channel by a rock weir anchored into the bed and banks of the Roaring Fork River. 8. Source: The source for the City of Aspen Whitewater Course is the Roaring Fork River. 9. Appropriation of the Cigg of Aspen Whitewater Course. a. Date of Initiation of Appropriation: June 12, 1992. The appropriation was initiated by formation of the requisite intent to appropriate, coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to design and construction of the Course structure, and beneficial use of the Course by recreational users. 2. Date Water First Applied to Beneficial Use: June l2, 1992. 10. Amount. The following amounts of water in cubic feet per second were appropriated and applied to beneficial use by Aspen for tl1e Whitewater Course during each of the months given: June July August 270 350 33 1 l. Land Ownership. Aspen is the owner of the land on which the structures are located. l2. Beneficial Uses for Course. Recreational boating (including, but not limited to, kayaking, rafting and canoeing) uses. The Court hereby finds that the amount of water decreed and approved herein for the City of Aspen Whitewater Course is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfirlly made. The Course structures also incidentally create fish habitat and therefore serve related piscatorial purposes, but no water right is sought or awarded herein for habitat or piscatorial uses. 13. Operation of Course at Low Flows. Aspen will use reasonable, diligent and good faith efforts to upgrade and maintain the rock weir at the entrance to the historic chamiel, within reasonable tolerances and construction constraints, using normal engineering practices, so that no more than one--third of the flow of the Roaring Fork River will be directed into the channel at times when the flow of the Roaring Fork River at the channel entrance is 48 or less, and so that a flow of at least 32 will remain in the main channel of the Roaring Fork River at times when the flow of the Roaring Fork River at the charmel entrance is more than 48 cfs. Since a rock weir will be used, measurement will necessarily have some imprecision. The foregoing upgrades will be commenced within a reasonable time following entry of this decree, and will be completed within a reasonable time after commencement. City ol'Aspcn Case No. - 3 - i I 14. Measurement and Administration. The Course is constructed in a natural chamrel of the Roaring Fork River. Both before and after construction of the Course, water could and did flow into the historic channel throughout the year. No water rights divert out of the Roaring Fork River in the 800-foot reach of the Course. Since there are no diversions out of the river in the reach, and since the decreed instreanr flow within the reach may pass through the Course as well as the main channel of the Roaring Fork River, the Court finds that Aspen need not install a headgate or other device to prevent or reduce flows into the Course. Aspen shall, however, maintain the chamrel as described in paragraph 13 above. Notwithstanding the foregoing, Aspen may not place a call for any amount not herein decreed, or during any of the months for which a water right for the Course is not decreed. The water rights herein decreed shall not be administered in such a manner as to effect a call for water for the purpose of getting water into the Course between the hours of 10:00 p.m. and 6:00 a.m. Pursuant to 37-84-1 13 and C.R.S. (2003), Aspen shall, at its own expense, install and maintain such meters, gages or other measuring devices as may be deemed necessary by the State or Division Engineer to allow administration ofthe terms of this decree. Further, Aspen shall prepare and provide to the Division Engineer such accounting of diversions into the whitewater course as the Division Engineer may require, including an annual report filed by November rs"' of each year summarizing such diversions. CONCLUSIONS OF LAW 15. Jurisdiction. Timely and adequate notice of` the filing of this Application was given as required by law and this Court has jurisdiction over this proceeding and over all persons or entities affected hereby, whether or not they have chosen to appear. 16. Senate Bill 01-216 is Not Applicable to this Decree. The application in this case is an application for a recreational water right, but it is not a recreational in-chamrel diversion. It is not subject to the provisions of S.B. 01-216, codified at C.R.S. '37-92-102, 103, and 105 (as amended effective June 5, 2001), which establish a procedure for the adjudication of a recreational in-charnrel diversion by a local government. 17. Recreational Diversion. The water required for the Course is diverted from the main channel of the Roaring Fork River into an adjacent channel, and is thereby diverted, captured and controlled as a matter of law. Cigg of Thomton v. Cig; of Fort Collins, 830 P.2d 915 (Colo. 1992). The controlling of the claimed amounts of water during the claimed time periods in the Course channel (1) represents a reasonably efficient practice of` diversion and beneficial use, (Alamosa-La] ara Water Users Protection Ass=n v. Gould, 674 P.2d 914, 934-5 (Colo. 1983); Cigg of Thornton v. Cigg of Fort Collins, 830 P.2d 915 (Colo. 1992); C.R.S. 37-92-l03(4) and C.R.S. (2) represents the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation was lawfirlly made by Aspen (C.R.S. and (3) has created opportunities for the intended recreation experiences to occur, City of` Thornton v. Cig of Fort Collins, 830 P.2d 915 (Colo. 1992). City of Aspen Case No. .. 4 .. 18. Beneficial Use. By using the Course structures and devices ina reasonably efficient manner to control that amount of water that is reasonable and appropriate to accomplish without waste the intended recreational boating purposes, and by thereby providing an opportunity for the intended recreational experience to occur, Aspen=s appropriation meets the beneficial use standards historically applied to water rights. C.R.S. See also, Santa Fe Ranches Property Owners Assoc. v. Simpson, 990 P.2d 46, 53-54 (Colo. 1999). 19. Appropriation. Aspen has effected an appropriation of` water f`or the Course by diverting the claimed amounts of water at the claimed time periods, and applying such water to beneficial use, specifically, recreational boating in the City of Aspen Whitewater Course. Recreational boating is a recognized beneficial use of water under Colorado water law. C.R.S. City of` Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). 20. Decree. Subject to the terms and conditions set forth herein, Aspen is entitled to a decree confirming absolute water rights for recreational boating purposes at the Course in the amounts claimed during the claimed time periods with an appropriation date of June 12, 1992. JUDGMENT AND DECREE 21. The foregoing Findings of Facts and Conclusions of law are fully incorporated into this Judgment and Decree by this reference. 22. The Court hereby grants the application and hereby decrees absolute water rights for the City of Aspen Whitewater Course at the location described above for recreational boating uses, with incidental piscatorial uses, in the amounts and at the time periods set f`orth above at paragraph 10, with an appropriation date of` June 12, 1992. 23. Pursuant to 37-84-113 and C.R.S. (2003), Aspen shall, at its own expense, install and maintain such meters, gages or other measuring devices as may be deemed necessary by the State or Division Engineer to allow administration of the terms of this decree. Further, Aspen shall prepare and provide to the Division Engineer such accounting of diversions into the whitewater course as the Division Engineer may require, including an annual report filed by November of each year summarizing such diversions. (`ity of Aspen (`ase No. .. 5 - 5 24. The water rights and priority granted herein are based on the appropriation date confirmed herein and on the filing of the application in this case in the water court in 2000. Said water rights and priority shall be administered as having been filed in 2000 and shall be junior to all water rights granted pursuant to applications filed in previous years. As between all water rights applied for in the same calendar year, priorities shall be determined by historical dates of appropriation and shall not be affected by the date of application or the date of entry of ruling. It is ORDERED that a copy of this Decree shall be tiled with the appropriate Division Engineer and the State Engineer. Dated this 2005** 1 . er Craven, Water Division No. 1 Ruling 0609N FINAL 012005.upI 0 ot the foregoing matted to att Counsel Water Referee. Div En nneer and State Engineef Date EZ - gpputy Clark Wutnr Div. 5 Cc K5 ud?k I Gly of Aspen Case No. - 6 .. o--1 LJs.85