DATE FILED: May 21, 2010 5:42 PM
CASE NUMBER: 2009CW145

DISTRICT COURT, WATER DIVISION NO. 5,
COLORADO
Garfield County Courthouse
109 8th Street, Suite 104
Glenwood Springs, CO 81601
970/945-5075

COURT USE ONLY

CONCERNING THE APPLICATION FOR FINDING
OF REASONABLE DILIGENCE OF THE CITY OF
ASPEN

Case Number: Case Number:
09CW145(CA5884, W-791, W791-77, 81CW063, 85CW045,
89CW030, 95CW187, 02CW19)

in PITKIN COUNTY, COLORADO

Water Division No. 5

FINDINGS AND RULING OF THE REFEREE AND DECREE OF THE COURT

The above-captioned application was filed with the Water Court on September 30, 2009,
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 Referee having reviewed the pleadings of the parties, the Report of the Division
Engineer Summary of Consultation dated December 18, 2009, and additional evidence has been
obtained where such evidence was necessary to determine whether or not the statements in the
application are true, and having become fully advised with respect to the subject matter of the
application hereby finds:
FINDINGS OF FACT
1. Applicant: The applicant is the City of Aspen, c/o Phil Overeynder, Utilities Director,
130 South Galena Street, Aspen, CO 81611, telephone, (970) 920-5110.
2. Notice and Jurisdiction.
All notices of the application were given in the manner required by law, and the
Application was published in the September, 2009 Resume for Water Division 5. The Court has
jurisdiction over the subject matter of this proceeding and over all persons and property affected
hereby, irrespective of whether those persons or property owners have appeared. None of the

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 lands or water rights involved in this case is within the boundaries of any designated
groundwater basin.
3. Opposition and Stipulation. A timely Statement of Opposition was filed on behalf of
Mark and Karen Hedstrom. The time for filing Statements of Opposition has now
expired. Applicant entered into a stipulation with Mark and Karen Hedstrom on May 3,
2010. The Court approved this stipulation by Order dated __________.
4. Names of structures: Maroon Creek Reservoir and Castle Creek Reservoir.
5. Original Decrees for Conditional Water Rights: The water rights were originally decreed
on November 5, 1971 in Case No. CA 5884, Water Division No. 5.
6. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. 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).
7. Location of Conditional Water Rights: the water rights are located as follows:
Castle Creek Reservoir: The Castle Creek Reservoir is located in Sections 18 and 19, Township
11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado. The initial point of survey of
the high water line of the reservoir on the east side of the dam is located such that the angle from
the axis of the dam measured clockwise is 66° 25' to Highland Peak and 340° 51' to Hayden
Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by
local, state or federal agencies.)
Maroon Creek Reservoir: The Maroon Creek Reservoir is located 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 86° 57' to Pyramid Peak and 105° 56' 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.)
A USGS map showing the locations of the reservoirs is attached as Exhibit A.
8. Source. Castle Creek Reservoir is tributary to Castle Creek, tributary to the Roaring Fork
River, and Maroon Creek Reservoir is tributary to Maroon Creek, tributary to the Roaring
Fork River.

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 9. Appropriation Date and Amounts. The appropriation date for both reservoirs is July 19,
1965. The amount appropriated for the Castle Creek Reservoir is 9,062 acre-feet, and the
amount appropriated for the Maroon Creek Reservoir is 4,567 acre-feet.
10. Decreed Uses. The water rights are decreed for industrial, irrigation, domestic, municipal,
and other beneficial uses, both consumptive and nonconsumptive. A topographic map
showing the current service boundaries for the City of Aspen for all the intended uses and
which identifies the Sections, Township and Range, is attached as Exhibit B.
11. Work Performed During Diligence Period.
The Castle Creek Reservoir and the Maroon Creek Reservoir are part of the City’s integrated
water supply system which provides water within the City, and extraterritorially by agreement.
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.
The Frying Pan-Arkansas Project, authorized by legislation dated August 16, 1962, authorized
construction, operation and maintenance of a replacement reservoir on Castle Creek to furnish
water required for protection of western Colorado water users. This reservoir was contemplated
to have a capacity of 5,000 acre-feet, but this reservoir was never built. In 1965, taking
precautions to ensure that its water rights were protected in the event the Frying Pan-Arkansas
Project reservoir was in fact never built on Castle Creek, the City of Aspen filed applications
seeking its own conditional water rights for storage on Castle Creek and Maroon Creek, i.e., the
Castle Creek Reservoir and Maroon Creek Reservoir water rights for which diligence is sought
herein. To date, the City of Aspen has not needed to construct the storage structures as it has
devoted considerable resources to reducing per capita water consumption. However, during the
last diligence period, the City has analyzed studies on global warming and climate change and
implications for the City of Aspen’s future water demand and supply and water management
strategies. Such studies have indicated a widespread and large increase in proportion of rainfall
versus snowfall and the need for the City of Aspen to develop these reservoir storage rights to
preserve and retain its water supply for future needs.
Further, during this diligence period, the City has continued to improve, operate and maintain its
water distribution system, of which these conditional water rights are a part. In particular, the
City has spent approximately $302,336.00 in the overall maintenance, repair and improvement
of its water system infrastructure. For example, Aspen has undertaken work on the Maroon
Creek Municipal Intake infrastructure, including, but not limited to, stream gage improvements,
catwalk and intake grate structure improvements, electric control and electric back-up power
work for improved operations. These improvements have helped to City to enable it to more
efficiently and effectively provide water service to its existing and future customers.
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 The City has defended its water rights, including these conditional water rights, against
applications filed by others in cases where the City has determined that injury to its water rights
could occur in the absence of appropriate terms and conditions. During this diligence period,
the City has expended approximately $430,236.00 in attorney fees, of which a portion was
expended specifically in opposition to water court applications in order to protect and defend the
City’s water rights.
12. Amendment of Legal Description of Castle Creek Reservoir. The legal description of the
Castle Creek Reservoir shall be amended as follows:
The Castle Creek Reservoir is located in Sections 18 and 19,
Township 11 South, Range 84 West of the 6th P.M., Pitkin County,
Colorado, but excluding that certain parcel of land described as Lot
1, Part of Subdivision H.E.S. 305, according to the Plat thereof
recorded January 22, 1980 in Plat Book 8 at Page 77, County of
Pitkin, State of Colorado. The initial point of survey of the high
water line of the reservoir on the east side of the dam is located
such that the angle from the axis of the dam measured clockwise is
66E25' to Highland Peak and 340E51' to Hayden Peak. (Ties to
mountain peaks were used since the reservoir lies within an area
not surveyed by local, state or federal agencies.)
13. Finding of Diligence. The Applicant has shown reasonable diligence in developing the
conditional water rights and the conditional water rights herein described can and will be
diverted, stored, or otherwise captured, possessed and controlled, and beneficially used.
Therefore, the application for finding of reasonable diligence for these water rights as
herein described should be granted, and the conditional decree continued in full force and
effect.
14. Orders Regarding Conditional Decrees. It is hereby ordered that the conditional decree
for the water rights herein described are continued in full force and effect
until_______________, 2016 and the month for filing an Application for a Finding of
Reasonable Diligence shall be _____________, 2016, unless a showing is made on or
before such date that one or more of the conditional water rights has become absolute by
reason of completion of the appropriation.
15. It is further ordered that a copy of this Ruling shall be filed with the Water Clerk
subject to judicial review, and that a copy of the Ruling shall also be filed with the
Division Engineer, Water Division No. 5, and with the State Engineer.

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 Dated___________________
______________________________
Water Referee, Water Division 5
State of Colorado
THE COURT FINDS THAT NO PROTEST WAS FILED IN THIS MATTER. THE
FOREGOING RULING IS CONFIRMED AND APPROVED, AND IS HEREBY MADE
THE JUDGMENT AND DECREE OF THIS COURT.
Dated__________________
______________________________
James B. Boyd, Water Judge
Water Division No. 5
State of Colorado

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