DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 8th Street, Suite 104 DATE FILED: December 29, 2016 12:55 PM Glenwood Springs, Colorado 81601-3361 FILING ID: 1283411730D45 ______________________________________________ CASE NUMBER: 2016CW3128 CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE CITY OF ASPEN, COLORADO IN PITKIN COUNTY, COLORADO ______________________________________________ ▲ COURT USE ONLY ▲ John M. Ely, Pitkin County Attorney Laura C. Makar, Assistant Pitkin County Attorney ____________________________ Richard Y. Neiley, Assistant Pitkin County Attorney 123 Emma Road, Suite 204 Case No. 16CW3128 Basalt, Colorado 81621 970-920-5190 970-920-5198 (FAX) John.Ely@pitkincounty.com Laura.Makar@pitkincounty.com Atty. Reg. #14067 Atty. Reg. #41385 Atty. Reg. #45848 STATEMENT OF OPPOSITION 1. Name, mailing address and telephone number of opposer: Board of County Commissioners of Pitkin County (“Pitkin County”) c/o Pitkin County Attorney’s Office 123 Emma Road, Suite 204 Basalt, Colorado 81621 (970) 920-5190 2. State facts as to why the application should not be granted or why it should be granted only in part or on certain conditions: A. Applicant must be placed on strict proof with respect to each element of each claim for conditional water right, including, but not limited to, the following: i. Applicant’s ownership of or enforceable property interest in the structures and water right included in the application; a. This water right is located within a designated wilderness area and the Applicant’s ability to obtain the property interest necessary to construct the structure, as decreed, within this wilderness area is unproven. In re: City of Aspen, Colorado Case No. 16CW3128 Page 2 ii. That the water can and will be diverted or otherwise captured and controlled and will be beneficially used; a. Applicant’s Water Supply Availability Study 2016 Update by the Wilson Water Group demonstrates that this water right is unnecessary to meet current and future demand within a reasonable planning period using normal population growth assumptions. b. Applicant’s claim for “other beneficial uses” of the water right is ambiguous and Applicant must show what “other beneficial uses” were contemplated at the time of appropriation and adjudication. c. Statements by Applicant’s council members and mayor indicate that Applicant does not intend to effectuate these water rights in a reasonable time period. iii. That the Applicant has steadily applied effort to effectuate the water right in a reasonably expedient and efficient manner; a. The appropriation date of this water right is more than 50 years ago and Applicant appears to be speculating with no reasonable demonstration of need. iv. The protective terms and conditions which must be imposed on Applicant to prevent injury to Pitkin County; and v. The measurement, recording, and water handling obligations that must be assumed by the applicant in order to assure proper compliance with all the terms and conditions in any decree ultimately entered herein. B. Pitkin County owns surface water and ground water rights and has contractual interests, conservation easements and agreements pertaining to water rights and water use throughout the Roaring Fork River Basin that may be materially injured or impaired if the application is granted without appropriate limitations and protective conditions. C. The application does not provide sufficient information for Pitkin County to determine whether other grounds for objection exist and, therefore, Pitkin County reserves the right to state further grounds for objection as more information becomes available. In re: City of Aspen, Colorado Case No. 16CW3128 Page 3 3. This statement of opposition is continuing in nature and shall apply equally to any amended application that may be filed herein, so that the filing of separate statements of opposition to any such amended application will be unnecessary. DATED this 29th day of December 2016. PITKIN COUNTY ATTORNEY’S OFFICE By: /s/ Laura C. Makar Attorney for Opposer Board of County Commissioners of Pitkin County CERTIFICATE OF SERVICE I hereby certify that on this 29th day of December 2016, a true and correct copy of the foregoing STATEMENT OF OPPOSITION was filed with the clerk of the District Court, Pitkin County and served on the following via the Colorado Courts E-Filing: Cynthia F. Covell, Esq. Andrea L. Benson, Esq. Alyson K. Scott, Esq. Alperstein & Covell, P.C. 1600 Broadway, Suite 900 Denver, CO 80202 Bart Miller, Esq. Robert Harris, Esq. Western Resource Advocates 2260 Baseline Road, Suite 200 Boulder, CO 80302 Paul L. Noto, Esq. Jason M. Groves, Esq. Patrick, Miller & Noto, P.C. 197 Prospector Road, Ste. 2104A Aspen, CO 81611 State Engineer 1313 Sherman Street, Room 818 Denver, CO 80203 Division 5 Water Engineer 202 Center Drive Glenwood Springs, CO 81601 By /s/Jane Achey In re: City of Aspen, Colorado Case No. 16CW3128 Page 5 VERIFICATION AND ACKNOWLEDGMENT OF PERSON HAVING KNOWLEDGE OF THE FACTS STATED IN THIS STATEMENT OF OPPOSITION Being ?rst duly sworn, I hereby state that I have read this Statement of Opposition, that I have personal knowledge of the facts stated and verify its contents to the best of my knowledge, information, and belief. @9 I. raga. (a jon Pea/50c Date The foregoing instrument was acknowledged before me in the County of Pitkin, State of Colorado, this%l1?day of 29 [f mde 2016, by the person whose signature appears above. My Commission Expires: ?it 10? JANE A. ACHEY NOTARY PUBLIC STATE OF COLORADO MY COMIFMIOSEISII Eigt?geis??giiggm 2019 ?g??jw Notafyj?ublicz?Deputy Clerk 0' The person signing this veri?cation is: Pitkin County Manager.