Water Division 5 – Main Office P.O. Box 396 Glenwood Springs, CO 81602 REPORT OF THE DIVISION ENGINEER SUMMARY OF CONSULTATION ! " # CASE NO.: APPLICANT: 16CW3129 Aspen, City Of STRUCTURE Castle Creek Reservoir APPL. CLAIM Due Diligence The application was filed with the court on October 31, 2016. CONCERNS I cannot recommend approval of this application until the following concerns are addressed: 1. Per the application, paragraph 3G, the applicant lists “other beneficial uses, both consumptive and non consumptive”. The applicant must explain what these ‘other’ uses are or they should be cancelled by the court as speculative. 2. Regarding the “can and will” and the “anti-speculation” doctrines, the applicant must demonstrate that: (1) it will secure permits and land use approvals that are necessary to apply the subject water rights to beneficial use; (2) it will complete the appropriations within a reasonable time; (3) a specific plan is in place to develop the subject water rights; (4) it is not speculating with the subject water rights; (5) applicant is not entitled to an exemption from the anti-speculation doctrine under CRS 37-92-103(a)(I); and (6) it cannot assert issue or claim preclusion to avoid the “can and will” and the “anti-speculation” doctrines. a. Regarding the “can and will” and the “anti-speculation” doctrines, the applicant must demonstrate that it will complete the appropriations within a reasonable time and a specific plan is in place to develop the subject water rights. This water right was originally adjudicated in CA-5884. b. Based on the Pagosa Springs Colorado Supreme Court decisions, the applicant must demonstrate substantiated population growth in order to justify the continued need for these water rights. RECOMMENDATIONS Based on the above concerns, the State and Division Engineers ask that the issues discussed in this consultation be addressed prior to granting any findings of diligence for Castle Creek Reservoir. Information requested in this consultation should be submitted to the Division 5 Water Court. Date: January 17, 2017 SIGNED:____________________________________________ Alan C. Martellaro, P.E., Division Engineer Staff Assigned: Jana Miller CRS 1973, 37-92-302(4),signed into law May 17, 1998, provide that the applicant or the applicant's attorney shall mail or deliver a copy of this consultation to all parties of record who filed a statement of opposition to this application. The statute P.O. Box 396, Glenwood Springs, CO 81602 P 970.945.5665 F 970.945.8741 www.water.state.co.us also requires that the applicant or his/her attorney shall file a certificate of mailing with the water clerk for Water Division 5, confirming that this consultation (and attachment) is mailed to any and all opposing parties. CERTIFICATE OF MAILING I hereby certify that on this 23rd day of January 2017, a true and correct copy of the foregoing Summary of Consultation of the Division Engineer was served to the individuals listed below, either electronically through Colorado Courts E-Filing System or by first-class U.S. mail, as indicated: Dick Wolfe, P.E., State Engineer Division of Water Resources 1313 Sherman Street Room 818 Denver, Colorado 80203 Electronically Served Alperstein and Covell PC Andrea L Benson Cynthia F Covell Alyson K Scott 1600 Broadway, Suite 2350 Denver , CO 80202-4923 Electronically Served _____________________________________ P.O. Box 396, Glenwood Springs, CO 81602 P 970.945.5665 F 970.945.8741 www.water.state.co.us