RESOLUTION NO. 90 Series of 1997) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN AND THE COLORADO WATER CONSERVATION BOARD, REGARDING INSTREAM FLOWS ON CASTLE CREEK. WHEREAS, the staff has City' s negotiated an with staff intergovernmental agreement of the Colorado Water Conservation Board ( CWCB) to allow effective administration of the CWCB' s decreed instream flow WHEREAS, the on Castle Creek and better proposed intergovernmental agreement of its decreed water rights bypass a portion CWCB' s instream flow decree is fulfilled confluence of Castle Creek and the WHEREAS, the appointed as on s flow protection policy; WHEREAS, the of the Roaring provides that the Castle Creek if necessary to assure City will that the Castle Creek between the Midland Flume and the Fork River; and for the City to be agent for administration of the CWCB' s decreed instream flow; and City has had the rivers and streams in the WHEREAS, the on on also of the instream flow; and proposed intergovernmental agreement provides the CWCB' WHEREAS, the protection a longstanding policy supporting Aspen vicinity; instream flow protection and City' s instream and water counsel have recommended approval proposed intergovernmental agreement will further the and City' s water department proposed intergovernmental agreement; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby determines that the proposed intergovernmental agreement with the CWCB implements the City of Aspen policy of protecting instream flows on the rivers and streams in the Aspen vicinity, and therefore authorizes the Mayor to execute on behalf of the City of Aspen this Resolution. the Intergovernmental Agreement I~ day RESOLVED, APPROVED AND ADOPTED this the by City Council for the City of is a Kathryn S. Koch, duly appointed and true and accurate copy of that resolution Colorado, at a meeting acting City adopted by held &~ / - the J:: Clerk, do City 1997, s:- wp\ asp- res. dl0 ( 12/ 10/ 97) 2 4 tt, ~;:_~; certify that the Council of the City foregoing of Aspen, 1997. Kathryn userc\ fc\ of ~ Aspen, Colorado . John I, attached to S. R~ och, City Clerk INTERGOVERNMENTAL AGREEMENT The Colorado Water Conservation Board, an agency of the State of Colorado (" Board") of a Colorado municipal corporation and home rule city (" City Aspen, Aspen"), in consideration of the mutual promises contained in this document, agree as follows: and the 1. The Board is the owner of a 12 cubic foot per second ( cfs) instream flow right minimum stream flow to protect the natural environment to a reasonable degree on Castle Creek, a tributary of the Roaring Fork River in Pitkin County, Colorado. Said instream flow right was decreed on June 5, 1980, in Case No. W- 2947, with an to maintain date of a January appropriation 14, 1976. 2. flow The Board determined, and the Court decreed, in connection with the instream application in Case No. W-2947, that the natural environment in Castle Creek can be preserved to a reasonable 3. authority, c.R.S. ~ degree 37- 92- 103( 3) behalf of the on 4. with people a minimum instream flow of 12 cfs. that the Board is vested with the exclusive of the state of Colorado, to appropriate such instream flows. provides Pursuant to C. R.S. ~ 37- 92- 102( 3), the Board is vested with statutory authority contractual agreement such water, water rights, or interests in water as the Board determines may be required for minimum stream flows to preserve the natural environment to to a acquire by reasonable degree. 5. Aspen the following decreed water rights on Castle Creek which are rights on Castle Creek, and which are the rights on Castle Board' s instream flow rights: owns to the Board' s instream flow most likely to affect the Name Priority No. Decree Decreed Aspen' s Arnt. share senior Creek Decreed Use cfs) Castle Creek- 136( A) CA 493 60. 0 60. 0 Midland Flume 207 CA 494 100. 0 100. 0 Municipal Municipal Holden Ditch 613 CA4033 30. 0 25. 9 Irrigation Marolt Ditch 279 CA 3053 18. 6 13. 6 Irrigation 422 CA 3082 3. 5 1.55 435 CA 3082 2. 0 1.00 Si Johnson Ditch 6. Irrigation Aspen wishes to use its Castle Creek water rights as described herein to assist the maintaining the decreed instream flows on Castle Creek between the Midland Flume and the confluence of Castle Creek and the Roaring Fork River at times when the decreed instream flows in Castle Creek do not yield 12 cfs in that reach of Castle Creek. To accomplish this Aspen is willing to (1) operate its own water rights as herein described to assure that there Board in is an instream flow of 12 cfs in Castle Creek between the Midland Flume and the confluence Roaring Fork River; and ( 2) provide the measuring and monitoring services herein of the described to determine whether Board' s decreed instream flow 7. At its a call should be on placed against junior water rights to protect the Castle Creek. . Aspen will install at the Midland Flume measuring devices, approved by the Division Engineer, which are capable of continuously measuring stream flows in Castle Creek during low streamflows at that location. Also at its cost, Aspen will, to the extent necessary, rebuild or reconfigure its Midland Flume to the continuous permit bypass of at least 12 8. own cost, cfs of water in Castle Creek at the Midland Flume. When the streamflow Midland Flume, the Board on Castle Creek falls below 12 cfs, Aspen, pursuant to this as measured at the will Agreement, place a call under the decreed in Case No. W- 2974. Once the Division Engineer has priority administered the call and less than 12 cfs remains in the stream immediately downstream of the Board' s instream flow or as Midland Flume, Aspen will allow water available to it from its Midland Flume and Castle Creek Flume water rights to bypass the Midland Flume to the extent necessary to assure that there is an instream flow of 12 cfs immediately downstream of the Midland Flume, provided, however, that the maximum bypass that will be required of Aspen under this Agreement is 12 cfs, and further provided that Aspen retains the right to divert its water rights notwithstanding this paragraph if needed for municipal purposes under circumstances such as extraordinary drought or emergency conditions in its municipal water supply. Aspen will not call its water right to provide water to supply the Board' s decreed instream flow. 9. The parties agree that for purposes of this Agreement, the streamflow at the confluence of Castle Creek and the Roaring Fork River will be determined by subtracting from measurement of streamflow at the Midland Flume the diversions from Castle Creek by the Holden, Marolt and Si Johnson Ditches. The parties acknowledge that this measurement method does not take into account diversions by the Tagert Ditch, which is decreed for 1.39 cfs, but the believe that natural accretions and return flows to Castle Creek may be sufficient to offset diversions by the Tagert Ditch. parties 10. Aspen' s interests in the Holden Ditch, Marolt Ditch, and Si Johnson Ditch are currently irrigation purposes. Aspen agrees that when the Board' s instream flow decree is not met at the confluence of Castle Creek and the Roaring Fork River ( determined as provided in paragraph 9 above), a call has been placed by the Board or Aspen pursuant to this Agreement, and the Division Engineer has administered the call placed pursuant to the Board' s instream flow will allow water available to it from its Holden Ditch, Marolt Ditch, and/ or Si priority, Aspen Johnson Ditch water rights to bypass their respective headgates, or will bypass additional water from its Midland Flume and Castle Creek Flume water rights, to the extent necessary to assure that the instream flow of 12 cfs is met at the confluence of Castle Creek and the Roaring Fork River, provided, however, that the maximum bypass that will be required of Aspen under this Agreement is 12 cfs, and further provided that Aspen retains the right to divert its water rights notwithstanding this paragraph if needed for municipal purposes under circumstances such as used for 2 extraordinary drought 11. monitoring or emergency conditions in its The Board hereby authorizes Aspen to flow right on Castle Creek. of its instream 12. municipal As the Board' s water supply. be its agent for administration and agent, Aspen shall be responsible for monitoring streamflows in Castle Creek at the Midland Flume, for operating the stream model described in paragraph 17 to determine when the Board' s instream flow right is in priority in Castle Creek above and below the Midland Flume, and for calibrating or refining such stream model from time to time. If measurement or model results indicate that the Board' s decreed instream flow is in priority, but that there is not enough water physically available to fulfill the decree ( without including the Aspen bypasses), then Aspen shall contact the water commissioner or Division Engineer on the Board' s behalf, and call for curtailment of junior water rights to make water available for the decreed instream flow. Aspen shall immediately report to the Board any time a call is made. 13. rights to The Board assist the Board' of the Division recognizes s Engineer, that Aspen Creek and its tributaries. Should the Division rights on Castle Creek bypass water hereunder has agreed to bypass portions of its own water instream flow program as described herein in reliance on the ability Water Division No. 5, and water commissioner to administer Castle and its and, at be unable to reasonably administer water tributaries to protect the instream flow, Aspen may refuse to its election, may terminate this Agreement. Engineer 14. Aspen shall be responsible for maintaining all records necessary for the implementation of this Agreement, using forms mutually agreeable to the parties, and all records of streamflows at the Midland Flume, and diversions by Aspen' s water rights, as reasonably required by the Division Engineer for administration of water rights ( including the instream flow) in Castle Creek. 15. will provide an annual report to the Board on the operation of this actions taken by it as the Board' s agent, and its planned operations for the The report shall be provided by January 1 of each year and shall address the Aspen Agreement, the upcoming year. previous year' s activities. 16. Upon thirty ( 30) days advance written notice to discretion, revoke this authorization for Aspen Board revokes this authorization, then it must the administration and Agreement. monitoring comprehensive The parties assume Aspen, the Board may, in its sole its agent; provided, however, that if the at its own expense all responsibility for that would be undertaken If the Board fails to do 17. to act as agree stream measurement so, Aspen may by Aspen in order to implement terminate this Agreement. this cooperate in the design and implementation of a system on Castle Creek and development of a reliable model to of Castle Creek that will enable real- time administration of Castle Creek. The operational model will be developed and calibrated to enable the parties to predict when the Board' s decreed instream flow is in or out of priority in reaches both upstream and downstream of the Midland 3 Flume, so that the instream flow may be effectively administered by the Division Engineer. The Division Engineer shall be asked for input and assistance as needed in the development of the model, and the final model will be subject to approval by the Division Engineer, and his acceptance thereof as an administrative tool. If a reliable operational model cannot be developed within a reasonable time, or if the Division Engineer does not approve or accept the model, either party may, at its election, terminate this Agreement. 18. The Board will exempt Castle Creek and Conundrum Creek, tributary to Castle Creek, from its de minimis rule, pursuant to the Board?s instream ?ow protection rules, specifically Rule 9.33. The Board will take action to protect its instream ?ow decree on Castle Creek according to its rules. 19. The Board agrees that Aspen?s operation of its water rights to implement this Agreement is not evidence of any intent by Aspen to abandon any of its water rights, and that the Board shall not at any time allege in a court or other proceeding or to any other person or entity that Aspen has abandoned, or intends to abandon, any water rights by virtue of its participation in this Agreement. 20. Should the Board determine at any time that it is necessary to seek a reduction or enlargement of its instream ?ow on either Castle Creek or Conundrum Creek, Aspen may, at its election, terminate this Agreement. 21. All notices required to be given pursuant to this Agreement shall be in writing, and shall be deemed given upon delivery or, if mailed, three days following deposit in the United States Mail, registered or certified, postage pre?paid, properly addressed to the party to whom directed as follows: To the Board: Dan Merriman, Chief, Water Rights Investigation Colorado Water Conservation Board 1313 Sherman Street, Room 721 Denver, CO 80202 To the City: Water Director, City of Aspen 130 South Galena Street Aspen, Colorado 81611 cc: F. Covell, Esq. Alperstein Covell PC. 1600 Broadway Suite 2350 Denver, Colorado 80202 specifically provided herein, duties hereunder, or assign any of 22. Except as any of its written consent of the other. delegate Either party may terminate this 23. neither party to this Agreement may its rights hereunder without the prior Agreement upon sixty days prior written notice to the other. This 24. Agreement may not be amended except in writing, signed by the parties hereto. By signing this Agreement the parties acknowledge and represent to that all procedures necessary to validly contract and execute this Agreement performed and that the persons signing for each party have been legally authorized 25. IN WITNESS WHEREOF, the parties have executed this 19 COLORADO WATER CONSERVATION BOARD By: Director Approved as to form: CWCB attorney] CITY OF ASPEN, COLORADO Approved Ci At user\ cfc\ wp\ as to form: l~ tc/ 9r I ~/ rney cwcb7.iga ( FINAL EXECUTION VERSION) 5 Agreement on each other have been to do so. the _ day of