ALPERSTEIN COVELLDATE FILED: July 10, 2017 5:48 PM
FILING ID: 8B44B2FDA29C2
DONALD A LPERSTFIN 16011 HT 900 CASE 1.60m
(TOYELL DENY R, COLORADO 80202?4903 
E. ERYAIS 
A DR EA L. BENSON 
LBERT Y. .VIA TELEPHONE (303) 894-8191
Of Counsel FAX {303) 861?0420

July 10,2017

Alan Martellaro, Division Engineer

Water Division No. 5 Via Colorado Courts E-Filing (CCE)
PO. Box 396

Glenwood Springs, CO 81602

RE: Application of City of Aspen (Case No. 16CW3128)
Dear Mr. Martellaro:

The City of Aspen, applicant in the above-named case, provides this letter in response to
your consultation report dated January 19, 2017. This letter provides a response to your
concerns enumerated below.

1. Per the application, paragraph 3 G, the applicant lists ?other bene?cial 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.

The use language recited above is included in the original decree for this water right, and
in subsequent diligence decrees. Paragraph 3G of the application is thus an accurate
statement of the uses decreed in the original decree and subsequent diligence decrees.
This language was not found to be speculative in that original decree, or in the
subsequent diligence decrees. Aspen understands that it must meet its burden of proof in
order to obtain a referee?s ruling and/or a decree continuing this conditional water right.

2. Regarding the ?can and will? and the ?anti-speculation? doctrines, the applicant must
demonstrate that (I) 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 exemptionfrom the anti?speculation doctrine under C. R. S. 37?92?103 and (6)
it cannot assert issue or claim preclusion to avoid the ?can and will? and ?anti?
speculation? doctrines.

ALPERSTEIN COVELL, pc.

A A A 

 

Alan Martellaro, Division Engineer
Water Division No. 5
July 10, 2017

Page 2

CC:

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. The 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 justi?? the
continued needfor these water rights.

Aspen understands that it must meet the required burden of proof at trial in order to
obtain a decree continuing this conditional water right for another six?year period,
although Aspen does not entirely endorse the above characterization of what that burden
of proof entails, or what legal arguments it is entitled to make. Aspen also understands
that the referee will require any ruling she enters to be supported by the record.

Sincerely yours,






F. Covell

Opposers

City Council, City of Aspen
James R. True

David Hombacher

Margaret Medellin