ATTACHMENT C

DISTRICT COURT, WATER DIVISION NO. 5,
STATE OF COLORADO
109 Eighth Street, Suite 104
Glenwood Springs, CO 81601-3303
IN THE MATTER OF THE APPLICATION FOR
WATER RIGHTS of the CITY OF ASPEN,
COLORADO,
IN PITKIN COUNTY
Attorneys for Applicant
Cynthia F. Covell, Esq., Reg. No. 10169
Andrea L. Benson, Esq., Reg. No. 33176
Alperstein & Covell, P.C.
1600 Broadway, Suite 1070
Denver, CO 80202
Phone: (303) 894-8191
Fax: (303) 861-0420
cfc@alpersteincovell.com; alb@alpersteincovell.com

▲ COURT USE ONLY ▲
Case Number: 2016CW3129
(CA5884, W-791, W-791-77,
81CW063, 85CW045, 89CW030,
95CW187, 02CW19, 09CW145)
Water Division No. 5

Attorneys for Opposer Western Resource Advocates
Bart Miller, No. 27911
Robert Harris, No. 39026
Western Resource Advocates
2260 Baseline Road, Suite 200
Boulder, CO 80302
(303) 444-1188; Fax: 303-786-8054
Bart.miller@westernresources.org
Rob.harris@westernresources.org
STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND
OPPOSER WESTERN RESOURCE ADVOCATES
Applicant, the City of Aspen (“Aspen”) and Opposer Western Resource Advocates
(“WRA”) by and through their undersigned attorneys, hereby stipulate and agree as follows.
1.

The water right for which diligence is sought in this case is the Castle Creek Reservoir
conditional storage right decreed in Case No. CA 5884 on November 5, 1971, by the
District Court, Garfield County, Colorado (“Castle Creek Reservoir Storage Right”).
WRA hereby consents to the entry of a Decree regarding the Castle Creek Reservoir
Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact,
Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as
Exhibit A (“Proposed Decree”). WRA shall not protest, appeal or otherwise challenge any
ruling or decree ultimately entered by the Water Court in this matter, so long as its terms

 ATTACHMENT C
WRA Stipulation and Agreement
Case No. 2016CW3129
Page 2

and conditions are no less restrictive on Aspen than those contained in the Proposed
Decree. The decree ultimately entered by the Water Court in this matter is referred to
herein as the “Final Decree.”
2.

In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will
not seek to retain any portion of the Castle Creek Reservoir Storage Right at its original decreed
location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed
Location”). Prior to expiration of the diligence period that commences with entry of the Final
Decree, Aspen will file a water court application with the Water Court, Water Division No. 5
(“Change Application”), to change the location of the Castle Creek Reservoir Storage Right
(as to which diligence is continued by the Final Decree), to one or more new location(s) of
storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point
Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore
Open Space, or any other location or locations the parties have agreed to in writing (“New
Reservoir Sites”). The general location of each of the New Reservoir Sites described above is
depicted on the attached Exhibit B. The Change Application will not include other locations
without the prior written agreement of all Opposers in this case and in Case No. 2016CW3128
(regarding Maroon Creek Reservoir). Aspen agrees that (1) the amount of storage sought
pursuant to the Change Application will not exceed 8,500 acre-feet pursuant to the Castle Creek
Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle
Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in
Case No. CA 5884), or any combination of such storage rights, will not exceed 8,500 acre-feet,
and (3) the locations of such storage will not include locations other than the New Reservoir
Sites.

3.

Any storage reservoir that may be constructed to store the Castle Creek Reservoir Storage
Right on Moore Open Space depicted on Exhibit B will be constructed as an underground
storage structure.

4.

Aspen will provide the Change Application to WRA for review no later than sixty (60)
days before it is filed in the Water Court, in order to allow WRA to confirm that it is
consistent with this Stipulation and with the Final Decree. If no objection is made by WRA
or any other Opposer within thirty (30) days of the date on which the Change Application
is provided (“Notice Period”), Aspen will file the Change Application in substantially the
form provided to Opposers. If WRA does not believe that the Change Application is
consistent with this Stipulation and with the Final Decree, WRA shall provide notice to
Aspen within the Notice Period, identifying the specific provisions it believes to be
inconsistent with this Stipulation or the Final Decree. Aspen and WRA shall cooperate in
good faith to resolve their disagreement.

5.

WRA, its agents, assigns or successors in interest will not oppose the Change Application,
directly or indirectly, and will take no position regarding the allegations therein. In addition,
for a period of twenty (20) years from the date of entry of the Final Decree, WRA, its agents,
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 ATTACHMENT C
WRA Stipulation and Agreement
Case No. 2016CW3129
Page 3

assigns, or successors in interest will not oppose, directly or indirectly, and will take no position
regarding the allegations contained in future diligence applications or applications to make
absolute some or all of the Castle Creek Reservoir Storage Right that has been decreed for
storage at one or more of the New Reservoir Sites. WRA’s obligations under this paragraph
apply only to proceedings and other matters specifically involving the Castle Creek Reservoir
Storage Right.

6.

WRA may fully participate in any environmental assessments, land use proceedings or other
approval processes required for construction or operation of a reservoir(s) at any of the New
Reservoir Sites, in which proceedings WRA may, without limitation, raise concerns about the
environmental impacts associated with the construction and operation of such reservoir(s),
including but not limited to potential impacts to riparian health, aquatic habitat, water quality,
and to any wildlife migration corridor that may exist at the Cozy Point Ranch site, as well as
any other matter relevant to those proceedings.

7.

After the Change Application has been filed, Aspen will diligently pursue the Change
Application to completion, provided, however, that Aspen may, at its discretion, withdraw the
Change Application with prejudice in whole or in part, or amend the Change Application
without WRA’s approval so long as (1) the amount of storage sought pursuant to the Change
Application does not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage
Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir
Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884),
or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations
of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen
may, but need not, appeal a decree or other water court ruling on the Change Application
without WRA’s approval.

8.

Aspen may not divert the Castle Creek Reservoir Storage Right through the Salvation Ditch
system to fill any of the New Reservoir Sites without prior written consent from the Salvation
Ditch Company or pursuant to other legal authority.

9.

If and to the extent the Change Application does not result in a final decree changing the
location of storage of all of the Castle Creek Reservoir Storage Right as decreed by the Final
Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application,
or other final order denying or dismissing the Change Application, in whole or in part, file
appropriate pleadings to cancel the portion of the Castle Creek Reservoir Storage Right that is
not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said
final decree or other order will be the decree or order following the outcome of the appeal.)
The intent of this paragraph is that Aspen will relinquish any portion of the Castle Creek
Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites
pursuant to the Change Application, and Aspen will forego the right to store water pursuant to
the Castle Creek Reservoir Storage Right at the Original Decreed Location.

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 ATTACHMENT C
WRA Stipulation and Agreement
Case No. 2016CW3129
Page 4

10.

If Aspen does not file a Change Application prior to expiration of the diligence period that
commences with entry of the Final Decree, Aspen will not seek a finding of reasonable
diligence or to make absolute the Castle Creek Reservoir Storage Right.

11.

Aspen and WRA agree that this Stipulation is effective only upon execution of the same or
a substantially similar Stipulation (including approval of the same or a substantially similar
form of the Proposed Decree) by all parties to this case. Once all parties to this case have
entered into the same or a substantially similar Stipulation, Aspen will re-refer the abovecaptioned case to the Water Judge, Water Division No. 5. Following the Order of Rereferral, Aspen will file the fully-executed Stipulations of the parties to this case, together
with unopposed motions to the Court for approval the fully-executed Stipulations and for
entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than
the Proposed Decree.

12.

The parties hereto shall bear their own costs and attorney fees.

13.

This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the
undersigned parties.

14.

This Stipulation supersedes and controls all prior written and oral agreements and
representations of the parties regarding the subject matter hereof. All prior and
contemporaneous conversations, negotiations, possible alleged agreements,
representations, covenants and warranties concerning the subject matter hereof are merged
herein. This Stipulation may not be modified except in a writing signed by both parties.

15.

This Stipulation may be executed using counterpart signature pages with the same force
and effect as if both parties had signed on the same signature page. Electronically generated
copies of this Stipulation signed by the parties shall be treated as originals.

16.

Copies of the Change Application, WRA’s comments thereon and the final decree on the
Change Application shall be provided to the party to whom directed at the address set
forth below or at such other address as may be provided by a party by notice pursuant to
this paragraph unless some other form of notice is expressly agreed to in writing by both
parties.
FOR ASPEN:
City Attorney
City of Aspen
130 S. Galena Street
Aspen CO 81611

4

 ________________________
______________________,2018.

ATTACHMENT C
WRA Stipulation and Agreement
Case No. 2016CW3 129
Page 5

With copy to Cynthia Covell and Andrea Benson
Alperstein & Covell P.C.
1600 Broadway, Suite 1070
Denver CO 80202
FOR OPPOSER WRA:
Robert Harris
Senior Staff Attorney
Western Resource Advocates
2260 Baseline Rd., Ste. 200
Boulder, CO 80302
(720) 763-3713
17.

WRA will remain a party to this case for the purpose of ensuring that any Final Decree
entered herein is consistent with this Stipulation.

18.

The parties acknowledge and represent to one another that all procedures necessary to
validly contract and execute this Stipulation have been performed, and that the persons
signing for each party are duly authorized to do so.

19.

The parties desire that this Stipulation be approved by and entered as an Order of the Court.

Dated:

ALPERSTEIN & COVELL, P.C.

WESTERN RESOURCE ADVOCATES

By:
Cynthia F. Covell, #10169

By:____________________
Robert Harris, #39026

ATTORNEYS FOR
CITY OF ASPEN

ATTORNEYS FOR WESTERN
RESOURCE ADVOCATES

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