Attachment H - Attachment to Maroon Creek Stipulations EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Garfield County Courthouse 109 8th Street, Suite 104 Glenwood Springs, CO 81601 970/945-5075 COURT USE ONLY CONCERNING THE APPLICATION FOR FINDING OF REASONABLE DILIGENCE OF THE CITY OF ASPEN Case Number: 2017CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) in PITKIN COUNTY, COLORADO Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF THE WATER COURT (Maroon Creek Reservoir) This matter comes before the Water Court upon the application of the City of Aspen, Colorado (“Applicant” or “Aspen”) for a finding of reasonable diligence. The Court, having reviewed the pleadings of the parties, the comments of the Division Engineer and response thereto and having become fully advised with respect to the subject matter of the Application hereby makes the following Findings of Fact, Conclusions of Law, Judgment and Decree of the Water Court (“Decree”). FINDINGS OF FACT 1. Applicant. The applicant is the City of Aspen, Colorado, c/o David Hornbacher, Utilities Director, 130 South Galena Street, Aspen, CO 81611, telephone, (970) 920-5110. Copies of all pleadings in this matter are to be delivered to Cynthia F. Covell and Andrea Benson, Alperstein & Covell P.C., 1600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The Application in this matter was filed by Aspen on October 31, 2016, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Court on _________________________. 1 EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of these proceedings in rem was given in the manner provided by law. The Application was published in the Water Resume for Water Division 5 for October, 2016, and in the Grand Junction Daily Sentinel on November 20, 2016, the Aspen Times Weekly on November 24, 2016 and the Rifle Citizen Telegraph on November 24, 2016. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, irrespective of whether those persons or property owners have appeared. None of the lands or water rights involved in this case is within the boundaries of any designated groundwater basin. 4. Statements of Opposition and Stipulation. Timely statements of opposition were filed by Wilderness Workshop, Western Resource Advocates, Roaring Fork Land & Cattle Company, American Rivers, Pitkin County, Colorado Trout Unlimited, Larsen Family LP, and the United States of America. The time for filing Statements of Opposition has now expired. Aspen has entered into stipulations with all Opposers, and the Court has approved such stipulations as follows: a. Stipulations dated _______ with Wilderness Workshop and Western Resource Advocates, approved by Order of the Court Dated _________. b. Stipulation dated _______ with Roaring Fork Land & Cattle Company, American Rivers and Colorado Trout Unlimited, approved by Order of the Court Dated _________. c. Stipulation dated _______ with Pitkin County, approved by Order of the Court Dated _________. d. Stipulation dated _______ with Larsen Family LP, approved by Order of the Court Dated _________. e. Stipulation dated _______ with the United States of America, approved by Order of the Court Dated _________. 5. Name of structure: Maroon Creek Reservoir. 6. Original Decree for Conditional Water Right: The water right was originally decreed on November 5, 1971 in Case No. CA 5884, District Court, Garfield County, Colorado. 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 2 EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), and 09CW145 (October 11, 2010). 8. Location of Conditional Water Right: The decreed location of the Maroon Creek Reservoir conditional storage right is as follows: The decreed location of the Maroon Creek Reservoir is “Sections 7 and 8, Township 11 South, Range 85 West of the 6th P.M., (Pitkin County, Colorado).” The initial point of survey of the high water line of the reservoir on the west side of the dam is located such that the angle from the axis of the dam measured clockwise is 86° 57' to Pyramid Peak and 105° 56' to North Maroon Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) A map showing the decreed location of the Maroon Creek Reservoir is attached as Exhibit A. 9. Source. The decreed source of supply for the Maroon Creek Reservoir is East Maroon Creek and West Maroon Creek, tributary to Maroon Creek, tributary to the Roaring Fork River. 10. Appropriation Date and Amount. The appropriation date is July 19, 1965. The amount appropriated for the Maroon Creek Reservoir is 4,567 acre-feet. 11. Decreed Uses. As stated in the decree in CA5884, water stored in Maroon Creek Reservoir is decreed for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 4,567 acre-feet and to keep said reservoir reasonably well filled. 12. Integrated Water Supply System. The Maroon Creek Reservoir is part of Aspen’s integrated water supply system which currently includes surface water rights decreed for diversion from Maroon Creek, Castle Creek, Hunter Creek and the Roaring Fork River, and decreed wells, as well as water mains, lines and distribution systems for both raw and treated water, pump systems and related infrastructure, a hydroelectric plant and related infrastructure, all of which allow Aspen to provide water for municipal uses, including hydropower, within the city, and extraterritorially by agreement. The Maroon Creek Reservoir storage right is part of Aspen’s integrated water supply system. 3 EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 13. Finding of Reasonable Diligence. The Application requests a finding that the Applicant has exercised reasonable diligence in the development of the conditional water right awarded to the Maroon Creek Reservoir. The Court has reviewed the Application and has considered the Report of the Division Engineer Summary of Consultation and response thereto and finds that the work and expenditures described in the Application and the response to the Summary of Consultation constitute reasonable diligence in the development of the conditional water right, that the Application should be granted and the conditional decree for the Maroon Creek Reservoir water right in the amount of 4,567 acre-feet shall be continued in full force and effect. CONCLUSIONS OF LAW 14. The foregoing Findings of Fact are incorporated herein to the extent they constitute conclusions of law. 15. Timely and adequate notice of the Application was given in the manner provided by law, and the Application filed herein is complete, covering all applicable matters required under C.R.S. Section 37-92-302. 16. All notice required by law has been given, and no further notice need be given. C.R.S. Sections 37-92-101, et. seq. 17. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected by this Application, regardless of whether such persons or property owners have appeared. C.R.S. Sections 37-92-301(2) and 303(1). 18. The Court concludes that Aspen has established that it has a non-speculative need for the water, that water can and will be stored under the Maroon Creek Reservoir conditional storage right and will be beneficially used, and that the appropriation can and will be completed with diligence and within a reasonable time. 19. Aspen has complied with all requirements and met all standards and burdens of proof including but not limited to those set forth in §§ 37-92-302(1), 37-92-103(3), and 37-92305(9) to adjudicate its claim for finding of reasonable diligence and is therefore entitled to a conditional decree confirming and approving its conditional water storage right as described in the Findings of Fact. Aspen has satisfied all other statutory and legal requirements to support a finding of reasonable diligence with regard to the Maroon Creek Reservoir storage right. 20. The Application is in accordance with Colorado law and should be granted. 4 EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 RULING, JUDGMENT AND DECREE 21. The Findings of Fact and Conclusions of Law, as set forth above, are incorporated herein by reference and are hereby modified as necessary to constitute part of the Ruling, Judgment and Decree. 22. The Application for finding of reasonable diligence is granted in the amount of 4,567 acre-feet conditional to the Maroon Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 4,567 acre-feet and to keep said reservoir reasonably well filled, with an appropriation date of July 19, 1965. 23. It is hereby ordered that the conditional decree for the Maroon Creek Reservoir water right herein described is continued in full force and effect until_______________, 20__ , and if Aspen desires to maintain said water right, an application for finding of reasonable diligence shall be filed on or before that date or a showing shall be made on or before that date that the conditional water right has become absolute by reason of completion of the appropriation. 24. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or transfer or any conditional rights decreed herein, the transferee shall file with the water court a notice of transfer which shall state or provide the following information: a. The title and case number of the case in which the conditional decree was issued; b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owner of any conditional water right shall notify the clerk of the water court of any change in mailing address. The clerk shall also place any notice of transfer or change of address in the case file for Case No. CA5884 and in the case file for this case. 5 EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 25. It is further ordered that a copy of this Decree shall be filed with the Division Engineer, Water Division No. 5, and with the State Engineer. Dated___________________ ______________________________ James B. Boyd, Water Judge Water Division No. 5 State of Colorado 6 Maroon Creek Reservoir Legend ^ _ Maroon Creek Reservoir Roads ^ _ 4 1 inch = 2,500 feet 0 When printed at 8.5"x11" 1,000 2,000 4,000 Feet Date: 10/27/2016 City of Aspen WATER Geographic Information Systems This map/drawing/image is a graphical representation of the features depicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS g Ri ve r EXHIBIT B TO STIPULATION rin Sp Colorado Index Map Fo r k re e in g Bu sh k Cre Cozy Point Ranch Vagneur Gravel Pit ek Aspen Pitkin County, Colorado ek Ro ar Cr 8500 Wi llo w k Pin eC Brush Cre ee ek re Cr ee k C oo n 10000 Ma r Buttermilk Mountain 0 750 Woody Creek Aspen Highlands 00 80 82 ¬ « 80 00 d oo W r yC k ee Zoline Open Space 80 00 Qu ee tle C Aspen Golf Course reek ek Cas re 8000 Aspen Mountain 00 100 ASPEN a Ro r Fo k Legend re ek 9500 Hu nt er C Red Mountain Rivers and Streams 9500 00 105 g rin 100 00 0 00 11 r ve Ri State Highway 82 Potential Reservoir Sites 0 Smuggler Mountain 3,000 10000 Potential New Reservoir Sites Map 6,000 9000 EXHIBIT Feet Topography from USGS DEM, C.I. =95100 00 feet Aerial Image from NAIP (2015) JOB NO. 0687.002.00 DATE: Ca sa da yC ek 2/15/2018 re SCALE: 0 50 10 CITY OF ASPEN 85 00 ¥ U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Thursday, February 15, 2018 09:53 AM sC llin Co ns G ulc h Moore Open Space B 1 inch=3,000 feet