Attachment I

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

John M. Ely, Pitkin County Attorney
Laura C. Makar, Assistant Pitkin County Attorney
Richard Y. Neiley, Assistant Pitkin County Attorney
123 Emma Road, Suite 204
Basalt, Colorado 81621
970-920-5190
970-920-5198 (FAX)
John.Ely@pitkincounty.com
Laura.Makar@pitkincounty.com
Atty. Reg. #14067
Atty. Reg. #41385
Atty. Reg. #45848
STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND
OPPOSER BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY
Applicant, the City of Aspen (“Aspen”) and Opposer Board of County Commissioners of
Pitkin County (“Pitkin County”) 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”).
Pitkin County hereby consents to the entry of a Decree regarding the Castle Creek

 Pitkin Stipulation and Agreement
Case No. 2016CW3129
Page 2

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”). Pitkin County 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 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
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). Should Aspen plan to divert the Castle
Creek Reservoir Storage Right for storage in any of the New Reservoir Sites at a diversion
point located on the mainstem of the Roaring Fork River, any such point of diversion on
the mainstem of the Roaring Fork River shall be located downstream of the confluence of
Maroon Creek and the Roaring Fork River. This does not preclude Aspen from making
diversions under the Castle Creek Reservoir Storage Right for storage in any of the New
Reservoir Sites from Maroon Creek or Castle Creek.

3.

Aspen will provide the Change Application to Pitkin County for review no later than sixty
(60) days before it is filed in the Water Court, in order to allow Pitkin County to confirm
that it is consistent with this Stipulation and with the Final Decree. If no objection is made
by Pitkin County 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 Pitkin County does not believe that the
Change Application is consistent with this Stipulation and with the Final Decree, Pitkin
County 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 Pitkin County shall cooperate in good faith to resolve their disagreement.

4.

Pitkin County, 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, Pitkin
2

 Pitkin Stipulation and Agreement
Case No. 2016CW3129
Page 3

County, its agents, 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. Pitkin County reserves
the right to participate in any land use proceedings or other approval processes required for
construction of a reservoir(s) at any of the New Reservoir Sites.
5.

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 Pitkin County’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 Pitkin County’s approval.

6.

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.

7.

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.

8.

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.

9.

Aspen and Pitkin County agree that this Stipulation is effective only following 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 above-captioned case to the Water Judge, Water Division No. 5. Following
3

 Pitkin Stipulation and Agreement
Case No. 2016CW3129
Page 4

the Order of Re-referral, 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.
10.

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

11.

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

12.

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.

13.

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.

14.

Copies of the Change Application, Pitkin County’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
With copy to Cynthia Covell and Andrea Benson
Alperstein & Covell P.C.
1600 Broadway, Suite 1070
Denver CO 80202

4

 Pitkin Stipulation and Agreement
Case No. 2016CW3 129
Page 5

FOR OPPOSER PITKIN COUNTY:

Pitkin County Attorney?s Of?ce

530 E. Main St., Ste. 301

Aspen, CO 81611

with a copy sent electronically to: attorney@pitkincounty.com

15. Pitkin County will remain a party tO this case for the purpose of ensuring that any Final
Decree entered herein is consistent with this Stipulation.

16. 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.

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

Dated: MM ,2018.

1

ALPERSTEIN COVEEL, P.C. PITKIN COUNTY 
OFFICE

 
   

 

 

By: By: 

F. Covell, #10169 Laura Makar, #41385
ATTORNEYS FOR ATTORNEYS FOR BOARD OF COUNTY
CITY OF ASPEN COMMISSIONERS OF PITKIN COUNTY

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: 2017CW3129
(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 (Castle 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 _________________________.
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 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 Double R Creek Limited, Asp Properties LLC, Wilderness Workshop, Western Resource
Advocates, American Rivers, Colorado Trout Unlimited, Pitkin County, 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. Stipulation dated _______ with Double R Creek Limited, approved by Order of
the Court Dated _________.
b. Stipulation dated _______ with Asp Properties LLC, approved by Order of the
Court Dated _________.
c. Stipulations dated _______ with Wilderness Workshop and Western Resource
Advocates, approved by Order of the Court Dated _________.
d. Stipulation dated _______ with American Rivers and Trout Unlimited,
approved by Order of the Court Dated _________.
e. Stipulation dated _______ with Pitkin County, approved by Order of the Court
Dated _________.
f. Stipulation dated _______ with the United States of America, approved by
Order of the Court Dated _________.
5.

Name of structure: Castle 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.
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 EXHIBIT A TO STIPULATION
DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408
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
(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 Castle Creek
Reservoir conditional storage right is as follows:
The original decreed location of Castle Creek Reservoir is located in Sections 18 and 19, Township
11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado. The initial point of survey of
the high water line of the reservoir on the east side of the dam is located such that the angle from
the axis of the dam measured clockwise is 66°25' to Highland Peak and 340°51' to Hayden Peak.
(Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local,
state or federal agencies.)
By stipulations and agreements with certain landowners, Aspen has agreed to the following
revised legal description of the location of the Castle Creek Reservoir:
The Castle Creek Reservoir is located in Sections 18 and 19, Township 11 South, Range 84 West
of the 6th P.M., Pitkin County, Colorado, but excluding certain parcels of land described as (1) Lot
1, Part of Subdivision H.E.S. 305, according to the Plat thereof recorded January 22, 1980 in Plat
Book 8 at Page 77, County of Pitkin, State of Colorado; and (2) that portion of Tract 39, Section
19, Township 11, Range 84 West, located East of Castle Creek Road. The initial point of survey
of the high water line of the reservoir on the east side of the dam is located such that the angle
from the axis of the dam measured clockwise is 66°25' to Highland Peak and 340°51' to Hayden
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 location of the Castle Creek Reservoir as originally decreed is attached as
Exhibit A.
9.
Source. The decreed source of supply for the Castle Creek Reservoir is Castle
Creek, tributary to the Roaring Fork River.
10.
Appropriation Date and Amount. The appropriation date is July 19, 1965. The
amount appropriated for the Castle Creek Reservoir is 9,062 acre-feet.

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 EXHIBIT A TO STIPULATION
DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408
11.
Decreed Uses. As stated in the decree in CA5884, water stored in Castle 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 9,062 acre-feet and to keep
said reservoir reasonably well filled.
12.
Integrated Water Supply System. The Castle 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 Castle Creek Reservoir storage right is part of
Aspen’s integrated municipal water supply system.
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 Castle 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 8,500 acre-feet
of the conditional water right decreed to the Castle Creek Reservoir, that the Application should
be granted and the conditional decree for the Castle Creek Reservoir water right in the amount of
8,500 acre-feet shall be continued in full force and effect, and the remaining 562 acre-feet
conditionally decreed to the Castle Creek Reservoir shall be relinquished and cancelled.
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.

4

 EXHIBIT A TO STIPULATION
DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408
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 8,500 acre-feet of the conditional storage right decreed to the Castle Creel Reservoir, that
water can and will be stored under the Castle 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 Castle Creek Reservoir storage right.
20.

The Application is in accordance with Colorado law and should be granted.
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
8,500 acre-feet conditional to the Castle 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 8,500 acre-feet and to keep said reservoir reasonably well filled, with an
appropriation date of July 19, 1965. The remaining 562 acre-feet conditionally decreed to the
Castle Creek Reservoir is hereby relinquished and cancelled.
23.
It is hereby ordered that the conditional decree for the Castle Creek Reservoir
water right in the amount of 8,500 acre-feet 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

5

 EXHIBIT A TO STIPULATION
DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408
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 CA5884 and in the case file for this case.
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

 _
^

1,250 2,500

When printed at 8.5"x11"

5,000

1 inch = 3,000 feet

4

Roads

Castle Creek Reservoir

<NOTES>

Castle Creek
Reservoir

_
^

Legend

0

Feet

Date: 10/25/2016

City of Aspen

WATER

Geographic Information Systems

Copyright 2016 City of Aspen GIS

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.

 U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Wednesday, May 23, 2018 05:10 PM

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