Final 20180619 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 ETT Eh- AIIn-naf 0Q u; LL14 zxusuou AU, AULU AI-JAI FILING ID: EOA91 15BF4A6D CASE NUMBER: 2016CW3129 A COURT USE ONLY A Attorneys for Appiieant F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein Covell, RC. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894?8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Counsel for Opposer Colorado Trout Unlimited Paul L. Note, No. 34074 Jason M. Groves, No. 46692 Patrick, Miller Noto, RC. 197 Prospector Road, Ste. 2104A Aspen, CO 81611 Phone Number: (970) 920-1030 Fax Number: (970) 927-1030 E?Mail: noto@waterlaw.com groves@waterlaw.com Case Number: 2016CW3129 (CA5884, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER COLORADO TROUT UNLIMITED (Castle Creek Reservoir) 1. Applicant, the City of Aspen (?Aspen?) and Opposer Colorado Trout Unlimited (?Colorado Trout Unlimited?), by and through their undersigned attorneys, hereby stipulate and agree as follows. 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, Gar?eld County, Colorado (?Castle Creek Reservoir Storage Right?). Colorado Trout Unlimited 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 Colorado Trout Unlimited Stipulation and Agreement Case No. 2016CW3129 Page 2 Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (?Proposed Decree?). Colorado Trout Unlimited 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.? 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 ?le 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, 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 Opposcrs in this case and in Case No. 2016CW3128 (regarding Maroon Creek Reservoir). Aspen agrees that 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. The parties recognize that Aspen may not complete the Change Application before expiration of the diligence period that commences with entry of the Final Decree. Aspen agrees that the next diligence application will in no way seek a ?nding of reasonable diligence or to make absolute for the Castle Creek Reservoir Storage Right at the Original Decreed Location. Aspen may, however, state the Original Decreed Location in the application so long as Aspen is clear that it is seeking diligence or absolute status for the Castle Creek Reservoir Storage Right, or any portion of it, only at the New Reservoir Sites. Aspen may also present evidence of diligence activities that occurred at the Original Decreed Location during the relevant diligence period, provided that the evidence is used to show diligence toward completion of the appropriation, and arguments that Aspen can and will complete the appropriation, at the New Reservoir Sites only. Aspen may also seek to consolidate the Change Application with its diligence application or use other procedural methods to allow it Colorado Trout Unlimited Stipulation and Agreement Case No. 2016CW3129 Page 3 to pursue its application for ?nding of diligence towards the completion of the appropriation at the New Reservoir Sites only. Aspen will provide the Change Application to Colorado Trout Unlimited for review no later than sixty (60) days before it is ?led in the Water Court, in order to allow Colorado Trout Unlimited to con?rm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Colorado Trout Unlimited or any other Opposer in this case within thirty (30) days of the date on which the Change Application is provided (?Notice Period?), Aspen will ?le the Change Application in substantially the form provided to Opposers. If Colorado Trout Unlimited does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Colorado "Front Unlimited shall provide notice to Aspen within Luc Tothee Period, identifying the speci?c provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Colorado Trout Unlimited shall cooperate in good faith to resolve their disagreement. Colorado Trout Unlimited, 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, Colorado Trout Unlimited, 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. Colorado Trout Unlimited reserves the right to participate in any land use proceedings or other approval processes required for construction of a rcservoir(s) at any of the New Reservoir Sites. After the Change Application has been ?led, 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 Colorado Trout Unlimited?s approval so long as 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, 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 Colorado Trout Unlimited?s approval. If and to the extent the Change Application does not result in a ?nal 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 ?nal decree upon the Change Application, or other ?nal order denying or dismissing the Change Application, in whole or 3 10. ll. Colorado Trout Unlimited Stipulation and Agreement Case No. 2016CW3129 Page 4 in part, ?le 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. lf 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 ?nding of reasonable diligence or to make absolute the Castle Creek Reservoir Storage Right. Aspen and Colorado Trout Unlimited 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 the Order of Re?referral, Aspen will ?le the fully?executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval of 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. The parties did not try this case to the water court and did not litigate any of the claims. This stipulation, and the ?ndings of fact, conclusions of law, ruling of referee and decree are the result of substantial discussions, negotiations, and compromises between Aspen and Opposers. The parties understand and agree that the parties? agreement to a stipulated decree under the specific facts and law of this case shall not give rise to any argument, claim, or defense of waiver, acquiescence, bar, stare decisis, res judicata, estoppel, or laches, nor to any administrative or judicial practice or precedent, by or against any of the parties in this case. The parties stipulate and agree that they do not intend the ?ndings of fact, conclusions of law and decree to have precedential or preclusive effect on any factual or legal issue in any other matter or case. The parties further stipulate and agree that they each reserve the right to propose or to challenge any legal or factual position in any other application for change of water right or other matter ?led in this case or any other notwithstanding this stipulation, subject to the limitations of paragraph 4 above. The parties hereto shall bear their own costs and attorney fees. This Stipulation shall bene?t and be binding upon the heirs, successors and assigns of the undersigned parties. 12. 13. 14. 15. 16. Colorado Trout Unlimited Stipulation and Agreement Case No. 2016CW3129 Page 5 Once approved by the Court, this Stipulation may be enforced as an agreement or as an Order of the Court. The terms of this Stipulation shall be deemed additional terms within the Final Decree. 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 modi?ed except in a writing signed by both parties. 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. Copies of the Change Application, Colorado Trout Unlimited?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 Covell and Andrea Benson Alperstein Covell RC. 1600 Broadway, Suite 1070 Denver CO 80202 FOR COLORADO TROUT UNLIMITED: e/o David Nickum 1536 Wynkoop Street, Ste. 320 Denver, CO 80202 Colorado Trout Unlimited will remain a party to this case for the purpose of ensuring that any Final Decree entered herein is consistent with this Stipulation. Colorado Trout Unlimited Stipulation and Agreement Case No. 2016CW3129 Page 6 17. 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. 18. The parties desire that this Stipulation be approved by and entered as an Order of the Court. Dated: ALPERSTEIN COVELL, P.C. PATRICK, MILLER NOTO, P.By: ?ynthia F. Covell, #10169 By: Paul L. Note, 34074 ATTORNEYS FOR CITY OF ASPEN ATTORNEYS FOR OPPOSER COLORADO TROUT UNLIMITED