Con?dential Settlement Communication protected by C.R.E. 408 Draft 20180601 DATE FILED: October 15, 2018 1:06 PM FILING ID: 7BE8E9013CBC7 IV UIVIDDR. AU IUKJ VV 3 140 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 ofthe CITY OF ASPEN, COLORADO, A COURT USE ONLY A IN PITKIN COUNTY Attorneys for Applicant City of Aspen Case Number: 2016CW3128 F. Covell, Esq., Reg. No. 10169 (CA5884, W-791, W-791-77, Andrea L. Benson, Esq., Reg. No. 33176 81CW063, 85CW045, 89CW030, Alperstein Covell, P.C. 95CW187, 02CW19, 09CW145) 1600 Broadway, Suite 1070 Denver, CO 80202 Water Division No. 5 Phone: (303) 894-8191 Fax: (303) 861?0420 cfc@alpersteincovelLoom; alb@alpersteincovell.com Counsel for Opposer United States of America James .1. DuBois US. Department ofJustice Environment and Natural Resources Division 999 Street South Terrace Suite 370 Denver, CO 80202 Atty. Reg. no. 13206 Phone: 303?844-1375 Fax: 303-844-1350 Email: james.dubois@usdoj.gov STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER UNITED STATES OF AMERICA Applicant, the City of Aspen (?Aspen?) and Opposer United States of America 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 Maroon Creek Reservoir conditional storage right decreed in Case No. CA 5884 on November 5, 1971, by the District Court, Gar?eld County, Colorado (?Maroon Creek Reservoir Storage Right?). USA hereby consents to the entry of a Decree regarding the Maroon Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, USA Stipulation and Agreement Case No. Page 2 Conclusions of Law. and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A ("Proposed Decree?). USA 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 a?er entry ofthe Final Decree, it will not seek to retain any portion of the Maroon 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 Maroon 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 ofeach ofthe 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. 2016CW3129 (regarding Castle Creek Reservoir). Aspen agrees that the amount of storage sought pursuant to the Change Application will not exceed 4.56? acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right. the Castle 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. Aspen will provide the Change Application to USA for review no later than sixty (60) days before it is ?led in the Water Court, in order to allow USA to confirm that it is consistent with this Stipulation and with the Final Decree, If no objection is made by USA 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 file the Change Application in substantially the form provided to USA. If USA does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, USA shall provide notice to Aspen within the Notice Period, identifying the speci?c provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and USA shall cooperate in good faith to resolve their disagreement. USA, 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 oftwenty (20) years from the date ofentry ofthe Final Decree, USA, its agents, assigns. or successors in interest will not oppose, directly or indirectly, and will 2 USA Stipulation and Agreement Case No. 2016CW3128 Page 3 take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Maroon Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. USA reserves the right to participate in any land use proceedings or other approval processes required for construction ofa reservoir(s) at any ofthe 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 approval so long as the amount of storage sought pursuant to the Change Application does not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle 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. ln addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without approval. Whether or not the Water Court has entered a ?nal, unappealable decree in the Change Case before expiration of the diligence period that commences upon entry of the Final Decree, Aspen?s next diligence application seeking diligence or to make all or a portion of the Maroon Creek Storage Right absolute shall seek Court approval for storage only at the locations identi?ed in the Change Application. if and to the extent the Change Application does not result in a ?nal decree changing the location of storage of all of the Maroon 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 in part, ?le appropriate pleadings to cancel the portion of the Maroon Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. ('lfan appeal is made, said ?nal 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 Maroon 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 Maroon Creek Reservoir Storage Right at the Original Decreed Location. lf Aspen does not ?le a Change Application prior to expiration ofthe diligence period that commences with entry of the Final Decree, Aspen will not seek a ?nding of reasonable diligence or to make absolute the Maroon Creek Reservoir Storage Right. Aspen and USA 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 3 15. l6. USA Stipulation and Agreement Case No. 2016CW3128 Page 4 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 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 orjudicial practice or precedent, by or against any of the parties in this case. The parties stipulate and agree that they do not intend the findings 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 benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 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 modified 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 ofthe Change Application, comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set 4 USA Stipulation and Agreement Case No. 2016CW3128 Page 5 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 816]] With copy to Covell and Andrea Benson Alperstein Covell P.C. l600 Broadway, Suite [070 Denver CO 80202 FOR OPPOSER UNITED STATES OF AMERICA: Andrea Rogers Water Rights and Uses Coordinator USDA. Forest Service Rocky Mountain Regional Of?ce 1617 Cole Boulevard Lakewood, CO 8040] With copy to: James J. DuBois, Attorney US. Department ofJustice Environment and Natural Resources Division Natural Resources Section 999 18th Street, South Terrace - Suite 370 Denver, CO 80202 USA will remain a party to this case for the purpose of ensuring that any Final Decree entered herein is consistent with this Stipulation. 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. The parties desire that this Stipulation be approved by and entered as an Order of the Court. Dated: 67/270,424? 4:7 ,2013. 5 ALPERSTEIN COVELL, RC. 57/ B:y ?ynthiaF Covell, #10169 ATTORNEYS FOR CITY OF ASPEN USA Stipulation and Agreement Case No. 2016CW3128 Page 6 JEFFREY H. WOOD Acting Assistant Attorney General (Zoom EWEW f512(65 DuBois #13206 ATT RNEYS FOR OPPOSER UNITED STATES OF AMERICA EXHIBIT A TO STIPULATION DRAFT 201803l5 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Gar?eld County Courthouse 109 Street, Suite 104 Glenwood Springs. CO 8160l 970/945-5075 COURT USE ONLY Case Number: 2017CW3128 CONCERNING THE APPLICATION FOR FINDING (CA5884, W-79I, W-79I-77, OF REASONABLE DILIGENCE OF THE CITY OF 81CW063, 85CW045, 89CW030, ASPEN 95CWI87, 02CW19, 09CWI45) 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 ?nding of reasonabie 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 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 8161 I, telephone, (970) 920-5110. Copies of all pleadings in this matter are to be delivered to F. Covell and Andrea Benson, Alperstein Covell P.C., I600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The Application in this matter was ?led 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 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 Ri?e 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 ?led 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 ?ling 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 ofthe 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 tor Conditional Water Right: The water right was originally decreed on November 5.1971 in Case No. CA 5884, District Court Gar?eld County, Colorado. 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W- 791 (March 15. 1973); W-79l -77 (November 7, 1977); 81CW063 (October 29, 85CW045 Id 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 Rigm: The decreed location of the Maroon Creek Reservoir conditional storage right is as follows: The decreed location ofthe Maroon Creek Reservoir is "Sections 7 and 8, Township 11 South, Range 85 West ofthe P.M., (Pitkin County, Colorado)? The initial point of survey ofthe high water line ofthe reservoir on the west side ofthe dam is located such that the angle from the axis of the dam measured clockwise is 86? 57' to Pyramid Peak and 105C) 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. 1 l. Decreed Uses. As stated in the decree in CA5884, water stored in Maroon Creek Reservoir is decreed for industrial. irrigation, domestic. municipal, and other bene?cial uses. both consumptive and non-consumptive, and for the use and bene?t of the parties lawfully entitled thereto. suf?cient water to ?ll said reservoir to its capacity of 4,567 acre?feet and to keep said reservoir reasonably well ?lled. 12. Integrated Water Supply S_vstem. 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. EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 13. Finding of Reasonable Diligence. The Application requests a ?nding 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 ?nds 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 of4.567 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 ofthe Application was given in the manner provided by law, and the Application ?led 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. l7. The Court hasjurisdiction over the subject matter ofthis 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(l). 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 bene?cially 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 proofincluding but not limited to those set forth in 37-92-3020 37-92-1038), and 37-92- 305(9) to adjudicate its claim for ?nding of reasonable diligence and is therefore entitled to a conditional decree con?rming and approving its conditional water storage right as described in the Findings of Fact. ASpen has satis?ed all other statutory and legal requirements to support a ?nding 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. 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 modi?ed as necessary to constitute part of the Ruling, Judgment and Decree. 22. The Application for ?nding of reasonable diligence is granted in the amount of 4,567 acre-fcct conditional to the Maroon Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other bene?cial uses, both consumptive and non-consumptive, and for the use and bene?t of the parties lawfully entitled thereto, suf?cient water to ?ll said reservoir to its capacity of 4,567 acre?feet and to keep said reservoir reasonably well ?lled, with an appropriation date ofJuly 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 ?nding of reasonable diligence shall be ?led 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 ofthe appropriation. 24. Pursuant to Rule 9 ofthe Uniform Local Rules for All State Water Court Divisions, upon the sale or transfer or any conditional rights decreed herein, the transferee shall ?le 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 ofthe transferee; and e. A copy ofthe 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 ofaddress in the case ?le for Case No. CA5884 and in the case ?le for this case. EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 25. It is further ordered that a copy ofthis Decree shall be ?led with the Division Engineer, Water Division No. 51 and with the State Engineer. Dated James B. Boyd, Water Judge Water Division No. State ofColorado SIS) uadsv #2 ?143 gLoz muidoo JD auawammua mu uo ?ugpuadap a?uaua ?aw (salmon mu 'uollewasaJdeJ 18561 a mu 2! Due powder: gamma; am :0 uauewaamdaa equm6 a an a?eml?uwwmdew cm smals?s unne wow; oquex?oa-E) 30 M13 an . 1 aawm 9 LOZILZIOL 199:1 000?17 0 .Lms'e paiuyd new 183} (3097?= I- speoa uomaseu 39913 uocuew 4 pua?a1 Jgouasau x6313 uoomw M: County, 1 - . . 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