HomeMy WebLinkAboutresolution.council.036-01 RESOLUTION NO. ~)~
(Series of 2001)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
WHEREAS, the City filed a Statement of Opposition to Water Case No. 95CW321,
Application of Twin Lakes Reservoir and Canal Company, presently pending in the Water Court,
Water Division No. 5; and
WHEREAS, the City and the Twin Lakes Reservoir and Canal Company negotiated a
mutually acceptable settlement of this litigation; and
WHEREAS, general terms and conditions of said settlement were approved by the Aspen
City Council on January 8, 2001; and
WHEREAS, a final Stipulation and Agreement between Applicant and Opposers City of
Aspen and the Colorado River Water Conservation District in the form attached as Exhibit A
("Stipulation") has been executed by counsel for the parties to Case No. 95CW321; and
WHEREAS, the Stipulation incorporates the general terms and conditions approved by the
Aspen City Council on January 8, 2001, which terms and conditions included a Plan of Study to be
funded by both the City and the Twin Lakes Reservoir and Canal Company; and
WHEREAS, Phases 1 and 2 of the Plan of Study described in the Stipulation are estimated at
$50,402, of which the City of Aspen will pay one-half; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO as follows:
Section One The Stipulation and Agreement between Applicant and Opposers City of Aspen
and the Colorado River Water Conservation District, attached hereto as Exhibit A, is hereby ratified
and approved, and the City is authorized to pay for one~half of the costs associated with Phases 1 and
2 of the Plan of Study (estimated at $50.402), and for one-half of the costs associated with
subsequent phases of the Plan of Study as provided in the Stipulation, subject to approval of the
water department.
RESOLVED, APPROVED AND ADOPTED this c~ day of/~ ~.,2001.
CITY COUNCIL, CITY OF ASPEN, COLORADO
ATTEST: BY: May~° ~/~//~' ~
Town Clerk
F:\Client Filcs~.spen\Twin Lak~s~resolufion m sctflernent.wpd
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MAR.21.8001 18:01PM LAW OFFICES N0.078
DISTRICT COURT, WATEP, DIVISION NO. 5
STATE OF COLORADO
Garfield County Courthouse
109 8m Street, Suite 104
Glenwood Spring% Colorado $I601-3303
&COURT USE ONLYA
CONCERNING THE APPLICATIONFOP, WATER
RIOHTS OF THE TWIN LAKES RESERVOIR AND Case N~raber: 95CW321
CANAL COMPANY, IN PITKIN COUNTY
Attorac~ys for thc Applicant: Div.: Ctrm:
Mm'y Mead H~m~ond, P,eg. No. 9851
Peter C. Fleming, P,eg. No. 20505
Carlson, Hammond ~ Paddock, EEC.
1700 Lincoln S~re~, Suite 3900
Dcnyer, Colorado $0203-4539
Phone: (303) 861-9000; Fax: (303) 861-9026
e-n il: chp( chp-law.¢om
Attorn:,~ts for Opposer City of Aspenl
Cyntkia F. Co;ell, P,¢g. No. 10169
Scott A. Clazk, Reg. No. 24509 :
;dperstein & CoYeH~ P.C.
]600 B~oadwa¥, Suite 2350
Denver, Colorado 80202-4923
Phone: (303) 894-~ 191; Fax: (303) 861-0420
e-mail: aandccfc~aoL¢om
Attorney for Oppos~ The Colorado Pdver Wa~et
Cons~at~on District:
Dawed C. I-I~11ford, Keg. No. 10510
P.O. Box 1120
Olenwood Sp~gs, Colorado 8~602
Phone: (970) 945-8522; Fax: (970) 94S-8799
e-~iI: dl~lfo~d~crwcd.gov
STIP~3LATION ASrD AGREEM~;NT BET~]BN APPLICANT AND OPPOSEI~
CITY OF ASPEN A~N~D T~I~ COLORADO I~R WATER
CONSERYATION DISTI~CT
MAR.81.~081 1~:81PM LAW OFFICES NO.O?B P.8
For and in consideration of the premises and the mutual covenants contained herein
Applicant, the Twin Lakes l~.eservoir and Canal Company, and Opposers the City of Aspen
and the Colorado River Water Conservation Dis~ct, stipulate and agree as follows:
1. Opposers consent to the entry, of a decree in this proceeding in the form attached
hereto as Exhibit A~ and will not object to the entry ora modified form of decree so lon~ as
its terms and condi~/ons are no loss restrictive on the Applicant that those contained in the
anachcd Exhibit A.
2. Thc parties agree that they will j ointiy fund and participata in a Study in
accordance with the Plan of Study attached hereto as Exhibit B and incorporated he. rein by
tluis reference. Terms defined in the attached Plan of Study shall have the meanings assigned
to them by that document.
3. From such time as thc Phase 3 Operating/Mitigation Plan that may result from
the study doscribod in Para,apb 2 above has been completed, Twin Lakos will operate thc
Twin Lakes 1994 fight in accordance with the Operatinf/lvfitigation Plan developed, and, to
the extent the Plan calls for Twin Lakes.to fore§o or curtail diversions pursuant to the Twin
Lakes 1994 Right, notwithstanding tho avallability of water in priority at the points of
diversion for the IPTDS, then Twin Lak~;s will forego such diversions. Twin Lakes'
operations or diversions upon any other ~ater fights or priorities it enjoys, including but not
limited to the Twin Lakes 1936 Right, shall not be affected in any way by the Study, the
Opcratins/Mitigation Plan, or this provision. The parties a~ree that any reduction or
curtailment of diversions by Twin Lakes pursuant to the Operation/Mitigation Plan will be
required notwithstanding any enhancement to streamflow in the B. oaring Fork River that
may result from operation of thc Fry-Ark Exchange.
4. The parties a~rce to petition the Cour~ m exercise its retain jurisdiction in this
matter as provided in para!raph 3.4 of Exhibit A in order to effectuate u'~¢ provisions of this
Stipulation. Tho part/es specifically agree that implementation and completion of the Plan of
Study, and the Applicant's agreement to operate the Twin Lakes 1994 Right in accordance
with the Operation/M/tigation Plan that may result from the Study as provided in paragraph
3 above are material components of Asl,an's consent to the clccrce herein; that thc parties
have agreed to develop and implement thc Plan of Study as a compromise in order to avoid
the expense and uncertainty of trial, and that the Watcr Court's r~tained jurisdictlon will be
invoked solely to assure completion and/or implementation of the Plan of Study if thc p~ies
are unable to accomplish this on their own. No patxy will assert to the Court in any
proceeding pursuant to its retained jurisdiction that the Plan of Study should not have been
required or can/ed out in thc first instance.
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MAR.al.8001 18:01PM LAW OFFICES N0.078 P.9
5, Each party shall pay its own costs of this proceeding; provided, howeve~ that
The Colorado River Water Conservation District has been reimbursed for i~s costs as set forth
in the Order Approving ~e River DistriCt's Bill of ¢o$t~ da~ed March 1, 2001.
6. The parties acknowledge and agree that this Stipulation and Agreemenl is, and
may be engoreed as, a eon~act between the parties, and, upon approval and adoption by the
Court, ~ an Order of the Water Cou~t.
CARLSON, HAMMOND & PADDOCK, L.L.C.
Mary Mead Hammond, ~9851
Peter C. Fleming, #20805
ATTORNEYS FOR TWIN LAKES
RESERVOIR AND CANAL CO1HPANY
ALPERSTEIN & COVELL, P.C.
By:
Cynthia F. Covell, #10169
ATTORNEYS FOR CITY O1~ ASPEN
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MAR.21.E001 12:02PM LAW OFFICES M0.078 P.10
COLORADO RIVER WATER CONSERVATION
DISTRICT
By:~
~cneral Counsel
Jill C. H. McConaughy, #26052
Associate Counsel
By the signature of irs counsel h~r~to, the Board of Water Works of Pueblo,
Colorado, a stockholder in the Twin Lakes Reservoir and Canal Company, signifies its
concurrence with the provisions of paragraph 14,7 of the Decree attached hereto as Exhibit
A.
CARLSON, HAMMOND & PADDOCK, L.L.C.
By:
William A'. l~addock #9475
Peter C. Fleming, #20805
ATTOR.NE, YS FOR BOARD OF WATER.
WORKS OF PU'~BLO, COLORADO
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MRR.81.E881 18:88PM LAW OFFICES N0.078 P.11
EXHIBIT A
Judgment ~n,~ Decree
C~se No. 95CW321
Page 1
March ! 5,2001 DRAFT
DISTRICT COURT, WATER DIVISION NO.
STATE OF COLOKADO
Court Address: Garfield Courm~ Courthouse, 109
Stree% Suite 104, Olenwood Springs, CO $1601-3303
CONCERNING THE APPLICATION FOR WATER ACOURT USE ONLY&
RIGHTS OF THE TWIN LAKES RESERVOIR AND
CANAL COMPANY, IN PITKIN cOUNTy. Case Number: 95CW321
Div.: CU'ra:
Attorneys for the Applicant:
Mary Mead Hammond, Reg. No. 9851
Peter C. Fleming, Reg. No. 20805
Carlson, Hammond & Paddock L.L.C..
1700 Lincoln Street, Suite 3900
Denver, Colorado 80203-4539
Phone; (303) 861-9000; Fax: (303) 861-9026
e-mail', chp~chp-law, com
FINDINGS OF FACT, CONCLUSIONS OF LAW, JIFI)GMENT ~ DECREE
THIS MATI'ER came before the Water Court in and for Water Division No. 5 upon the
Application for Surface Water Rights filed by the Twin Lakes Reservoi~ and Canal Company
(hereinafter the "Applicant" or the "Company"). The Court, having considered the pleadings, the
files herein, a~d the stipulations submit~ecl by the parties, and being fully advised in the premises,
enters the following Findings of Fact, Conclusions of Law, Judgment ~nd Decree.
Mixed Findings of Fact,and Co-elusions of Law
1. Applic~'don. The Application was filed on December 28, 1995, seeking adjudication
of absolute and conditional water rights. The conditional portion of the water rights claim was
dismissed without prejudice by order entered on Janua.~y 16, 2001.
N~.21.~001 I~:O~PN L~N ODDICES NO.O?D P.12
ludgm~nt sac[ Decree
Case No. 95CW321
Page 2
March 15,200 l DRAFT
2. Notice. Timely Md proper notice of the Application was ~iven in the manner
required by law, The time for tflin$ Statements of Oppositionhas expired. The application does not
involve ~ny land or water located within the boundaries of a designated groundwater basin. The
Court has jurisdiction over the subject mat~er of the Application and over all persons who have
standing to appear whether they have appeared or not.
3. Statements of Oppositio~l:
3.1 Statements of Opposition were fled by:
3.1.1 Middle Park Water Conservancy District, c/o Stanley W. Cazier, P.O.
Box $00, C-ranby, Colorado
3.1.2 Salvation Ditch Company, c/o Michael Underwood, P.O. Box 250,
Woody Creek, Colorado 80656;
3.1.3 Ute Water Conservancy Dis~ct~ acting by ~nd through its Ute Water
Activity Enterprise, Attn: Charles E. Stockton, P.O. Box 460, Grand Junction, Colorado 81502;
3.1.4 City of Aspen, c/o Phil Overeynder, Water Director, 130 S, Galena
Street, Aspen, Colorado 81611;
3.1,5 Board of C~unty Commissioners of Pitkin County, 530 E. Main Street,
Aspen, Colorado ltl611;
3.1.6 Colorado River Water Conservation District, c/o David C. Hallford,
General Counsel, P.O. Box 1120, Olenwood Springs, Colorado g1602; and
3.1.7 Aspen HigMands Mountain Limited Liability Company, P.O. Box
124~, Aspen, Colorado
3.2 The Statement of Opposition of Aspen Skiing Company w~s withdrawn
pursuant to Motion by Order dated January 30, 1997.
4. Sti~ulations. The following Stipulations have been filed with the Court:
4.1 Stipulation of Applicant with Southeastern Colorado Water Conservancy
District was filed on March ~, 1996; and
MAR.21.S001 12:02PM LAW OFFICES N0.078 P.13
Jud~llellt and Decree
Case No. 95CW321
Page 3
Mar~h 1~, 2001 DP, AFT
4-.2 Stipulation of Applicant with Objector Salvation Ditch Company was filed
on December 29, 1997; and
4.3 Stipulation of Applicant with Objector Thc Board 0f County Cor~ missioners
of Pitkin County was filed on l:ebru~ry 17, 1998; and
4.4 Stipulat/on of Applicant and Objector~ Colorado River Water Conservation
District and City of Aspen was filed on
4.5 Stipulation of Applicant and the Middle Park Water Conservancy District was
filed on
4.6 Stipulation of Appli~ant and the Ute Water Conservancy District, acting by
and through its Ute Water Activity Enterprise was filed on
The foregoing Stipulations ere hereby sp~zoved by the Court Md incorporated herein as an Order
of the Court by this reference.
5, A~Iieant. The Apphcant is a Colorado mutual ditch and reservoir company
operating the Independence Pass Transmountain Diversion System ("E~TD$"), which ~fiverts water
from the headwaters of the RoiL'ag Fork River and various of its tributaries and conveys such water
beneath the Continental Divide and into the Arkansas River Brain for use by the Company's
stockholders, The Applicant's ad&ess is:
Twin Lakes Reservoir and Ca~al Company
P,O, Box 8
Ordway, Colorado 81063
6. ~. Thc components: ~f the IPTDS ~e as follows:
6.1 The Lost Man Di~/ersion Dam and Lost Man Diversion Canal;
6.2 The Roaring Fork Diversion Dam, ~anncl No. 2, and Lincoln C~lch
Connection Cmaal;
6,3 The New York Collection Canak and
MAR.21.2001 12:02PM LAW OFFICES H0.078 R.14
Judgment and Decree
Case No. 95CW~21
Page4
March 15, 2001 DRAFT
6.4 The Lincoln Gulch Diversion Dam (also known as Grizzly Reservoir) and
Tunnel No. 1.
6.5 The IPTDS is a single, ~,,{_~ ed, and integrated water supply system comprising
the entire IPTDS and all water fights deC~eed thereto.
7. 1936 Decree. By a decree dated August 25, 1936, in Civil Action No. 3082, of the
District Court of Garfield County, Colo.rado, Priority No, 431 dating from August 23, 1930, was
awarded to the IPTDS for a total of 625 ~if, s, C/he "1936 Decree").
8. Chart_se Decree.
8.1 By decree dated May 12, 1976, in CaseNo. W-1901,District Couninand for
Water Division No, 5, a change of type and place of usc was decreed for the IPTDS (the "Change
Decree"). In Twir~Lakes Reservoir and C~,~al Company v. the City of Aspen, 193 Colo. 478, 568
P,2d 45 (1977), the Colorado Supreme Court affirmed the decree entered in Case No.
8.2 The Change Decree incorporates certain terms and conditions and limitations
upon Applicant's IPTDS water fights,
8.2.1 Paragraph~5 of the decretal section of the Change Decree imposes
volumetric limitations upon the IPTDS aS follows:
total diversions out of the tributaries of the Colorado River from which the Twin
Lakes Company now derives, or from which it may, pursuant to conditional decrees
now entered in civil action 5884, or applied for in Case No. W-1869 or at some
future date shall, derive water supply, shall be volumetrically limited to the amount
available in priority as follows'.
(a) to no more than 570,000 aCre-feet of water in any period often years;
(b) to no more than 68,000 acm.feet of water in any one year; ....
8~2.2 In addition} paragraph 10 ofthe decretal section ofthe Change Decree
provides *.hat;
the modifications herein permitted are subject to the same inherent conditions which
are contained in the original decree of 1936, namely, no entitlement to divert exists
when the following two conditions are concurrently present: (a) Twin Lakes
Keservoir has stored in a "water year" its decreed capacity of $4,452 acre-feet, and
MRR.21.2001 12:03PM LR~4 OFFICES M0.078 P.15
Judgment and Decree
Case Ne. ~5CW32!
Page $
March 15, 2001 DRAFT
CO) there is 756.28 c.f.s, available in priority from the Arkansas River at the hcadgate
of the Colorado Canal water rlght with a priority date of June 9, 1890, with a decree
date of March 23, 1896, for direct flow irrigation uses.
To the extent that the Arkansas River water available in priority as described in Co)
above is less than 756.28 c,f.s., and water could otherwise beneficially bc used for
the irrigation of lands, there arises a corresponding entitlement to divert that amount
of water from the IPTDS. Such water may itself be stored or applied directly to
beneficial uses.
To the extent that there is Lake Creek water available for storage in Twin Lakes
Kcservoir, under the priorities of December I5, 1896, and March 29, 1897, decreed
July 14, 1913, during the current water year, the right to store IPTDS water shall be
corresponain$1y reduced.
9. 1994 MQ~,, In June of i994, the Applicant, the Col~rade STate Engineer, and thc
Uni~d States Bureau ofR. eclamation ert~ red into a Memorandum of Agraernant to address cartain
water operations for that year. The Memor~.udum of A~reem~nt was fonnaily executed by all parties
on June 28, 1994. During the period jun~. ~; until June 18, 1994, the conditions set forth in paragraph
10 of the Change Decree prohibiting diversions on the changed IPTDS water rights were in effect,
e.g. Applicant bad stored in a water year its full entitlement in Twin Lakes Keservoir, and ?56,28
c,f.s, was available in priority from the Arkansas River at the baadgat¢ of the Colorado Canal to the
direct flow water fight of the Colorado Canal with priority date of June 9, 1890, and decree date of
March 23, 1896. At the same time, there was no call for water from any downstream water right on
the Colorado River and its tributaries and water was physically available at the diversion point~ of
the IPTDS in Water Division No. 5, resulting in a "free river."
10. 1994 Diver~ioos. Bcg~ng on June 8 1994, and continuing at in~arvals until June
18, 1994, on which date a downstrearr, ~1i senior to June 8, 1994, came into effect on the Colorado
River and its tributaries, the Applicant diverted water through the IPTDS under "free river"
conditions. The maximum diversion rate was 240.75 c.f.s. Of this amount, 76.61 c,f,s, was diverted
through the New York Collection Canal component of the System and 164.16 c,f,s, was diverted
from the Lost Man and Roaring Fork components of thc System. Water diverted duri.ug this period
of time was stored in Twin Lakes Reservoir and subsequently put to beneficial use by Applicant's
stockholders, fur inlgation and municipal purposes.
11. C.o_mnletion of Appropriation. Applicant has completed the appropriation of 240.75
c,f.s, of water with an appropriation date of June 8, 1994, by diverting such water and applying it to
beneficial u~e pursuant to the procedures prescribed by law, and is entitled to receive a decree
evidencing such absolute water right.
MAR.21.8001 ~2:03PM LAW OFFICES M0.078 P.16
Judgment and D~cree
Case No. 95CW321
Page 6
March 15,2001 DP.AFT
judgment and Decree
!2. Incorporation by Referenc¢~ The foregoing Mixed,Findings of Fact and Cnnclusions
of Law am incorporated and made a pa-~ Of ~hls decree.
13. Adiudicati0n ofrPTDS 1994 Supplement. The following wa~er right is adjudicated
and decreed:
13.I Name
Independence Pass Tran-~monntainDiversion System: 1994 Supplement
13.2 Legal description of each point of diversion:
13.2.1 Lost Man Diversion Darn and Lost Man Diversion Canal:
The inlt/al point of survey of ~he darn is located at a poim whence the southwest
comez of Sect/on 6, Township 11 South, Range 82 West of the 6th P.M. bears south
$8 °42' east 6,473.2 feet. The headgate of the Lost M~n Diversion Cane is at a point
on the east hank of Lost Man Creek from whence the southwest comer of Section 6,
Township 11 South, P,~tge 82 West of the 6th P.M. bears south 58 ° 18' east 6,871.2
feet.
13.2.2 Roaring Fork Diversion Dam, T,n~el No. 2, and Lincoln Gulch
Connection Canal:
The initial point of survey of the dam is located at a point whence the southwest
comer of Section 6, Township 1 ! South, R~nge 82 West of*he 6th P.M. bears south
80°9' e~t 6,946~3 feet. The hegdgate or point of intake of Tunnel No. 2 is located
at a point on the south bank oftt~e Roaring Fork River from which the ~outhwest
comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears south
80 °38' east 6,921.6 feet. The tunnel discharges water diverted from the Roering Fork
River into the Lincoln Gulch Connection Canal, which commences at a point at the
south end of Tnnnel NO. 2 whence the southwest comer of Sectinn 6, Township 11
South, Rang~ 82 West of the 6th P.M, bears north 50°42, east 12,539.2 feet.
13.2.3 New York Collection Canal:
(a) Headgate No. 1 is located at a point on the east beak of the West Fork C-'ulch,
a tributary of Lincoln Creek, which is a tributary of the Roaring Fork River,
Judgm~n: and Decree
Case No.
Page 7
~ch 15,2001 D~T
whanca ~c sou~west comer of Section 6, To~s~p 11 Sou~, R~g~ ~2
W~s~ of~a 6~ P.M. be~S ~o~ 58~6~ e~t 24,724,6
(b) H~dgate No. 2 is located a~ a point on thc New York Gulch whence ~a
sou~st com~ of Se~0~ 6, To,ship 1 ~ Sou~ R~gc 82 Wast of~e 6~
P.M. b~ ~ 57~24' east 23,997.4
(c) Headga~ No. 3 is located a~ poia~ on Tabor ~lch wh~ca the sou~wc~
co~ o~ Sec~on 6, To~p 1 ~ Sou~ ~ge 82 Wes~ of ~e 6~ P.M.
b~s no~ 51 ~32' ~ 16~923.1 fe~.
13.2.4 L~co~ ~]ch Divarsion D~ ~d T~el No. 1:
The ~ po~ o~ su~ of s~ ~ is located a~ a poin~ whence ~e sou~hwcs~
comar of Scion 6, To~p ~ ~ ~ou~ R~g~ 82 Was~ of~e 6~ P.M. b~s
18~55' ~t 14,565.5 fee~. ~e ~e of T~el No, 1 i~ located at a po~ ~om
whence ~ sou~was~ comer of S~C~ion 6, To,ship ~ 1 Sou~, R~g~ 82 West
6~ P.M. bc~s no~ 17~33~ e~ } ~,3~0.9 feel
13.3 So,ce:
13.3.1 Los~ M~ Dive~io~ D~ ~d Lo~ M~ Divarsion C~: Lost
Cre~k~ ~bu~ ~o ~ Roerig Fork ~vcr.
13.3.2 Ro~g FOrk Division D~, ~el No. 2 ~d L~co~ G~ch
Co~ecaon C~: ~o~ng Fork ~ver~
13.3.3 New York Coll~c~on C~:
(a) HaMga~e No. 1: WeS~ Fork G~ch (~so ~o~ ~ Naw York Crack),
~but~ m L~co~ Cra~k~
~)Headgat~ No. 2: New York G~ch (also ~o~ ~ Broo~ ~ch),
to New York Crce~ ~ibut~ ~o Lincoln Creak.
(c) Headgata No. 3: Tabor G~c~ ~bu~ ~o L~o~
~3.3.4 L~coln ~1~ Division D~: L~co~ Creek ~d ~y
~b~ ~o ~ ~o~g Fork ~ver.
MRR.21,E001 1E:04PM LRN OFFICES H0.070 P.1B
, CaSe No. 95CW321
Pages
i M~ch 15, 2001
~:
13.4 Appronriation.
13.4.1 Date of Appropriation: June g, 1994.
13.4.2 How Appropriation was completed: Formation of intent to div~s't
previously unappropriated waters, diversions by the IPTDS through Tunnel No. 1, and application
to beneficial use.
13.5 Amount: 240.75 c~f.s, absolute, comprised of 76.61 c.f.s at the New York
Collection Canal component o£the IpTD~S, and 164. I6 c.f.s, at the Lost Man and Roaring Fork
compon~s of the IPTDS.
13.6 U~: Direct flow and s~orage for i~gation and municipal use by the parties
lawfully entitled thereto, at any site capable of being served by deliveries from either the discharge
portal of Tunnal No, 1 into Lake Creek br the storage of Twin Lakes Reservoir in Lake CountT,
Colorado. Such places of use include, but ~'te not limited to. the municipal water works of the Cities
or'Aurora, Pueblo, and Colorado Springs, .~ud the Pueblo West Metropolitan District.
14. Terms and conditions. The following terms and conditions shall apply to the 1994
Supplement:
14.1 Volumetric L' 'ratio ,
14.1.1 Diversions'VPon the IPTD S 1994 Supplement shall be volumetrically
limited to the amount in priority as follows:
14.1.1.1 To no more than 46,500 acre-feet of water in any
consecutive ten year period;
14.1,1.2 To no more than 30,000 acre-feet of water in any one
year.
14.1.2 Sl~..~!jiail~i9~. Total diwrsions through the IPTDS shall be
volumetrically limited to the amount in priority as follows:
14.1.2,1 To no more than 570,000 acre-feet of water in any
period often years;
14.1.2.2 To no more than 68,000 acre-feet of water in any one
year;
MRR.21.2001 12:04PM LRW OFFICES M0.078 P.19
Suctgrnen~ and Decree
C~ No. 9SCW321
Page 9
March l~, 2001 D~AFT
14.1,30pera~ons~i~ aaron Pl~. F~h~ co~n:s may re~k ~om
Operaliom~gafion PI~ for ~c ~TDS 1994 Supplcmenl berg developed by Applic~t ~d
Ciw of Aspen pws~t to ~eir s~p~afion here~ ~d may result ~ div~siom ~a do not approach
· e vol~ic l~m~ons sa fo~ herein.
14,2 No Modification of Ch~se Decree. Not~g h~ein sh~ mo~ the
~d oO~o~s sot fO~ in ~e Chmie Decree.
14.3 Co~.~tafion of Diveriions. ~or p~oses of applying ~c vol~e~c
liaisons upon ~e IPTDS set fo~ her~in ~ ~14.1,2 (~d ~ ~e C~ge Donee), ~ve~ions sh~l
be computed ~ sa fo~ in ~e Ch~ge Decree, provided however, that ~v~ions upon ~e IPTDS
1994 Supplem~t ~located to ~e ~ly ~ese~oir Accost (see below) ~d ~ Subs~mled
or Booked-Over wat~, ~ defined below; s~l be deduced ~om tot~ ~versio~.
14,4 Waer Alloca~on~ ])iv~ions up~ ~ IPTDS 1994 Supplement sh~l be
allocaed for ~e ~ follows:
14.4.1 ~ fir~ 24:0 acre-feet of~ter div~ed p~umt ~o ~e ~TDS 1994
Supplem~l ~ ~y Water Ye= sh~l bo all >:aed ~ it is div~ed by ~e Applic~ m follows; ~o-
· ~ds sh~l be ~locaed to ~e Applier i~r its sole use, con~o1, ~d b~efit by dkect ~e, or by
stor~e for subsequent use; one,~d sh~l be allocated ~o ~ Colorado ~ver Wat~ Cons~a~ion
Dis~cl (~e '~v~ Di~ct") on beh~f ~f West~ Slope water us~.
14.4,2 Of the ~ter ~locaed to ~e ~v~ D~s~c~ ~e ~rst 200 acre-fee~ or
such lets~ mo~t u necessW to ~11 ~e OH~y Rese~ok Accost ~o 200 acr~-fe~, s~l be
~o~lod to a ~=ly Kcsc~oir Acoou~l (~e ~:~ly Water"), ~d ~e bal~ce (the "~ose~ed
Waer") sh~l be res~ed in ~orage by the Applic~t in facili~es locaed ~ ~e ~s~ ~ver
Bas~
14.4.3 ~1 wacr in ~xcess of 2400 acm-feet ~v~ed by ~c IPTDS 1994
Suppl~t ~ ~y Waer Ye~ sh~l be ~located to ~e Applic~t ~or its sole, ~, consol,
behest by ~ect ~e or by storage for ~bsequent use.
14.~ ~v Res~o9 Accost. ~e to~ vol~e of ~e OH~y Rese~ok
Accost s~l be l~ted to 200 ~re-fee~? ~ or,he ~ ~.ly R~se~ok Account, ~p ~o 100 acre-feet
~,~,lly ~1 be av~lable fo~ rel~ ~0TM OH~y Rese~ok a ~e reque~ of~c ~v~ Di~
the deliv~ po~t or po~ specified by ~e ~ver DisPel. TM ~v~ DisPel ~11 pro,de at le~
24 hoes' advice no~ce to ~e Applic~t, s Sup~ntendent of deliv~ mq~sm, ~ sh~I speci~
in ~ch notice: (1) ~e to~ vol~ of ~ter to be ~l~ed; (2) ~e rote of flow for ~ mle~e,
c,fs. ~c Applic~t will ~ovide ~ much adv~ no~ce ~o file ~ver Di~ct as is practicable of
~ MAR.~l.2081 18:04RM LAW OFFICES M0.078 P.20 ............
Judgmen~ aud D¢~
Ca~e No. ~5C'W32 !
?a~e 10
Mar~h 15, 2001 13RAFT
any antlcipated or emergency draw-down of the Reservoir needed for repairs to the darn or Tunnel
No. 1. Releases will be measured at the outlet of Grizzly Reservoir and the River Dis~ict will bear
any transit losses on the water released from the Gr~.~ly Reservoir Account. Ail water in the Grizzly
Reservoir Accoun'~ will be carried over from year to year and any such water physically released to
draw down the Reservoir for repairs shall be replenished upon refilling of the Reservoir.
14.6 ReServed Water. The Reserved Water shall be made available for use in the
Colorado River Basin by rne~s of subsfmtion or "bookovef', as follows:
14.6.1 Substituti°n~ The Applicant shall forego diversions it would otherwise
make through the IPTDS pursuan~ to the 1936 Decree so that water that would otherwise be divertee~
by the IPTDS into the Arkansas River Basin will instead be available for use in the Colorado River
Basin. The volume of such foregone div~ions st~ll be limited to the volume of Raserved Water
actually diverted on the IPTDS 1994 Supplement during the then-current Water Year that remains
in storage under the con~rol of Twin Lakes at the time of substitution. The operation of the
Substitution shall be as follows:
14.6,1.1 Upon request by the River DiStrict, the Applicant will
reduce diversions it would otherwise make ~hrough the IPTDS (up to the full flow rate then available
in priority) so as to make water available for use in the Colorado River Basin. Water $o made
available is the "Substituted Water." For every acre-foot of Substituted Water, one acre-foot of
Reserved Water shall be reallocated to 6he Applie. ant for its sole use, control and benefit in the
Arkansas River Basin.
14.6.1.2 The volume of Substituted Water shall be determined
by reference to the g~ge on the Roaring FOrk River located directly below the Lost Man Diversion
Dam component of the IPTDS and the g~e on Lincoln Creek located directly below the Grizzly
Reservoir Dam component of the I?TDS,
14.6.1.3 The substitution operation shall continue until such
time as (1) the River District requesss cessation of the substitution; (2) all the Reserved Water
available in storage in the Arkansas River Basin has bean made available for use in the Colorado
River Basin by means of the sub~tution; or (3) the IPTDS ceases to be in priority to divert.
14.6.1.4 The substitution described herein is separate and
distinct from the exchange provided for i.n ¶¶ 9 and 11 of Operating Principles for the Fryingpan-
Arhansas Proj ecl, HouSe Doc. No. 130, 87~ Congress, 1 ~ Session ("Foy-Ark Exchange"). Therefore,
the diversions foregone on the 1936 Decree in order to effectuate the substitution described herein
shall be in addition to diversions foregofie to effectuate the Fry-Ark Exchange.
MRR.21.~001 [~:05PM LRN OFFICES NO.O?B P.21
Judgment and Decree
Case No, 9SCW321
Page 11
March If, 2001 DRAFT
14.6.2 Bookover. Pursuant to the Homestake Repayment Provisions of the
Memorandum of Understanding effective April 21, 1995 between the Cities of Aurora and Colorado
Springs, the River District, Climax Molybdenum Company, and the Vail Consortium, consisting of
Eagle River Water and Sanitation Dis~ct, Upper Ea~le Regional Water Authori~, and Vail
Associates, Inc., (the "Bagie River MOU~') and the related Water Exchent¢ Agreement dated ~Iune
17, 1995 between the Cities of Aurera and Colorado Spnngs and the Eagle Park Reservoir Company,
whose shareholders comprise thc River District, the Eagle River Water and Sanitation District, the
Upper Eagle Re$ional Authority and Vail Associates, Luc. (the "Water Exchange A~ent'), the
Eagle Park Reservoir Company stockholders are obligated at rimes to repay certain volumes of water
to thc Cities of Aurora and Colorado Springs. In full or partial satisfaction of this oblisation, upon
request by the River District, the Applicant and its s~ockholder City of Colorado Springs will "book
over" Reserved Water into the account of Colorado Springs for subsequent delivery To Aurora and
Colorado Springs pro rata to their entitle/i~ent pursuant to the Homestake Repayment Prowsions of
the Eagle River MOU and the Wamr Exchange Agreement. The wate~ so transferred is the "Booked-
OveI Water,"
14.6.3 Any portion i~fthe Reserved Water that has not been substituted or
booked over as set forth above, or spilled ,:r evaporated out of storage in the Arkansas River Basin
by the end of the Water Year in which it was diverted shall be reallocated to the Applicant for its sole
use, control, and benefit.
14.7 Use o.f River District W tater. The Applicant and its stockholders City of
Colorado Springs, Pueblo Board of Water Works, and City of Aurora will not oppose the use of the
water diverted upon the IPTDS 1994 Supplement and allocated to the River District for the following
14.1.1 Satisfaction of the Eagle Park Reservoir Company shareholders'
obligation ~o repay the Homes~ke Proie~ ~or deliveries made under the Ea~le River MOU;
14.?,~ W~ter 8uppiy either directly or by e×change for Western Slope water
users junior to the irrigation and power wa~er rights adjudicated for diversion at the Grand Valley
Projee~ diversion dam and the Grand Valley Irrigation Company divexsion dam, which water r~ghts
are listed in Exhibi~ A and B ~o the Stipulation and A~reement approved by the decree entered in
Casa No. ~ tCW~41~ Wat~ Division NO. 5~
14.?,3 Delivery ~f a po~on o£ the Western 81ope's obligation undax the
Programmatic Biological Opinion ~or ~:.c t $ mile reach cf the Colorado River;
1~.?.~ SatisPyin~ defieks in ~e instre~a flow water right decreed to the
Colorado Water Cor~ervation Board for the Ro~fing Fork River through the City o£Aspen; or
~AR.21.2001 12:05PM LAW OFFICES M0.078 P.2E
Judgment and Decree
Case No, 95CW321
Page 12
March 15, 2001 DRAFT
14.7,5 Supplying water that would otherwise beexchanged from the Roaring
Fork River pursuant to the exchange applied for in Case No. 9gCW270, Water Division No. 5.
14.7,6 Any other beneficial use recognized by the Division Engineer for
Water Division No. 5 or by the District Ceurt in and for Water Division No. 5.
14.s
14.8.1 The Applicant will store the Reserved Water in one or more storage
facilities in the Ark~n.qas River Basin at its discretion, provided that the cost of storage of the
Reserved Water is equal, on a per day, per acre-foot basis, ~o the cost of any storage made by the
Applicant of water diverted on the IPTDS 1994 Supplement that is allocated to the Applicant.
14,1t,20norbeforeJanuary 1 ofeachWaterYear, theApplicantwillprovide
to the River District an accounting showing: (1) the volume of Reserved Water stored in the
preceding Water Year; (2) the volume of l~served Water that was substituted or booked over to the
River District in the preceding Water Yea-; C31 the volume of Reserved Water that was reallocated
to the Applicant at the end of the precedir.g Water Year; and (4) the average cost to Applicant per
day per acre-foot for storage of the Reserved Water in the preceding Water Year. Within 30 days
of receipt of such accounting, the River District will remit m the Applicant a sum determined by (1)
subtracting the volume of Reserved Water reallocated to the Applicant at the end o£the preceding
year from the total volume of Reserved Water; and (2) multiplying the result by (a) the average per
day storage cost by (b) the number of days the Reserved Water was stored in the prece~i,,~ year.
14.9 ~ration.
14.9.1 Water diver~ed upon the IPTD$1994 Supplement that is stored in the
Arkansas River Basin may be subject to spill not within the Applicant's control prior to the end of
the then-current Water Year; for example, such water may be stored in so-called "if and when"
storage accounts. The.applicant shall provide the River District with monthly notification of currant
reservoir storage levels, and anticipated furore rates of inflow into the storage facility or facilities in
which the Reserved Water is then being stored, and will also provide the River District with written
notice fourteen (14) days prior to the date that the Applicant anticipates that the Reserved Water may
begin to spill from storage. In addition, because the Applicant can only project a spill date for the
Reserved Water based upon ars experi~ce in the Arkansas River Basin, and since the Reserved
Water will in most cases be stored in a facility not under the control of the Applicant, the Applicant
will also provide the River District notice by telephone, facsimile, and, if available, electronic mail
within 24 hours of receiving notice from the operator of the storage facility that the Reserved Water
will be spilled. Any water dive. ned ut~on the IPTDS 1994 Supplement that is spilled will be
allocated pro-rata between the Applicant and the River Disirict.
MRR.~l.~001 l~:05PM LRN OFFICES NO.O?B P.~
Judgment and Decree
Case No. 95CW321
Pa~e 13
M~rch 15, 2001 DP, AFT
14.9.2 Evaporation on wa~ stored by ~ A~lic~t s~l be ~ocaed pro
ra~ ~ong ~ ~TDS p~o~es, inclu~g ~ 199~ S~pplom~t. Evapo~on losses upon
IP~S 1994 Supplement ~11 b~ ~oca~d b~e~n ~ A~lic~t ~d ~ ~v~ Di~ct pro
14.10 Condition.Preceder to Exi~ci~e. No ~t~ s~l be ~vened upon ~e ~S 1994
Supplement ~s~ ~e AppBc~ h~ entered ~to ~d is op~fing p~t W ~ appropriate
a~eem~t ~h ~e Ho~e Project p~cip~ ~at ~ffecmates ~e Bookover desc~bed
p~aph 14.6.2 above on ~ on-goin$ ~is consistent ~ ~e Water Exch~g~ A~e~ent ~d
reco~zes ~e pm~sio~ ofp~aph il.7 above. A copy of such ~e~ent or ~y ~en~en~
~1 be ~ovidcd to ~e ~v~ DiVot pr0mpfly upon cxecu~on, ~d no~ce of ~y t~fion or
lapse of such ~e~em sha~ ~so bc promp~y pmvldcd.
14.11 S~pulatio~ ~ Sou~e~ C01o~0 Wat~ Confe~ Di~ct. ~ ord~
comply ~ ~e te~ ~d con~om of~e S~p~ation dated Mach 4, 1996, ~een ~e Applic~t
~d ~c Sou~e~t~ Colorado Water Co~.se~ Dis~, ~e follo~ ~11 apply:
14.11.1 No decree entered here~ ~1I ~ ~d ofitself~ive Applicmt ~y rights
of o~p or ~e of ~y ~U~,~rk~sas Project facili~es. ~y use by Applic~t of
F~gp~Ar~s~ Project ~cilifies for.s~cr~e or ~c~ge offer ~v~ed p~su~t to ~e water
ri~ d~r~cd ~ ~s ~e sh~l mq~e ~d bc ~bject to, l~ted by, ~d depen~n~ upon ~
of(a) A~lic~t or its ~eholdc~' con~cts, inclu~g ~y ~en~en~, mn~s, supplement,
or replacemcnm ~ereto, ~ thc United States of ~e~c~ i~ successors or ~si~s; or ~)
a~l, o~ or ~en, ~ong App~C~t, ~e Sou~eaa~ Colorado Wat~ Co~ ~s~c~
~d ~e U~md States B~eau of Recl~a~on or i~ successors ~d ~si~,
14.11.2 It is ~de~ood ~ ~c~d ~at d~ect ~c ofwat~ diverted p~s~t
to ~c water ~t decmcdin ~s c~e, ~out ~orage or ~ge us~g F~Ip~,-~ Pmj
facilities, ~i1 not c°nsfimtc use of Proj e~;t facili~es no~st~ng lhat wat~ may p~s ~ough
~ L~es Kes~oir, ~d ~ ~erefore no~ r~q~re ~y a~eement ~on~ App~c~ Soulhe~tem
Colorado Wat~ Conse~ Di~c~ ~ ~c U~ted States B~eau of Recitation. L~e~sc,
con~ua~on of Applic~t's or i~ sh~hold~s' ~s~g exch~6c p~ces pws~t to ~e~ e~st~
con~a~s ~vol~ng ~ L~es ~csc~ok ~d T~quoise ~esc~ok ~11 not req~m ~y
a~eem~l ~o~ Applic~l, Sou~stcm Colorado Water Cogency Dis~c~ ~d ~e U~tcd
S~tes B~eau of KeelSon, even if~t~r dirked p~su~t to ~c w~t~ dgh~ decm~d in ~s
is rele~ed ~ a p~ of such
14.11.3 Appllc~t's ~e of ~t slope ~or~c space in
P'roj~ct f~ihfies, ~ ~e ~xcep~on 0f ~c 54,452 acre-feet of T~ L~s Kes~oir
rese~cd for AppHc~'s cxcl~ive ~e ~ ~c ~u~ 17, 1977, con~act bc~e~n ~e U~ed S~tcs
~d App~ sh~ll ~ govem~ ~ ~d m~c in ac~rd~ce ~ ~e te~s ~d ~n~om
MAR.~l.2001 l~:06PM LAW OFFICES M0.078 P.~4
Judgment ~nd Decree
Case No, 9SCW321
Pa~¢ 14
Mar~h 1~, 2001 DRA~'T
principles for operation of storage space in the Fryin~pan/Arkansas Project as more particularly set
forth in Amendment 4 to Southeastern Colorado Water Conservancy Dislxict's repayment contract,
as it may be amended.
14.11,4 Neither the ~lescription of, reference to, or omission of description or
reference to,Fryingpan/Arkansas Project aruetures and water fights of Southeastern Colorado Water
Conservancy District in any decree, nor an3ahing else in any decree entered herein, will in any way
amend, limit, o~ act to the detriment of Southeastern Colorado Water Conservancy District's decrees
for Fryin!~pan/Arkansas Projec~ wa~er fights.
14.12 Applicant shall not enter into any A~eement as contemplated by ¶14.10 above that
would interfere with its ability to effectuate the operations set forth in ¶¶14.4, 14.$, and 14.6 above.
14.13 .General.
14.13,1 Applicant sh~?l install such measunng and recording devices, and shsll
keep such records and perform such accountin! as may reasonably be required by the Division
Engineer, Water Division No. 5, or his representatives, to assure that water is taken pursuant to the
IPTDS 1994 Supplement only when w~ter is lei/ally and physically available for diversions by
Applicant at the points of diversion from nh/ch Applicant wishes to divert and to assure corepliance
with the maximum instanlaneous diversion rates and the annual and ten-year volumetric Emitations
on diversion by this water right combined with all other water rights decreed for diversion as part
of the IPTDS, Copies of all such records and accounting forms submitted to the Division Engine~
shall be made available to the objectors herein upon reasonable request.
14,13.2 In a prompt and timely manner, the Division 2 Engineer shall provide
the Division $ I':ngineer with the iv. format/on reasonably necessav~ for the Division 5 Engineer to
administer the IPTDS 1994 Supplemem.
14,13.3 The IPTDS 1994 Supplereent shall be administered based upon the
filing of the application herein in 1995, and shall be junior in priority to decreed water rights for
which applications were filed in previous years and senior to water rights for which applications
were filed in subsequent years. As between all water rights for which applications were filed in the
s~me calendar year, priorities shall be determined by their respective historical dates of appropriation
and shall not be affected by the date of ent~ of the decree.
14,13.4 This is a Consent Decree, entered pursuant to compromise and
settlement. Accordingly, the provisions hereof have not been litigated. The doctrines of Kes
Judicata and Collateral Estoppel shall therefore not apply to the Findings and Conclusions herein.
MAR.21.2001 12:06PM LAW OFFICES NO. 078 P.25
Jud~men~ and. Decree
Case ~o. 95CW$21
Page 1
March 15, 200!
~ 5. Eet~ned J~d~ction, J~is~on ~s here~ re~ed by ~e Co. in acoord~c~
Dated ~s day of. ,2001, by ~e
Thomas W, Ossola, Wa~r Judge [
Wa~r Division No. 5 '
Slate of Cblorado
EX~IBl~ B
PLA~ OF STUDY
The City of.Aspen ("Aspen"), and the Twin Lakes l~servoir and Canal Company ("Twin
Lakes") will jointly fund ami participate in a Study to be carried out in 3 Phases, and purs~,t
this Plan of Suldy.
1. Definitions.
For purposes of this Plan of Study the following deGnitions will apply:
1.1 Aspen Ganqe: The gauge ~0cated on the Roa~ing Fork River above the Salvation
Ditch headgate, near Aspen, Colorado, more particularly defined as USGS Gage No. 09073400.
1.2 Asoen l~ach: That reach of the l~.oaring Fork River from the Aspen Gauge to the
confluence of thc l~oari~ Fork River and Maroon Creek.
1.3 Colorado School ofMines Sl~_dX: A study conducted by the Colorado School of
Mines cntitlad 'Pre 'luninary Hydrologic and Biological Characterization o£th¢ Norcll Star Nature
Preserve, Pitkin County, Colorado" dated l~ay 2000.
1.4 Difficult C~mn~round Gau_~_e: The gauge located on the Roaring Fork River 0.45
miles above its confluence with Difficult Creek, more particularly defined as USGS Gage
09073300.
1.5 F -~.~I]t..~l~l~: The exchange provided for in paragraph 11 of tile Operating
Principles of the Fryingpan-Arkansas Project, pursuant to which up to 3000 acre-feet of water per
year diverted by the Ft'yingpan-Arkansas Project from Hunter Creek in PirXin County, Colorado,
are stored in Twin Lakes storage Pacflitics on the eastern slope for ~xchange to the l~oaring Fork
River. Said excb,,~ge is accomplished by requesting Twin Lskas to forego diversions of the
Twin Lakes 1936 Right.
1.6 IPTDS: The Independenc.~ Pass Transmountain Diversion System owned and
operated by Twin Lakes.
1.7 !~~_~lg: A condition occurring dtming P, unoffScason, which causes
the flows in the Roaring Fork River abov~ the Aspen Gauge to ovel'flow the stream channel at
one or more locations.
-1-
MRR.~l.2001 12:O?RM LRN OFFICES M0.078
1.$ Pesk Runoff Season; The R~off S~on is de~d ~ ~e p~od d~ng w~ch
· ~ m~ ~ flow occ~ in ~e Ro~ng Fork ~ver, Vpi~y d~g ~e mon~s of~y
~u~ ~y.
1.9 ~ Fork ~v~ ~lu~ AqUa: ~e ~co~ed aq~ hy&a~c~y
~ectcd ~d ~bu~ to ~e ~o~g Fork ~v~ ~t is comp~ of Plcistoc~ ~
Q~te~ ~e v~ey-floom d~siu of fluvi~, glaciS, ~u~ ~ co~u~ ~d l~lide
o~.
I. 10 ~o~ Fork ~ver ~lu~ Storage: ~e ~o~d~r ~om~e c~i~
~o~g ~ork ~v~ ~u~ Aq~ ~ of~e Aspen ~u~e ~d e~d~ to abou~ 1300
f~t above ~e D~c~t C~p~d Gau~e, rou~y ~ ~ ~c~ff iden~d on E~bit 1.
IA1 ~L~es1936~: ~ewa~tsdecr~to~e~DS~C~eNo. CA
30~ on A~ 25, 1936, ~ ~ ~h~ ~vo ~ere~er be~ con~onc~ c~ed ~d made
absolute, ~ T~ L~es 1936 Water ~t pe~ts ~ m~ of 625 cfs of ~t~ ~
~vened ~ou~ ~e ~S to ~ e~t~ slope ~bjec~ ~ ce~ l~om on ~ch
~o~ dive.ion ~ pro~dcd ~ C~e No. CA 30~2 ~d W-1901.
1.12 T~n L~es 1994 ~ht: ~ absolute de~ to ~ ~tered upon ~e app~ca~on
~ C~c ~o, 95CW321, for 240.75 Cfs to be ~v~ed to ~e e~em slope ~a ~ ~$,
to ~e te~ ~d con~fio~
2. $mdy ~h~es ~nd
~ S~ ~ bc condu~ ~ ~e follo~ ~e p~ses:
Ph~e 1. ~e obj~Sve o~h~e 1 is to d~elop a q~fi~five ~dor~n~ of~c ~p~
storage, m~ flows ~om ~e sq~f~ to ~e Ko~$ Fork ~ver, ~u~ ~de~ow ~nea~
~spen ~e ~d b~eflows ~ ~o Ko.rig Fork ~v~ ~low~e ~p~ O~gc. Aspen ~lievcs
ov~b~ flood~ ~om ~ ~o~ ~ork ~ver ~ic~ly occ~ u~ ~om ~e ~pen
d~ ~ Pe~ K~off ~e~on. ~ ~ believes ~t s~h overb~ floo~ con. butts to
s~c~t r~e to ~e Eo~g Fork ~v~ ~u~ Aq~f~ a~vc ~e ~ ~c ~d
r~ flows ~om ~e ~g Fork ~v~ ~uvisl Aq~f~ to ~e ~o~ Fork ~r ~d ~u~
~de~ow ~n~ ~e Aspen ~ug~ conm~ute to b~eflows ~ ~ ~o~ ~ork ~ver below
~p~ ~u~e. P~e 1.~ ~ ~s h~e~s. A second objcc~ve of~e 1 is to obs~e ~d
· ~d objec~ of Ph~ 1 is to ~se~ ~ ~pPo~ for ov~b~ floo~ ~d ~fer ~h~e
~ ~o~ flow con~ons, ~ n~css~ ~d appropriate, an21~c~ m~e~g tools ~I1
employ~ m acute ~ese objc~ves.
Ph~ 2. ~e objective ofP~c 2 ~ to ~se~ ~ ~p~ of plied ~sions
T~ L~es 1994 ~t upon ~e ~lu~ ~ sto~e, re~ flows, ~d b~eflo~ ~ ~c Ko~
MAR.21.2001 12:07PM LA~ OFFICES M0.078
Fork River below the Ast~n Gauge, and specifically, to determine whether such diversions will
diminish the sltesmfl ow in the Aspen Reach during the non- Peak Runoff Season below thc 32 c,f, s.
minimum streamflow right decreed for that reach, or whether such diversions, while not themselves
causing streamilow in the Aspen Reach to fall below 32 c.f.s, during the non-Peak Runoff Season,
would nevertheless reduce stresmflow further below that amount. Ifthe tradings of Phase 2 show
that projected diversions on the Twin Lakes 1994 Right would result in a stre2~t%w in the Aspca
Reach during the non-Peak Runoff Season oi]ess than 32 c.£.s.~ or that diversions on the Twin Lakes
1994 Right~ while not themselves causing the streamflow in the Aspen Reach to fall below 32 c.f.s
during thc non-Peak Runoff season, would nevertheless further reduce stre~mflow below that
amount, the Study will proceed to Phase 3. In determining whether diversions on the Twin Lakes
1994 Right will cause thc streamtlow in the .~epen Peach to fall below 32 c.f.s., or further diminish
stre~r~low below 32 c.f.s., diversions by the Salvation Ditch, Nellie Bird Ditch, and such other
senior Koering t~ork water rights downstream of the Aspen Gauge as determined relevant by the
Consultant s~,tt be deducted ~rom stresmflow measurements. In addition, no eahancement to
strcamflow in the Roaring Fork that results from operation of the 17fy~Ark Exchengc will be included
in the streamflow.
Phase 3. The objective of Phase 3; if needed, is ~o develop an equitable ~d workable
operating or mitigation plan (thc "Operatin~/lv[i~igation Plan") such that diversions upon the Twin
Lakes 1994 Right will not (1) reduce the s~eamflow in the Aspen Reach during the non-Peak
P, unoff Sca~on below ~2 c.f.s, or (2) contribu'~e to a further reduction of stresmflow below 32 c.f.s
in the Aspen Peach during the non-Peak K~offSeason in circumstances when diversions upon the
Twin Lakes 1994 right do not themselves caase the sire~_m?ow to drop below that threshold. The
Operating/Mitigation Plan will employ such concepts or mechanisms as are deemed appropriate to
achieve the goals of the Plan. Such concepts may include establishing one or mor~ "indices" or
"triggers," such as an Index Flow, that is, a rato of s~r~amflow at an agreed point (such as the
Difficult Campground Gauge), in cubic feet per second, that should be r~,i~tsined in the stream for
a period of time during the Peak Runoff Season in order to prevent adverse consequences during the
non-Peak Runoff Season, and that will trigger a cessation or reduction of diversions upon the Twin
Lakes 1994 Right; or a Roaring l~ork River Alluvial Water Table Index, that is, a composite level
of the water table in the l~.oaring Fork River Alluvial Aquifer above the Aspen gauge tn quantify a
minimum Romiug Fork River alh/vial Storage which is needed at the end of the Peak RunoffSeason
to be available for discharge to the Roaring ~'ork River below the Difficult Campground Gauge to
achieve streamflows in the Aspen Peach of~ at least 32 c.f,s, until the following Peak Runoff Season,
(or, if~2 c.f.s, cannot be achieved, the amount ofP, oaring Fork River Alluvial S~ora~.e needed at the
end of the Peak Runoff Season to be available for discharge to the Roaring Fork River below the
Difficult Campground Gauge to bring stresm~low as close to ~2 c.f.s as possible) and that could be
used in conjunction with Index l~lows to determine if Twin Lakes will reduce or curtail diversions
pursuant to the Twin Lakes 1994 Right; or whatever other operating concepts or mitigation measures
are deemed approtxiate to achieve the goal of the Plan.
MAR.81.8001 18:87PM LAW OFFICES M0.878 P.2g ,..
2.1 Phase 1 Study.
2.1.1 Ia PSase 1 of thc StUdy, physical measureme=ts of the Roaring Fork River
and the Roaring Fork River Alluvial System will be obtained using thc methods described:
(A) Cross-sectiom of the channel of the Roaring Fork River between
the Difficult Campgrotmd Gauge and the Aspen Gauge will be obtained using appropriate
surveying methods. This information will be then ineoxporated into a I-l~C 2 or HEC-RAS based
surface-water flow toodel to approximate the overbznk flooding potential for various flows as
measured at the Diffeul': Camp Oround and Aspen Gauges.
(B) Select. od locations of overbenk flooding that are projected to occur
using the HEC 2 or HEC-RAS based surface water flow model will be mapped. ShalIow
monitor wells will be drilled in the Roaring Fork River Alluvial Aquifer in or near these areas to
allow measurement of the tr~_~sient ground.Water levels. These monitor wells shs!! also be
located by appropriate survey methods to insure that both their horizontal and vertical
relationship to the surface water gauging stations and the Roaring Fork River cross sections
be established for subsequent study purposes to allow the relationship of the elevations of the
alluvial water surface and the stream flow'sur~ace to be determined.
(C) Regularly sch.;;duled measurements of the Roar/ag Fork River
alluvial monitoring well network will be ma:lo by knowledgeable personnel competeat to carry
out such activity. The schedule for these measurements shall be determined by the pro]ec~
engineers for ob*~i-in$ data that represent the anticipated changes in the Roar/rig Fork River
alluvium resulting from both higher flows that re~i, in the eh~-~_el of the Roaring Fork River
and from flows that may cause some degree of overbank flooding.
(D) Sites where surface flows may enter the Roaring Fork River
Alluvium downstream of the Difficult Camp C-round C-auge and above the Aspen Gauge will be
evaluated. This will include Difficult Creek and other unnamed ~butaries. If; in the opinion of
the Consultant, end the Oversight Commi~ee, these sources of water should be measured so their
contribution can be inoludod in the water measuretoenr process, appropriate methods of
measurement shall be developed for these sources and included in the data collection activities as
deemed appropriate by the Cousult~nt. In addition, groundwater discharges from the Aspen
Municipal Parking Crarage may be monitored and evaluated.
(E) Estimates of aquifer thickness, transmissivity, hydraulic
conductivity, and specific yield will be developed from methods mutually agreed upon by the
Consultants, and as available funds allow. The Consultants will also agree upon the use of
available data including strea~n~low recordS, water-level data from monitor wells and weter-
supply wells, well pen*n/t and construeti°n!reCords, precipitation data, geologic data, published
maps, and other pertinent information that may be used to achieve the objectives of Phase I. All
such data ~_-~ interpretations derived therefore shall be shared between the parties.
MAR. 21. 8001 12: 08PM LRW OFFICES MO. 078 P. BO
~) If d~ n~ss~ ~d approp~tc by ~e mu~ a~?~.o~
~e Comul~t, A~ ~d T~ L~cs, ~;smdy ~ea may be e~d~ do~ to ~d including
~ co~uence of M~oon Creek ~d ~e ~o~ Fork ~v~.
2.1.2 Us~ ~e ~ove ~om~o~ ~ ~ders~d~ of~ ~y~c~ mla~ons~p
~ ~e Ro~ Fork ~ver sync, ~clud~g ~e Ro~g Fork ~v~, ~e Ko~g Fork
~v~ ~ ~d ~bu~es ~1 ~ d~cloped ~d ev~& F~tom ~t may ~ect
ml~omMps ~ ~o be co~id~d ~d ideated ~ ~ey ~y relate to ~e go~ offs s~y
for ~ m~ence,
2,2. P~e 2
2,2, l U~g ~ rela~o~Mps id~fied ~ Ph~e 1 of~e Study, ~d es~m~ted
c~ges ~ s~e~ow ~g ~m excise of~e T~n L~s 1994 ~, Ph~e 2 of~
~d s~flow ~ ~c A~ ~ch d~ ~ non-Pe~ K~off Se~on, Ph~e 2 of ~e
~ develop ~d ~ su~ tools ~ conch, ~clu~g, if approp~atc, ~ic~ or computer
modet~Z, ~ ne~ to ellipse ~e r~a~o~Mp be~ sm~ed.
2.3 ~ If~e result of Ph~e 2 is to ~ow ~ pmjc~cd ~v~sfo~ on ~e
T~ L~es 1994 ~t wo~d reset ~ a ~e~ow ~ ~ A~en ~each d~g ~e n~-P~
R~off Scion of less ~ 32 c.~s. (~er ~vo~iom by ~e S~ Ditch ~d Nel~e Bffd
s~or ~o~es ~d such o~r s~or Ro~t~ ~ork wat~ d~U ~e~ of~ ~en ~uge
~ d~e~ rel~t by ~ Co~t) or, ~t diversio~ on ~ T~ L~cs 1994
w~e not ~selv~s ca~ ~e s~ow to ~ below 32 c.f.s ~ ~ ~p~ Reach, d~g
· e non-P~ R~ S~on wo~d n~e~eless ~er reduce ~ow below ~t ~o~
· en ~e Study ~ proceed to P~e 3, ~W~ ~ ~era~n~figafion PI~ ~ be develo~d
to govern ex.se of~ T~ L~es 1994 ~ or o~e~se pro.de for ~fi~fion of~e
advise effc~ of such ~vcr~om ~on s~e~ow ~ ~e ~ Re~h d~ ~ non-Pe~
K~off Se~o~ b~ upon ~ ~d~ of~e phy~ micromaps l~d ~om
1 ~d 2 ~mdics. S~h O~a~ga~on PI~ sh~ ~e ~co~ of~e m~mde
~v~e effe~ demon~a~ed by Ph~e 2 of the Study ~n ~e ~ow ~ ~e ~
d~g ~e non-P~ R~off S~on ca~ ~y ~rslo~ on ~c ~ L~es 1994 ~t,
3. Condu~ of ~e Study
conducted jo~fly by M~a~hl~n War= En~ee~ ~d E~h ~c.,(~Be~vely, ~e
"Co~l~t") in accor~ce ~ ~e foH6~ng Study P~t~:
~.1.1 Asked F~. ~ c~g out ~ ~dy (~d dev~op~ ~y compeer
model neccss~ ~to) ~e follo~g fac~ ~ ~ ~s~ed:
-5-
MRR.21.2001 12:00PM LRN OFFICES
3.1.1.1 Twin I.akes~i ~rojected diversions p~t to ~c T~n L~ 1994
~t ~1 be ~o~ pwj~d by E~c, in i~ M~ch 1, 1999 ~o~ ~6flcd,
Independ~ce P~ Tr~-Mo~m~. ~v~mon Sy~m ~so~m~t of Wamr
adjusted to reflect mdu~on of~e ~t~r ~t applied for ~ C~ No. 95CW351
240.75 c~.~
3.1.1.2 ~uge mmpi ~om ~e D~c~t C~p~o~d
~n ~a~c ~ ~c~a~, ~ess ~ Co~t m~o~bly concl~es o~se.
3.1.2 ~is of E~aing Data. ~e follo~g e~
~d, to ~c ~nt t~ cons~ de~s ~pro~a~e, ~cd ~ ~c ~dy:
Colo~do S~hool of M~es
S~ow ~or~ of ~e ~g~ork ~ver ~ m~ted
Di~c~t C~p~o~d Gauge ~ 1994 - 1997, or ~ch o~ ~e period ~ Co~t
ie~s appmpfia~;
Pub~ed g~lo~c da~ mlevmt to Ro~g Fork ~v~ ~u~
md precipi~on dam de~ed mle~,nt by the Cons~t~t ~ dete~in~g ~o~elt
~p~ts ~m ~i~,ge ~ ~ imme~te ~c~W of~c ~ Fork ~ver ~iuvid
Storage;
~y&o~ap~ of&ta ~m se~c~d mo~to~g wells id~ed ~ ~c Color~o Sc~ol of
~nes Study;
Wc~ logs, to ~c ~ent ~o~bly ~'~lable, for eE~ng we~s lo.ted ~ or adiac~t to
~e ~ Fork ~ver ~lu~d SiOmge, or els~h~e
Con~t;
P~i.mlns~ b~e flow re~saon ~sis md o~er pre~ ~o~ of ~u~E
storage capaci~, ~o~d~ter m~*ge ~ ~d~t~ ~sch~ge ups~ of~e Aspen
Gauge ~ed by Wayl~ ~eso~ ~o~ M, ~ ~d s~ of McLau~l~
Wa ~ E~m~s, I~. ~ Dec~ber 2000 ~d l~u~ 2001~
"~ ~olo~c~ Report No. 1 of~e A$pen Altema~ D~si~s", G~mnison-
~ksns~ ~ojec~ Colo~o, USBR, 0~ober 2, 1950.
1 If Co~t dete~es, ~ ~d exem~e of redouble science ~ d~en~ ~a sad
pml~ ~ysis ~d ev~o~ ~ s~cient for p~oses of~e study ~out ~er
re~emen~ Com~t my ~ept:~e resets of~h
for ~e ~ ~e ~dy ~thout
MAR. 21. 2001 12: 09RM LAW OFFICES MO. O?B P. BE
3.1.3 ~o_fNewDam, The following additional dam, at aminimum,
must be obtained:
Measurements of thc physical geometry of the Roaring Fork River channel a~ selected
sites to enable determination of stream charmel capacity at locations on the Roaring Fork
River where Overbank Floodi~ is believed to occur;
Measurements of selected existing monitoring wells at thc North Star Preserve (as
identified in the Colorado School of Mines Study) at times deemed appropriate in the
omulumt s reasonable scientific judgment;
Measuremcnts of waler surface elevations in the Roaring Fork RiVer at selected sites at
times deemed appropriate LA the C0m'ultant's reasonable scientific jud~ent;
Measurements of existing Forest SerVice well located at the DiiScult Creek Campground,
md other existing wells that are deemed rcleYant;
Data reasonably sufficient ~o enable a reliable estimate, LA ConsulIaut'$ reasonable
scientific judgment, of the thiclmess, specific yield, hydraulic onductivity and capamPy
of thc P.o~-ing Fork River Alluvial S'coragc;
Other data reasonably required by C~,~mtltant to provide a reliable test of thc hypotheses
posed in Pha~c 1 of thc Stud)., andtO develop any computer model needed for Phases I or
2 of the Study, which r..y include ~ling additional mollitori~r weI]- ..a a,..,.~^..; ~.
schedule for obtaining =easuremen~ there fi'om, ~d LAstallatio---'~ o"f ~a~""~i~ d~e~c]~"
~ud ge~ration ofratLAg tables to establish the contributions ~o the Roering Fork River
Alluvial Storagc from Roaring Fore, tributaries
$.2 !~~I~. The Consul!rent's work sh~II be overseen by, and the
Consultant shall commuuicate with, an Oversight Committee composed of one representative of
Aspen, and o~e representalive of Twin Lakes. The Oversight Commiuee shall be responsible for
directi~ the work of the Consultant, approving payment, and approving edditional expense
items, such as thc insudlation of measuring devices and the drilling o£monito~ng wells. In
addition, the Oversight Com_m_ittee shall re-~iew and approve the parameters of any computer
model developed by thc Consultant. The Oversight COmmittee shall comr~u~icste i~s decisions
~/conccrr~{~g the edminisl~ation of the Consubant's contract to the Ri,~er District's general
manager or his desi~ee. ;
3.2.1 If the Oversight Committee is tmable to agree on the direction of thc
Co~suliant, scie~tiic disputes, including the Consult~mt's request to install rn~suri~ devices,
dffil, monitogn~ wells, or incur other extra0rdina~ expenses, -~hall be submitted to an agreed-
upon third party, whose decision on the pa~cular sclenlific &spute shall be binding. Thc panics
shall share the cost of the ~ird party's services equally.
MRR.21.2001 12:09PM L~ OFFICES HO.O?B P.33
3.2.2 The parties agree that their designated representatives to the Oversight
Cor~r~ittee will be reasonably avallable by telephone to each other and to the Comxfltant, aud
will be available in Aspen and GlenwoodSprings, at their own expense, when reasonably
neeessazy to permit the Consultant to cornple, te its wczk in a t/mely fashion,
3,3 Cost Estimates.
3.3.1 Cost Estimates. On March 14, 2001, ~ parties agreed upon a detailed
cost estimate for Phases 1 and 2 of the study, totaling $50,402.
3.3.2 Additional Cons, If at auy time the Consultant concludes that reasonable
scienti/ie eertahty eoucernlng the runners'studied cs~not be achieved without hstalling
additiov, al measuring devices, monitoring Wells, or obtaining other informatiun not originally
anticipated to be needed, the Consultant shall so advise the parties, and the Oversight Committee
shall deterr~ine what additional direction shall be given to the Consultant,
3.4 Costs ~na Consultants Con~raet. Twin Lakes and Aspen will each eontrlbute one-
half of the cost of the Study, up to a max/mum of $25,201 each.; In the event that as a result of
tmanficlpated costs, the detailed cost estimate l:rovided by the Coasuliant pursuant to Paragraph
3,3.1 above is exceeded, then the panics will consult and seek to agree on what additional
expenses are required, l~ow to proceed, and Mw to divide any additional costs between them. If
the parties eanuot agree on whether to proceed with the Study in such event then they will jointly
seek to reopen the Decree in Case No. 95C'~l~321 to resolve any disputes concemin! the Study
and/or the water right that is the subject cf that ease, The Colorado River Water Conservation
District ("River District") shall contract W/t~h MeLan!hlin Water Engineers for conduct of the
Study by the Consultant using a Scope of Work provided by the Oversight Committee. The
River District shall administer that Centtact subject to approval of invoices and changes in the
Scope of Work by the Oversigl~t Commit/~e. Twin Lakes and Aspen shall provide funds to the
River Dis~et for the cost of the Study by each remitting one-h~Leof each invoice amount within
15 days of its approval by the Oversight Committee.
3.5 Study Results.
3.5.1 Phase 1 Results. The Consultant shall be directed to provide a letter report
on the progress of Phases 1 md 2 of the Study to the Oversight Committee no later than August
15, 2001; a Draft Report on the results oi'Phases 1 and 2 of the Study to the Oversight
Committee no later than October 31,200il and a Final Report on Phases 1 and 2 no later than
December 1, 2001. 'rb~ea/ter, the Oversight Committee shall, depending upon the results of
Phases 1 and 2 of the Study, direct the Consultant to proceed wifla Ph~ 3 of the Study. The
parties shall agree on the division of the ~st o£Pbase 3 of the Study, if needed, with the
e/pectation that Twin Lakes and Aspen Wiil each bear one-half of such cost.
-8-
MAR.81.2001 18:09PM LAW OFFICES
NO. 078
3,5,2 Phase 3 Kesults: Operation by Twin Lakes of the Twin Lakes 1994 right in
Conformity with Operation/Mitigation Plan, From such time as the Phase ~ Opeamting/
Mitigation Plan, if needed, h~ been completed, Twln Lakes will operate the Twin Lakes 1994
right in accordanc= wlth the Operating/Mitigation Plan developed, and, to the extent the Plan
calls for Twln Lakes to forego or curtail diversions pursuant to the Twin Lakes 1994 Right,
not~itlmanding the ava/lability of water in priority at the points of diversion for the IPTDS, then
Twin Lakes will forego such diversions. Twin Lakes' oporat~ons or diversions upon any other
water rights or priorities it ~njoys, inclu~ but not limited to the Twin Lakes 1936 Right, shall
not be affected in any way h.y tho Study, th~ Operating/Mitigation Plan, or this provision. The
parties agree that any reduction or curmi~nt of diversions by Twin Lakes pursuant to the
Operation/Mitigation Plan will be required aotwitbstauding any enhancement to stream/Iow in
the Roaring Fork River that may result frO~ operation of the FiT-Ark Exchange
3,5,3 Continued Monitoring. The parties recognize that continued monitoring
may be necessary altar completion of the Study in order to validate its results and the operation
of any resulting OpecatlngMit/gation Plan. The Oversight Comra~tte¢ shall determine, on
consultation with the Consultant, what continued monitoring is appropriate. The parties shall
agree on the division of the cost of monitoring, and of any agreed-upOn adcl/tional field studies,
with the expectation that Twin Lakes and A.~pen will each bear one-ball of such cost.
3.6 Amendments to Plan of 8tu~ The Oversight Committee may, by unanimous
consent, amend or adjust this Plan of 8tuc~y) and the direction provided to the Consultant, at any
time during the course of the Study.
-9-
MEMORANDUM
TO: Mayor and City Council
City of Aspen
FROM: Cynthia F. Covell, Esq.
Phil Overeynder, Water Director
RE: Settlement Agreement: Opposition to Twin Lakes Water Rights Applicaiton (Case
No. 95CW321)
DATE: March 21, 2001
Background and Summary
The Twin Lakes Reservoir and Canal Company ("Twin Lakes") diverts water from the
headwaters of the Roaring Fork through the Independence Pass Transmountain Diversion System to
Lake Creek in the Arkansas River basin. Twin Lakes currently has 1936 water rights which it may
divert at rates up to 625 cfs, subject to volumetric limits of no more than 68,000 acre-feet of water in
any one year, and no more than 570,000 acre-feet in any period often years. In addition, Twin
Lakes' decrees prohibit diversions even when water is available
to it in the Roaring Fork if Twin Lakes has already stored 54,000 acre-feet in Twin Lakes Reservoir,
and 756 els or more is available from the Arkansas River at a designated headgate. Under these
conditions, there is presumably cgnsiderable water already in the Arkansas system, and Twin Lakes'
transmountain diversions are prohibited.
PRIVILEGED AND CONFIDENTIAL
Mayor and City Council
March 21, 2001
Page 2
In 1995, Twin Lakes filed a junior water right application to allow it to divert water under a
1995 priority at times when it is unable to take water from its 1936 decrees because the two
conditions on the eastern slope have been met. In other words, Twin Lakes wanted to be able to
take water from the Roaring Fork even if it had already stored 54,000 acre-feet in Twin Lakes
Reservoir, and there were 756 cfs at the designated headgate. Since Twin Lakes' shareholders are
now mostly municipal water providers, such as Colorado Springs and Aurora, and since additional
storage is being developed in the Arkansas basin, Twin Lakes wanted to be able to take additional
water from the Roaring Fork. Diversions under this new water right together with the 1936 rights
were to be limited to 625 cfs, the existing capacity of the Independence Pass pipeline. In addition,
diversions under this junior right would be included in the volumetric limits established for the 1936
water rights.
Aspen, along with the County, the Colorado River Water Conservation District and others,
opposed this application. Although the requested 1995 water right is very junior, and would be in
priority primarily during runoff, Phil Overeynder believed that making additional large
transmountain diversions during runoff would mean that less water was available to recharge the
alluvial aquifer that feeds the Roaring Fork upstream of the North Star Preserve. This, in mm, would
mean less water would be available to recharge the Roaring Fork later in the season when
streamflows are low.
Settlement Agreement
As we reported to Council in January, Twin Lakes agreed to settle the case on the following
terms:
It will participate in a study designed to test Phil's theory of aquifer recharge. If the
theory is supported by the study results, Twin Lakes has agreed to reduce the amount of water it
takes, under the 1995 water right to the extent necessary to allow the river to be recharged in the same
way it would be recharged in the absence of the Twin Lakes 1995 water right.
Twin Lakes will reduce its maximum diversion rate under the new 1995 decree from
625 cfs to 240 els. The amounts diverted under the 1995 decree will be included in the overall
volumetric limits discussed above.
Twin Lakes will store up to 800 acre-feet of the water it diverts under the 1995 decree
for the River District. Up to 100 acre-feet will be stored in Grizzly Reservoir on the western slope,
PRIVILEGED AND CONFIDENTIAL
Mayor and City ,Council
March 21, 2001
Page 3
to be released as set forth in paragraph 4 below. The remainder will be stored in the Twin Lakes
Reservoir on the eastern slope. This is a small benefit to the City as well, because the water in the
Twin Lakes Reservoir will be used to reduce the 800 acre-feet of water that the River District,
Aurora and a number of Summit and Eagle County water providers are seeking to divert through the
Independence Pass Transmountain Diversion System in another case.
The water stored in Grizzly Reservoir will be released at Aspen's request to enhance
instream flows in the Aspen reach of the Roaring Fork. Although Grizzly only holds 100 acre-feet,
this water will provide an occasional small benefit to the instream flows. ( Pitkin County has asked
that some of the water available to the City in Grizzly Reservoir be made available for release to it in
order to allow the County's Stapleton Brothers Ditch change case to be approved, and the Water
Department believes it is appropriate to allocate 20% (or a maximum of 20 acre-feet) of the water
available to the City in Grizzly Reservoir to the County. The water made available to Pitkin County
is also expected to enhance the instream flow in the Aspen reach of the Roaring Fork.)
We recommended this settlement to the Board because it gives the City more than it could
get from the water court. Although we saw some problems with Twin Lakes' application, and
believed there was a chance that it would be denied entirely by the water court, there is nothing to
prevent Twin Lakes coming back again with a new application that lacked the problems with the
current one. IN addition to having access to small amounts of water in Grizzly Reservoir, the
settlement also gives Aspen a cost-sharing parmer in an important study. With the settlement, Twin
Lakes will share in the cost of developing some very valuable information about the operation of the
Roaring Fork fiver system above Aspen. Even if Phil's theory is not proven, the information
obtained will help the City determine how to better protect its water fights and the instream flows in
the future. The City Council approved the settlement in principal on . The
settlement documents have now been finalized, and we request Council's ratification of the final
settlement stipulation, which incorporates the terms previously approved by Council, but with an
increase in the cost of the plan of study.
The plan of study was initially estimated at $30,000, to be paid one-half by Twin Lakes and
one-half by Aspen. The River District agreed to reimburse Aspen for up to $7,500 of its expenses.
As the plan of study was refined by the City's consultants, McLaughlin Water Engineers, and Twin
Lakes' consultant, Enartech, it became clear that it would cost more to conduct the study properly.
The final estimate is now $50,402. Twin Lakes will pay one-half of this, and Aspen is to pay the
other half. The water department has proposed that the River District'S $7,500 reimbursement to the
City be used to pay for some additional surveying and fiver measurement not included in the
PRIVILEGED AND CONFIDENTIAL
Mayor and City Council
March 21, 2001
Page 4
$50,402 estimate. Phil Overeynder has been closely involved with the development of the plan of
study. He believes it is properly designed to assess the impact of diversions under the 1995 Twin
Lakes water right on later season flows in the Roaring Fork, and that the $50,000 estimate is more
realistic than the earlier $30,000 estimate.
Recommendation
The water department and water counsel recommend approval of a resolution ratifying the
stipulation of settlement between the City and Twin Lakes.
F:\Client Files~Aspen\'l~vln Lakes~vlemo efephil-raayor 03-21-01 .wlxl