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HomeMy WebLinkAboutresolution.council.057-01 RESOLUTION NO. 57 (Series of2001) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO WHEREAS, the City filed a Statement of Opposition to Water Case No. 95CW32l, Application of Twin Lakes Reservoir and Canal Company, in the Water Court, Water Division No.5 (the "Twin Lakes case"); and WHEREAS, the City also filed a Statement of Opposition to Water Case No. 98CW270, Application of the City of Aurora, City of Colorado Springs, Colorado River Water Conservation District, Eagle Park Reservoir Company, Eagle River Water & Sanitation District, Upper Eagle Valley Regional Water Authority, and Vail Associates, Inc., presently pending in the Water Court, Water Division No.5 (the "Aurora case"); and WHEREAS, in March, 2001, the City and the Twin Lakes Reservoir and Canal Company negotiated, and the City Council ratified, a mutually acceptable settlement of the Twin Lakes case; and WHEREAS, in connection with settlement of the Twin Lakes case, the Colorado River Water Conservation District agreed to utilize certain water made available to it by Twin Lakes in a manner that will help protect instream flows in the Aspen reach of the Roaring Fork River; and WHEREAS, the River District's agreements are memorialized in the attached Agreement, which implements settlement of the Twin Lakes case and provides a basis for settlement of the Aurora case; and WHEREAS, the Aspen City Council has concluded that it is in the City's best interest to approve the Agreement, and to authorize a settlemenf of the Aurora case which includes the relevant portions of the Agreement relating to the use of the River District's water stored on the eastern slope pursuant to the Twin Lakes settlement, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO as follows: Section One. The Agreement between the Colorado River Water Conservation District, the City of Aspen and Pitkin County, attached hereto as Exhibit A, is hereby ratified and approved, and the Mayor and City Clerk are authorized to execute it on behalf of the City. Section Two. The water director and water counsel are authorized to enter into an agreement to settle the Aurora case that is otherwise acceptable to the water director and water counsel, so long as the settlement agreement contains the applicants' commitment that delivery obligations from the Independence Pass Transmountain Diversion System pursuant to the application in Case No. 98CW270 will be made in the manner set forth in the Agreement. RESOLVED, APPROVED AND ADOPTED this 29th day of May 2001. ATTEST: ~. if.) 4~ FCity;Clerk7,--:- . ~ BClient Files\Aspen\Twin Lakes\resdlution re settlement -aurora.wpd CITY COUNCIL, CITY OF ASPEN, COLORADO By: Mayor 2 (SEAL) AGREEMENT This Agreement is made effective the 18th day of April 2001, among the City of Aspen, Colorado, a municipal corporation ("Aspen"), the Colorado River Water Conservation District, a political subdivision of the State of Colorado ("River District"), and Pitkin County, a political subdivision of the State of Colorado ("Pitkin County"). RECITALS A. Aspen, the River District, and Pitkin County are concerned about the effects of the Independence Pass Transmountain Diversion System ("IPTDS") of the Twin Lakes Reservoir & Canal Company ("Twin Lakes") on water availability in the Roaring Fork River and its tributaries from which the IPTDS diverts water transmountain to the Arkansas River basin. Aspen and the River District are active parties in opposition to Twin Lakes' application in Case No. 95CW32l, Water Division No.5 for the supplement of the IPTDS, as that supplement is described in the application filed by Twin Lakes in that case; Pitkin County stipulated out of that case. Aspen and the River District have negotiated for and stipulated to the terms of a decree in that case which grants that application only in part and subject to certain conditions. B. The decree entered by the Court in Case No. 95CW32l on April 20, 2001 (the "IPTDS Supplement Decree") adjudicates a water right for the IPTDS (herein the "1994 IPTDS Supplement"), and provides the River District certain rights to call for water releases or credits, by substitution and/or bookover, as described therein. A copy of the IPTDS Supplement Decree is attached to this Agreement as Exhibit A. C. The IPTDS Supplement Decree also depends upon and incorporates the terms of a Stipulation entered into in Case No. 95CW32l between Aspen and the River District as Opposers and Twin Lakes as the Applicant. That Stipulation commits Aspen and Twin Lakes to conduct a joint study of hydrological issues associated with the 1994 IPTDS Supplement (the "Study"). Aspen is interested in having the River District assist it both technically and financially with completion of the Study. D. The River District is an Applicant in Case No. 98CW270, Water Division No.5, for the adjudication of appropriative rights of exchange to allow certain water supplies held or controlled by the River District and its fellow shareholders in the Eagle Park Reservoir Company ("EPRC") to be used to deliver water to or for the benefit of the City of Aurora and the City of Colorado Springs (collectively the "Cities"). Generally, the plan of the EPRC shareholders as described in the application in 98CW270 is to deliver water to or for the Cities by exchanges to Homestake Reservoir, located on Homestake Creek, a tributary of the Eagle River (the "Eagle River Exchange") or to the IPTDS diversions (the "Roaring Fork Exchange"). The IPTDS Supplement Decree created a third mechanism for the River District to deliver such water to the Cities, namely the use of "Booked-Over Water" (as defined in the IPTDS Supplement Decree), and the Cities have agreed to the use of Booked-Over Water as an alternative to the EPRC shareholders' deliveries to them via either the Eagle River Exchange or the Roaring Fork Exchange. Aspen and Pitkin County are objectors to the application in Case No. 98CW270. E. Aspen and Pitkin County are concerned about the effects of implementation of the Roaring Fork Exchange on the availability of water in the Roaring Fork River through Aspen, and desire to resolve their concerns by agreement with the Applicants in 98CW270 rather than by litigation in that case. F. Pitkin County is the Applicant in Case No. 99CW306, Water Division No.5, for change of water rights and approval of plan for augmentation. The County seeks, among other things, to use water available from the below-described Grizzly Reservoir Account to address claims of potential injury to instream flows in the Roaring Fork River below Aspen. AGREEMENTS Aspen, the River District, and Pitkin County agree as follows in order to resolve certain of their individual and mutual concerns regarding the matters described above. 1. Grizzlv Reservoir Account 01)eration. The water available to the River District from the Grizzly Reservoir Account as described in the IPTDS Supplement Decree shall be released primarily for the benefit of instream flows in the Roaring Fork River through Aspen and, to the extent set forth herein, to address potential injury to such instream flows below Aspen. CRWCD I Aspen IPTDS Agreement Page 2 a. Aspen and the River District shall cooperate to negotiate, document, and implement a contractual arrangement between the River District and the Colorado Water Conservation Board ("CWCB") providing for delivery of such "Grizzly Reservoir Account Water" to fill deficits in the CWCB's instream flow right decreed for 32 cfs in Case No. W-2948 in the reach of the Roaring Fork River from its confluence with Difficult Creek downstream to its confluence with Maroon Creek, subject to Pitkin County's right to use up to 20 acre-feet of such Account Water as described below. b. Aspen shall be responsible on an ongoing basis for identifying existing and anticipated deficits in the 32 cfs CWCB instream flow right described in paragraph l.a above and notifying the River District thereof in a timely manner so that Grizzly Reservoir Account Water can be released for such deficit. Upon the receipt of such notices, the River District shall call for releases of the water by Twin Lakes, in accordance with the provision of the IPTDS Supplement Decree, to fill that deficit in accordance with any reasonable schedule provided by Aspen or, in the absence of such a schedule, on a schedule determined by the River District in its discretion. c. The River District and/or its Colorado River Water Projects Enterprise may deliver Grizzly Reservoir Account Water to other parties for beneficial uses as a secondary use of such water after it has been used for the CWCB' s said 32 cfs instream flow purpose in the reach ofthe Roaring Fork River from its confluence with Difficult Creek downstream to its confluence with Maroon Creek; Pitkin County shall have the superior right to the delivery of the first thirty (30) acre-feet of such secondary use water at no cost. (This 30 acre- feet shall be in addition to the 20 acre-feet available to the County under paragraph l.d. below.) d. Pitkin County is granted the right to use twenty percent of the Grizzly Reservoir Account Water that is actually stored in Grizzly Reservoir during each water year, up to a maximum of twenty (20) acre-feet in any one Water Year, for the County's use as replacement water in Case No. 99CW306 orfor CRWCD IAspen IPTDS Agreement Page 3 other County purposes. If the amount of water actually stored in Grizzly Reservoir that is allocated to Pitkin County's use during anyone Water Year is not needed by the County forreplacement pursuantto Case No. 99CW306, or for other County purposes, said water shall be available for meeting deficits in the 32 cfs CWCB instream flow right in the Aspen reach, as described above. e. Pitkin County shall be responsible on an ongoing basis for identifying its need for replacement water pursuant to Case No. 99CW306, or for other County purposes, and notifying the River District thereof in a timely manner so that Grizzly Reservoir Account Water can be released for such purposes. Upon the receipt of such notice, the River District shall call forreleases of the water by Twin Lakes, in accordance with the provisions of the IPTDS Supplement Decree, to meet the County's requests in accordance with any reasonable schedule provided by the County or, in the absence of such a schedule, on a schedule determined by the River District in its discretion, provided, however, that weather conditions do not render operation of Grizzly Reservoir unsafe or impractical. f. Pitkin County shall confer with the River District regarding any inclusion of Grizzly Reservoir Account Water in Water Court applications to implement Pitkin County's use thereof~d shall secure the River District's approval of such inclusion, which shall not be unreasonably withheld. g. Pitkin County assumes all risk regarding the legal and physical usefulness for its intended purposes of Grizzly Reservoir Account Water which is released for its benefit, and it shall be solely responsible for accounting to the State Division of Water Resources concerning its uses thereof. Neither the River District nor Aspen make any representation of any kind to Pitkin County regarding the legal or physical availability or usefulness of such water for Pitkin County's uses. CRWCD IAspen IPTDS Agreement Page 4 2. EPRC Exchanges to the Cities. Aspen, the River District, and Pitkin County agree that the EPRC shareholders' deliveries to the Cities pursuant to the 98CW270 application should be addressed as set forth below. a. The sequence of deliveries by the EPRC shareholders to the Cities to repay their exchange obligation described in the application in 98CW270 shall be as follows: the primary sources of exchange payback supply shall be Booked- Over Water available under the IPTDS Supplement Decree or the Eagle River Exchange, and the secondary supply shall be the Roaring Fork Exchange. The Roaring Fork Exchange will be used only if the other two sources cannot achieve the payback requirements. b. The implementation of the foregoing sequencing of those pay-back deliveries shall depend on the availability of the three supplies. Thus, subject to provisions in the decree to be entered in 98CW270 concerning administration of exchanges, the Roaring Fork Exchange can be operated to the extent that Booked-Over Water and the Eagle River Exchange are not adequate to accomplish the EPRC shareholders' payback to the Cities. c. The River District, Aspen and Pitkin County recognize that the River District's Co-Applicants in 98CW270 also must agree to the conditions stated above. Therefore, the provisions of subparagraphs 2.a and 2.b above shall not become effective until (1) they also are agreed to by all of the Co- Applicants in 98CW270, and (2) a decree has been entered in that case adjudicating the Eagle River Exchange and Roaring Fork Exchange subject to those provisions and to any other conditions which are not inconsistent with them. If those Co-Applicants do not agree, Aspen and Pitkin County can continue their opposition in 98CW270. 3. River District Study Participation. The River District shall participate in the Study as set forth below. a. Technical Participation. The River District shall provide Aspen such technical information as it has available concerning the issues to be investigated in the Study. CR WCD IAspen IPTDS Agreement Page 5 b. Financial Participation. The River District will reimburse Aspen for one-half of its external costs of the Study, limited to a maximum $7,500.00, upon Aspen's submission to the River District of acceptable evidence of such costs having been incurred and paid by Aspen. 4. Miscellaneous Provisions. a. Notices. Any notices required to implement this Agreement shall be given to the parties as follows, subject to the right of either party by written notice given to the other party to change the following information: Notices to Aspen: City of Aspen Water Director 130 S. Galena Aspen, Colorado 81611 Telephone No. (970) 920-5110 Facsimile No. (970) 920-5117 Electronic mail: philo@aspen.ci.co.us Notices to River District: Colorado River Water Conservation District c/o General Manager P. O. Box 1120 Glenwood Springs, Colorado 81602 Telephone No: (970) 945-8522 Facsimile No. (970) 945-8799 Electronic Mail: ekulm@crwcd.gov and dmerritt@crwcd.gov Notices to Pitkin Countv: Pitkin County c/o Pitkin County Attorney 530 East Main Street, 3,d Floor Aspen, Colorado 81611 Telephone No. (970) 920-5190 Facsimile No. (970) 920-5198 Electronic Mail: johne@ci.aspen.co.us CRWCD IAspen IPTDS Agreement Page 6 b. Severabilitv. If any provision of this Agreement shall be or become invalid or unenforceable, the remainder of the provisions shall not be affected thereby, and each and every provision shall be enforceable to the fullest extent permitted by law. c. Amendment: Assignment. Neither this Agreement, nor the obligations of any party hereto may be amended or assigned without the written consent of the parties hereto. d. Interpretation. Titles and paragraph headings shall not be used to alter the meaning of this Agreement. e. Binding Agreement - Recording. This Agreement is binding upon the parties hereto, their successors and assigns. This Agreement may be recorded by any party hereto with the Pitkin County Clerk and Recorder at that party's expense. f. Governing Law: Venue. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for all actions arising under this Agreement shall be the District Court for Colorado Water Division No.5 or, if that Court will not accept jurisdiction of the action, the District Court for the Ninth Judicial District in Pitkin County. g. Authorization of Signatures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Agreement have been performed and that the persons signing for each party have been duly authorized to do so. h. Counterparts. This Agreement may be signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. CRWCD IAspen IPTDS Agreement Page 7 Date: .. ~ i CYJeJ 1 / ATTEST: BY~ )~ . Kathryn Koc ity Clerk Date: /t) - Z -(j ( . ATTEST: W 1..-0--. By; Richard Eric Kulm General Manager/Secretary i/\ Date~. ~~,L .~ . (Name) 10 Gf~7 Clerk CR WCD I Aspen IPTDS Agreement Page 8 CITY OF ASPEN VU . COLORADO RIVER WATER CONSERVATION DISTRICT ~!0#(?X' Paul J. Ohri; President . . ;... PITKIN COUNTY Board of County Commissioners By:i~~1~ [+~) vIet"' ;.._.31.2061 10:Z2AM LAW OFFICES l'iU. (,,:..::, r.o::::. ~" APR 2 3 2001 ~ Judgment and Decree Case~o.9SCNV321 Page 1 FINAL - March 16, 2001 ALPERSTEIN & COVEll. P.e. DISTRICT COURT, WATER DMSION NO.5 STATE OF COLORADO Court Address: Garlield County Courthouse, 109 8~' Street, Suite 104, Glenwood Springs, CO 81601-3303 CONCERNING THE APPLICATION FOR WATER .COURT USE ON!. Y. RIGHTS OF THE TWIN LAKES RESERVOIR AND CANAL COMPANY, IN PITKIN COUNTY. Case Number. 95CW321 Div.: ClIm: 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, JUDGMENT AND DECREE 11lIS MATTER came before the Water Court in and for Water Division No.5 upon the Application for Surface Water Rights filed by the Twin Lakes Reservoir and Canal Company (hereinafter the "Applicant" or the "Company"). The Court, having considered the pleadings, the files herein, and the stipulations submitted by the parties, and being fully advised in the premises, enters the following Findings of Fact, Conclusions of Law, Judgment and Decree. Mixed Findings ofFaet and Conclusions of Law 1. Aoplication. 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 dismisse~ without prejudice by order entered on January 16, 2001. Exhibit A :c~.~1.2601 lO:22AM LAW OFFICES NO. 732 P.3 Judgment and Decree case~o.9SCVV321 Page 2 PINAL. March 16,2001 2. Notice. Timely and proper notice of the Application was given in the manner required by law. The time for filing Statements of Opposition has expired. The application does not involve any land or water located within the boundaries of a designated groundwater basin. The Court has jurisdiction over the subject matter of the Application and over all persons who have standing to appear whether they have appeared or not. . 3. Statements of Ooposition. 3.1 Statements of Opposition were filed by: 3.1.1 Middle Park Water Conservancy District, c/o Stanley W. Cazier, P.O. Box 500, Gnmby, Colorado 80446; 3.1.2 Salvation Ditch Company, c/o Michael Underwood, P.O. Box 250, Woody Creek, Colorado 80656; 3.1.3 Ute Water Conservancy District, acting by and 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 County Commissioners of Pitkin County, 530 E. Main Street, Aspen, Colorado 81611; 3.1.6 Colorado River Water Conservation District, c/o David C. Hallford, General Counsel, P.O. Box 1120, Glenwood Springs, Colorado 81602; and 3.1.7 Aspen Highlands Mountain Limited Liability Company, P.O. Box 1248, Aspen, Colorado 81612. 3.2 The Statement of Opposition of Aspen Skiing Company was withdrawn pursuant to Motion by Order dated January 30, 1997. 4. StiDulations. The following Stipulations have been filed with the Court: 4.1 Stipulation of Applicant with Southeastern Colorado Water Conservancy District was filed on March 8, 1996; and ._..on. . _._....~__.._.._...._.._ -,' -.' - -n1 , _. '".. ",.J", ~J:22AM LAW OFFICES NO. 732 1"'.4 Judgment and Decree Case No. 95CW321 Page 3 FINAL. March 16, 2001 4.2 Stipulation of Applicant with Objector Salvation Ditch Company was filed on December 29, 1997; and 4.3 Stipulation of Applicant with Objector The Board of County Commissioners of Pitkin County was filed on Febl11ary 17~ 1998; and 4.4 Stipulation of Applicant and Objectors Colorado River Wam COl1Servation District and City of Aspen was filed on S/3fJ/t?J( . I I 4.5 Stipulation of Applicant and the Middle Park Water Conservancy Districtwas filed on~. 4.6 Stipulation of Applicant and the Ute Water Conservancy District, acting by and through its Ute Water Activity Enterprise was filed on 3/30/0 I . , I r The foregoing Stipulations are hereby approved by the Court and incorporated herein as an Order of the Court by this reference. S. Aoolicant. The Applicant is a Colorado mutual ditch and reservoir company operating the Independence Pass Transmountain Diversion System (tlIPTDSIt), which diverts water from the headwaters of the Roaring Fork River and various of its tributaries and conveys such water beneath the Continental Divide and into the Arkansas River Basin for use by the Company's stockholders~ The Applicant's address is: Twin Lakes Reservoir and Canal Company P.O. Box 8 Ordway, Colorado 81063 6. IPIDS. The components of the !PTDS are as follows: 6.1 The Lost Man Diversion Dam and Lost Man Divernion Canal; 6.2 The Roaring Fork Diversion Dam, Tunnel No.2, and Lincoln Gulch Connection Canal; 6.3 The New York Collection Canal; and JUL. 2:.2001 L:: 22AM LAW OFFICES l'iU. (~c:.. r." Judgmmrt and Deeree Case No. 9SCW321 Page 4 FmAt. MlIl'Ch 16,2001 6.4 The Lincoln Gulch Diversion Dam (also known as Grizzly Reservoir) and Tunnel No.1. 6.5 The IPTDS is a single, unified, and integrated water supply system comprising the entire lPTDS and all water rights decreed thereto. 7. 1936 Decree. By a decree dated August 25, 1936, in Civil Action No. 3082, of the District Court of Garfield County, Colorado, Priority No. 431 dating from August 23, 1930, was awarded to the IPTDS for a total of 625 c.f.s. (The "1936 Decree"). 8. Chanlle Decree. 8J By decree dated May 12, 1976, in Case No. W-1901,DistrictCourtinandfor Water Division No.5, a change of type and place of use was decreed for the IPTDS (the "Change Decree"). In Twin Lakes Reservoir and Canal Companv v. the City of AS'Den., 193 Colo. 478,568 P.2d 45 (1977), the Colorado Supreme Court affirmed the decree entered in Case No. W.I90l. 8.2 The Change Decree incorporates certain terms and conditions and limitations upon Applicant's !PTDS water rights. 8.2.1 Paragraph 5 of the decretal section of the Change Decree imposes volumetric limitations upon the IPlDS as follows: total diversions out of the tributaries cfthe 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 volumetrlcally 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 acre-feet of water in anyone year; .... 8.2.2 In addition, paragraph 10 of the decretal section of the Change Decree provides that: 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 _.._'"..-...~,,~,.....,," Y_"_,..:1. 2001 10: 23AM LHW ekF LCo.;, 11V.. ,...Ji_ Judgment and Decree Case No. 9SCW321 Page S FINAL - March 16,2001 Reservoir has stored in a "water year" its decreed capacity of 54,452 acre-feet, and (b) there is 756.28 c.f.s. available inpriority from the Arkansas River at the headgate of the Colorado Canal water right 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 (b) above is less than 756.28 c.f.s., and water could otherwise beneficially be used for the iIrigation oflands, 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 Reservoir, under the priorities of DeCllmber IS, 1896, and Marcb 29, 1897, decreed July 14, 1913, during the current water year, the right to store IPTDS water shall be correspondingly reduced. 9. 1994 MOA. In June of 1994, the Applicant, the Colorado State Engineer, and the United States Bureau of Reclamation entered into a Memorandum of Agreement to address certain water operations for that year. The Memorandum of Agreement was formally executed by all parties on June 28, 1994. During the period June 8 until1Ul1e 18, 1994, the conditions setforth in paragraph 10 of the Change Decree prohibiting diversions on the changed IPTDS water rights were in effect, e.g. Applicant had stored in a water year its full entitlement in Twin Lakes Reservoir, and 756.28 c.f.s. was available in priority from the Arkansas River atthe headgate of the Colorado Canal to the direct flow water right 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 points of the !PTDS in Water Division No.5, resulting in a "free river." . 10. 1994 Diversions. Beginning on June 8, 1994, and continuing at intervals until1une 18, 1994, 011 which date a downstream call senior to June 8, 1994, came into effect on the COlorado River and its tributaries, the Applicant diverted water through the IPros under "free river" conditions. The maximum diversion rate was 240.75 c,f.s. Oftbis 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 the System. Water diverted during this period of time was stored in Twin Lakes Reservoir and subsequently put to beneficial use by Applicant's stockholders, for inigation and municipal purpeses. 11. Comnletion of Aonronriation. Applicant has completed the appropriation of240.75 c.f.s. of water with an appropriation date of June 8, 1994, by diverting such water and applying it JUi_. ';l. 21001 lC~: 23AM LAW OFFICES l'iU. (.,;jc:. c. , Judgment and Decree Case No. 9SCW321 Page 6 FINAL. MlIrcb 16,2001 to beneficial use pursuant to the procedures prescribed by law, and is entitled to receive a decree evidencing such absolute water right. Judgment and Deeree 12. Incorooration bv Reference. The foregoing Mixed Findings of Fact and Conclusions of Law are incorporated and made a part of this decree. 13. Adjudjcation ofIPTDS 1994 Smmlement. The following water right is adjudicated and decreed: 13.1 Name of strUctUre: Independence Pass Transmountain Diversion System: 1994 Supplement 13.2 Legal description of each point of diversion: 13.2.1 Lost Man Diversion Dam and Lost Man Diversion Canal: The initial point of survey of the dam is located at a point whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears south 58042' east 6,473.2 feet. The headgate of the Lost Man Diversion Canalis atapoint on the east bank of Lost Man Creek from wbencethe southwest comer of Section 6, Township 11 South,Range 82 West of the 6th P.M. bears southSsolS' east 6,871.2 feet. 13.2.2 Roaring Fork Diversion Dam, tlUlIlel 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 11 South, Range 82 West of the 6th P.M. bears south 8009' east 6,946.3 feet. The headgate or point of intake of Tunnel No.2 is located at a point on the south bank of the'Roaring Fork River from which the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears south 80038' east 6,921.6 feet. The tunnel discharges water diverted from the Roaring Fork River into the Lincoln Gulch Connection Canal, which commences at a point at the south end of Tunnel No.2 whence the southwest comer ofSectio1l6, Township 11 South, Range 82 West of the 6th P.M bears north 50042' east 12,539.2 feet. J. ..~L2061 :6:23AM LAW (kFICES l'iU. (,;,c. ~.O Judgment and Dect.. Case No, ~5CW321 Page 7 FINAL - March 16, 2001 13.2.3 New York Collection Canal: (a) HeadgateNo.l is located at a point on the east bank of the West Fork Gulch, a tributary of Lincoln Creek, which is a tributary of the Roaring Fork River, whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears north 58.6' east 24,724.6 feet. (b) Headgate No.2 is located at a point on the New York Gulch whence the southwest comer of Section 6, Township 11 South., Range 82 West of the 6th P.M. bears north 57.24' east 23,997.4 feet. (c) Headgate No.3 is located at point on Tabor Gulch whence the southwest comer of Section. 6, Township 11 South, Range 82 West of the 6th P.M. bears north 51 032' east 16,923.1 feet. 13.2.4 Lincoln Gulch Diversion Dam and Tunnel No.1: The initial point of survey of said dam is located at a point whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears north 18055' east 14,565.5 feet. The intake of Tunnel No.1 is located at a point from whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears north 17033' east 14,380.9 feet. 13.3 Source: 13.3.1 Lost Man Diversion Dam and Lost,Man Diversion Canal: Lost Man Creek, tributary to the Roaring Fork River. 13.3.2 Roaring Fork Diversion Dam, Tunnel No.2 and Lincoln Gulch Connection Canal: Roaring Fork River. \ 13.3.3 New York Collection Canal: (a) Headgate No.1: West Fork Gulch (also lmown as New York Creek), tributary to Lincoln Creek. (b) Headgate No.2: New York Gulch (also lmown as Brooklyn Gulch), tributary to New York Creek, tributary to Lincoln Creek. jUL.31. Z001 19:23AM LAW OFFICES NO.732 F.'3 Judsmcnl and Decree Case No. 9SCW321 Page 8 FINAL. March 16,2001 (c) Headgate No.3: Tabor Gulch, tributary' to Lincoln Creek. 13.3.4 Lincoln Gulch Diversion Dam: Lincoln Creek. and Grizzly Creek, tributary to the Roaring Fork River. 13.4 Al'crocriation. 13.4.1 Date of Appropriation: June 8,1994. 13.4.2 How Appropriation was completed: Formation of intent to divert 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 of the IPTDS, and 164.16 c.f.s. at the Lost Man and Roaring Fork components of the IPTDS. 13.6 Use: Direct flow and storage for irrigation and municipal use by the parties lawfully entitled thereto, at any site capable of being served by deliveries from either the discharge portal of Tunnel No.1 into Lake Creek or the storage of Twin Lakes Reservoir in Lake County, Colorado. Such places of use include, but are not limited to, the municipal water works of the Cities of Aurora, Pueblo, and Colorado Springs, and the Pueblo West Metropolitan District. 14. Terms and conditions. The following tem1S and conditions shall apply to the 1994 Supplement: 14.1 Volumetric Limitations. 14.1.1 Diversions upon the IPTDS 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 anyone year. 14.1.2 IPTDS Limitations. Total diversions through the IPTDS shall be volumetric ally limited to the amount in priority as follows: JUL.~1.2001 10:23RM LAW OFFICES 11V. f;:ic-' r. ~'Q Judgment and Deaee Case No. 9SCW321 Page 9 FINAL. M~ 16. 2001 14.1.2.1 To no more than 570,000 acre-feet of Water in any period of ten years; 14.1.2.2 To no more than 68,000 acre-feet of water in anyone year; 14.1.3 OperationslMitigation Plan. Further constraints may result from the OperationslMitigation Plan for the IPTDS 1994 Supplement being developed by Applicant and the . . City of Aspen pUTSuant to their stipulation herein, and may result in diversions that do not approach the volume1ric limitations set forth herein. 14.2 No Modification of Change Decree. Nothing herein shall modify the tenns and conditions set forth in the Change Decree. 14.3 Computation of Diversions. For purposes of applying the volumetric limitations upon the IPTDS set forth herein in '14.1.2 (and in the Change Decree), diversions shall be computed as set forth in the Change Decree, provided however, that diversions upon the IP'IDS 1994 Supplement allocated to the Gri2z1y Reservoir Account (see below) and all Substituted Water or Booked-Over water, as defined below, shall be deducted from total diversions. 14.4 Water Allocation. Diversions upon the lPTDS 1994 Supplement shall be allocated for use as follows: 14.4.1 The first 2400 acre-feet ofwaterdivertedpursuanttothe IPTDS 1994 Supplement in any Water Year shall be allocated as it is diverted by the Applicant as follows: two- thirds shall be allocated to the Applicant for its sole use, control, and benefit by direct use, or by storage for subsequent use; one-third shall be allocated to the Coiorado River Water Conservation District (the "River District") on behalf of We stem Slope water users. 14.4.2 Of the water allocated to the River Dis1rict,.thefirst 200 acre-feet, or such lesser amount as necessary to fill the Grizzly Reservoir Account to 200 acre-feet, shall be allocated to a Gri2z1y Reservoir Account (the "Grizzly Water''), and the balance (the "Reserved Water") shall be reserved in storage by tlie Applicant in facilities located in the Arkansas River Basin. 14.4.3 All water in excess of 2400 acre-feet diverted by the IPTDS 1994 Supplement in any Water Year shall be allocated to the Applicant for its sole, use, control, and benefit by direct use or by storage for subsequent use. ~~:__.31.2.001 1,z':23RM C.HW OFFICES 1'1'...i. (..:rc ,-. .,1..,1. '-- Judgment and Decree Case No, 9SCW321 Page 10 FINAL - Match 16. 2001 14.5 Grinlv Reservoir Account. The total volume of the Grizzly Reservoir Account shall be limited to 200 acre.feet. Out of the Grizzly Reservoir Account, up to 100 acre-feet annually will be available for release from Grizzly Reservoir at the request of the River District to the delivery point or points specified by the River District. The River District will provide at least 24 hours' advance notice to the Applicant's Superintendent of delivery requests, and shall specifY in such notice: (1) the total volume of water to be released; (2) the rate of flow for the release, in c.f.s. The Applicant will provide as much advance notice to the River District as is practicable of any anticipated or emergency draw-down oftha Reservoir needed for repairs to the dam or Tunnel No.1. Releases will be measured at the outlet of Grizzly Reservoir and the River District will bear any transit losses on the wa.terreleased from the Grizzly Reservoir Account. All water in the Grizzly Reservoir Account 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 means of substitution or "bookover", as follows: 14.6.1 Substitution. The Applicant shall forego diversioDS itwou1dotherwise make through the IPTDS pursuantto the 1936 Decree so thatwater that would otherwise be diverted by the IPTDS into the Arkansas River Basin will instead be available for use in the Colorado River Basin. The volume of such foregone diversions shall be limited to the volume of Reserved Water actually diverted on the IPTDS 1994 Supplement during thethen-current Water Year that remains in storage under the control of T'Wjn 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 through 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 so made available is the "Substituted Water." For every acre-foot of Substituted Water, one acre-foot of Reserved Water shall be reallocated to the Applicant for its sole use, control and benefit in the Arkansas River Basin. 14.6.1.2 The volume of Substituted Water shall be detennined by reference to the gage on the Roaring Fork River located directly below the Lost Man Diversion Dam component of the IPTDS and the gage on Lincoln Creek located directly below the Grizzly Reservoir Dam component of the lProS. 14,6.1.3 The substitution operation shall continue until such time as (1) the River Dismct requests cessation of the substitution; (2) all the Reserved Water JUL.~l.2001 ~0:24AM LAW OFFICES I'1V. {,;,.;. 1-.....'- Judgment and Decree Case No. 9SCW321 Page 11 FINAL - March 16, 2001 available in storage in the Arkansas River Basin has been made available for use in the Colorado River Basin by means of the substitution; 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 in " 9 and 11 of Operating Principles for the Fryingpan- Arkansas Project, House Do<:. No. 130, 8Th Congress, 1'1 Session ("Fry-Ark Exchange''). Therefore, the diversions foregone on the 1936 Decree in orderto.effectuate the substitution described herein shall be in addition to diversions foregone to effectuate the Fry-Ark Exchange. 14.6.2 Bookover. Pursuant to the Homestake Repayment Provisions of the Memorandum of Understanding effective April 21, 1998 between the Cities of Aurora and Colorado Springs, the RiverDistrict, Climax Molybdenum Company, and the Vail Consortium. consisting of Eagle River Wat.er and Sanitation District, Upper Eagle Regional Water Authority, and Vail Associates, Inc., (the "Eagle River MOU'') and the related Waf<< Exchange Agreement dated June 17, 1998 between the Cities of Aurora and Colorado Springs and the Eagle Park Reservoir Company, whose shareholders comprise the River District, the Eagle River Water and Sanitation District, the Upper Eagle Regional Authority and Vail Associates, Inc. (the "Water Exchange Agreement''), the Eagle ParkReservoir Company stockholders-are Obligated at times torepay certain volumes of water to the Cities of Aurora and Colorado Springs. In full or partial satisfaction of this obligation, upon request by the River District, the Applicant and its stockholder 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 entitlement pursuant to the Homestake Repayment Provisions of the Eagle River MOU and the Water Exchange Agreement. The water so transferred is the "Booked.Over Water." 14.6.3 Ally portion of the Reserved Water that has not been substituted or booked over as set forth above, or spilled or evaporated out of Stotage 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 of River District Water. 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 uses: 14.7.1 Satisfaction of the Eagle Park Reservoir Company shareholders' obligation to repay the Homestake Project for deliveries made under the Eagle River MOU; F..L. 31. 2.C01 _0; c.4AM LHW OFFICt:S I'1V. f~c.. ,--......:i '- Judgment and Decree Case No. 95CW321 Page 12 FINAL. Mart:b 16.2001 14,7.2 Water Supply either directly or by exchange for Western Slope water users junior to the irrigation and power water rights adjudicated for diversion at the Grand Valley Project diversion dam and the Grand V alley Irrigation Company diversion dam. which water rights are listed in Exhibits A and B to the Stipulation and Agreement approved by the decree entered in Case No. 91CW247, Water Division No.5; 14.7.3 Delivery of a portion of the Western Slope's obligation under the. Programmatic Biological Opinion for the 15 mile reach of the Colorado River; 14.7.4 Satisfying deficits in the instream flow water right decreed to the Colorado Water Conservation Board for the Roaring Fork River through the City of Aspen; or . 14.7.5 Supplying water that would otherwise be exchanged from the Roaring Fork River pursuant to the exchange applied for in Case No. 98CW270, 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 Court in and for Water Division No.5. 14.8 Storalle Cost Allocation. 14.8.1 The Applicant will store the Reserved Water in one or more storage facilities in the Arkansas 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, to the cost of any storage made by the Applicant of water diverted on the !PTDS 1994 Supplement that is allocated to the Applicant. 14.8.2 On or before January 1 of each Water Year, the Applicant will provide to the River District an accounting showing: (1) the volume of Reserved Water stored in the preceding Water Year; (2) the volume of Reserved Water that was substituted or booked over to the River District in the preceding Water Year; (3) the volume of Reserved Water that was reallocated to the Applicant at the end of the preceding 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 to the Applicant a sum determined by (1) subtracting the volume of Reserved. water reallocated to the Applicant at the end of 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 preceding year. 14.9 Spill and Evatloration, JUL. 31. 2001 :2: 24AM LAW OFFICES I-'U. (.:;.c:. r. J.... Judgment and 0_ Case No. 95CW321 Page 13 FINAL. March 16,2001 14.9.1 Water diverted upontheIPTDS 1994 Supplement that is stored in the Arkansas River Basin may be subject to spill not witbin the Applicant's control prior to the end of the then-cunent Water Year; for example, such water may be stored in so-called "if and when" storage accounts. The Applicant shall provide the River Districtwithmonthlynotification of current reservoir storage levels, and anticipated future 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 its experience 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 Waterwill be spilled. Any water diverted upon the IPTDS 1994 Supplement that is spilled will be allocated pro-rata between the Applicant and the River District. 14.9.2 Evaporation on water stored by the Applicant shall be allocated pro rata among the IPTDS priorities, including the 1994 Supplement. Evaporation losses upon the IPTDS 1994 Supplement will be allocated between the Applicant and the River District pro rata. 14.10 Condition Precedent to Exercise. No water sbaU be diverted upon the IPTDS 1994 Supplement unless the Applicant has entered into and is operating pUISUllI1t to an appropriate agreement with the Homestake Project participants that effectuates the Bookover described in paragraph 14.6.2 above on an on-going basis consistent with the Water Exchange Agreement and recognizes the provisions of paragraph 14.7 above. A copy of such agreement or any amendments shall be provided to the River District promptly upon execution, and notice of any tennination or lapse of such agreement shall also be promptly provided. 14.11 Stipulation with Southeastern Colorado Water Conservancy District. In order to comply with the terms and conditions of the Stipulation dated March 4, 1996, between the Applicant and the Southeastern Colorado Water Conservancy District,the.followirlg'sl1a1l-apply; 14.11.1 No decree entered herein will in and of itself give Applicant any rights of ownership or use of any FryingpanlArkansas Project facilities. Any use by Applicant of Fryingpanl Arkansas Project facilities for storage or exchange of water diverted pursuant to the water rights decreed in this case shall require and be subject to, limited by, and dependent upon the terms of (a) Applicant or its shareholders' contracts, including any amendments, renewals, supplements, or replacements thereto, with the United States of America, its successors or assigns; or (b) an agreement, oral or written, among Applicant., the Southeastern Colorado Water Conservancy District, and the United States Bureau of Reclamation or its successors and assigns. JU~.31.2001 18:24AM LAW OFFICES NO.732 P.15 Judgment and Decree Case No. 9SCW321 Page 14 FINAL - March 16,2001 14.11.2 It is understood and agreed that direct use of water diverted pursuant to the water right decreed in this case, without storage or exchange using FryingpanlArkansas Project facilities, will not constitute use of Project facilities notwithstanding that water may pass through Twin Lakes Reservoir, and will therefore notrequire any agreement among Applicant, Southeastern Colorado Water Conservancy District, and the United States Bureau of Reclamation. Likewise, the continuation of Applicant's or its shareholders' existing exchange practices pU1'SUlll1t to their existing contracts involving Twin Lakes Reservoir and Turquoise Reservoir will not require any further agreement among Applicant, Southeastern Colorado Water Conservancy District, and the United . . States Bureau of Reclamation, even ifwater diverted pursuantto the water right decreed in this case is released as a part of such exchange. 14; 11.3 Applicant's use of east slope storage space in Fryingpanl Arkansas Project facilities, with the exception of the 54,452 acre-feet of Twin Lakes Reservoir storage reserved for Applicant's exclusive use in the January 17, 1977, contract between the United States and Applicant, shall be governed by and made in accordance with the terms and conditions oftbe principles for operation of storage space in the FryingpanlArkansas Project as more particularly set forth in Amendment 4 to Southeastern Colorado Water Conservancy District's repayment contract, as it may be amended. 14.11.4 Neither the description of; reference to, or omission of description or reference to, Fryingpanl Arkansas Project structures and waterrights of Southeast em Colorado Water Conservancy District in any decree, nor anything else in any decree entered herein, will in any way amend, limit, or actto the detriment of SoUtheastern Colorado Water Conservancy District's decrees for FryingpanlArkansas Project water rights. 14.12 Applicant shall not enter into any Agreement as contemplated by '14.10 above that would interfere with its ability to effectuate the operations set forth in W14,4, 14.5, and 14.6 above. 14.13 General. 14.13.1 Applicant shall install such measuring and recording devices, and shall keep such records and penorm such accounting 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 water is legally and physically available for diversions by Applicant at the points of diversion from which Applicant wishes to divert and to assure compliance with the maximum instantaneous diversion rates and the annual and ten-year volumetric limitations on diversion by this water right combined with all other water rights decreed for diversion as part of the lPl'DS. Copies of all such records and accounting forms submitted to the Division Engineer shall be made available to the objectors herein upon reasonable request. JUL.__.~e81 l8;25AM LRW OFFICES l'1U. i..=.'::" .......;, Judgmenl and Decree Case No. 9SCW321 Page IS FINAL. March 16,2001 14.13.2 In a prompt and timely manner, the Division 2 Engineer shall provide' the Division 5 Engineer with the information reasonably necessiU'Y for the Division 5 Engineer to administer the IPTDS 1994 Supplement. 14.13.3 The !Pros 1994 Supplement 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 . . same calendaryear, priorities shall be deten:cined by their respective historical dates of appropriation and shall not be affected by the date of entry 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 Res Judicata and Collateral Estoppel shall therefore not apply to the Findings and Conclusions herein. 15. Retained Jurisdiction. Jurisdiction is herein retained by the Court in accordance with the terms of the Stipulation between the Applicant and the Colorado River Water Conservation District and the City of Aspen and as requested by those parties, to effectuate the implementation of their Stipulation, which is attached hereto as Exhibit 1. Dated thi~y of 0-- t;:/'. 2001, by the Court: DecaMt.et.n. W... Dht.No.l ~.,.. / (--- , ~. - . Th mas W. Ossola, Water Judge Water Division No.' 5 State of Colorado ...7 e COpy of the for8g0~ mailed to aU Counsel of record.-Watel Referee...-.Dhl. Erl.~',,.,a-' . :0 SIt .... .~,.., - 2tJ-d a e. .' "',. ::;ra. Bammond Cazier Balcoillb ReJ:l1lll11dstad Covell Hallford Ferguson Jl_.~1.2001 10:2SAM LAW OFFICES NO.732 r.ll '- DlSTRlCT COURT, WATER DMSION NO. 5 STATE OF COLORADO Garfield County Courthouse 109 8111 Street, Suite 104 Glenwood Sprin~s, Colorado 81601-3303 e;:I1~W ACOURT USE ONLY A CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE TWIN LAKES RESERVOIR AND CANAL COMPANY. IN PITKIN COUNTY. Attorneys for the Applicant: Case Nwnber: 95CW321 Div.: Ctrm: 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-Iaw.com Attorneys for Opposer City of Aspen: Cynthia F. Covell, Reg. No. 10169 Scott A. Clark, Reg. No. 24509 Alperstein &. Covell, P.C. 1600 Broadway, Suite 2350 Denver, Colorado 80202.4923 Phone: (303) 894-8191; Fax: (303) 861-0420 e-mail: aandccfc@aol.com Attorney for Opposer The Colorado River Water Conservation District: David C. Hallford, Reg. No. 10510 P.O. Box 1120 Glenwood Springs, Colorado 81602 Phone: (970) 945-8522; Fax: (970) 94S.8799 e.mail: dhallford@crwcd.gov STIPULATION AND AGREEMENT BETWEEN APPLICANT AND OPPOSERS CITY OF ASPEN AND THE COLORADO RIVER WATER CONSERVATION DISTRICT ~ Exhibit 1 to ~ Findings of f Fact, DSCW321 JU~.31.2001 10: 25AM LAW OFFICES i'iU. (.:;.::.. ,.10 '-- For and in consideration of the premises and the mutual covenants contained herein Applicant, the Twin Lakes Reservoir and Canal Company, and Opposers the City of Aspen and the Colorado River Water Conservation District, 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 of a modified form of decree so long as its tenns and CQDditions are no less restrictive On the Applicant that those contained in the attached E.'dJibit A. 2. The patties agree that they will jointly fund and participate in a Study in accordance with the Plan of Study attached hereto as Exhibit B and incorporated herein by this reference. Terms defined in the attached Plan of Study shall have the meanings assigned to them by that dOCUll1Cl1t. 3. From such time as the Phase 3 OperatinglMitigation Plan that may result from the study described in Paragraph 2 above has been completed, Twin Lakes will operate the Twin Lakes 1994 right in accordance with the OperatinglMitigatiOD Plan developed, and, to the extent the Plan calls for Twin Lakes to forego or curtail diversions pursuant to the Twin Lakes 1994 Right, notwithstanding the availability of water in priority at the points of diversion for the lPTDS, then Twin Lakes will forego such diversions. Twin Lakes' operations or diversions upon any other water rigb.tsor priorities it enjoys, including but not limited to the Twin Lakes 1936 Right, shall Dot be affected in any way by the Study, the OperatinglMitigation Plan, or this provision. The parties agree that any reduction or curtailment of divmions by Twin Lakes pursuant to the Operauon/Mitigation Plan will be required notwithstanding any enhancement to streamflow in the Roaring Fork River that may result from operation of the Fry-Ark Exchange. 4. The patties agree to petition tile Court to exercise its retained jurisdiction in this matter as provided in paragraph 3.4 of Exhibit A in order to e:fi'ectuate the prOvisions of this Stipulation. The parties specifical1yagree 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 OperationlMitigation Plan that may result from the Study as provided in paragraph 3 above are material components of Aspen's consent to the decree herein; that the parties have agreed to develop and implement the Plan of Study as a compromise in order to avoid the expense and uncertainty of trial. 1Ind that the Water Court's retained jurisdiction will be invoked solely to assure completion andlorimplementatioD of the Plan of Study if the parties are unable to accomplish this on their OVo'Il. No party will assert to the Court in any proceeding pursuant to its retained jurisdiction that the Plan of Study should not have been required or carried out in the fIrst instance. -2- JU~.3:.2601 :a:25AM LAW OFFICES NO. 732 P.l':' '- S. Each party shall pay its own costs of this proceeding; provided, however, that ll1e Colorado River Water Conservation District has been reimbursed for its costs as set forth in the Order Approving the River District's Bill of Costs dated March 1; 2001. 6. The panies acknowledge and agree that this Stipulation and Agreement is, and may be enforced as, a contract between the parties, and, upon approval and adoption by the Court, as an Order of the Water Court. CARLSON, HAMMOND & PADDOCK, L~.C. By: .;~~r~~,~" Mary M Hammond, #9851 Peter C. Fleming, #20805 ATTORNEYS FOR TWIN LAKES RESERVOIR AND CANAL COMPANY ALPERSTEIN & COVELL, P.C. o ~ .,. . , /'/ rl By:( y~v//-,~ 'a/'~/j Cynthia F. Covell, # 10169 ATTORNEYS FOR CITY OF ASPEN -3. .'__.31.3<;01 :6: 25At1 LA" OFFICES i'10. /32. ,....c:~ '-~' COLORADO RIVER WATER CONSERVATION DISTRICT By: avid C. Hallford, #10510 General Counsel Jill C. H. McConaughy, #26082 Associate Counsel By thesignamre of its counsel hereto, 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: ..; ,.', ~/ //.-:-r;-:;, c.., ___ ....William A. Paddock #9478 Peter C. Fleming, #20805 ........ ATTORNEYS FOR BOARD OF WATER WORKS OF PUEBLO, COLORADO .4- JU!....:;,1.2001 :2:25AM LAW OFF! CES NIJ.(,jc:' t-'..:::.l '- EXHIBIT A Judgment and Dec:ee Case No. 95CW321 Page 1 MII'Cb IS, 2001 DRAFT DISTRICT COURT, WATER DIVISION NO.5 STATE OF COLORADO Court Address: Garfield County Courthouse. 109 8111 Street, Suite 104, Glenwood Springs, CO 81601-3303 CONCERNING THE APPLICATION FOR WATER '""COURT USE ONLY,"" RIGHTS OF THE TWIN LAKES RESERVOIR AND CANAL COMPANY, IN PITKIN COUNTY. CaseNwnber: 95CW32l Div.: Ctrm: Attorneys for the Applicant: Mary Mead Hammond, Reg. No. 9851 Peter C. Fleming, Reg. No. 20805 Carlson, Hammond & Paddock, L.t.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, JUDGMENT AND DECREE THIS MAlTER came before the Water Court in and for Water Division No.5 upon the Application for Surface Water Rights tiled by the Twin Lakes Reservoir and Canal Company (hereinafter the "Applicant" or the "Company"). The Court, having considered the pleadings, the files herein. and the stipulations submitted by the panies, and being fully advised in the premises, enters the following Findings of Fact, Conclusions of Law, Judgment and Decree. Mixed Findings of Fact and Conclusions of Law 1. Annlication. 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 January 16,2001. JI__. .:....2801 18: 25RM LAW OFFI CES i'iV. (~c:. ;-. .:::.c:. -' '- Judgment and Decree Case No. 9SCW32t Pase 2 March IS. 200t DRAFT 2. Notice. Timely and proper notice of the Application was given in the manner required by law. The time for filing Statements ofOppcsition has expired. The application does not involve any land or water located within the boundaries of a designated groundwater basin. The Court has jurisdiction over the subject matter of the Application and over all persons who have standing to appear whether they have appeared or not. 3. Statements ofOoDosition. 3.1. Statements of Opposition were filed by: 3.1.1 Middle Park Water Conservancy District, c/o Stanley W, Cazier, P.O. Box 500, Granby, Colorado 80446; 3.1.2 Salvation Ditch Company, c/o Michael Underwood, P.O. Box 250, Woody Creek, Colorado 80656; 3.1.3 , Ute Water Conservancy District, acting by and 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 County Commissioners of Pitkin County, 530 E. Main Street, Aspen, Colorado 81611; 3.1.6 Colorado River Water Conservation District, c/o David C. Hallford, General Counsel, P.O. Box 1120, Glenwood Springs, Colorado 81602; and 3.1.7 Aspen Highlands Mountain Limited Liability Company, P.O, Box 1248, Aspen, Colorado 81612. 3.2 The Statement of Opposition of Aspen Skiing Company was withdrawn pursuantto Motion by Order datedJan~ 30,1997. 4. StiDulatioTls. The following Stipulations have been filed with the Court: 4.1 Stipulation of Applicant with Southeastern Colorado Water Conservancy District was filed on March 8, 1996; and -'__... ::'1. 2Q\Z,1 H): 25AM LAW OFFICES 1'1',,).,.;.,;. Judgment and Decree Case No. 9SCW321 page 3 March 15,2001 ORAFT . 4.2 Stipula.tion of Applicant with Objector Salvation Ditch Company was filed on December 29, 1997; and 4.3 Stip\.ilation of Applicant with Objector The Board of County Commissioners of Pitkin County was filed on February 17, 1998; and 4.4 Stipulation of Applicant and Objectors Colorado River Water Conservation District and City of Aspen was filed on 4.5 Stipulation of Applicant and the Middle Park Water Conservancy Districtwas filed on 4.6 Stipulation of Applicant and the Ute Water Conservancy District, acting by and through its Ute Water Activity Enterprise was filed on The foregoing Stipulations are hereby approved by the Court and incorporated herein as an Order of the Court by this reference. 5. ADDlicant. The Applicant is a Colorado mutual ditch and reservoir company operating the Independence Pass Transmountain Diversion System ("lPros"), which diverts water from the headwaters of the Roaring Fork River and various of its tributaries and conveys such water beneath the Continental Divide and into the Arkansas River Basin for use by the Company's stockholders. The Applicant's address is: Twin Lakes Reservoir and Canal Company P.O, Box 8 . Ordway, Colorado 81063 6. IPTDS. The components of the IProS are as follows: 6,1 The Lost Man Di'Cersion Darn and Lost Man Diversion Canal; 6.2 The Roaring Fork Diversion Dam, Tunnel No.2, and Lincoln Gulch Connection Canal; 6,3 The New York Collection Canal; and JU_.:;i.~0g1 :;Z::26FiM LRW OFFICES l'iU. (..;:..::. r .~l..+ Judgment ElIld Decree Case No. 9SCW321 Page 4 March 15.2001 DRAFT 6.4 Tunnel No. 1. The Lincoln Gulch Diversion Dam (also known as Grizzly Reservoir) and 6.5 The IPTDS is asingle, unified, and integrated water supply system comprising the entire IPTDS and all water rights decreed thereto. 7. 1936 Decree. Bya decree dated August 25,1936, in Civil Action No. 3082, of the District Court of Garfield County, Colorado, Priority No. 431 dating from August 23, 1930, was .. awarded to the !PTDS for a total of 625 e.f.s. (The "1936 Decree"), 8. qhane:e Decree, 8.1 By decree dated May 12, 1976, in Case No. W-1901,DistrictCouninandfor Water Division No.5, a change of type and place of use was decreed for the lPTDS (the "Change Decree"). In Twin Lakes Reservoir and Canal 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. W.1901. 8.2 The Change De,cree incorporates certain terms and conditions and limitations upon Applicant's IPTDS water rights. 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, orapplied 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 acre-feet of water in anyone year; .". 8.2.2 In addition, paragraph 1 0 of the decretal section of the Change Decree provides that: 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 Reservoir has stored in a "water year" its decreed capacity of 54,452 acre-feet, and .",':".31.2061 :0: 26AM LA" OFFI CES l'iU. (~c.. r.c..:) Judgmom and D=o Caso~o.9SCVV321 Pll!CS March 15,2001 DRAFT (b) there is 756.28 d.s. available in priority from the Arkansas River at the headgate of the Colorado Canal water right 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 (b) above is less than 756.28 c.f.s., and water could otherwise beneficially be used for the irrigation of lands, there arises a corresponding entitlement to diven 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 Reservoir, under the priorities of December IS, 1896, and March 29, 1897, decreed July 14, 1913, during the cwent water year, the right to store IPTDS water shall be cOIrespondingly reduced. 9. 1994 MOA. In June of 1994, the Applicant, the Colorado State Engineer. and the . United States Bureau of Reclamation entered into a Memorandum of Agreement to address certain water operations forthat year. The Memorandum of Agreement was formally executed by all parties on June 28. 1994. During the periodJune 8 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 efi'ect, e.g, Applicant had stored in a water year its full entitlement in Twin Lakes Reservoir, and 756.28 c.f.s. was available in priority from the Arkansas River at the headgate of the Colorado Canal to the direct flow water right 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 points of the IPTDS in Water Division No.:5, resulting in a "free river. II 10. 1994 Diversions. Beginning on June 8, 1994, and continuing at intervals until June 18, 1994, on which date a downstream call senior to June 8, 1994, came into effect on the Colorado River and its tributaries, the Applicant diverted water through the IPTDS under "free riverll conditions. The maximum diversion rate was 240.75 c.f.s. Ofthisamount, 76.61 c.f.s. was diverted through the New York Collection Canal c()mponent of the System and 164.16 c.f.s. was divened from the Lost Man and Roaring Fork components of the System. Water divened during this period oftime was stored in Twin Lakes Reservoir and subsequently put to beneficial use by Applicant's stockholders, for irrigation and municipal purposes. ] 1. ComTlletion of AOtlropriation. Applicant has completed the appropriation of240.75 c.f.s. of water with an appropriation date of June 8, 1994, by diverting such water and applying it to benefici!ll use pursuant to the procedures prescribed by law, and is entitled to receive a decree evidencing such absolute water right. JL~.~~.2001 ~8:26AM LAW OFFICES NO./32. r-'.C'..b Judgment and Decree Case No. 95CW321 Page 6 March 15,2001 DRAFT Judgment and Decree 12. Incorcoration bv Reference, The foregoing Mixed Findings ofF act and Conclusions of Law are incorporated and made a pan of this decree. 13, Adiudication ofIPTDS 1994 SU'D'Dlement. The following water right is adjudicated and decreed: 13.1 Name ofstnlcture: Independence Pass Transmountain Diversion System: 1994 Supplement 13.2 Legal description of each point of diversion: 13.2.1 Lost Man Diversion Dam and Lost Man Diversion Canal: The initial point of survey of the dam is located at a point whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears south 58.42' east 6,473.2 feet. The headgate of the Lost Man Diversion Canal is at a point on the east bank of Lost Man Creek from whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears south 58"18' east 6,871.2 feet. 13.2,2 Roaring Fork Diversion Dam, Tunnel No.2, and Lincoln Gulch Connection Canal: The initial point of survey of the dam is located at a point whence the southwest comerofSeclion 6, Township 11 South, Range 82 West of the 6th P.M. bears south 80"9' east 6,946.3 feet. TIle headgate or point of intake of Tunnel No.2 is located at a point on the south bank of the Roaring Fork River from which the southwest 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 waterdivened from the Roaring Fork River into the Lincoln Gulch Connection Canal, which commences at a point at the south end of Tunnel No.2 whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.Yf. bears nonh 50042' east 12,539.2 feet. 13.2.3 New York Collection Canal: (a) Headgate No. I is located at a point on the east bank of the West Fork Gulch, a tributary of Lincoln Creek, which is a tributary of the Roaring Fork River, - -.- ... . . . ..... . ... .. . .. . . _~....:._. _:...,;.;... _,_" -,OMII _.-..'~ '..,1 Judgment and Decme Case No. 9SCW32I Page 7 March 15,2001 DRAFT whence the southweSt comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears north 58"6' east 24,724.6 feet. (b) Headgate No.2 is located at a point on the New York Gulch whence the southwest comer of Section 6, Township II South. Range 82 West of the 6th P.M. bears north 57"24' east 23,997.4 feet. (c) Headgate No.3 is located at point on Tabor Gulch whence the southwest comer of Section 6, Township II South, Range 82 West of the 6th P.M. bears north 51"32' east 16,923.1 feet. 13,2.4 Lincoln Gulch Diversion Dam and Tunnel No.1: The initial point of survey of said dam is located at a point whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears north 18"55' east 14.565.5 feet. The intake of Tunnel No.1 is located at a point from whence the southwest comer of Section 6, Township 11 South, Range 82 West of the 6th P.M. bears north 17.33' east 14,380.9 feet. 13.3 Source: 13.3.1 Lost Man Diversion Dam and Lost Man Diversion Canal: Lost Man Creek, tributary to the Roaring Fork River. 13.3.2 Roaring Fork Diversion Dam, Tunnel No.2 and Lincoln Gulch Connection Canal: Roaring Fork River. 13.3.3 New York. Collection Canal: (a) Headgate No. ]: West Fork Gulch (also known as New York Creek), tributary to Lincoln Creek. (b) Headgate No.2: New York Gulch (also known as Brooklyn Gulch), tributary to New York Creek, tilbutary to Lincoln Creek. (c) Headgate No.3: Tabor Gulch, tributary to Lincoln Creek. 13.3.4 Lincoln Gulch Diversion Dam: Lincoln Creek and Grizzly Creek, tributary to the Roaring Fork River. . __._"-'::...... _,-' ...,":';'nll _.-;~~ ....' . Judgment ana Dccree Case No. 9SCW321 Palle 8 March 15.2001 DRAFT 13.4 Annronrianon. 13.4,1 Date of Appropriation: June 8,1994. 13.4.2 How Appropriation was completed: Fonnation of intent to divert previously unappropriated waters, diversions by the IPTDS through Tunnel No. I, and application to benencial use. 13.5 Amount: 240.75 d.s. absolute, comprised of 76.61 c.f.s at the New York Collection Canal component of the IPTDS. and 164,16 d.s. at the Lost Man and Roaring Fork components of the IPTDS. 13.6 Use: Direct flow and storage for irrigation and municipal use by the parties lawfully entitled thereto, at any site capable of being served by deliveries from either the discharge portal of Tunnel No.1 into Lake Creek or the storage of Twin Lakes Reservoir in Lake County, Colorado. Such places of use include, but are not limited to, the municipal water works of the Cities of Aurora.. Pueblo, and Colorado Springs, and the Pueblo West Metropolitan District. 14. Terms and conditions. The following tenns and conditions shall apply to the 1994 Supplement: 14.1 Volumetric Limitations. 14.1.1 Diversions upon the IPTDS 1994 Supplement shall be volumemcally 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 anyone year. 14.1.2 IPTDS "Limitations. Total diversions 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 or ten years; 14.1.2.2 To no more than 68,000 acre.feet of water in anyone year: . ._~...;,........'-'I:J..L _'-'...".,,;:..1"'111 _.-."" ."" ' Judgmenl and Decree Case No. 9SCW321 Page 9 Mar.IlIS, 2001 DRAFT 14.1.3 ODerationslMiti~ation Plan. Further conmaints may result from the Operations/Mitiga.tion Plan for the IPTDS 1994 Supplement being developed by Applicant and the City of Aspen pursuant to their stipulation herein, and may result in diversions that do not approach the volumemc limitations set forth herein. 14.2 No Modification of Chanlle Decree. Nothing herein sha1l modify the terms and conditions set forth in the Change Decree. 14.3 Computation of Qiversions. For purposes of applying the volumemc limitations upon the IPTDS set forth herein in ~14.1.2 (and in the Change Decree), diversions shall be computed as set forth in the Change Oecree, provided however, that diversions upon the IPTDS 1994 Supplement allocated to the Grizzly ReseIVoir Account (see below) and all Substituted Water or Booked-Over water, as defined below, shall be deducted from total diversions. 14.4 Water Allocation. Diversions upon the IPTDS 1994 Supplement shall be allocated for use as follows: 14.4.1 The flIst 2400 acre-feet ofwster diverted pursuant to the IPTDS 1994 Supplement in any Water Year shall be allocated as it is diverted by the Applicant as follows: two. thirds shall be allocated to the Applicant for its sole use, control, and benefit by direct use, or by storage for subsequent use; one-third shall be allocated to the Colorado River Water Conservation Dismct (the "River District") on behalf of Western Slope water users. 14.4.2 Of the water allocated to the River District. the first 200 acre-feet, or such lesser amount as necessary to fill the Grizzly Reservoir Account to 200 acre-feet, slJall be allocated to a Grizzly ReseIVoir Account (the "Grizzly Water"), and the balance (the "ReseIVed Water") shaH be reseIVed in storage by the Applicant in facilities located in the Arkansas River Basin. 14.4.3 All water in excess of 2400 acre.feet diverted by the IPTDS 1994 Supplement in any Water Year shall be allocated to the Applicant for its sole, use, control, and benefit by direct use or by storage for subsequent use. 14.5 Grizziv Reservoir Account. The total volume of the Grizzly Reservoir Account shall be limited to 200 acre-feet. Out of the Grizzly ReseIVoir Account, up to 100 acre-feet annually wlll be available for release from Grizzly ReseIVoir at the request of the River District to the delivery point or points specified by the River District. The River District will provide at least 24 hours' advance notice to the Applicant's Superintendent of delivery requests, and shall specify in such notice: (1) the total volume of water to be released; (2) the rate of flow for the release, in c.f.s. The Applicant will provide as much advance notice to the River District as is practicable of ...0.- ....,_~_.._.,._..._m__"'_>,.__"_ ~"_~. .:,.... .::.,;~..lI~J.!. _0; :>OHII _r-tl^l vr r .1..'_~":' Judgment and Decree Case No. 9SCW321 Page 10 Mareh 15.2001 DRAFT any anticipated or emergency draw-down of the Reservoir needed for repairs to the dam or Tunnel No. I. Releases will be measured at the outlet of Grizzly Reservoir and the . River District will bear any transit losses on the water released from the Grizzly ReselVoir Account. All water in the Grizzly Reservoir Account will becamed 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 means of substitution or "bookover", as follows: 14.6.1 Substitution. The Applicant shall forego diversions it would otherwise make through the IPTDS pursuant to the 1936 Decree so that water .that would otherwise be diverted by the IPTDS into the Arkansas River Basin will instead be available for use in the Colorado River Basin. The volume of such foregone diversions shall be limited to the volume of Reserved Water actually diverted on the IPTDS 1994 Supplement during the then-current Water Year that remains in storage under the control 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 through 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 so made available is the "Substituted Water." For every acre.foot of Substituted Water, one acre-foot of Reserved Water shall be reallocated to the Applicant 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 gage on the Roaring Fork River located directly below the Lost Man Diversion Dam component of the IPTDS and the gage on Lincoln Creek located directly below the Grizzly Reservoir Dam component of the lPTDS. 14.6.1.3 The substitution oDeration shall, continue until such time as (1) the River District requests cessation of the sUbstirotion; (2) all the Reserved Water available in storage in the Arkansas River Basin has been made available for use in the Colorado River Basin by means of the substitution; 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 in ~~ 9 and 11 of Operating Principles for the Fryingpan- Arkansas Project, House Doc. No. 130,87'11 Congress, 1" Session ("Fry-Ark Exehange"). Therefore, the diversions foregone on the 1936 Decree in order to effecmate the substitution described herein shall De in addition to diversions foregone to effectuate the Fry-Ark Exchange. _'......=..:....::..':.::.I<;jl _~;:)bl'1l.1 ....I"'"lW '.jrr ,j,,'....c.~ ". Judgment and Decree Case No. 9SCW321 Page 11 March IS.200I DRAFT 14.6.2 Bookover. Pursuant to the Homestake Repayment Provisions of the Memorandum of Understanding effective April 21, 1998 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 District, Upper Eagle Regional Water Authority, and Vail Associates, Inc., (the "Eagle River MOU") and the related Water Exchange Agreement dated June 17, 1998 between the Cities of Aurora and Colorado Springs and the Eagle Park ReservoirCompany, whose shareholders comprise the River District, the Eagle River Wamr and Sanitation District, the Upper Eag!eRegional AuthOrity and Vail Associates, Inc. (the "Water Exchange Agreement"), the' ' Eagle Park Reservoir Company stockholders are obUgated at times to repay certain volumes of water to the Cities of Aurora and Colorado Springs. In full or partial satisfaction of this obligation, upon request by the River District, the Applicant and its stockholder 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 entitlement pursuant to the Homestake Repayment Provisions of the Eagle River MOU and the Water Exchange Agreement. The water so transferred is the "Booked- Over Water." 14.6.3 Any portion of the Reserved Water that has not been substituted or booked over as set forth above, or spilled or evaporated out of storage in the Arkansas River Basin by the end of the Water Year in which it was diverted shall be reailocated to the Applicant for its sole use, control, and benefit. 14.7 Use of River District Water. 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 uses: 14.7.1 Satisfaction of the Eagle Park Reservoir Company shareholders' obligation to repay the Homestake Project for deliveries made under the Eagle River M:OU; 14.7.2 Water Supply either directly or by exchange for Western Slope water ' users junior to the irrigation and power water rights adjudicated for diversion at the Grand Valley Project diversion dam and the Grand Valley Irrigation Company diversion dam, which water rights are listed in Exhibits A and B to the Stipulation and Agreement approved by the decree entered in Case No. 91CW247. Water Division No. 5; 14.7.3 Delivery of a portion of the Western Slope's obligation under the Programmatic Biological Opinion for the 15 mile reach of the Colorado River; 14.7.4 Satisfying deficits in the instream flow water right decreed to the Colorado Water Conservation Board for the Roaring Fork River through the City of Aspen; or y"_,L......:_. '::'0;:.."::;.11 _"-" ::'-=HII ....Ml^I ......,;- ...""......... Judgment and Decree Case No. 9SCW321 Pase 12 March 15,2001 DRAFT 14.7.5 Supplying water that would otherwise be exchanged from the Roaring Fork River pursuant to the exchange applied for in Case No. 98CW270, Water Division No.5. 14.7.6 AIly other beneficial use recognized by the Division Engineer for Water Division No.5 or by the District Court in and for Water Division No. 5. 14.8 Storall:e Cost Allocation. 14.8.1 The Applicant will store the Reserved Water in one or more storage facilities in the Arkansas 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, to the cost of any storage made by the Applicant of water divened on the IPTDS 1994 Supplement that is allocated to the Applicant. 14.8.2 On or before January 1 of each Water Year, the Appllcant will provide to the River District an accounting shOwing: (1) the volume of Reserved Water stored in the preceding Water Year; (2) the volume of Reserved Waterthat was substituted or booked over to the River District in the preceding Water Year, (3) the volume of Reserved Water that was reallocated to the Applicant at the end of the preceding 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 to the Applicant a sum determined by (1) subtracting the volume of Reserved Water reallocated to the Applicant at the end oithe 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 preceding year. 14.9 Soill and Evaooration. 14.9.1 Water divened upon the IPTDS 1994 Supplement !hat is stored in the Arkansas River Basin may be subject to spill not within the Applicant's conlrol 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 current reservoir storage levels, and anticipated future 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) day s priorto 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 its experience 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 diverted upon the IPTDS 1994 Supplement that is spilled will be allocated pro-rata between the Applicant and the River District. ,-:L.31.2601 16:S9RM l...HW Ut"rl.l..t..=> . IV., '-" Juclgment ancl Decree Cal;e No. 9SCW321 Page 13 March IS, 2001 DRAFT 14.9.2 Evaporation on water stored by the Applicant shall be allocated pro rata among the 1PTDS priorities, including the 1994 Supplement. Evaporation losses upon the !PTDS 1994 Supplement will be allocated between the Applicant and the River District pro rata. 14.10 Condition Precedent to Exercise. No WIller shall be diverted upon the !Pros 1994 Supplement unless the Applicant has entered into and is operating pursuant to an appropriate agreement with the Homestake Project participants that effectuates the Bookover described in paragraph 14.6.2 above on an on-going basis consistent with the Water Exchange Agreement and. . recognizes the provisions of paragraph 14.7 above. A copy of such agreement or any amendments shall be provided to the River District promptly upon execution, and notice of any terminaUon or lapse of such agreement shBII also be promptly provided. 14.11 Stinulation with Southeastern Colorado Water Conservancv District. In Circler to comply with the terms and conditions of the Stipulation dated March 4, 1996, between the Applicant and the Southeastern Colorado Water Conservancy District, the following shall apply: 14.11.1 No decree entered herein will in and of itself give Applicant any rights of owne:ship or use of any FryingpanlArkansas Project facilities. Any use by Applicant of FryingpanlArkansas Project facilities for storagc or exchange of water diverted pursuant to theWatet' rights decreed in this case shall require and be subject to, limited by, and dependent upon the tenus of (a) Applicant or its shareholders' contracts, including any amendments, renewals, supplements, or replacements thereto, with the United States of America, its successors or assigns; or (b) an agreement, oral or written, among Applicant, the Southeastern Colorado Water Conservancy District, and the United States Bureau of Reclamation or its successors and assigns. 14.11.2 It is understood and agreed that direct use of water diverted pursuant to the water right decreed in this case, without storage or exchange using Fryingpanl Arkansas Project facilities, will not constitute use of Project facilities notwithstanding that water may pass through Twin Lakes Reservoir, and will therefore not require any agreement among Applicant, Southeastern Colorado Water Conservancy District, and the United States Bureau of Reclamation. Likewise, the continuation of Applicant's or its shareholders' existing exchange practices pursuanuo their existing contracts involving Twin Lakes Reservoir and Turquoise Reservoir will not require any further agreement among Applicant, Southeastern Colorado Water Conservancy District, and the United States Bureau of Reclamation, even if water diverted pursuant to the water right decreed in this case is released as a pan of such exchange. 14.11.3 Applicant's use of east slope storage space in Fryingpanl Arkansas Project facilities, with the exception of the 54,452 acre-feet of Twin Lakes Reservoir storage reserved for Applicant's exclusive use in the January 17, 1977, contract between the United States and Applicant, shall be governed by and made in accordance with the tenns and conditions of the ~ '_1._.':';". ..:x..1l,jl ,.0; :;';'HII _n~ v' . .l........... '- Judgment and Decree ~e~o.9S~21 Pile 14 Mllon 15,2001 DRAFT principles for operation of storage space in the FryingpanlArkansas Project as more pan:icularly set forth in Amendment 4 to Southeastern Colorado Water Conservancy District's repayment connett as it may be amended. 14.11.4 Neither the description of. reference to; or omission of description or reference to, Fryingpan/Arkansas Project strUctures and water rights of Southeastern Colorado Water Conservancy District in any decree, nor anything else in any decree entered herein. will in any way amend, limit, or act to the detriment ofSoutheBStern Colorado Water Conservancy District's decrees.., for Fryingpan/Arkansas Project water rights. 14.12 Applicant shall not enter into any Agreement as contemplated by ~14.10 above that would interfere with its ability to effectuate the operations set forth in "14.4. 14.5. and 14.6 above. 14.13 General. 14.13.1 Applicant shall install such me3surlng andrecording devices.andshall keep such records and perform such accounting as may reasonably be required by the Division Engineer, Water Division No.5, or his representatives, to assure that water is taken pUl'SUllDt to the IPTDS 1994 Supplement only when water is legally and physically available for divemons by Applicant at the points of diversion from which Applicant wishes to divert and to assure compliance with the maximum instantaneous diversion rates and the annual andten-yearvolumelric limitations on diversion by this water right combined with all other Water rights decreed for diversion as part of the !PTDS. Copies of all such records and accounting fonns subminedto the Division Engineer shall be made available to the objectors herein upon reasonable request. 14.13.2 In a prompt and timely manner, the Division 2 Enginee: shall provide the Division 5 Engineer with the information reasonably necessary for the Division 5 Enginee: to administer the IPTDS 1994 Supplement. 14.13.3 The IPTDS 1994 Supplement shall be administered based upon the tiling of the application herein in 1995 and shall be junior in priority to decreed wate: rights for which applications were filed in previous years and senior to water rights for which applications were filed in subsequent years. As bl;tween all water rights for which applications were filed in the same calendar year, priorities shall be detennined by their respective historical dates ofappropriation and shall not be affected by the date of entry 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 Res Judicata and Collateral Estoppel shall therefore not apply to the Findings and Conclusions herein, . ,. .'__n_.." .'_p' ..__._~. ,-.. .,^""""~.,,,~-, ~',:;::;,~c:'",-:'C"':'~'~~:7:-:., -:;':~'":. ~. _.......:.J... ':'1:;,.Ildl ...::..1; :)'='HII __;-IV>! vrr .I.......;;:....;;. c ~, Judgmenlllld Decree Case: No. 9SCW321 Page I 5 March 15,2001 DRAFT 1 S. Retained Jurisdiction. Jurisdiction is herein retained by the Court in accordance with the terms of me Stipulation between the Applicant and the Colorado River Water Conservation District and the City of Aspen and as requested by those parties, to effectuate the implementation of their Stipulation, which is attached hereto as Exhibit 1. Dated this _ day of .2001, by the Court: Thomas W. Ossola, Water Judge Water Division No.5 State of Colorado _ . . __~"__,_"U__"__'_"_"'.",,,...,"""_"'_"._~_"_"'~'.:","_" _ _'1-.";.. ':',","\::J.l.. _0:.)' '::;';PHI I ~1""1""" v, .. ..._....... EXHIBIT B PLAN OF STUDY The City of Aspen ("Aspen"), and the Twin Lakes Reservoir and Canal Company ("Twin Lakes") will jointly fund and pllIticipate in a Study to be cmried out in 3 Phases, and pursuant to tbis Plan of Study. 1. Defmitions. Forpurposes oftbis Plan of Study the following definitions will apply: 1.1 Asnen GaUlle: The gauge located on the Roaring Fork River above the Salvation Ditch headgate, near Aspen. Colorado, more particularly defined as USGS Gage No. 09073400. 1.2 ASDen Reach: That ~h of the Roaring Fork River from the Aspen Gauge to the coDtluence of the Roaring Fork River and Maroon Creek. 1.3 Colorado School of Mines Study: A study conducted by the Colorado School of Mines entitled .Preliminary Hydrologic and Biological Characterization oCthe North Star Nature Preserve, Pitkin County, Colorado" dated May 2000. 1.4 Difficult Cam'Dl!l'Ound GaUlle: The gauge located OD the Roaring Fork River 0.45 miles above its confluence with Difficult Creek, more particularly defined as USGS Gage No. 09073300. 1.5 FrvoArk Exchamze: The exchange provided for in paragraph 1'1 of the Operating Principles of the FryingpanoArkansas Project, pursuant to which up to 3000 acre-feet of water per year diverted by the Fryingpan-ArkaIlsas Project from Hunter Creek in Pitkin County, Colozado, are stored in Twin Lakes storage facilities on the eastern slope for exchange to the Roaring Fork River. Said exchange is accomplished by requesting Twin Lakes to forego diversions of the Twin Lakes 1936 Right. 1.6 IP1TIS: The Independence Pass Transmountain Diversion System owned and operated by Twin Lakes. 1,7 Overbank Floodine:: A condition occurring during RW10ff Season. which causes the flows in the Roaring Fork River above the Aspen Gauge to overflow the stream channel at one or more locations. -1- --~":'''',:"v-:",:,~::.,...,.,..c"",,,::,,~ ~ _.,-,~';'. ..:..\:.'':::...... ~.;.' QlQhll _,-W. ",.., , 1.8 Peak Runoff Season: The Runoff Season is defined as the period during which 1.he maximum annual flow occurs in the Roaring Fork River, typically during the months of May through July. 1.9 Roarin!!; Fork River Alluvial AQUifer: The unconfined aquifer hydraulically connected and tributary to the Roaring Fork River that is comprised of Pleistocene and Quaternary age valley-floors deposits oftluvial, glacial, alluvial fan, colluvial, and landslide origins. I.IO Roarinlr Fork River Alluvial Storalle: The groundwater storage capacity in the Roaring Fork River Alluvial Aquifer upstream of the Aspen Gauge and extending to about 1300 feet above the Difficult Campground Gauge, rougbly in the vicinity identified on Exhibit 1. 1.11 Twin Lakes 1936 Ri~ht: The water rights decreed to the IPros in Case No. CA 3082 on August 25, 1936, as such rights have thereafter been conditioned, ,changed and made absolute. The Twin Lakes 1936 Water Right permits a maximum of 625 cis of water to be diverted through the IPTDS to the eastem slope subject to certain limitations on such transmountain diversion as provided in Case No. CA 3082 and W-1901. 1.12 Twin Lakes 1994 Rigq,t: The absolute decree to be entered upon the application in Case No. 9SCW321, for 240.75 cis to be diverted to the eastern slope via the IPlDS, subject to the terms and conditions therei.c.. 2. Study Phases and Objectives The Study will be conducted in the following three phases: Phase 1. Thc objective of Phase 1 is to develop a quantitative understandi.c.g of the important physical attributes of the stream-aquifer system that affect the timing and amount of alluvial aquifer storage, return flows from the aquifer to the Roaring Fork River, alluvial underflow beneath the Aspen Gauge and baseflows in the Roaring Fork River below the Aspen Gauge. Aspen believesthat overbank flooding from the Roaring Fork River typically OCCU%ll'llpstreanl from the Aspen Gauge during the Peak Runoff Season. Aspen further believes that such overbank flooding contributes to significant recharge to the Roaring Fork River Alluvial Aquifer above the Aspen Gauge and that retUrn. flows from the Roaring Fork River Alluvial Aquifer to the Roaring Fork River and alluvial underflow beneath the Aspen Gauge contribute to baseflows in the Roaring Fork River below the Aspen Gauge. Phase 1 will test this hypothesis. A second objective of Phase 1 is to observe and quantify overbank flooding and aquifer recharge as the available peak IUIloff flows will allow. A third objective of Phase 1 is to assess the opportUnity for overbank flooding and aquifer recharge under various flow conditions. As necessary and appropriate, analytical modeling tools will be employed to acbieve these objectives. , Phase 2. The objective of Phase 2 is to assess the impacts of planned diversions under the Twin Lakes 1994 Right upon the alluvial aquifer storage, return flows, and baseflows in the Roaring -2- __.L....,:;.... .;:..~~i..l. ~...' '!.Iur-lIl _1"1"" .",., , ~ Fork River below the Aspen Gauge, and specifically, to determine whether such diversions will diminish the streaml:1ow in the Aspen Reach during the non- Peak Runoff Season below the 32 d.s. minimum streamt10w right decreed for that reach, or whether such diversions, while not themselves causing meamflow in the Aspen Reach to fall below 32 c.f.s. during the non.Peak Runoff Season, would nevertheless reduce stteamfiow further below that amount. If the fiJidings oiPbase 2 show that projected diversions on the Twin Lakes 1994 Right would result in a streamflow in the Aspen Reach during the non-Peak Runoff Season ofless than 32 c.f.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 the non.Peak Runoff season, would nevertheless further reduce stteamflow below that amount, the Study will proceed to Phase 3. In determining whether diversions on the Twin Lakes 1994 Right will cause the streamflow in the Aspen Reach to fall below 32 c.f.s., or further diminish streamflow below 32 e.f.s., diversions by the Salvation Ditch, Nellie Bird Ditch, and such other senior Roaring Forie water rights downmeam. of the Aspen Gauge as detennined relevant by the Consultant shall be deducted from strean:if1ow measurements. In addition, no enhancement to streamflow in the Roaring Foriethatresults from operation of the Fry-Ark Exchange will be included in the stteamflow. Phase 3. The objective of Phase 3, if needed. is to develop an equitable and workable operating or mitigation plan (the "OperatinWMitigation Plan") such that diversiOIlS upon the Twin Lakes 1994 Right will not (I) reduce the streamflow in the Aspen Reach during the non.Peak Runoff Season below 32 c.f.s, or(2} contribute to a fUrther reduction of Sh....adlow below 32 c.ts in the Aspen Reach during the non.PeakRunoffSeason. in circumstances when diversions upon the Twin Lakes 1994 right do not themselves cause the streamflow to drop below that threshold. The OperatingtMitigation Plan will employ such concepts or ml'"h"n;sms as are deemed appropriate to achieve the goals of the Plan. Such concepts may include establishing one or more "indices" or "triggers," such as an Index Flow, that is, a rate of streamflow at an agreed point (such as the Difficult Campground Gauge), in cubic feet per second. that should be maintained in the stream for a period ofliIne during the Peak Runoff'Season in order to prevent adverse consequences during the non-Peak Runoff Season, and tl1at will trigger a cessation or reduction of diversions upon the Twin Lakes 1994 Right; or a Roaring Fork River Alluvial Water Table Index, tl1at is, a composite level of the water table in the Roaring Fork River Alluvial Aquifer above the Aspen gauge to quantify a minimum Roaring F orkRiver Alluvial Storage which is neededatthe end of the Peak Runoff Season to be available for discharge to the ROaring Fork River below the Difficult Campground Gauge to achieve streamflows in the Aspen Reach of at least 32 c.!.s. until the following Peak Runoff Season, (or, if32 c.f.s. cannot be achieved, the amount of Roaring Fork River Alluvial Storage 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 ~treamflow as close to 32 e.f.s as possible) and that could be used in conjunction with Index Flows to determine if Twin Lakes will reduce or curtail diversions pursuantto the Twin Lakes 1994 Right; orwharever other operating concepts or mitigation measures are deemed appropriate to achieve the goal of the Plan. -3. .._'L.':_. ,:.dl;jl _i; \{JIQHI'j ,-H~'" I./r r .........'-.::i 2.1 Ehase I Studv. 201.1 In Phase I of the Study, physical measurements of the Roaring Fork River and the Roaring Fork River Alluvial System will be obtained using the methods described: (A) Cross-sections of the channel of the Roaring Fork River between the Difficult Campground Gauge and the Aspen Gauge will be obtained using appropriate surveying methods. This information will be then incorporated into a BEC 2 or HEe-RAg based surface-water flow model to approximate the overbank flooding potential for various flows as measured at the Difficult Camp Ground and Aspen Gauges. (B) Selected loQations of overbank: flooding that are projected to occur using the HEC 2 or HEC-RAS based surface water flow model will be mapped. Shallow monitor wells will be drilled in the Roaring Fork River Alluvial Aquifer in or near these areas to allow measurement of the ttaIlsient ground water levels. These monitor wells shall 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 Forie River cross sections can be established for subsequent study purposes to allow the relationship of the el~tions of the alluvial water suri'ace and the stream flow surface to be determined. (C) Regu.larly scheduled measuremems of the Roaring Fork River alluvial monitoring well network will be made by knowledgeable peISOlIl1el competent to cmy out such activity. The schedule for these measurements shall be determined by the project engineers for obtaining data that represent the anticipated changes in the Roaring Fork River alluvium resulting from both higher flows that remain in the channel 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 CampGround Gauge and above the Aspen Gauge will be evaluated. This will include Difficult Creek and other unnamed tributaries. If, in the opinion of the Consultant. and the Oversight Committee, these sources of water should be measured so their contributioll can be included in the water measurement process, appropriate methods of measurement shall be developed for these sources and included In the data collection activities as deemed appropriate by the Consultant. In addition, groundwater discharges from the Aspen Municipal Parking Garage may be monitored and evaluated. (E) Estimates of aquifer thickness, ttlIn.mi"Sivity, 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 streamflow records, water-level data from monitOr wells and water- supply wells. well pennit and constrUction records, precipitation data. geologic data, published maps, and other pertinent infonnation that may be used to acbieve the objectives of Phase 1. All such data and interpretations derived therefrom shall be shared between the parties. -4- _ _'l.....;,.l.. .::..<:..'>::.11 _.... >::.It::lHi' I _M~ ."') h_~ (F) If deemed necessary and appropriate by the mutual agreement of the Consultant, Aspen, and Twin Lakes, the study area may be extended down to and including the confluence of Maroon Creek and the Roaring Fork River. 2.1.2 1j sing the above infonnation, an understanding of the physical relationship betWeen the Roaring Fork River systems, including the Roaring Fork River, the Roaring Fork River Alluvium, and tributaries will be developed and evaluated. Factors that may affect these relationships will also be considered and identified as they may relate to the goals of this stUdy for future reference. 2.2. Phase 2 Study. 2.2.1 Using the relationships identified in Phase I of the Study, and estimated changes in stteamtlow resulting from exercise of the Twin Lakes 1994 Right, Phase 2 of the Study will quantify the relationship,if any. between diversions upon the Twin Lakes 1994 Right and streamflow in the Aspen Reach during the non-Peak Runoff'Season. Phase 2 of the Study will develop and use such tools and concepts, including, if appropriate, analytical or computer modeling, as needed to elucidate the relationship being studied. 2.3 Phase 3 Studv. If the result of Phase 2 is to show that projected diversions on the Twin Lakes 1994 Right would result in a streamflow in the Aspen Reach during the non-Peak Runoff'Season of less than 32 C,f.5. (after diversions by the Salvation Ditch and Nellie Bird senior priorities and such other senior Roaring Fork water rights downstream of the Aspen Gauge as determined relevant by the Consultant) or, that diversions on the Twin Lakes 1994 Right, while not themselves causing the streamflow to fail below 32 cJ.s in the Aspen Reach, during the non-Peak Runoff'Season would nevertheless further reduce streamflow below that amount, then the Study will proceed to Phase 3, in which an OperatingiMitigation Plan will be developed to govern exercise of the Twin Lakes 1994 Right., or otherwise provide for mitigation of the adverse effects of such diversions upon streamflow in the Aspen Reach during the non-Peak: Runoff Season, based upon an understanding of the phYSical relationships learned from the Phase 1 and 2 Studies. Such Operating/Mitigation Plan shall take account of the magnitude of the adverse effect demonsttated by Phase 2 of the Study upon the streamflow in the Aspen Reach during the non-Peak RWloff Season caused by diversions on the Twin Lakes 1994 Right 3. Conduct of the Study 3.1 Consultant and Studv Parametel'S. The parties have agreed that the Study shall be conducted jointly by ~cLauglilin Water Engineers and Enartec:h, Inc.,(collectively, the "Consultant") in accordance with the following Study Parameters: 3.1.1 Assumed Facts. In carrying out the stUdy (and developing any computer modell;lecessary thereto) the following facts will be assumed: -5- ~. i_'L.";~. .::.~Il:QJ. ... J.. ~I,jHI.( _M~ V, '-j. v_v 3.1.1.1 Twin Lakes' projected diversions pursuant to the Twin Lakes 1994 Right will be those proj ected by Enartech Inc. in its March I, 1999 report entitled, "Independence Pass Trans-Mountain Diversion System Assessment of Water Availability," adjusted to reflect reduction oftbe water right applied for in Case No. 95CW351 from 625 cis to 240.75 cis. 3.1.1.2 Gauge readings from the Difficult Campground Gauge and the Aspen Gauge are aecu:ate, unless the Consultant reasonably concludes otherwise. 3.1.2 Analvsis of ExistinlZ Data. The following existing data will be reviewed and, to the extent the consultant deems appropriate, analyzed in the study: Colorado School of Mines Study; Streamflow records of the Roaring Fork River as indicated by the Aspen Gauge and the Difficult Campground Gauge from 1994 - 1997, or such other time period as Consultant deems appropriate; Published geologic data relevant to Roaring Fork River Alluvial Storage. and temperature and precipitation data deemed relevant by the Consultant in determining snowmelt impaots from drainage in the immediate vicinity of the Roaring Fork River Alluvial Storage; Hydrographs of data from selected monitoring wells identified in the Colorado School of Mines Study; Well logs, to the extent reasonably available, for existing wells located in or adjacent to the Roaring Fork River Alluvial Storage, or elsewhere as deemed appropriate by Consultant; Preliminary base flow regression analysis and other preliminary evaluations of alluvial storage capacity, groundwater recbarge and groundwater discharge Upstream of the Aspen Gauge perfomled by Wayland Anderson, John M. Kaufman and staff of McLaughlin Water Engineers, Inc. in December 2000 and January 20011 "Preliminary Geological Report No. I of the Aspen Alternative Damsites", Gunnison- Arkansas Project, Colorado, USBR, October 2,1950. 1 If Consultant determines, in the exercise of reasonable scientific judgment, that said preliminary analysis and evaluations are sufficient for purposes of the stUdy without further refinement, Consultant may accept the results of such preliminary analysis and evaluations for use in the study without further refinement. -6- _,-'L....;.i..:..\jI::J.l. .i..l;~..l.Hj'1 ,-n~ Vii ........1...... 3.1.3 Develollment mNew Data. The following additional data, at a min;mllIIl. must be obtained: Measurements of the physical geometry of the Roaring Fork River channel at selected sites to enable determination of stream channel capacity at locations on the Roaring Fork River where Overbank Flooding is believed to occur; Measurements of selected existing monitoring wells at the North Star Preserve (as identified in. the Colorado School of Mines Study) at times deemed appropriate in the Consultant's reasonable $Cientific judgment: MeasurementS of water surface elevations in the Roaring Fork River at selected sites at times deemed appropriate in the Consultant's reasonable scienti1ic judgment; Measurements of existing Forest Service wen located at the Difficult Creek Campground, and other existing wells that are deemed relevant; Data reasonably sufficient to enable a reliable estimate, in. Consultant's reasonable scientific judgment, of the thickness, speeific yield, hyciraulic conductivity and capacity oftbe Roaring Fork River Alluvial Storage; Other data reasonably required by Consultant to provide a reliable test of the hypotheses posed in Phase 1 of the Study, and to develop any computer model needed for Phases 1 or 2 of the Study, which may include drilling additional monitoring wells and developing a schedule for obtaining measurements there from, and installation of measuring devices and genctation of rating tables to establish the contributions to the Roaring Fork River Alluvial Storage from Roaring Fork tribut.Bries. 3.2 Oversilzht Committee. The Consultant's work shall be overseen by, and the Consultant shall communicate with, an Oversight Committee composed of one representative of Aspen, and one representative of Twin Lakes. The Oversight Committee shall be responsible for directing the work of the Consultant, approving payment, and approving additional expense items, such as the installation of measuring devices and the drilling of monitoring wens. In addition, the Oversight Committee shall review ami approve the parameters of any computer model developed by the Consultant. The Oversight Committee shall communicate its decisions concerning the adm;ni.tration of the Consultant's contract to the River District's general manager or his designee. 3.2.1 If the Oversight Committee is unable to agree on the direction oithe Consultant. scientific disputes, including the Consultant's request to iDsta1l measuring devices, drill monitoring wells, or incur other extraordinary expenses, shall be submitted to an agreed_ upon third party, whose decision on the particular scientific dispute shall be binding. The parties shall share the cost of the third party's services equally. .7- .",.-.."..----~~~,_~~,_'""';c..'c"""""",._.:~.,.c.::_ ~1_L....,,:,...';;"'.~..1\::Jl _...~.i.HI'I _,"'W '-f ,- J.'___ ~, 3.2.2 The parties agree that their designated representatives to the Oversight Committee will be reasonably available by telephone to each other and to the Consultant, and will be available in Aspen and Glenwood Springs, at their own expense, when reasonably necessary to permit the Consultmlt to complete its work in a timely fashion. 3.3 Cost Estimates, 3.3.1 Cost Estimates. On March 14, 2001, the parties agreed upon a detailed cost estimate for Phases 1 and 2 of the study, totaling $50,402. 3.3.2 Additional Costs. If at any time the Consultant concludes that reasonable scientific certainty conceming the matters studied cannot be acbieved without installing additional measuring devices, mollitoring wells, or obtaining other information not originally anticipated to be needed, the Consultant shall so advise the parties, and the Oversight Committee shall determine what additional direction shall be given to the Consultant. 3.4 ,~and ConsultanTS ConTnlct. Twin Lakes and Aspen will each contribute one- half of the cost of the Study, up to a maximum of $25,201 each.; In the event that as a result of unanticipated costs, th,e detailed cost estimate provided by the Consultant plUSUllllt to Paragraph 3.3.1 above is exceeded, then the parties will consult and seek to agree on what additional expenses are required, how to proceed, and how to divide any additional costs ~c.:n them. If the parties.cannot agree on whether to proceed with the Study in such event then they wiD jointly seek to reopen the Decree in Case No. 95CW321 to resolve any disputes concerning the Study and/or the water right that is the subject of that case. The Colorado River Water Conservation District ("River District") sha!l contract with McLaughlin 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 Contract subject to approval of invoices and changes in the Scope of Work by the Oversight Committee. Twin Lakes and Aspen shall provide funds to the River District for the cost of the Study by each remitting one-half of each invoice amount within 15 days oi iTS approval by the Oversight Committee. 3.5 Studv Results. 3.5.1 Phase I Results. The Consultant shall be directed to provide a letter report on the progress of Phases 1 and 2 of the Study to the Oversight Committee no later than August IS, 2001; a Draft Report on the results of Phases. 1 and 2 of the Study to the Oversight Committee no later than OctoberJl, 2901; and a Final Report on Phases I and 2 no later than December 1,2001. Thereafter, the Oversight Committee shall, depending upon the results of Phases 1 and 2 of the Study, direct the Consultant to proceed with Phase 3 of the Study. The parties shall agree on the division oithe cost of Phase 3 of the Study, ifneeded, with the expectation that Twin Lakes and Aspen will each bear one-half of such cost. .8- ~_~.~~.~w~~ .~'W~~I _....... VI ,.. ._~.... 3.5.2 Phase 3 Results: Operation by Twin Lakes of the Twin Lakes 1994 right in Conformity with OperationIMitigation Plan. From such time as the Phase 3 Operaq Mitigation Plan.. if needed, has been completed, Twin Lakes will operate the Twin Lakes 1994 right in accordance with the OperatingtMitigation Plan developed, and, to the extent the Pllll1 calIs for Twin Lakes to fOI'llgo or curtail diversions pumuant to the Twintakes 1994 Right, notwithstanding the aVailability of water in priority at the points of diversion for the IProS. then Twin Lakes will forego such diversions. Twin Lakes' operations or diversions upoD. any other water rights 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 OperatingtMitigation Plan, or this provision. The panies agree that any reduction or curtailment of divemions by Twin Lakes pursuant to the OperationlMitigation Plan will be required notwithstanding any enhancement to Sl1'e8mflow in the Roaring Fork River that may result from operation of the Fry-Ark Exchange. 3.5.3 Continued Monitoring. The parties recognize that continued momtoriDg may be necessary after completion of the Study in order to validate its results and the o~on of any resulting Operating/Mitigation Plan. The Oversight Committee shall de-;".." on consultation with the Consultant. what continued monitoring is appropriate. The panies shall agree on the division of the cost of mOnitoring, and of any agreed-upon additional field studies, with the expectation that Twin Lakes and Aspen will each bear one-half of such cost. 3.6 Amendments to Plan of SmelL The Ovemight Committee may, by ........"""'.Is consent, lIruend or adjust this Plan of Study, and the direction provided to the Consultam, at lIIlY time during the course of the Study. -9. _ JL..:o~. .:08"'1 i q , g ! . ,. ,1"tl...1 . ',..:p 'I; ! ~ ~i:~lHI.1 ~n~ vrr~~~~ j I 'II{ I I fl'llll II I illlllJI Ii IJ I , ':"J. ~,.,..U!l..I,.I~~!.l n ," , I /'1'. ,:. '., .' "\~":< ",: ',. ,...:.,.-~ ; , . l ""'11 '~ " ..,., 'I- ;" '1 , ' ' t .'. " lit"'.lIi .,~Iil ., ,,r~~\i. \~~! ;lt~, ~~!~ .\:- 'fI \~\~'". '~1- \\.,1'~\1t.\~~:\. ::, ~: ,:'" 1 {t~~-Ir~' \;i!~JJ~L ~!J!~: ., ,~\\~ ~~.~ -'i):~\,'''':\' nl~\,j ~ ~"J' "I '1'1 J ~~l...""-j' r,;-.)J'). " I\"~ "": ." Ii I,~~,'ji;; I (~.~ '~.'.. ~ '~,i '"}l.~;,,,~. f'}~""~ \~ ~'i\\\4;.""')_~ . \.'. I" "1" \ I"J.,.~~,:.;. '~' .I.,'l;"'-'..:n......~..-c'"f -':!l'~ ....., ' ' . ~~~&4Il~~{'*t: \~l~t'.:t..~~. Ar.I! l~I~!."~~.'! s ~~I' a...":'; 0f1~ ' ~ll t..'1. , ,., "I';. .' ,','1, :r':"~~ILI:.f:i'.J:\~\, ,,1111:)' - ",.. T" ,\"..:.t:'..~.. ..1.1 tcr ." , '- . lE \'1 ;;'o;-}" Ie:! :.j;; ~'~EIFf,i #/'"11//, 'r' '(1ft, ~}ir: '\'JlmJ~~0':?'~ .,' I.... 'f~ "\'" ". ,1;;\ ".!:'t - ,;;~......, ''''.if;;'' ..I::' .~-' ';"\1~ilfi.~~'I~~ i..\W11~1~:\, " 1~~~~4~;,:i~ . 11~1)1:lt~~\, \ :{.~1~; fflt. ({ II~\ . ~ in\ .'),;,,' ", '-. ,t\II:" ' . ~~. ," , . ',:.... ~:.,., ~- ,j ,,! ~..:.:., ' in;.''''' . 0, ;:of'ifr.~i'II;!;f;;"/f I ,".:1') ",.,. 'm ~,,! '"' ., 'IJ' ~:;J'" 1]'1 ,'-'" (;: ;.J.j "I 'fl.!'" '.''''''0':0'' ... _ , j~~\):: , ;!'i~I'i\~I:~~" ,."r;C','i':?;')f lh~\.,,;.i !It.. ,,I',J ,:'l.~ Bf I ' f. '::?'};j'))ldl'~'~:!\~:;~I~'I'~ ~~ J 7;,): ~ir:~I:' ,~~t llj: ,. ',,'i}), ml' ~,\ ~"_': . ",:, . ,I~:\\\\fflll"~, '~~~ra\ i~!.' ,.}','./ '':)I':~I~~{'f~~'~~l' -- '_.i~I;;j:'I'~l~'~;~t,\~k, '~JI"",\\:,,~~T.j'/.r./.. 1".... _., '\1, \ . " , ~\ 'fJ ;11 ,;J:.~;.~\'. ,~< , 3 ~.. .- U - '. II " II II h, I III I t I 1 L I 1 I j II III t 1111111 &, IJ...l.'~'UI"~ J , . I! I j. " j ..-.-.--c---."...,-..._,~._-~.--:-",...,.....,---...,..,:--.. . --. -.... "':"''-'~.''", _..." w....-" , . . , CA :2~ I hereby certify that on this.21'th day of March, 2001, I mailed a true and correct copy of the foregoingSTIPULA.TION AND AGREEMENT BETWEEN APPUCANT AND OPPOSERS CITY OF ASPEN AND THE COLORADO RIVER. WATER. CONSERVATION DISTRICT by depositing the Sante in the United States mail, postage prepaid,adclressed as follows: Stanley W. Cazier. Esq. ' John D. Walker, Esq. Balcer, Cazier and McGowan P.O. Box 500 Otmby, Colorado 80446' Mark A. Hermundstad, Esq. Williams, Turner & HOhnes, P.C. 200 North 6th St, P.O. Box 338 Grand Junction, Colorado 81502 Cynthia F. Covell, Esq. Scott Clark, Esq. Alperstein & Covell, P.C. 1600 Broadway, Suite 2350 Denver, Colorado 80202-4923 David C. Hallford, Esq. Colorado River Watel' Conservation Distrn:t P.O. Box 1120 Glenwood Springs, Colorado 81602 ~)2 , /. 1./ . ( -~~,./ .:j-nct:C~ / .2- ....--.---...-.'-.....-................--- .-::--"'-,~~.-,,:;--~."":.,~~;"C'.~.,.;.,'~=_.,~