HomeMy WebLinkAboutresolution.council.069-13 RESOLUTION 469
(Series of 2013)
A RESOLUTION OF THE CITY OF ASPEN
APPROVING A PROPOSED WATER COURT DECREE IN
WATER CASE NO. 2011CW198
WHEREAS, the City of Aspen filed a Statement of opposition to Water Case No.
2011 CW 198, Application of Music Associates of Aspen, Inc. ("MAA"), presently pending n
Water Court, Water Division No. 5; and
WHEREAS, MAA's application seeks a water court decree for certain water rights in
connection with redevelopment of the campus of
sp ndecreed ponds,toand
confirm water
particular, MAA seeks to modify existing but previously
rights from Castle Creek to fill the ponds, and to obtain
creation augmentation�irrigation, fire protecltionoand
may be kept full during periods of call, and use d for re
aesthetic purposes at the campus; and
WHEREAS, MAA receives treated water service pursuant to an extraterritorial water
service agreement with Aspen, which limits outdoor treated water irrigation at the campus; and
WHEREAS, MAA's water service agreement with Aspen anticipates that MAA will
obtain a water court decree for the ponds for additional irrigation, fire protection and aesthetic
purposes, and for an augmentation plan; and
WHEREAS, Aspen's water counsel, water resource consultants, and water department
staff have reviewed a proposed decree prepared in this case and have determined that the
proposed decree will adequately protect the Aspen's water rights and related interests; and
WHEREAS, water counsel has recommended the City authorize counsel to enter into a
d to
stipulation approving the proposed decree (draft da��AApril
and no�ess protectivoe of Aspen
Council or in a form that is no less restrictive upon
the proposed decree dated April 1, 2013; and
WHEREAS, notwithstanding the stipulation, Aspen will remain a party in the case and
will be notified of any changes to the decree in this case, and the Aspen may continue to
participate in the case to ensure that any ruling or decree which is ultimately entered in the case
contains terms and conditions which are no less le 2�13 draft dec Me.AA and no less protective of
Aspen than the terms and conditions of the April ,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Music
The City's water counsel is hereby authorized approving oexecute stipulation of watertcouhrt decree
Associates of Aspen, Inc. in Case No. 2011 CW 19 the form
1
dated April 1, 2013, or any subsequent form of decree that is no less restrictive upon MAA and
no less protective of Aspen than the form of decree dated April 1, 2013.
Dated:
Steve S adron, ayor
I, Kathryn S. Koch, duly appointed and acting City Clerk, do certify that the foregoing is
a true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held June 24, 2013.
Kathryn S. ch, City Clerk
2
DISTRICT COURT, WATER DIVISION NO. 5,
STATE OF COLORADO
109 Eighth Street, Suite 104
Glenwood S rin s, CO 81601
CONCERNING THE APPLICATION FOR WATER
RIGHTS OF:
MUSIC ASSOCIATES OF ASPEN, INC.
a Colorado non-profit corporation,
in Pitkin, Ea le and Garfield Counties, Colorado.
♦ COURT USE ONLY
Case No. 11CW198
FINDINGS OF FACT, CONCLUSIONS OF LAW,
RULING OF THE REFEREE, JUDGMENT AND DECREE
The above-entitled Application was filed on December 30, 2011. This matter was
referred to the undersigned as Water Referee for Water Division No. 5, State of Colorado, by the
Water Judge of said Court in accordance with Article 92 of Chapter 37, C.R.S., known as the
Water Rights Determination and Administration Act of 1969. The Referee, having made such
investigations as are necessary to determine whether the statements in the Application are true
and having become fully advised with respect to the subject matter of the Application, does
hereby make the following Findings of Fact, Conclusions of Law, and Ruling as the Referee in
this matter:
FINDINGS OF FACT
1 The name, address and telephone number of the Applicant are as follows:
Music Associates of Aspen, Inc.
2 Music School Road
Aspen, CO 81611
c/o Mark E. Hamilton, Esq.
Holland & Hart LLP
600 E. Main St., Suite 104
Aspen, CO 81611
(970) 925-3476
mehamilton @hollandhart.com
2• Timely and adequate notice of the filing of the Application were given as required by law.
C. R.S. § 37-92-302 (2011). This Court has jurisdiction over the subject matter of these
proceedings and over all persons affected thereby, whether they have appeared or not.
Water Division 5
Application of Music Associates of Aspen, Inc.
Ruling of the Referee,Judgment and Decree
Case No. I ICW 198
Page 2
C.R.S. §§ 37-92-203 and-302. None of the water rights or structures involved herein is
located within a designated groundwater basin.
3. A properly verified Application was filed in this matter by the Applicant on December 30,
2011. Timely Statements of Opposition were filed in this matter by the Colorado Water
Conservation Board,Elk Mountain Lodge LLC, American ia Tonal statements of opposition
Crystal LLC, and the City of Aspen. The time f g
has expired. By order dated March 8,2011,this matter was referred to the Water Referee.
4. Overview of Application: Applicant operates the Aspen Music Festival and School
(AMFS) campus along Castle Creek. Applicant is in the process of redeveloping its
campus. As a part of this redevelopment, Applicant is modifying four historical ponds on
the property that have existed for decades without adjudicated water rights priorities
In
particular, one pond will be eliminated and comb
three ponds, one pond will be lined and operated f ofl groundwater for
augmentation, while the other two will remain under the influence
near term. The purpose of this application is to confirm surface water rights to fill these
for ponds under
structures, storage water rights for lined ponds, underground so that ponds may be kept full
the influence of groundwater, and a plan for augmentation
during call periods so long as water is provided The subject water ghts will also be utilized
potential injury to other vested water righ purposes on the
for recreation, irrigation, fire protection and aesthetic enhancement pure
AMFS campus.
FIRST CLAIM FOR RELIEF:
SURFACE WATER RIGHTS
5. Applicant requests confirmation of the following surface water rights:
A. Name of structure: MAA Spring
(1) Location: the spring consists of a seep/spring area ao at 20 ft from
1/4e
SE 1/4 of Sec. 14, T. 10 S.,R. 85 W., 6th P point
South sec. line and 100 ft. from the East sec. line of said Sec. 14, Pitkin
County, Colorado. See Figure 3.
(2) Source: seepage from hillside tributary to
River.Creek, tributary to the
Roaring Fork River,tributary to the Colorado
Water Division 5
Application of Music Associates of Aspen, Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 CW 198
Page 3
(3) Uses: irrigation*, fire protection
*The area that may be irrigated by all of the water rights confirmed herein
is described as up to 1.13 acres in the NW%4 SW'/4 SW'/4 of Sec. 13, and
the NE'/4 SE'/4 SE'/4 of Sect. 14, T. 10 S., R. 84 W., 6th P.M. See Figure 4.
(4) Amount.- 0.25 c.f.s., absolute, for pond filling for
recreation, aesthetic and fire protection purposes.
0.25 c.f.s., conditional, for pond filling for irrigation and
augmentation. purposes
(5) Appropriation information:
(a) Appropriation dates: October 24, 1945 (absolute uses), April 24,
2007 (conditional uses).
(b) Appropriations initiated by: usage of water since prior to
acquisition of Bonanza Placer Mining Claim October 1945 by
Walter Paepcke; initiation of land use application to Pitkin County
in April 2007 for redevelopment of MAA campus, including
existing ponds thereon.
(c) Date of application of water to beneficial use: October 24, 1945
(absolute uses); N/A (conditional uses).
(6) Remarks: Any out-of-priority depletions resulting from the use of the
MAA Spring will be augmented under the plan for augmentation and
exchange described in the Fourth and Fifth Claims, below. This structure
is a near-surface structure pursuant to C.R.S. 37-92-103(14)(b). This
structure will also be used to fill the Great Pond and Shallow Pond for
irrigation and fire protection purposes, as well as for the other decreed
uses for these two ponds (augmentation, recreation and aesthetic
Purposes).
(7) Name and address of owner of land upon which structure is located.
Applicant.
B. Name ofstructure: MAA Pump & Pipeline.
(1) Location: the point of diversion is located in the SE 1/4 SE 1/4 of Sec. 14,
T. 10 S., R. 85 W., 6th P.M., at a point 1210 ft from the South sec. line
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. I ICW 198
Page 4
and 50 ft. from the East sec. line of said Sec. 14, Pitkin County, Colorado.
See Figure 3.
(2) Source: Castle Creek,tributary to the Roaring Fork River,tributary to the
Colorado River.
(3) Uses: irrigation*, fire protection
*The area that may be irrigated by all of the water rights confirmed herein
is described as up to 1.13 acres in the NW'/4 SW'/4 SW'/4 of Sec. 13, and
the NEIA SETA SEA of Sect. 14, T. 10 S., R. 84 W., 6t"P.M. See attached
Figure 4.
(4) Amount claimed: 0.50 c.f.s., conditional.
(5) Appropriation information:
(a) Appropriation date: April 24, 2007.
(b) Appropriation initiated by: initiation of land use application to
Pitkin County in April 2007 for redevelopment of MAA campus,
including existing ponds thereon.
(c) Date of application of water to beneficial use: N/A.
(6) Remarks: any out-of-priority depletions resulting from the use of the
MAA Pump &Pipeline will be augmented under the plan for
augmentation and exchange described in the Fourth and Fifth Claims,
below. This structure will also be used to fill the Great Pond and Shallow
Pond for irrigation and fire protection purposes, as well as for the other
decreed uses for these two ponds (augmentation,recreation and aesthetic
purposes).
(7) Name and address of owner of land upon which structure is located:
Applicant.
SECOND CLAIM FOR RELIEF:
GROUNDWATER RIGHTS(POND WELL)
6. Applicant requests confirmation of underground water rights for the following structures:
A. Name of structure: MAA Enchanted Pond Well.
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 CW 198
Page 5
(1) Location: the centerline of the dam at the outlet pipe is located in the SW
1/4 SW 1/4 of Sec. 13, T. 10 S., R. 85 W., 6th P.M., at a point 960 ft from
the South sec. line and 70 ft. from the West sec. line of said Sec. 13, Pitkin
County, Colorado. See Figure 3.
(2) Source: groundwater tributary to Castle Creek, tributary to the Roaring
Fork River, tributary to the Colorado River.
(3) Uses: irrigation*, fire protection, recreation and aesthetic purposes.
*The area that may be irrigated by all of the water rights confirmed herein
is described as up to 1.13 acres in the NWI/4 SW/4 SW/4 of Sec. 13, and
the NEI/4 SE% SE% of Sect. 14, T. 10 S., R. 84 W., 6t"P.M. See Figure 4.
(4) Amount claimed: 0.002 c.fs. (1.0 g.p.m,), 0.50 acre-feet annual diversion,
absolute for recreation and aesthetic; conditional for other uses
(5) Surface area: 0.18 acres.
(6) Depth: 4.0 feet.
(7) Appropriation information:
(a) Appropriation date: October 24, 1945 (recreation and
aesthetic); December 30, 2011 (irrigation and fire protection).
(b) Appropriation initiated by: construction of pond well; usage of
water since prior to acquisition of Bonanza Placer Mining Claim
October 1945 by Walter Paepcke (absolute uses); filing of water
rights application in this matter(conditional uses).
(c) Date of application of water to beneficial use: October 24, 1945
(for recreation and aesthetic purposes).
(8) Remarks: any out-of-priority depletions resulting from the use of the
MAA Enchanted Pond Well will be augmented under the plan for
augmentation and exchange described in the Fourth and Fifth Claims,
below.
(9) Name and address of owner of land upon which structure
Applicant. is located:
THIRD CLAIM FOR RELIEF:
Water Division 5
Application of Music Associates of Aspen, Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 CW 198
Page 6
WATER STORAGE RIGHTS(PONDS)
7. Name of structure: MAA Shallow Pond.
a. Location: the centerline of the dam at the outlet is in the SE 1/4 SE he South sec4 of and
14, T. 10 S.,R. 85 W., 6th P.M., at a point 1180 ft. from
20 ft. from the East sec. line of said Sec. 14, Pitkin County, Colorado. See Figure
3.
b, Source: MAA Spring(0.25 c.f.s.) and MAA Pump 8to Pipeline Castle CrOeek,tributary to of
which divert surface water directly from or tributary
the Roaring Fork River,tributary to the Colorado River(see First Claim, above).
C. Uses: irrigation*, fire protection, geothermal heat exchange, recreation, aesthetic
and augmentation.
*The area that may be irrigated by all o�tSwt�4tSWl�hof Secf 13,and the NEl/4
described as up to 1.13 acres in the NW
/4
SETA of Sect. 14, T. 10 S., R. 84 W., 61h P.M. See Figure 4.
nd
d. Amount claimed: 1.75 acre-feet (all active storage)
and and the MAA 1Great
refill in priority provided that cumulative refills p
Pond shall not exceed 6.05 acre-feet per uses.absolute for
recreation and aesthetic purposes;1.75 acre-feet conditional for other
e. Surface area: 0.32 acres.
f. Dam information:
(1) Length: 150 feet.
(2) Height: less than 10 feet.
g. Appropriation information:
Appropriation dates: October 24, 1945 for absolute uses; April 24, 2007
(1) for conditional uses.
(2) Appropriations initiated by: construction of pond; usage of water since
prior to acquisition of Bonanza Placer Mining application in
October 1 campus
Walter Paepcke; initiation of land use app
redevelopment on April 24, 2007.
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 C W 198
Page 7
(3) Date of application of water to beneficial use: October 24, 1945 (absolute
uses); N/A (conditional uses)
h. Remarks: any out-of-priority depletions due to evaporation from the surface of
this structure during times of water rights calls from below the Roaring
Fork/Fryingpan confluence will be augmented under the plan for augmentation
and exchange described in the Fourth Claim, below. -This structure will be lined
prior to operation of the plan for augmentation and exchange.
i Name and address of owner of land upon which structure is located. Applicant.
8. Name of structure: MAA Great Pond.
a. Location: the centerline of the dam is in the SW 1/4 SW 1/4 of Sec. 13, T. 10 S.,
R. 85 W., 6th P.M., at a point 1120 ft. from the South sec. line and 130 ft. from
the West sec. line of said Sec. 13, Pitkin County, Colorado. See Figure 3.
b. Source: MAA Spring (0.25 c.f.s.) and MAA Pump &Pipeline (0.50 c.fs), both of
which divert surface water directly from or tributary to Castle Creek, tributary to
the Roaring Fork River, tributary to the Colorado River(see First Claim, above).
C. Uses: irrigation*, fire protection, geothermal heat exchange, recreation and
aesthetic.
*The area that may be irrigated by all of the water rights confirmed herein is
described as up to 1.13 acres in the NW%4 SW'/4 SW'/, of Sec. 13, and the NE'/4
SE'/4 SE'/4 of Sect. 14, T. 10 S., R. 84 W., 6th P.M. See Figure 4.
d. Amount claimed.- 2.7 acre-feet absolute, 1.6 acre-feet conditional, with the
right to fill and refill in priority, provided that cumulative refills of this pond and
the MAA Shallow Pond shall not exceed 6.05 acre-feet per year.
e. Surface area: 0.80 acres.
f Dam information:
(1) Length: 350 feet.
(2) Height: less than 10 feet.
g• Appropriation information:
(1) Appropriation date: April 24, 2007.
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 CW 198
Page 8
2 Appropriation initiated by: initiation of land use application for MAA
( ) campus redevelopment on April 24, 2007.
(3) Date of application of water to beneficial use: N/A.
h. Remarks: Any out-of-priority depletions d ula for augmentaon and exchange
° tif
this structure will be augmented under the p
described in the Fourth Claim, below. The Great Pond does not presently intercept
groundwater; if such changes in the future this structure will be lined.
i. Name and address of owner of land upon which structure is located: Applicant.
FOURTH CLAIM FOR RELIEF:
PLAN FOR AUGMENTATION
9. Water rights to be augmented(all described above):
MAA Spring
MAA Pump &Pipeline
MAA Enchanted Pond Well
MAA Shallow Pond
MAA Great Pond
10. Water rights to be used for augmentation:
Shallow Pond(described above in Third Claim)
Basalt Water Conservancy District (`BWCD") water rights, to be supplied pursuant to a
water allotment contract between BWCD and Applicant, including the following:
a. Green Mountain Reservoir:
i. Source: Blue River,tributary of Colorado River.
ii. Legal description: located Cp°p�otxl Colorado, and more particularly in all
of Kremmlmg in Summit Y
or parts of Sections 11, 12, 13, 14, 15, and 24 of Township 2 South, Range
80 West, and in Sections t , 21, 28, 29, and 34, Township 2
South, Range 79 West of the 6th P.M.
iii. Adjudication Date: October 12, 1955.
Water Division 5
Application of Music Associates of Aspen, Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11CW198
Page 9
iv. Appropriation Date: August 1, 1935.
V. Case Nos.: 2782, 5016, and 5017, Court: United States District Court,
District of Colorado and Case No. 88CW022, District Court, Water
Division No. 5.
vi. Decreed Amount: 154,645 acre feet and a refill right in the amount of
3}856 acre feet absolute and 150,789 acre feet, conditional.
vii. Decreed Uses: in accordance with paragraph 5(a), (b), and (c) of the
section entitled "Manner of Operation of Project Facilities and Auxiliary
Facilities" in Senate Document 80.
b. Ruedi Reservoir:
i. Source: Frying Pan River, tributary of Colorado River.
ii. Legal description: an on-channel reservoir located in Sections 7, 8, 9, 11,
and 14 through 18, Township 8 South, Range 84 West of the 6th P.M. The
reservoir is located in portions of Eagle and Pitkin Counties.
iii. Adjudication Date: June 20, 1958.
iv. Appropriation Date: July 29, 1957.
v. Case No.: C.A. 4613, Garfield County District Court.
vi. Decreed Amount: 102,369 acre feet (Originally decreed for 1405697.3 acre
feet; reduced to 102,369 acre feet in Case No. W-789-76).
vii. Decreed Uses: generation of electric energy, domestic, municipal,
industrial, irrigation, piscatorial, and stock watering.
viii. Refill: By decree of the Water Court in Case No. 81 C W34, Ruedi
Reservoir was decreed a refill right in the amount of 101,280 acre feet,
conditional. In Water Court Case No. 95CW95, 44,509 acre feet of the
refill right was made absolute. In Water Court Case No. 01CW269, an
additional 25,257 acre feet of the refill right was made absolute, for a total
of 69,766 acre feet absolute in the refill right.
C. Troy Ditch and Edith Ditch:
STRUC PRIORIT TURF Y OUNT SOLD,TRANSFER RED OR RESERVED AMOUNT
REMAINING p0�
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. IICW198
Page 10
NO. (CFS) (4) (5) (6) (7) (8) (9) CFS AF
Troy
370 3082 8/25/19 5/01/1906 5.10 I 0.000 0.000 0.095 0.064 0.035 4.906 N/A
Ditch 36
427 3082 8/25/19 5/01/1928 10.80 I 0.000 0.000 0.200 0.134 0.073 10.393 N/A
Troy
Ditch 36
1st
Enlg
669 4613 6/20/19 6/01/1942 6.20 I 0.000 0.000 0.115 0.077 0.042 5.966 N/A
Troy 58
Ditch
2nd
Enlg
Edith 353 3082 8/25/19 5/01/1904 2.72 1 0.110 0.1320 0.050 0.000 0.018 2.410 N/A
Ditch 36
Edith 673 4613 6/20/19 7/01/1946 3.23 1 0.000 0.000 0.060 0.000 0.022 3.148 N/A
Ditch 58
1 st
Enlg
15.50 ) I,D,M 0.110 0.1320 0.520 0.275 0.190 14.273 412.89
Troy (2) 2281 C,P
Ditch
Water
System
aka
Lower
Headga
to
(1) Originally diverted from Miller Creek. All others originally diverted from Frying Pan River.
(2) Alternate point for all priorities of Troy and Edith Ditches.
(3) Combined amount limited to 15.5 cfs and 453 AF of consumptive use,300 AF of which can be stored.
(4) 1=Irrigation,D=Domestic,M=Municipal,C=Industrial and P=Piscatorial.
(5) Transferred to Edith Ditch Well in Case No.80CW 1 with 1.0 AF.
(6) Transferred to three springs on Cap K Ranch in Case No.82CW 189(1.29 AF assumed to be included).
(7) Deeded to George Yates with 15.4 AF in 1983. 0.2 cfs and 10.60 cfs was included in Case No.82CW357 for Ruedi South Shores
augmentation plan.
(g) Deeded to Joan Wheeler in 1987 for diversion at the Troy Ditch 1st and 2nd Enlargement(16.9 AF assumed to be included).
(9) Reserved for augmentation of Cap K Ponds with 5.52 AF. Case No.91CW220.
(10) A total of 40.11 AF of the original 453.00 AF has been sold or transferred.
In Case No. W-2281,Division 5,the Court decreed that 453 acre feet of annual
consumptive-use credits were available to these ditches, and that 300 acre feet could be
Water Division 5
Application of Music Associates of Aspen, Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 C W 198
Page 11
stored in an unnamed reservoir. The Basalt Water Conservancy District owns 412.89
acre feet of the 453 acre feet, and makes the water rights available to contract allottees for
use pursuant to an approved substitute supply plan or decree of Court. The Troy and
Edith augmentation water can be delivered to the Frying Pan, Roaring Fork or Colorado
Rivers by by-passing water at the headgate on the Frying Pan River.
d. Robinson Ditch:
STRUCTURE DECREED AMT. ADJ.DATE APP.DATE
AMOUNT/ OWNED PRIORIT CASE
Cfs - - BY - - - Y - - - -NO.
BWCD (2)
as (l)
ROBINSON 5.00 1.21 05/11/1889 06/15/1882
DITCH 38 132
ROBINSON 2.50 0.60 05/11/1889 04/15/1886
DITCH 140 132
ROBINSON 2.00 0.48 05/11/1889 11/15/1886
DITCH 167 132
ROBINSON 10.70 2.59 12/29/1903 04/25/1899
DITCH 212C 1061
ROBINSON 20.06 4.85 08/25/1936 04/25/1900
DITCH 326 3082
(The BWCD owns 441 shares of Class 1 stock issued by the Robinson Ditch Company.
The said 441 shares equal 24.16% of the total shares and are associated with 9.73 cfs of
the 40.26 cfs decreed to the Robinson Ditch).
i. Legal Description of Point of Diversion: The point of diversion as
decreed is located on the North bank of the Roaring Fork River one-half
mile below the mouth of Sopris Creek in Section 11, T. 8 S., R. 87 West,
6th P.M.
ii. Historic Use: Irrigation of approximately 137.2 acres of hay and pasture
under BWCD's interest in the Robinson Ditch water rights. In Case No.
93CW319, the Court decreed that 360 acre feet of annual consumptive-use
credits are associated with said irrigation. In that case, the Court also
decreed a change of use of BWCD's Robinson Ditch rights to include
augmentation. BWCD makes the credits available to contract allottees for
use pursuant to an approved substitute supply plan or decree of Court.
11. Statement of plan for augmentation:
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 CW 198
Page 12
The Applicant owns and operates the Aspen Music Festival and School (AMFS)upon the
campus depicted upon Figure 1.. The Applicant n of this project,total pond (including pond well)
property as shown on Figure 4. Upon completion p J
surface area upon the MAA campus will be 1.31 acres, ds assumed
e area(nannual ncluding areas irrigated
acre-feet feet per year (38 inches). Total augmented landscape
by water supplied by City of Aspen) will be 1.13 totale annual project
deletions
are
of 2.0 acre-feet(1.77 acre-feet per acre per year) Therefore
estimated to be 5.61 acre-feet per year. Detailed diversion and depletion information is set forth
on attached Tables 1-3.
a. Downstream irrigation calls.
Castle Creek,the Roaring Fork River and the Colorado River are all subj
each ect to yea periodic
water rights calls from downstream irrigation water rights after spring
Historically,the "Cameo call" from downstream ne the
all of July through Octobernand onef week
week in April, one week in May,two weeks in June,
in November. The proposed plan for augmentation herein thelCameo all wt-
of-priority th regard to all oust
the BWCD sources listed above in Paragraph 9 to satisfy
of-priority pond evaporation and new landscape aser Plan).irrigation
cants Fifth Claim(below,�ncludes
attached Figure 4--Castle Creek Campus
appropriative rights of exchange for the reaches between the Fork int or Colorado Rivers, as
and the downstream points of replacement on the Roaring
applicable. A proposed dry year operational analysis to address the Cameo call is attached as
Table 4. Total out-of-priority depletions ttribution of10% e0stimated transit losses for BWCD
replacement of 4.5 acre-feet, including
contract deliveries to the Roaring Fork and Colorado River systems.
b. Local calls.
This plan also addresses local call potential. In particular,the Colorado Water
Conservation Board (CWCB)holds instream now water Rhts (30 Castle f rom Oct21 through
and the
Roaring Fork River from Maroon Creek to the Frymgp
Mar. 31; 55 c.f.s. from Apr. 1 through Sep. 30). There is potential for a these
rights to affect Castle Creek during August and September of very dry year
proposed plan for augmentation also provides for local replacement
due r new be released
perom the
depletions
Shallow Pond as necessary to replace any out-of-priority
irrigation of the MAA campus (shown on attached Figure 4).
ing water from
Applicant shall replace all out-of-priority evaporative depletions
eerating and there is a local call
the Shallow Pond any time MAA Exchange Nos. 1 an Applicant does not propose to replace
on Castle Creek(including a CWCB call). However, App
evaporative depletions to satisfy a CWCB call when
depletions ha e rout nely occurred since t
being operated because these historical de p
Water Division 5
Application of Music Associates of Aspen, Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 C W 198
Page 13
prior to the CWCB's appropriation of instream flow water rights and are therefore exempted
from the call pursuant to C.R.S. § 37-92-102(3)(b) whenever the Exchanges are not in operation
(a 1962 aerial photo showing ponds upon the MAA campus is attached as Figure 2). When
required to make local replacement releases from the Shallow Pond pursuant to this plan,
Applicant shall commence such releases within 24 hours of a local call being placed on Castle
Creek. Prior to irrigating out of storage, Applicant shall first ensure that it will have enough
stored water on hand to make required local augmentation releases to replace out-of-priority
evaporation from the surface of the Enchanted Pond Well.
A proposed dry-year operational analysis for a local call on Castle Creek is attached as
Table 5. Out-of-priority irrigation depletions are estimated at 1.68 acre-feet, all of which would
be replaced by releases from the Shallow Pond into Castle Creek. Any time Castle Creek or the
Roaring Fork River above its confluence with the Fryingpan River are under administration,
evaporation from the surface of the Shallow Pond shall not be replaced. In the unlikely event of a
local call outside of the Aug. 1 through Sept. 30 time period, if there is not sufficient replacement
water in storage in the Shallow Pond, Applicant will discontinue irrigation with the water rights
confirmed herein and cease replacement of evaporation from the Great Pond and the Shallow
Pond.
FIFTH CLAIM FOR RELIEF:
APPROPRIATIVE RIGHTS OF EXCHANGE
12. Applicant requests confirmation of the following conditional appropriative rights of
exchange:
A. Name of exchange: MAA Exchange No. 1 (Castle Creek/Roaring Fork).
(1) Upstream Terminus: location of MAA Pump & Pipeline; see Section 5.13
above and attached Figure 3.
(2) Downstream Terminus: the confluence of the Roaring Fork and
Fryingpan Rivers, located in the SW 1/4 of Sec. 7, T. 8 S., R. 86 W. of the
6th P.M., Eagle County, at a point approximately 750 ft. from the S. sec.
line and 1440 ft. from the E. sec. line; see Figure 5.
(3) Appropriation date: April 24, 2007
(4) How appropriation was initiated: initiation of land use application for
redevelopment of MAA campus.
(5) Maximum instantaneous rate of exchange: 0.50 c.f.s., conditional (with
maximum monthly average exchange of 0.02 c.f.s. and maximum monthly
volume of exchange of 1.28 acre-feet per month).
(6) Uses: augmentation by exchange of irrigation, fire protection, recreation,
Water Division 5
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Ruling of the Referee,Judgment and Decree
Case No. I ICW 198
Page 14
and replacement of evaporative losses.
(7) Remarks: releases from the BWCD's Roaring Fork River replacement
sources pursuant to the augmentation plan described above in Applicant's
Fourth Claim will enter the Roaring Fork River at the confluence of the
Fryingpan and Roaring Fork Rivers. The subject exchange will therefore
operate between this confluence up the Roaring Fork River and Castle
Creek to the various locations of the structures described in Applicant's
First, Second and Third Claims, above.
B. Name of exchange: MAA Exchange No. 2 (Castle Creek/Roaring
Fork/Colorado).
(1) Upstream Terminus: location of MAA Pump &Pipeline; see Section 53
above and attached Figure 3.
(2) Downstream Terminus: the confluence of the Roaring Fork and Colorado
Rivers, located in the SE 1/4 NW 1/4 of Section 9,T. 6 S., R. 89 W. of the at a point 6th P.M., Garfield ft from W sec lne�see F gure 2200 ft. from the N.
sec. line and 2350
(3) Appropriation date: April 24, 2007
(4) How appropriation was initiated: initiation of land use application for
redevelopment of MAA campus.
(5) Maximum instantaneous rate of
0 02 ca£s.. and maximum monthlylvolume
maximum monthly g
of exchange of 1.28 acre-feet).
(6) Uses: augmentation by exchange of irrigation, fire protection, recreation,
and evaporative losses.
(7) Remarks: releases from the BWCD's Colorado River replacement sources
pursuant to the augmentation plan described above in Applicant's Fourth
Claim will be delivered to at the confluence of the Colorado and Roaring
Fork Rivers. The subject exchange will therefore operate between this
confluence up the Roaring Fork River and Castle Creek to the various
locations of the structures described in Applicant's First, Second and
Third Claims, above.
Neither MAA Exchange No. 1 nor MAA Exchange No. 2 may operate at times any of the
following senior instream flow water rights have placed calls that are being administered
by the Division Engineer:
Stream/Lake Amount Approp. Watershed County
CWCB c.f.s. Date
Case No.
Water Division 5
Application of Music Associates of Aspen,Inc.
Ruling of the Referee,Judgment and Decree
Case No. 11 C W 198
Page 15
5-76W2947 Castle Creek #941
ing Pitkin
5-76W2948 Roaring Fork River rk
ing Pitkin
5-85CW646 Roaring Fork River k
ing Pitkin
k
CONCLUSIONS OF LAW
13. The foregoing Findings of Fact are incorporated in these Conclusions of Law as though
fully set forth herein.
14. The Application filed herein was complete, covering all applicable matters required under
C.R.S. § 37-92-302.
15. All notices required by law were given, and no further notice need be given.
16. . The Court has jurisdiction of this matter and of all persons, whether they have appeared or
not,pursuant to C.R.S. §s 37-92-301(2)and-303(1).
17. This Court has authority to confirm the water rights and plan for augmentation requested in
this application pursuant to C.R.S. §§ 37-92-301(2), -302 and -303(1).
18. The Court finds that Applicant has demonstrated an intent to appropriate water for all of
the above-described underground, surface and storage water rights, and for the above-
described conditional appropriative rights of exchange. Applicant has taken a substantial
first step towards such appropriations in the amounts and for the purposes specified
above. As to all conditional amounts and uses described above, the Court also finds that
waters can and will be appropriated, diverted, stored or exchanged in the times, amounts
and for the uses described above, and that such waters will be beneficially used and that
the project can and will be completed with diligence and within a reasonable time. C.R.S.
§ 37-92-305(9)(b).
19. A change of water rights or plan for augmentation shall be approved if it will not injuriously
affect the owner or persons entitled to use water under a vested water right or decreed
conditional water right. C.R.S. § 37-92-305(3).
20. The Court finds that the plan for augmentation described above in Applicant's Fourth
Claim, subject to all terms and conditions set forth herein, will not injuriously affect the
owners of or persons entitled to use water under a vested water right or decreed conditional
water right.
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21. Any decree approving a change of water right or plan for augmentation must be conditioned
upon the retained jurisdiction of the court for a period§ necessary or desirable to preclude or
remedy any injury to the vested rights of others.
22. The proposed plan for augmentation meets the statutory criteria for a plan for augmentation
set forth in C.R.S. §§ 37-92-103(9),-302(1), and-305(8), as one contemplated by law and, if
operated in accordance with the terms and conditions of this Ruling,the use of water
pursuant to said plan will not injuriously affect the owner of or persons entitled to use water
under a vested water right or decreed conditional water right.
RULING OF THE REFEREE
23. The foregoing Findings of Fact and Conclusions of Law are incorporated in this Ruling of
the Referee as though fully set forth herein.
24. Subject all terms and conditions set forth in this Ruling of the Referee,the Court hereby
confirms conditional and/or absolute water rights(as indicated above)for each of the
structures and exchange described above in Applicant's First, Second,Third,and Fifth
Claims for Relief, as more fully described above in the Findings of Fact.
25. The plan for augmentation described above in Applicant's Fourth Claim is hereby approved,
subject to all terms and conditions set forth herein. Applicant shall be allowed to utilize the
water rights described above out-of-priority so long as,pursuant to the above-described plan
for augmentation,replacement water is provided in time and amount to alleviate any injury
that may otherwise occur to other vested water rights. The Referee finds that the
substituted water provided for under this plan for augmentation is of a quality, quantity
and continuity so as to meet the requirements for which the water of senior appropriators
has normally been used.
26. The approval of such augmentation plan shall be subject to reconsideration by the Water
Judge on the question of injury to the vested rights of others for a period of five (5)calendar
years after the date of the decree and continuing until five years after the Applicant
provides written notice to the parties,the Division Engineer and the Court via electronic
filing in this proceeding that the augmentation plan has become fully operational and that
the proposed uses are all in place. Such notice must confirm that the Shallow Pond is in
place, that the terms and conditions necessary to operate the plan as required by the
decree have been met, and that the augmented es as-built stage capacity table, initiated.
As to the Shallow Pond,the notice shall include
estimate of the active capacity of the reservoir, a profile of the reservoir showing the
elevation of inlet and outlet structures, and confirmation that an operable and lockable
outlet structure has been installed. In determining the subject water rights.reconsideration,the Court
has taken into account the proposed use J
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Ruling of the Referee,Judgment and Decree
Case No. 11 C W 198
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27. Pursuant to C.R.S. § 37-92-305(8), in administering the augmentation plan approved herein,
the State Engineer shall curtail all out-of-priority diversions,the depletions from which are
not so replaced as to prevent injury to vested water rights.
28. The Applicant shall install appropriate measuring devices on all structures and provide
accounting, and supply calculations regarding the timing of depletions as may be required
by the Division Engineer.
29. Should the Applicant desire to maintain the conditional rights confirmed herein, an
Application for Reasonable Diligence shall be filed in the same month of the sixth calendar
year following entry of this decree, unless a determination has been made prior to that date
that such conditional rights have been made absolute by reason of completion of the
appropriations, or are otherwise disposed of All of the water diversion and storage
structures described herein are integrated structures for the purposes of future reasonable
diligence findings.
30. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon
the sale or transfer of the conditional water rights decreed herein, the transferee shall file
with the Division 5 Water Court a notice of transfer which shall state:
A. The title and case number of this Case No. 11 C W 198;
B. The description(s) of the conditional water right(s) transferred;
C. The name of the transferor;
D. The name and mailing address of the transferee;
E. A copy of the recorded deed.
The owner of said conditional water rights shall also notify the Clerk of the Division 5
Water Court of any change in mailing address. The Clerk shall place any notice of
transfer or change of address in the case file of this Case No. 11 C W 198 and in the case
file (if any) in which the Court first made a finding of reasonable diligence.
31. The Applicant shall file for and obtain well permits for the pond wells described in
Applicant's Second Claim, above,pursuant to the Colorado Groundwater Management
Act, C.R.S. §§ 37-90-101 to— 143, prior to operation of the same pursuant to the plan for
augmentation described herein.
review.It is ORDERED that this Ruling shall be filed with the Water Clerk subject to judicial
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Ruling of the Referee,Judgment and Decree
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It is further ORDERED that a copy of this Ruling shall be filed with the appropriate
Division Engineer and the State Engineer.
DATED this day of ,2013.
BY THE REFEREE
Water Referee,Water Division No. 5,
State of Colorado
JUDGMENT AND DECREE
No protest was filed in this matter,and accordingly,the foregoing Ruling is confirmed and
approved, and is made the Judgment and Decree of this Court. The month and year for filing an
Application for Finding of Reasonable Diligence a 0 o each of the conditional water rights
confirmed above shall be
SO ORDERED this day of
2013.
BY THE COURT:
District Court Judge, Water Division No. 5,
State of Colorado