HomeMy WebLinkAboutresolution.council.063-13 RESOLUTION #63
(Series of 2013)
A RESOLUTION APPROVING AN AGREEMENT WITH THE COLORADO
WATER TRUST FOR A 2013 PILOT PROGRAM TO IMPROVE
STREAMFLOW CONDITIONS IN THE ROARING FORK RIVER
WHEREAS, the City of Aspen currently has a water policy that directs staff
to utilize the city's water rights in a manner which seeks to improve instream flow
conditions; and
WHEREAS, the City of Aspen has already taken steps to improve the
habitat of the Roaring Fork River through the City of Aspen; and
WHEREAS, the Colorado River Trust has requested that the City of Aspen
look at which water rights it has which could be used to improve the instream flow
in the Roaring Fork River; and
WHEREAS, City staff and the Colorado Water Trust have identified the
City's Wheeler Ditch water right as one that could be used for this purpose; and
WHEREAS, when the minimum streamflow of 32cfs through the City of
Aspen is not met, river habitat is at risk and the City desires to take this action to
mitigate the risk and plan for any emergency need to supplement the flow by the
forbearance of part of its Wheeler Ditch diversion; and
WHEREAS, the Colorado Water Trust desires to implement a pilot program
for 2013 to have the City voluntarily curtail the flow of the Wheeler Ditch in order
to improve the streamflow during such times; and
WHEREAS, participation in the pilot program, as set out in the Agreement
attached as Exhibit A and incorporated by this reference, is consistent with the
City's water policies and is in the best interests of the public.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
That the Aspen City Council approves the Wheeler Ditch Water Right Forbearance
Agreement attached as Exhibit A and authorizes the Mayor to execute the same on
behalf of the City..
VI.b
Dated: ' 3
Mic ael C. Ireland, Mayor
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 Jupe 10, 2013.
Kathryn . Koch, City Clerk
July 18, 2013 11]r 0 n of A`n
11�nslhru;nn�i
The Colorado Water Trust
Amy W. Beatie, Executive Director
1420 Ogden Street, Suite A2
Denver, CO 80218
Re: City of Aspen/Colorado Water Trust - 2013 Wheeler Ditch Water Right Forbearance
Agreement
Dear Ms. Beatie:
Please find enclosed the 2013 Wheeler Ditch Water Right Forbearance Agreement. Please
sign and execute it befbre..a Notary Public, retaining a copy for yourself. Then,please return
the original to us at your earliest convenience. Thank you.
Sincerely,
Karen McConnell
Utilities Administrative Assistant
/km
Enclosure
;1 i 1 uG a nail \ ri`"(, If,ll_�y .,
2013 WHEELER DITCH WATER RIGHT
FORBEARANCE AGREEMENT
This 2013 WHEELER Drrui WATER RIGHT FORBEARANcli AGREI--WI;NT (the "Agreement") is entered
into this Z t. day of ASPEN, a Colorado home
2013 by and between the ary oi-, As ,
n-61.0RADO I'VATFIZ TRUST (tile "Trust"), a Colorado non-profit
I'LlIP City ("Aspen"), and the C
C01-POUltioll (collectively, the"Parties").
RECITALS - - - -
A. Aspen owns the Wheeler Ditch,a water right more particularly described as follows (file. "Water-
Right"):
The Wheeler Ditch, decreed in -'ase No. 132, Garfield COL111ty District Court, on May 11, 1889,
with Priority No. 44 for 10 •fs for irrigation of land all(:[ also for stock, street, and domestic
purposes in the city of Aspen, Mthall appropriation date of September -1, 1882. The original
appropriator was the Aspen Ice and Water('0111pally.
'The Water Right diverts from the Roaring Fork River in the hear(of Aspen and is customarily used for
irrigation and municipal purposes.
B. The Trust is a Colorado nonprofit dedicated to protecting and restoring streamflows in
Colorado through voluntary, market-based efforts. The Trust Uses all lawful tools to accomplish its
mission, both in partnership with Colorado's Instream Flow Program and, where appropriate,
separate from that program. The Trust has over a decade of experience in managing strean-tflow
restoration projects. It has been in discussions with Aspen to discuss possible measures for local
strearn-flow restoration. This Agreement is the nat-u•al first step in implementation of the ideas
generated in those discussions.
C. The Parties recognize that aquatic habitat in the Aspen reach of the Roaring Fork River, both
upstream and downstream of the Water Right's point of diversion,is affected at certain times in average
and dry years by st-reamflows that fall below the decreed instream flow of 32 cfs in that reach. Such
Stl'eall1flO%Vshortages are (Ile DIO.St SigllifiCallt during drO11J.,111t periods. The portion of the Roaring Fork
River in the Aspen reach that is most significantly affected by such shortages is shown on Exhibit A,
attached hereto and incorporated herein by this reference (tile "Critical Reach"). The Critical Reach is
defined as the section of the Roaring Fork River from downstream of the Salvation Ditch headgate to
the confluence of the Roaring, Fork River and Castle Creek.
D. Both technical and biological analyses have determined that the Critical Reach can benefit from
il1lpfOVed mid- to late-summer flows, and the Water Right is well-situated to provide most of the
Critical Reach with a limited amount of water. Given that, Aspen desires to help restore flows to the
Critical Reach this SLIn-uner by entering into this Agreement. In tile absence of this Agreement, the
Water Right would be used by ASPVII for its CLIM0111ary municipal purposes,
E. Aspen desires to enter into this Agreement to set forth the terms and conditions of the
Resolution adopted on June 10, 2013 that provides that, subject to the terms and conditions set forth in
this Agreement, Aspen will forego diverting andlO• Using the Water Right in the amounts and under
Page 1 of 7- 2013 WHETH11 DITCH WATF11 RIGHT'FOR[IVA RANCHAGREEMENT'
the conditions specified herein during the 2013 irrigation season. Tile Trust desires to enter into this
Agreement, which supports the Trust's ilussion to restore and protect st'ealnflows tlsillg market-based
and voluntary arrangements.
AGREEMENT
Now therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,the Parties agree as follows:
1. Term. This Agreement is effective when signed and will be in effect during the 2013 irrigation
season. The Agreement terminates on October 31,2013.
2. Trigger. Aspen will use the Water Right for its custonnary municipal purposes until the flow in
the Roaring Fork River recorded at the USGS stream gage Roaring Fork Near Aspen, after subtracting
the amount diverted by the Salvation Ditch, drops below 32 c.f.s. ("Trigger"), Begiunilg the day that
streamflows,as measured by the Trust, their agents,or partners,fall below the Trigger,Aspen agrees to
forego diversion of the Water Right in an amount conunensurate to the shortage (the "Feathering
Back"). For example, wiles the flow drops to 31 c.f.s., Aspen will cease to divert 1 c.f.s. of the Water
Right. When it drops to 30 c.f.s., Aspen will cease to divert 2 c.f.s.of the Water Right. Thus,for each 1.0
c.f.s. the'Trigger flow drops below 32 c.f.s, Aspen agrees to forego diverting and using a coiruttensurate
1.0 c.f.s. of tile Water Right for the remainder of the irrigation season ("Forbearance Period"). Aspen
Will continue the Feathering Back as heeded to maintain the Trigger flow, until Aspen is diverthig only
1.0 c.f.s. at the headgate for delivery down ditch. This amount will continue to be used by Aspen for its
customary municipal purposes. The Parties recognize that once the Feathering Back has reached a point
at which only 1.0 cfs is diverted 'unto the Wheeler Ditch headgate, Aspen will Make no further
forbearance of diversions,although the st•eanlflow may be less than the decreed instream flow of 32 cfs
in the Critical Reach.
3. Payment. Aspen does not seek payment from the Trust for its forbearance pursuant to this
Agreement.
4. Costs. The Trusd; shall pay all its own costs related to the implementation of the Agreement,
including but not limite to attorney fees, engineering, and flow monitoring. Aspen shall pay its own
costs related to implementation of the Agreement.
5. Public Meeting; Outreach. The Parties agree that prior to inlPlennentation of this Agreement,
they will jointly hold at least one public meeting to provide information about this Agreement to the
public, including how the Agreement will be operated, how it will be enforced, how it will benefit the
Critical Reach,and other relevant matters pertaining to this Agreement. The Parties also agree that they
will conduct outreach to other water users that maybe be interested in this Agreement. Because the
Operation of this Agreement will leave water in the river, the Parties do not anticipate any injury to
other water users fromm its operation.
6. Aspen's Re resentation9 and Warranties. Aspen represents and warrants that:
(a) Tile Water Right has been put to beneficial use during at least one of the last ten
irrigation seasons immediately preceding tile. 2013 irrigation year and to the best of Aspen's knowledge
Page 2 of 7- 2013 WHEELER DITCH WATER RIGHT FORBEARANCi?AGREEMENT
has not had any significant period of nonuse;
(b) Aspen is lawfully seized and possessed of the Water Right;
(c) There are no lien holders or other parties with an interest in the Water Right who are
required to consent to use of tite Water Right tinder the terms of this Agreement and no parties who
may place any claim to use any portion of the Water Right this irrigation season;and
(d) Aspen has the legal authority and City Council authorization to enter into this
Agreement.
7. Grant of Irrevocable Limited License. Aspen hereby agrees to grant the Trust, its agents, and
partners an irrevocable limited license to inspect the Water Right and associated infrastTuct ue at
reasonable times and with adequate prior notice in order to verify that that Aspen is i1 compliance with
the terms of this Agreement. The'Prust shall provide Aspen with at least twenty-four(24)hours' notice
before exercising the license rights granted under this section. During the term of this Agreement, the
limited license for the Trust to access the property shall be irrevocable but upon terntiination of the
Agreement, shall terminate completely. The purpose of the Trust's access to the Property is for
streannflow monitoring. This Agreement does not create any rights in the general public.
8. No Creation of a Formal Instreaul Flaw Water Right; Trust to Enforce Terms of Agreement.
This Agreement will not create an instream water right through the conversion of an existing water
right. Thus, the requirements and limitations of Colorado's ilstream flow laws do not apply. The
Trust, however, will monitor and enforce this Agreement to ensure that when the Trigger flow is
reached, Aspen begins the Feathering Back and continues to comply with this Agreement throughout
the Forbearance Period.
9. Aspen's Reservation of Use Rights. Aspen reserves the right to divert the Water Right during
the term of this Agreement due to critical need, such need to be defiled by Aspen in good faith and at
Aspen's sole discretion. To invoke this provision, Aspen shall provide the Trust with twenty-four
hours notice. As soon as the critical need bas passed, Aspen agrees to return the Water Right to the
river at an amount to be determined by the Parties,such alllount to be informed by the Feathering Back
methodology specified in Paragraph 2,above.
10. No abandotunent. This Agreement does not indicate any abandolunent or intention to abandon
any portion of the Water Right whatsoever.
11. Goon Faith Discussions for Future Implementation. 'this Agreement, which will work
outside of Colorado's Instream Flow Program as a private agreement between Aspen and the Trust,
is an initial experiment to help address instleam flow shortages in the Critical Reach. If the 2013
implementation of the Agreement is successful, the Parties agree in good faith to continue to
research, engineer, and conduct the technical analyses that will help them to assess the feasibility of
more formal implementation of this Agreement,or another mechanism to help protect streanlflows in
the Critical Reach.
12. Default. Aspen sliall be in immediate default should it and/or its successors and assigns divert
or use the Water Right in violation of this Agreement during the Forbearance Period. The failure of
Page 3 of 7- 2013 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT
either party to comply with or fulfill any obligation under this Agreement within five (5) days after
written notice by the other party specifying the nattu•e of the failure to comply shall constitute a default.
13. Remedies. Specific performance shall be the sole remedy of this Agreement.
14. Attorney's Fees. If a suit, action, or alternative dispute resolution is instituted in connection
with any controversy arising out of this Agreement or to enforce any rights hereunder, the Parties shall
bear their own costs and fees associated with such proceeding.
15. Notices. Notices sent under this Agreement shall be in writing and sent by certified or
registered mail,return receipt requested,postage prepaid to each party at:
To the Trust:
Amy Beatie,Executive Director
Colorado Water Trust
1420 Ogden Street,Suite A2
Denver,Colorado 80218
To Aspen:
David Hornbacher, Director of Utilities and Fnviromnental Initiatives
City of Aspen
130 S.Galena Street
Aspen,CO 81611
Notices are(teemed effective three(3) days after placement in the U.S. Mail.
16. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit
of the Parties and their respective successors and assigns.
17. Assignment. Neither party shall assif;n its rights and obligations under this Agreement without
the ether party's prior written consent.
18. Governing Law. This Agreement shill be governed by and construed in accordance with the
laws of the State of Colorado.
19. Waiver. Failure of either party at any time to require performance of any provision of this
Agreement shall not limit such party's right to enforce such provision, nor shall any waiver of any
breach of any provision of this Agreement constitute a waiver of any succeeding breach of such
provision or a waiver of such provision itself.
20. Amendment. 'Phis Agreement may not be modified or amended except by the written
agreement of the Parties. This Agreement may not be modified or amended orally.
21. Sever_ ability. If any term or provision of this Agreement or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
Page 4 of 7- 2013 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT
22. Integlation. This Agreement contains the entire agreement and understanding of the Parties
and supersedes all prior and contemporaneous agreements between them.
Executed as of the date first set forth above.
City of Aspen
A Colorado homerule city
Date: //
Name: &Afi< L G I V_VLAj47p
Title: MA`CQIZ
The Colorado Water Trust
A Colorado non-profit corporation
Date:
Amy W. Beatie
Executive Director
Page 5 of 7- 2013 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT
22. lntegration. This Agreement contains the entire agreement and understanding of the Parties
and supersedes all prior and contemporaneous agreements between them.
Executed as of the date first s(,t forth above.
City of Aspen
A Colorado homerule city,
Date:
Name: fVlfiGt�A�L C- IBA. tom
I'ille: 1,4A�((9A
The Colorado Water"I'rust
A Colorado non-profit corporation
Date:
f my W. vatic
tixec:utive Director
Ngc 5 of 7- 2013 WIiELsLEIt l)1'1'CIt WA'I'Ett ltlGli'I'POIt11EAItANCE AGI(I;EMtiN'I'
NOTARIZATION
STATE Oh COLORADO )
)
COUNTY O SS.-_-_ )
The foregoing inshument was acknowledged before isle on this day of
2013, by_ as __ of the City of Aspen.
Witness lily hand and official seal.
Notary Public
My commission expires:
STATE OF COLORADO )
COUNTY OF n
_OAv--f ) ss.
The foregoing instrument was acknowledged before me on thisay_day of ,
2013, by Amy W. Beatie as Executive Director of thf�Colo►•ado IVater Trust.
Witness my hand and official seal.
N Lary P lic
My commission expires:
Page 6 of 7- 2013 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT
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