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HomeMy WebLinkAboutresolution.council.090-97 RESOLUTION NO. 9 0 (Series of 1997) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN AND THE COLORADO WATER CONSERVATION BOARD, REGARDING INSTREAM FLOWS ON CASTLE CREEK. WHEREAS, the City's staff has negotiated an intergovernmental agreement with staff of the Colorado Water Conservation Board (CWCB) to allow effective administration of the CWCB's decreed instream flow on Castle Creek and better protection of the instream flow; and WHEREAS, the proposed intergovernmental agreement also provides that the City will bypass a portion of its decreed water rights on Castle Creek if necessary to assure that the CWCB's instream flow decree is fulfilled on Castle Creek between the Midland Flume and the confluence of Castle Creek and the Roaring Fork River; and .------- WHEREAS, the proposed intergovernmental agreement provides for the City to be appointed as the CWCB's agent for administration of the CWCB's decreed instream flow; and WHEREAS, the City has had a longstanding policy supporting instream flow protection on the rivers and streams in the Aspen vicinity; and WHEREAS, the proposed intergovernmental agreement will further the City's instream flow protection policy; and WHEREAS, the City's water department and water counsel have recommended approval of the proposed intergovernmental agreement; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby determines that the proposed intergovernmental agreement with the CWCB implements the City of Aspen policy of protecting instream flows on the rivers and streams in the Aspen vicinity, and therefore authorizes the Mayor to execute on behalf of the City of Aspen the Intergovernmental Agreement attached to this Resolution. RESOLVED, APPROVED AND ADOPTED this I~ day of ~1997, by the City Council for the City of Aspen, Colorado . John J::tt, ~;:_~;4 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 &~ / -s:- , 1997. ~, ~R~ Kathryn S. och, City Clerk \user\cfc\wp\asp-res.dl0 (12/10/97) 2 ~ INTERGOVERNMENTAL AGREEMENT The Colorado Water Conservation Board, an agency of the State of Colorado ("Board") and the City of Aspen, a Colorado municipal corporation and home rule city ("Aspen"), in consideration of the mutual promises contained in this document, agree as follows: 1. The Board is the owner of a 12 cubic foot per second (cfs) instream flow right to maintain a minimum stream flow to protect the natural environment to a reasonable degree on Castle Creek, a tributary of the Roaring Fork River in Pitkin County, Colorado. Said instream flow right was decreed on June 5, 1980, in Case No. W-2947, with an appropriation date of January 14, 1976. 2. The Board determined, and the Court decreed, in connection with the instream flow application in Case No. W-2947, that the natural environment in Castle Creek can be preserved to a reasonable degree with a minimum instream flow of 12 cfs. 3. c.R.S. ~ 37-92-103(3) provides that the Board is vested with the exclusive authority, on behalf of the people of the state of Colorado, to appropriate such instream flows. ,~ 4. Pursuant to C. R. S. ~ 37-92-102(3), the Board is vested with statutory authority to acquire by contractual agreement such water, water rights, or interests in water as the Board determines may be required for minimum stream flows to preserve the natural environment to a reasonable degree. 5. Aspen owns the following decreed water rights on Castle Creek which are senior to the Board's instream flow rights on Castle Creek, and which are the rights on Castle Creek most likely to affect the Board's instream flow rights: Name Priority No. Decree Decreed Aspen's Decreed Use Arnt. share (cfs) Castle Creek- 136(A) CA 493 60.0 60.0 Municipal Midland Flume 207 CA 494 100.0 100.0 Municipal Holden Ditch 613 CA4033 30.0 25.9 Irrigation Marolt Ditch 279 CA 3053 18.6 13.6 Irrigation Si Johnson Ditch 422 CA 3082 3.5 1.55 Irrigation 435 CA 3082 2.0 1.00 6. Aspen wishes to use its Castle Creek water rights as described herein to assist the Board in maintaining the decreed instream flows on Castle Creek between the Midland Flume and the confluence of Castle Creek and the Roaring Fork River at times when the decreed instream flows in Castle Creek do not yield 12 cfs in that reach of Castle Creek. To accomplish this Aspen is willing to (1) operate its own water rights as herein described to assure that there ~ is an instream flow of 12 cfs in Castle Creek between the Midland Flume and the confluence of the Roaring Fork River; and (2) provide the measuring and monitoring services herein described to determine whether a call should be placed against junior water rights to protect the Board's decreed instream flow on Castle Creek. . 7. At its own cost, Aspen will install at the Midland Flume measuring devices, approved by the Division Engineer, which are capable of continuously measuring stream flows in Castle Creek during low streamflows at that location. Also at its cost, Aspen will, to the extent necessary, rebuild or reconfigure its Midland Flume to permit the continuous bypass of at least 12 cfs of water in Castle Creek at the Midland Flume. 8. When the streamflow on Castle Creek falls below 12 cfs, as measured at the Midland Flume, the Board or Aspen, pursuant to this Agreement, will place a call under the Board's instream flow priority as decreed in Case No. W-2974. Once the Division Engineer has administered the call and less than 12 cfs remains in the stream immediately downstream of the Midland Flume, Aspen will allow water available to it from its Midland Flume and Castle Creek Flume water rights to bypass the Midland Flume to the extent necessary to assure that there is an instream flow of 12 cfs immediately downstream of the Midland Flume, provided, however, that the maximum bypass that will be required of Aspen under this Agreement is 12 cfs, and further provided that Aspen retains the right to divert its water rights notwithstanding this paragraph if needed for municipal purposes under circumstances such as extraordinary drought or emergency conditions in its municipal water supply. Aspen will not call its water right to provide water to supply the Board's decreed instream flow. 9. The parties agree that for purposes of this Agreement, the streamflow at the confluence of Castle Creek and the Roaring Fork River will be determined by subtracting from measurement of streamflow at the Midland Flume the diversions from Castle Creek by the Holden, Marolt and Si Johnson Ditches. The parties acknowledge that this measurement method does not take into account diversions by the Tagert Ditch, which is decreed for 1.39 cfs, but the parties believe that natural accretions and return flows to Castle Creek may be sufficient to offset diversions by the Tagert Ditch. 10. Aspen's interests in the Holden Ditch, Marolt Ditch, and Si Johnson Ditch are currently used for irrigation purposes. Aspen agrees that when the Board's instream flow decree is not met at the confluence of Castle Creek and the Roaring Fork River (determined as provided in paragraph 9 above), a call has been placed by the Board or Aspen pursuant to this Agreement, and the Division Engineer has administered the call placed pursuant to the Board's instream flow priority, Aspen will allow water available to it from its Holden Ditch, Marolt Ditch, and/or Si Johnson Ditch water rights to bypass their respective headgates, or will bypass additional water from its Midland Flume and Castle Creek Flume water rights, to the extent necessary to assure that the instream flow of 12 cfs is met at the confluence of Castle Creek and the Roaring Fork River, provided, however, that the maximum bypass that will be required of Aspen under this Agreement is 12 cfs, and further provided that Aspen retains the right to divert its water rights notwithstanding this paragraph if needed for municipal purposes under circumstances such as 2 ~ extraordinary drought or emergency conditions in its municipal water supply. 11. The Board hereby authorizes Aspen to be its agent for administration and monitoring of its instream flow right on Castle Creek. 12. As the Board's agent, Aspen shall be responsible for monitoring streamflows in Castle Creek at the Midland Flume, for operating the stream model described in paragraph 17 to determine when the Board's instream flow right is in priority in Castle Creek above and below the Midland Flume, and for calibrating or refining such stream model from time to time. If measurement or model results indicate that the Board's decreed instream flow is in priority, but that there is not enough water physically available to fulfill the decree (without including the Aspen bypasses), then Aspen shall contact the water commissioner or Division Engineer on the Board's behalf, and call for curtailment of junior water rights to make water available for the decreed instream flow. Aspen shall immediately report to the Board any time a call is made. 13. The Board recognizes that Aspen has agreed to bypass portions of its own water rights to assist the Board's instream flow program as described herein in reliance on the ability of the Division Engineer, Water Division No.5, and water commissioner to administer Castle Creek and its tributaries. Should the Division Engineer be unable to reasonably administer water rights on Castle Creek and its tributaries to protect the instream flow, Aspen may refuse to bypass water hereunder and, at its election, may terminate this Agreement. ~ 14. Aspen shall be responsible for maintaining all records necessary for the implementation of this Agreement, using forms mutually agreeable to the parties, and all records of streamflows at the Midland Flume, and diversions by Aspen's water rights, as reasonably required by the Division Engineer for administration of water rights (including the instream flow) in Castle Creek. 15. Aspen will provide an annual report to the Board on the operation of this Agreement, the actions taken by it as the Board's agent, and its planned operations for the upcoming year. The report shall be provided by January 1 of each year and shall address the previous year's activities. 16. Upon thirty (30) days advance written notice to Aspen, the Board may, in its sole discretion, revoke this authorization for Aspen to act as its agent; provided, however, that if the Board revokes this authorization, then it must assume at its own expense all responsibility for the administration and monitoring that would be undertaken by Aspen in order to implement this Agreement. If the Board fails to do so, Aspen may terminate this Agreement. 17. The parties agree to cooperate in the design and implementation of a comprehensive stream measurement system on Castle Creek and development of a reliable model of Castle Creek that will enable real-time administration of Castle Creek. The operational model will be developed and calibrated to enable the parties to predict when the Board's decreed instream flow is in or out of priority in reaches both upstream and downstream of the Midland 3 Flume, so that the instream flow may be effectively administered by the Division Engineer. The Division Engineer shall be asked for input and assistance as needed in the development of the model, and the final model will be subject to approval by the Division Engineer, and his acceptance thereof as an administrative tool. If a reliable operational model cannot be developed within a reasonable time, or if the Division Engineer does not approve or accept the model, either party may, at its election, terminate this Agreement. 18. The Board will exempt Castle Creek and Conundrum Creek, tributary to Castle Creek, from its de minimis rule, pursuant to the Board's instream flow protection rules, specifically Rule 9.33. The Board will take action to protect its instream flow decree on Castle Creek according to its rules. 19. The Board agrees that Aspen's operation of its water rights to implement this Agreement is not evidence of any intent by Aspen to abandon any of its water rights, and that the Board shall not at any time allege in a court or other proceeding or to any other person or entity that Aspen has abandoned, or intends to abandon, any water rights by virtue of its participation in this Agreement. 20. Should the Board determine at any time that it is necessary to seek a reduction or enlargement of its instream flow on either Castle Creek or Conundrum Creek, Aspen may, at its election, terminate this Agreement. ~ 21. All notices required to be given pursuant to this Agreement shall be in writing, and shall be deemed given upon delivery or, if mailed, three days following deposit in the United States Mail, registered or certified, postage pre-paid, properly addressed to the party to whom directed as follows: To the Board: Dan Merriman, Chief, Water Rights Investigation Colorado Water Conservation Board 1313 Sherman Street, Room 721 Denver, CO 80202 To the City: Water Director, City of Aspen 130 South Galena Street Aspen, Colorado 81611 cc: Cynthia F. Covell, Esq. Alperstein & Covell P. C. 1600 Broadway Suite 2350 Denver, Colorado 80202 4 22. Except as specifically provided herein, neither party to this Agreement may delegate any of its duties hereunder, or assign any of its rights hereunder without the prior written consent of the other. 23. Either party may terminate this Agreement upon sixty days prior written notice to the other. 24. This Agreement may not be amended except in writing, signed by the parties hereto. 25. By signing this Agreement 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 legally authorized to do so. IN WITNESS WHEREOF, the parties have executed this Agreement on the _ day of 19 COLORADO WATER CONSERVATION BOARD By: ~ Director Approved as to form: [CWCB attorney] CITY OF ASPEN, COLORADO Approved as to form: ~/l~ Ci At rney I ~/tc/9r . \user\cfc\wp\cwcb7.iga (FINAL EXECUTION VERSION) 5