HomeMy WebLinkAboutbocc.con.007.2001CONTRACT # 0'1- 290/
DISTRICT COURT, GARFIELD COUNTY, COLORADO
Court Address: 109 8th Street, Suite 104
Glenwood Springs, CO 81601
Phone Number: 970-945-5075
Concerning the Application for Water Rights of:
Tiehack Land Partners
Kevin L. Patrick
Patrick & Stowell, P.C.
730 East Durant Avenue, Suite 200
Aspen, CO 81611
Phone Number: 970-920-1028
Fax Number: 970-925-6847
Atty. Reg. # 9124
Attorneys for Applicant
Timothy J. Beaton
Moses, Wittemyer, Harrison and Woodruff, P.C.
P.O. Box 1440
Boulder, Colorado 80306
Phone Number: 303-443-8782
Fax Number: 303-443-8796
Atty. Reg. #: 10403
Attorneys for Objector Pitkin County
COPY--
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A COURT USE ONLY A
Case Number: 99CW273
STIPULATION AND AGREEMENT
Applicant Tiehack Land Partners and Objector Pitkin County, by and through their
attorneys, hereby stipulate and agree as follows:
APPROVED BY BOCC
ON
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1. Applicant has previously agreed to withdraw its opposition to Case No. 99CW306
as currently pending, or as may be amended, and shall file its withdrawal concurrently with this
Stipulation.
2. Applicant agrees that its withdrawals through the Tiehack LP Well No. 1 shall be
junior and subordinate to those well diversions decreed and authorized by Pitkin County in Case
No. 99CW306.
3. If Pitkin County representatives believe that Applicant's withdrawals of ground
water through Tiehack LP Well No. 1 are diminishing or injuring the County's withdrawal of
groundwater through the wells which are the subject of Case No. 99CW306, the County shall
advise the Applicant in writing. Upon receipt of the County's notice Applicant shall cease
withdrawing water from Tiehack LP Well No. 1 for all but in-house water deliveries until the
water controversy is resolved. Applicant and County water representatives shall meet and try to
resolve the County's concerns within fifteen days of the receipt of such notice. If such mutual
resolution does not take place, the Applicant and County representatives shall within 10 days
select an independent third party expert to examine the circumstances and render a decision on
the claimed injury and curative action, with this decision taking place within 30 days of his or
her appointment.
4. Applicant agrees and stipulates that it shall promptly connect to and be serviced
by the Buttermilk Metropolitan District central treated water system at such time that water
delivery facilities are available to the Applicant's property; such connection assumes that both
lots to be served by the within water rights will be allowed to connect on the same terms and
conditions as all other lots within the West Buttermilk Subdivision, and that service will be
available for all land use approvals allowed for the property. Upon such connection, Applicant
agrees to either assign all appropriations awarded in Case No. 99CW273 to the Buttermilk
Metropolitan District or County, whichever entity is available to serve the potable water
requirements of the Applicant's property, at no cost or seek the abandonment of any water rights
awarded in Case No. 99CW273 (at the County's option), and to plug and abandon any well(s)
drilled pursuant to such water rights, all at the Applicant's expense.
5. If either the County or the Buttermilk Metropolitan District provides service to Applicant
as set forth in paragraph 4 above, Applicant shall extend to the Buttermilk Metropolitan District
or the County, based on whichever entity is available to serve the potable water requirements of
the Applicant's property, the option to have Applicant's Basalt Water Conservancy District
contract assigned and/or conveyed to it at Applicant's cost of acquisition (exclusive of his legal
and consulting fees), to the extent allowed by the Rules and Regulations of the Basalt Water
Conservancy District. The District or the County shall exercise its option within 90 days of the
connection of the Tiehack property to the District's water facilities.
6. Applicant hereby grants the Buttermilk Metropolitan District and the County, a Right of
First Refusal in an to all of its right, title and interest in and to 0.1 cfs of the Stapleton Brothers
Ditch water right decreed for 6.0 cfs in Case No. 5884, on November 5, 1971, with an
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Stipulation and Agreement
Case No. 99CW273
Page 3
appropriation date of September 22, 1960. This right may be exercised by either the County or
Buttermilk Metropolitan District, depending on whichever entity is available to serve the potable
water requirements of the Applicant's property, only after potable water delivery infrastructure is
available at the Applicant's property boundaries from either the County or the Buttermilk
Metropolitan District and shall terminate twenty-one years from the death of Mr. John Sullivan.
Upon the entering into a contract or other document to alienate or sell the subject water right to a
party who is not also purchasing the real property benefited by the water rights awarded in Case
No. 99CW273, Applicant, or its successor, shall provide written notice and a copy of said
contract to the Buttermilk Metropolitan District and the County. If neither the County or the
Buttermilk Metropolitan District shall have extended potable water service to Applicant's
property at the time notice is delivered, the Buttermilk metropolitan District and the County
shall, amongst themselves, determine which entity shall exercise this right of first refusal. This
right shall be exercised by written notice from the Buttermilk Metropolitan District and/or the
County, as described above, delivered to Applicant, or its successor, within thirty days of the
District's receipt of said notice. Upon such exercise of this right, the District and/or the County,
as described above, shall purchase the subject water right on the same terms and conditions as
set forth in the contract. In the event neither the County or the Buttermilk Metropolitan District
exercises their respective rights, in the manner described herein, this right of first refusal shall
terminate.
6. This Stipulation and Agreement shall not only be filed with the Court but shall
also be recorded in the real estate records of Pitkin County and be deemed to run with the land
and to benefit and burden the real property described in Exhibit "A" hereto. This Agreement
shall bind the successors and assigns of the parties.
7. The provisions of the Stipulation and Agreement shall be incorporated into the
Decree herein by reference, and objector agrees to the entry of a Decree no less restrictive than
that attached as Exhibit A.
Dated this 1 S day of January, 2001.
MOSES, WITTEMEYER, HARRISON & WOODRUFF, P.C.
By C_JiJ-
Timothy J. , Esq. No. 10403
P.O. Box 1440
Boulder, CO 80306
(303) 443-8782
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Stipulation and Agreement
Case No. 99CW273
Page 4
PATRICK & STOWELL, PC.
A Professional Corporation
13y:
Kevin L. Pat k No.,912
730 Eas rant AA.,uite 200
Aspen, CO 8161
(970) 920-1028
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DISTRICT COURT, WATER DIVISION 5, COLORADO
Garfield County Courthouse
109 8`h Street, Suite 104
Glenwood Springs, CO 81601
970/945-5075
IN THE APPLICATION FOR WATER RIGHTS
FOR TIEHACK LAND PARTNERS, in PITKIN County
Attorneys: Kevin L. Patrick, #9124
Sara M. Dunn, #30227
Patrick & Stowell, P.C.
730 E. Durant, Suite 200
Aspen, CO 81611
970/920-1028 - Telephone
970/925-6847 - Facsimile
patrick@waterlaw.com
dunn@waterlaw.com
• COURT USE ONLY �
Case Number:
99CW273
RULING OF REFEREE
The above entitled Application was filed on November 30, 1999, and 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 Title 37, Colorado Revised Statutes 1973, known
as The Water Right Determination and Administration Act of 1969.
And the undersigned Referee having made such investigations as are necessary to determine
whether or not 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 determination
and Ruling as the Referee in this matter, to wit:
Bill Mill III III IIIIII1I III
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EXHIBIT
A
i
District Court, Water Division 5
Page 2 Draft 2/13/01
1. The statements in the Application are true.
2. Name, address and telephone number of Applicant:
Tiehack Land Partners
c/o Patrick & Stowell, P.C.
730 East Durant Ave., Suite 200
Aspen, CO 81611
(970) 920-1028
FIRST CLAIM
CHANGE OF WATER RIGHT
3. Name of structure: Stapleton Brothers Ditch Enlargement
4. Information from previous Decree:
A. Date entered: November 5, 1971, Civil Action No. 5884, Garfield County
District Court
B. Point of diversion: The decreed point of diversion is located on the west bank of
Maroon Creek whence the north quarter (N 1/4) corner of Section 11, Township
10 South, Range 85 West of the 6th P.M. bears North 11 °40' East a distance of
8,049.6 feet (Pitkin County).
C. Source: Maroon Creek
D. Appropriation date: September 22, 1960
E. Amount: 0.1 c.f.s., conditional, of the 6.0 c.f.s. decreed to this water right
F. Use: Domestic, municipal and recreational purposes
5. Proposed change: Applicant owns and proposes to transfer 0.1 cfs of the subject right to
the Tiehack LP Well No. 1 which is located at a point described as follows:
A well located in the SE1/4 SE1/4 SE1/4 of Section 3, Township 10 South, Range 85
West of the 6`h P.M. at a point 1035 feet from the South Section line and 400 feet from
the East Section line of said Section 3 (Pitkin County)
6. The name and address of the owner of the land upon which the point of diversion of the
Tiehack Well LP Well No. 1 and the new place of use is located is: Applicant.
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SECOND CLAIM
APPROVAL OF PLAN FOR AUGMENTATION
7. Structure to be augmented: Tiehack LP Well No. 1, as described above.
8. Water right used for augmentation:
Applicants have Allotment Contract No. 360 from the Basalt Water Conservancy
District. This Allotment Contract is for 1.0 acre-feet of water in storage in Ruedi
Reservoir for the benefit of the Basalt Water Conservancy District. Ruedi Reservoir, a
component of the Fryingpan-Arkansas Project was originally decreed in C.A. No. 4613,
Garfield County District Court, on June 20, 1958, with a date of appropriation of July 29,
1957; subsequently in Case No. W-789-76 the decreed storage capacity for this Reservoir
was reduced to 102,369 af. Ruedi Reservoir is a component of the Fryingpan-Arkansas
Project, originally authorized for construction by the Act of August 16, 1962 (76 Stat.
389) as amended by the Act of October 27, 1974 (88 Stat. 1486) and the Act of
November 3, 1978 (92 Stat. 2492), in substantial accordance with House Doc. No. 187
83`d Cong., 1" Sess., as modified by House Doc. 353, 86`h Cong., 2nd Sess., and is subject
to the Gyrating Principles for the Fryingpan-Arkansas project as set forth in House Doc
130, 87` Cong., 1s` Sess. The federal reservoir is operated by the U.S. Bureau of
Reclamation which has contracted for an allotment of water to the Basalt Water
Conservancy District.
9. Description of plan for augmentation:
The applicant owns a two lot subdivision, the legal description of which is attached as
Exhibit "A" hereto. In order to provide a legal and physical water supply for the two lots,
Applicant has filed this application. The Tiehack Well LP Well No. 1 is intended to be
the physical source of deliveries for the lots, each of which will have one large free
market residence (assumed to have an average year round occupancy of 5.5 persons) and
a caretaker unit (assumed to have an average year round occupancy of 1.5 persons). This
plan assumes 100 gpcd, with all wastewater treated by individual sewage disposal
systems of a non -evaporative treatment and disposal method (assumed to be 15%
consumptive). Thus, in-house water requirements total 1.568 of delivery and consumptive
use of 0.235 acre feet. Total depletions equal 0.95 acre feet per year. In addition, up to
10,000 square feet of sprinkler irrigated lawns per lot will be provided for in this plan
(0.459 acre). Lawn irrigation has been computed on a modified Blaney-Criddle basis with
an 80% efficiency factor. Thus, annual diversions required for lawn irrigation of the
0.459 acres of irrigation would be 0.895 af and annual consumptive use would be 0.72
afcu. A breakdown of delivery and consumptive use requirements of the development by
month is attached as Exhibit "A".
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At times when the Tiehack LP Well No.1 is not able to divert in priority under the
Stapleton Brothers Ditch Enlargement described in the First Claim, augmentation
releases will be made from Ruedi Reservoir to prevent curtailment.
10. Timely Statements of Opposition were filed in this matter by the City of Aspen and the
Pitkin County Board of County Commissioners. The Pitkin County Board of County
Commissioners entered into a Stipulation and Agreement with the Applicant on
, 2001, the terms and conditions of such stipulation are incorporated
herein by reference. The City of Aspen and the Applicant entered into a Stipulation and
Agreement on , 2001, and the terms and conditions of such
stipulation are incorporated herein by reference.
11. At such time as treated water delivery facilities are available to the Applicant's property
by the Buttermilk Metropolitan District, or Pitkin County, the Applicant shall promptly
connect to and be serviced by such facilities. Upon connection, Applicant will either
assign all appropriations awarded herein to the Buttermilk Metropolitan District or
County, whichever entity is available to serve the potable water requirements of the
Applicant's property, at no cost or seek the abandonment of the Tiehack LP Well No. 1
and to plug and abandon such well(s) drilled pursuant to such water rights, per the
Stipulations between the Objectors the City of Aspen and Pitkin County Board of County
Commissioners.
12. The Referee finds that a complete statement of the plan for augmentation was provided
which adequately described all water rights involved herein, was duly published and
adequate notice was provided as required by law pursuant to C.R.S., §37-92-302. The
Referee also finds that the relief requested herein is consistent with the relief originally
requested in the Application and for which public notice was provided. The Referee
further finds that the award herein is within the scope of a plan for augmentation as
defined in C.R.S., §37-92-103(9), in finding that the subject plan for augmentation
provides a detailed program to increase the supply of water available for the beneficial
use by the development of a new or alternate means or points of diversion.
13. This Court has jurisdiction over the subject matter of this Application pursuant to C.R.S.,
§37-92-203.
The Referee does therefore conclude that the above -entitled Application should be
granted as follows:
1. The structures set forth may be operated in accordance with this Ruling without State
administrative curtailment for the benefit of senior appropriations, so long as the terms
and conditions herein set forth are fully adhered to throughout the operation of this plan
for .augmentation. Pursuant to C.R.S. 37-92-305(8), 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.
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2. A well permit issued pursuant to C.R.S. 37-90-137(2) and the plan for augmentation,
detailed herein, must be obtained prior to the construction and/or operation of the subject
well.
3. When the Tiehack LP Well No. 1 is diverting the transferred Stapleton Brothers Ditch
Enlargement Right, diversions at the Tiehack LP Well No. 1 must be limited to no more
than the amount transferred (0.1 c.f.s.). The total of the diversions at Tiehack LP Well
No. 1 and the Stapleton Brothers Ditch Enlargement must be limited to the lesser of 6.0
c.f.s. or that amount physically and legally available at the Stapleton Brothers Ditch
Enlargement headgate.
4. The Applicant shall be responsible for ensuring that a well sharing agreement, assigning
responsibility for ensuring that the terms and conditions of this decree are met, is entered
into by the individual lot owners and/or well users. The well sharing agreement shall also
provide for the filing of an annual report with the Division Engineer by November 15th of
each irrigation year summarizing diversions and replacements made under this plan.
5. The Applicant shall install measuring devices, provide accounting, and supply
calculations regarding the timing of depletions as required by the Division Engineer for
the operation of this plan.
6. Pursuant to C.R.S. 37-92-304(6), the water court shall retain jurisdiction for five years
from the date this plan becomes operational.
7. This Ruling shall be filed with the Water Clerk subject to judicial review.
8. A copy of this Ruling shall be filed with the appropriate Division Engineer and State
Engineer.
Dated this day of , 2001.
WATER REFEREE:
Water Referee
Water Division No. 5
State of Colorado
No protest having been filed in this matter, the foregoing Ruling is confirmed and
approved, and is made the judgment and decree of this Court.
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Dated this day of , 2001.
Water Judge
W.'; fiehack\Pleadings\Ruling of Referee0l -25-0I .doc
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