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HomeMy WebLinkAboutbocc.res.031.2025 RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO, SUPPORTING THE SHOSHONE PERMANENCY PROJECT AND MAKING A FINANCIAL CONTRIBUTION TO THE PROJECT FROM THE PITKIN COUNTY HEALTHY RIVERS AND STREAMS FUND RESOLUTION NO. 031-2025 RECITALS WHEREAS, Pursuant to Section 2.8.4 (Actions) of the Pitkin County Home Rule Charter (the “HRC”), all matters not required to be acted upon by ordinance or formal resolution may be acted upon by informal resolution; and WHEREAS, the Colorado River Water Conservation District is a political subdivision and a body corporate under the laws of the State of Colorado, created by C.R.S. §37-46-101 et seq., for the purposes stated therein; and WHEREAS, it is in the mutual interests of the River District and Pitkin County to protect the water resources of Colorado’s West Slope; WHEREAS, in 2008, the voters of Pitkin County approved the creation of the Pitkin County Health Rivers and Streams Fund through the imposition of a 0.1% sales tax to be used for the following objectives: • Maintaining and improving water quality and quantity within the Roaring Fork Watershed; • Purchasing, adjudicating changes of, leasing, using, banking, selling, and protecting water rights for the benefit of the Roaring Fork Watershed; • Working to secure, create, and augment minimum stream flows in conjunction with non-profits, grant agencies, and appropriate state and federal agencies to ensure ecological health, recreational opportunities, and wildlife and riparian habitat; • Promoting water conservation; and • Improving and constructing capital facilities that contribute to the objectives listed above. WHEREAS, the Shoshone Power Plant senior water right was decreed as the Glenwood Power Canal and Pipeline water right on December 9, 1907, in Civil Action No. 0466, Eagle County District Court, in the amount of 1,250 cfs with an appropriation date of January 7, 1902, for hydropower purposes. WHEREAS, the Shoshone Power Plant junior water right was decreed as the Shoshone Hydro Plant Diversion No. 2 on February 7, 1956, in Civil Action No. 1123, Eagle County District Court, in the amount of 158 cfs with an appropriation date of May 15, 1929, for hydropower purposes. WHEREAS, the Shoshone Power Plant senior water right and the Shoshone Power Plant junior water right are collectively referred to as the “Shoshone Water Rights” in this Resolution. Resolution No. 031-2025 2 WHEREAS, the River District has entered into a Purchase and Sale Agreement (“PSA”) with Public Service Company of Colorado, a Colorado corporation (“PSCo”), effective January 1, 2024, for the purchase of the Shoshone Water Rights. The purchase price for the Shoshone Water Rights is $98,500,000, with an additional $500,000 payment for PSCo's transaction costs for a total cost of $99,000,000. WHEREAS, pursuant to the terms of the PSA, the River District and PSCo intend to dedicate to the Colorado Water Conservation Board (“CWCB”) the exclusive right to use the Shoshone Water Rights for instream flow purposes when the Shoshone Water Rights are not being used for hydropower purposes at the Shoshone Power Plant (“Shoshone Permanency Project”). WHEREAS, to use the Shoshone Water Rights for instream flow purposes, CWCB must comply with all legal requirements, including obtaining (1) an instream flow agreement (“Dedication Agreement”) between the River District, PSCo, and the CWCB, and (2) a final change of water rights decree from the Division 5 Water Court authorizing the instream flow use of the Shoshone Water Rights (the “ISF Change Case”). WHEREAS, while Pitkin County supports the Shoshone Permanency Project, it does not intend to waive its right to ensure that the proposed change of water rights will not result in injury to the upper Roaring Fork River basin. WHEREAS, funding of the purchase of the Shoshone Water Rights will rely on a diverse partnership of local, state, and federal sources, including twenty million dollars ($20,000,000.00) from revenue made available by and through the River District’s voter approved increase in property tax levy in 2020 through the passage of Colorado Regional Ballot Question 7A. WHEREAS, the BOCC finds that support for the Shoshone Permanency will have real and ongoing benefits to the Citizens of Pitkin County, the Roaring Fork River Valley, the West Slope, and the State of Colorado. WHEREAS, furthermore and in addition to the tangible and foreseeable benefits from the Shoshone Permanency Project, the BOCC believes that supporting the River District in achieving the important goal of the Shoshone Permanency Project will lead to enhanced goodwill, support, and understanding between Pitkin County and the River District, which will ultimately lead to increased partnership and benefit the mutual goals of both entities through the enhancement of water quality and quantity on the Roaring Fork and Crystal and Fryingpan Rivers and the tributaries of each, the advancement of water conservation and protection of the Colorado River and Roaring Fork River and their tributaries, and the identification and prioritization of projects to accomplish these outcomes. WHEREAS, to further the mutual goals of both the BOCC and the River District, the River District will include Pitkin County as a partner in the determination of the timing and rate of releases of the “Grizzly Water” stored in Grizzly Reservoir for West Slope use under the decree in Case No. 95CW321, which Grizzly Water will benefit the Upper Roaring Fork water quality and quantity as well as augment minimum flows during periods of low flows. Resolution No. 031-2025 3 WHEREAS, for the foregoing reasons, Pitkin County wishes to publicly express its support for the Shoshone Permanency Project. WHEREAS, in addition to its public support for the Shoshone Permanency Project, the BOCC desires to make a financial commitment to the Shoshone Permanency Project, using dollars from the voter-approved Pitkin County Healthy Rivers and Streams Fund. The BOCC finds that the use of the Healthy Rivers and Streams Fund to financially support the Shoshone Permanency Project falls squarely within the objectives of the fund; chief among them being improvement of water quality and quantity on the Upper Roaring Fork River and augmenting the same, banking water rights for the benefit of the Roaring Fork Watershed, and to secure, create, and augment minimum stream flows on the Roaring Fork and Colorado Rivers in conjunction with the CWCB and the River District to ensure ecological health, recreational opportunities, and wildlife and riparian habitat. WHEREAS, the BOCC finds that a financial contribution, in the form of a pledge, to be used for the acquisition of the Shoshone Water Rights identified in the PSA in the amount of ONE MILLION DOLLARS ($1,000,000.00) is an appropriate and sufficient amount in light of the benefits of the Project and the collaboration with the River District to the Roaring Fork Watershed, the enhancement of water quality and quantity on the West Slope of Colorado, and the overall health and wellbeing of the Citizens of Pitkin County. WHEREAS, the BOCC finds that it is in the best interests of the citizens of Pitkin County to approve this Resolution. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts this Resolution of the Board of County Commissioners of Pitkin County, Colorado Supporting the Shoshone Permanency Project and Making A Financial Contribution to the Project from the Pitkin County Healthy Rivers And Streams Fund in the amount of ONE MILLION DOLLARS ($1,000,000.00) and authorizes the Chair to sign the Resolution and upon the satisfaction of the County Attorney as to form, execute any other associated documents necessary to complete this matter. Resolution No. 031-2025 4 INTRODUCED, READ AND ADOPTED ON THE 23RD DAY OF APRIL 2025. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ By: _____________________________ Sam Engen Kelly McNicholas Kury, Chair Deputy County Clerk Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL By:___________________________ By:____________________________ Richard Y. Neiley III Jon Peacock, County Manager County Attorney Nov-14-2025 1 This Agreement (“Agreement”) is entered into as of the 14th day of November, 2025, between the Colorado River Water Conservation District (“River District”) and the Board of County Commissioners of Pitkin County (“Pitkin County”) (each a “Party” and collectively the “Parties”). RECITALS A. The River District is a political subdivision and a body corporate under the laws of the State of Colorado, created by C.R.S. §37-46-101 et seq., for the purposes stated therein. B. Pitkin County is a County of the State of Colorado created by Article XIV of the Colorado Constitution and C.R.S. § 30-5-155, for the purposes stated therein. C. It is in the mutual interests of the River District and Pitkin County to protect the water resources of Colorado’s West Slope. D. The Shoshone Power Plant senior water right was decreed as the Glenwood Power Canal and Pipeline water right on December 9, 1907, in Civil Action No. 0466, Eagle County District Court, in the amount of 1,250 cfs with an appropriation date of January 7, 1902, for hydropower purposes. E. The Shoshone Power Plant junior water right was decreed as the Shoshone Hydro Plant Diversion No. 2 on February 7, 1956, in Civil Action No. 1123, Eagle County District Court, in the amount of 158 cfs with an appropriation date of May 15, 1929, for hydropower purposes. F. The Shoshone Power Plant senior water right and the Shoshone Power Plant junior water right are collectively referred to as the “Shoshone Water Rights” in this Agreement. G. The River District has entered into a Purchase and Sale Agreement (“PSA”) with Public Service Company of Colorado, a Colorado corporation (“PSCo”), effective January 1, 2024, for the purchase of the Shoshone Water Rights. H. Pursuant to the terms of the PSA, the River District and PSCo intend to dedicate to the Colorado Water Conservation Board (“CWCB”) the exclusive right to use the Shoshone Water Rights for instream flow purposes when the Shoshone Water Rights are not being used for hydropower purposes at the Shoshone Power Plant (“Shoshone Permanency Project”). I. To use the Shoshone Water Rights for instream flow purposes, CWCB must comply with all legal requirements, including obtaining (1) an instream flow agreement (“Dedication 2 Agreement”) between the River District, PSCo, and the CWCB, and (2) a final change of water rights decree from the Division 5 Water Court authorizing the instream flow use of the Shoshone Water Rights (the “ISF Change Case”). J. Pitkin County wishes to publicly express its support for the Shoshone Permanency Project while not waiving its right to participate in the ISF Change Case for the purposes of protecting its vested and conditional water rights on the Roaring Fork River and its tributaries upstream of the confluence with the Frying Pan River (“upper Roaring Fork River basin”) from legally cognizable injury; and, to the extent allowed by law, ensuring that the proposed change of water rights will not result in legally cognizable injury to existing instream flow water rights in the upper Roaring Fork River basin. K. The River District wishes to include Pitkin County as a partner in the River District’s and the City of Aspen’s determination of the timing and rate of releases of the “Grizzly Water,” as that term is defined in the decree in Case No. 95CW321. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The foregoing Recitals to this Agreement are incorporated by this reference and constitute part of this Agreement. 2. Within 30 days of the execution of this Agreement, Pitkin County will make a public announcement and issue a joint press release with the River District indicating Pitkin County’s support of, and financial contribution to, the Shoshone Permanency Project. 3. Pitkin County will contribute $1,000.000.00 toward the River District’s acquisition of the Shoshone Water Rights. Pitkin County’s monetary contribution as set forth in this paragraph 3 may be appropriated over a period of years and will be refunded by the River District in its entirety if the River District does not close the acquisition of the Shoshone Water Rights in accordance with the PSA. 4. The Parties agree to work cooperatively on technical and legal analyses related to Pitkin County’s remaining concerns about the Shoshone Permanency Project and will seek to reach final agreement regarding the Shoshone Permanency Project as soon as possible, with the goal of finalizing an agreement prior to the filing of the ISF Change Case. 3 5. Pitkin County will limit its participation in the CWCB’s approval process of the Dedication Agreement to monitoring the proceedings and to submitting a statement that affirms Pitkin County’s support for the Shoshone Permanency Project. 6. Pitkin County will limit its participation in the ISF Change Case to the following: (i) supporting Pitkin County’s and the River District’s mutual interest in protecting the water resources of Colorado’s West Slope; (ii) monitoring and, as needed, responding to other parties’ legal and technical positions, including by participating in briefing of motions of interest to Pitkin County; (iii) ensuring that the Water Court will not approve a change of the Shoshone Water Rights that will cause injury to Pitkin County’s vested or conditional water rights in the upper Roaring Fork River basin, and supporting that position through legal and technical analysis, including any needed expert disclosures; and (iv) to the extent allowed by law, ensuring that the Water Court will not approve a change of the Shoshone Water Rights that will cause injury to existing instream flow water rights in the upper Roaring Fork River basin, and supporting that position through legal and technical analysis, including any needed expert disclosures. 7. The River District agrees that the existence of this Agreement, Pitkin County’s contribution of funds to the Shoshone Permanency Project, Pitkin County’s public statement of support of the Shoshone Permanency Project, or any similar statement of support contemplated by or carried out in accordance with this Agreement (including without limitation a statement of support in the CWCB proceeding) does not constitute and is not to be construed in the ISF Change Case as: (i) an admission by Pitkin County of non-injury to Pitkin County’s vested or decreed conditional water rights in the upper Roaring Fork River basin, or (ii) as a waiver of any rights Pitkin County may have to assert or argue for mitigation of injury to the CWCB’s decreed instream flow rights in the upper Roaring Fork River basin. Except for the River District’s agreement that Pitkin County has not admitted non-injury to its water rights and has not waived any rights it may have to assert or argue for mitigation of injury to the CWCB’s instream flow rights in the upper Roaring Fork River basin, nothing herein shall act as a waiver or other limitation on the River District’s rights to defend against any claims of such injury, including the River District’s right to challenge, in any subsequent appeal resulting from the ISF Change Case, a finding by the Water Court that Pitkin County has standing to assert or argue for mitigation of injury to the CWCB’s instream flow rights. 8. The River District agrees, consistent with C.R.E 408, that Pitkin County’s expression of support for and its contribution of funds to the Shoshone Permanency Project will not be used against Pitkin County at trial; does not constitute an admission of non-injury to Pitkin County’s water rights or, as permitted by the court, to decreed instream flows in the upper 4 Roaring Fork River basin; and does not constitute consent to the River District’s, PSCo’s, and the CWCB’s claims in the ISF Change Case. 9. Upon the written agreement of the City of Aspen, which written agreement Pitkin County will bear the responsibility for obtaining, the River District will include Pitkin County as a partner in the determination of the timing and rate of releases of the “Grizzly Water” stored in Grizzly Reservoir under the decree in Case No. 95CW321. The River District agrees that it will not unreasonably withhold its consent to any joint request of the City of Aspen and Pitkin County for the River District to make a delivery request of Twin Lakes Reservoir and Canal Company for use within the Roaring Fork River basin under and in compliance with paragraph 14.5 of the 95CW321 decree. If the City of Aspen chooses not to enter into such an agreement, the River District will coordinate with Pitkin County on the timing and rate of releases of the River District’s portion of the Grizzly Water. 10. If any obligation hereunder is not timely performed and not waived by the Party to which the obligation is owed, that Party’s sole and exclusive remedy will be specific performance. Venue for any action for specific performance will lie in the Division 5 Water Court, where the Parties shall invoke the Court’s jurisdiction over the dispute as a water matter. Should the Division 5 Water Court decline to exercise jurisdiction over an action for specific performance under this Agreement, the Parties shall invoke the jurisdiction of the District Court for the 9th Judicial District, Colorado. Before initiating an action for specific performance, the Party alleging default shall give written notice to the other Party setting forth the nature of the alleged default and the curative action(s) required; and shall give the Party receiving the notice three business days to cure the alleged default. The River District shall deliver any such notice to Pitkin County by email to the County Attorney (richard.neiley@pitkincounty.com); and Pitkin County shall deliver any such notice to the River District by email to River District General Counsel, Peter C. Fleming (pfleming@crwcd.org. 11. No third-party beneficiaries. There are no third-party beneficiaries of this Agreement. 12. Modification only by signed writing. This Agreement may be modified only by a subsequent written agreement signed by both Parties. 13. Further assurances. Each of the Parties shall execute and deliver such documents, writings, and further assurances as may be required to carry out the intent and purpose of this Agreement. 14. Counterparts. This Agreement may be executed in counterparts, each of which is an original, and both of which taken together constitute one and the same Agreement. 15. Merger. This Agreement embodies the entire understanding and agreement between the Parties regarding the subject matter hereof, and supersedes any and all prior negotiations, understanding or agreements regarding that subject matter. No additional or different oral representation, promise, or agreement will be binding on either Party with respect to the subject matter of this Agreement. COLORADO RIVER WATER CONSERVATION DISTRICT By: - ka Andrew A. Mueller, General Manager BOARD OF COUNTY COMISSIONERS OF PITKIN COUNTY By: Kelly McNicholas Kury, Chair 5