HomeMy WebLinkAbout10008RESOLUTION NO. 10008
A RESOLUTION APPROVING A STIPULATION IN DISTRICT
COURT WATER DIVISION 2, CASE NO. 99 CW 169
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Stipulation attached hereto concerning the application for water rights in Case No. 99
CW 169 pending in District Cour[, Water Division 2, is hereby approved and counsel for the City of
Pueblo is authorized and directed to execute and file said Stipulation for and on behalf of the City.
INTRODUCED November 24, 2003
BY Al Gurule\Councilperson
APPROVED: Bill Sova\President of City Council
ATTEST: Gina Dutcher\City Clerk
DISTRICT COURT, WATER DIVISION 2, COLORADO
207 Judicial Building
320 W. 10 Street
Pueblo, Colorado 81003-2940
CONCERNING THE APPLICATION FOR WATER
RIGHTS OF THE CITY OF AURORA, COLORADO,
ACTING BY AND THROUGH tis UTILITY
ENTERPRISE, AND THE ROCKY FORD DITCH
SELLERS GROUP,
IN THE AR.KANSAS RIVER AND ITS TRIBUTARIES,
IN CROWLEY, OTERO, PUEBLO, FREMONT, Case Number: 99CW169
CHAFFEE AND LAKE COUNTIES.
Attorneys for City of Aurora:
Duncan, Ostrander & Dingess, P.C.
John M. Dingess, #12239
Austin Hamre, #17823
Address: 4600 South Ulster Street, Suite 1111
Denver, Colorado 80237
Phone Number: 303.779.0200
Attorneys for Sellers Group:
Petrock & Fendel, P.C.
Frederick A. Fendel, HI, #10476 .
Address: 700 17m Str~, Suite 1800
Denver, Colorado 80202
Phone Numbe~. ~03.534.0702
Attorneys for City of Pueblo:
Holland & Hart, LLP
Anne J. Castle, #11202
Christopher L. Thorne, #20003
Address: 555 17m St., Ste. 3200
Denver, CO 80202
Phone Number:. 303.295.8488
STIPULATION AND AGREEMENT BETWEEN THE CITY OF PUEBLO,
AURORA AND ROCKY FORD DITCH SELLERS GROUP
99CW ! 6~AStips~tip-Pueblo-y21
Applicants, the City of Aurora, acting by and through its Utility Enterprise, and
the Rocky Ford Ditch Seller's Group ("Applicants"), and Objector, City of Pueblo
("Pueblo") hereby stipulate and agree as follows:
1. Applicants agree to add the following term and condition to their proposed decree in
this matter:
19.k.
Pursuant and subject to stipulation among the Applicants and the City of
Pueblo ("Pueblo") dated November 25, 2003, the following condition is
included and may be enforced among Applicants and Pueblo:
Applicants shall be allowed to divert the Changed Water Right at Pueblo
Reservoir or at any of the Alternate Points upstream of Pueblo Reservoir
as long as, and to the extent, at least one of the following conditions exist:
a] the flow of the Arkansas River at the "Combined Flow Location" is at
least 85 cfs, or; b) the flow of the Arkansas River at the Moffat Street
Gage (identified in paragraph 19.i.) is at least 57 cfs. However, at any
time when the most recent NRCS forecast flow for the Arkansas River at
Salida is less than 70% of average, Applicants' diversions of the Changed
Water Right shall not be limited by either of the foregoing flow
thresholds. The "Combined Flow Location" will be a gauge or other
means of measurement located upstream of the confluence of the Arkansas
River and Fountain Creek and below the point at which diversions by the
Westplains power plant and Historic Arkansas River Project are returned
to the fiver. Alternately, or until a facility to measure the flows at the
Combined Flow Location is constructed, flows at that location will be
assumed to be the flow at the Moffat Street Gage plus the diversion at the
Westplains point of diversion.
Aurora and Pueblo agree to investigate cooperatively the location and installation of a
measurement gauge or other appropfiate means of measurement at the Combined
Flow Location. Pueblo and Aurora each agree to bear one half of the cost of
construction, installation, operation and maintenance of any new facility for
measuring the combined flows.
Aurora agrees that it will also apply the same flow limitations set forth above to its
diversions pursuant to Case No.83CW018, and to transfers of water fights
accomplished in the future, whether permanent or temporary.
Pueblo is aware that Aurora is seeking a long-term contract with the Bureau of
Reclamation to allow storage of Aurora's water in Pueblo Reservoir. In relation to
such efforts by Aurora, Pueblo agrees that in any federal permitting processes (e.g.,
pursuant, to the National Environmental Policy ACt and/or Bureau of Reclamation
regulations), including but not limited to public notice and comment periods, Pueblo
will not participate.. However, nothing in this stipulation shall limit Aurora or Pueblo
99CW169~Stips~Stip-Pueblo-y21
or the positions they may take in other permitting processes, in regard to any federal
legislation, or in any other water court cases.
5.. Provided the addition contemplated by paragraph I above is made, Pueblo consents to
the entry of the dratt decree attached hereto as Appendix I (Draft 61, dated
November 4, 2003), and to any modified form of that decree provided that the decree
ultimately entered by the Court herein is no less protective of Pueblo than Appendix
I. Pueblo consents to Applicants' motion for an order approving this stipulation, and
agrees to limit its further participation in this case to ensuring compliance with this
stipulation. Aurora will provide future drait decrees to Pueblo at the same time they
are circulated to other opposers.
Aurora agrees to negotiate in good faith with Pueblo and other'PSOP participants
concerning a flow management program pertaining to the reach of the Arkansas River
between Pueblo Reservoir and the Fountain Creek confluence. Pueblo agrees to
negotiate in good faith with Aurora with regard to issues associated with Aurora's
construction and use of facilities downstream of the confluence of the Arkansas River
with Fountain Creek to recapture yield unavailable to Aurora due to flow limitations
such as those agreed to herein.
This stipulation is entered by way of compromise and settlement of this litigation.
The agreement of the undersigned parties to the entry of the dratt proposed decree
shall not be construed as concurrence by these parties beyond the decree adjudicated
herein with any findings of fact or conclusions of law contained therein, or with the
engineering methodologies utilized by either party in arriving at this stipulation, and
nothing contained in said dratt proposed decree shall be binding upon these parties in
any proceeding other than the current proceeding and any subsequent proceedings
involving the same rights adjudicated herein.
Pueblo and Applicants agree this Stipulation shall bind and benefit them and will be
binding upon and benefit their heirs, assigns and successors in interest; however,
except as may be expressly provided in any decree which may be entered by the
Water Court in this matter, individuals other than the signatories to this Stipulation
are neither bound by nor are they intended to benefit from this Stipulation.
9. Pueblo and Applicants further stipulate that each will bear its own costs and fees
associated with their appearance in this matter.
10. The parties hereto represent and affirm the signatories to this Stipulation are legally
authorized to bind the parties in this matter.
11. The parties agree that agreements made in this Stipulation shall be enforceable by
them either as an agreement or as an order of the Water Court.
3 99CW 169~Stip s~gti~Pueblo-y21
ReSPectfully submitted
this d~ ~ ~day of November, 2003
HOLLAND & HART, LLP
DUNCAN OSTRANDER & DINGESS,
P.C.
Austin Ham~
PETROCK & FENDEL, P.C.
Frederick A. Fendel, IH
4 99CWI ~9'~tips~Sfip-Pueblo-y21