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7 - Motion to recommend to City Council the approval of a five-year water lease agreement between the city of Boulder and several ...of instream flow water for irrigation use.CITY OF BOULDER WATER RESOURCES ~DVISORY B4ARD AGENDa ITEM (117ATTERS FRONI STAFF) 11~ZEETINrG DATE: December 17, 2007 t1GENDt1 TITLE: Consideration of a motion to recommend to City Council the approval of a tive-y~ear water lease agreement between the city of Boulder and several Boulder Creek ditch companies to lease the city's reusable portion of instream flow water for irrigation use. PRESENTERS: Ned t~~illiams, Director of Public Works for Utilities Kim Elkins, Water Resources Specialist EZECUTIVE ~LT1I~TNI=~RY: The Water Resources Advisory Board (t~='R~B) is asked to considei• a motion to recomrnend to City Council the approt~al of a five-year water lease agreement between the city and The New Consolidated Lower Boulder ResenToii• & Ditch Company, The Boulder & Weld County Ditch Company, and Houck No. 2 Ditch Company (Attachment. _4). The agreement will amlually lease up to 500 acre feet of the city's reusable portion of instream flo~~ water for in igation use downstream of 75th Street. The city is the owner of certain water that is reusal~le tor irrigation aftei• its first use for instream flo~~~ purposes according to the ~uater court decree issued to the city and the Colorado Water Conservation Board (CWCB) in 1993 for the Boulder Creek Instream Flo~~ Program (Attachment B}. In 1995, the city signed an agreement with the ti~Vater LTsers ~~ssociation of District No. 6{District 6) stating that the city will first make available the lease of any reusable portion of the instre~n flow water to members of District 6 for irrigation purposes (~ttachment C}. Three ditch companies that ~re District ~ meinbers would like to exercise their right to lease the water through a five-year lease agreement. Leasing water to the ditch companies supports local farmers and would help sustain agricultural production in the Boulder Creek basin. In addition, leasing water would generate re~~enue for the cit_y. AGEND~ ITEM # P~GE STAFF RECOMMENDATION: Staff recommends that WRAB approve a motion recommending to City Council the approval of the water lease agreement with The New Consolidated Lower Boulder Reservoir & Ditch Company, The Boulder & Weld County Ditch Company, and Houck No. 2 Ditch Company for annual lease of up to 500 acre-feet of the city's reusable water remaining following the CWCB use of the water for instream flow purposes. IMPACTS: Economic: Lessees will use the water to irrigate food crops and grazing land resulting in continued economic viability of local agricultural production. If Boulder does not lease the instream flow residual water to specified users, it will be diverted out of the stream by other water users in order of their water right priority for their decreed water uses without any lease payment to Boulder. Lease revenues accruing to the Water Utility Enterprise Fund reduce the costs to the city's treated water customers. Environmental: The end of the CWCB instream flow reach is at 75th Street, so the water to be leased cannot be protected for instream flow uses below this point. There are typically sufficient flow levels for habitat sustenance downstream of 75th Street because both the city's wastewater plant discharge and the CBT system discharge enter Boulder Creek at that point. In general, support of local Boulder Creek basin agricultural production reduces the effects from transportation of agricultural products into the area. Social: Leasing the residual instream flow water supports local Boulder Creek basin agricultural producers. Other Impacts: Fiscal: In accord with city ordinance, the city will charge the lessees an amount equal to the current Colorado-Big Thompson (CBT) lease rate, which was $27 per acre-foot in 2007. CBT lease rates may rise by approximately $1 per acre foot each year. If the city leases the maximum amount of water defined in the lease agreement (500 acre feet) at the 2007 rate, it is estimated that the city ~~ill generate additional annual revenue of $13,500 for the Water Utility Enterprise Fund. If the city were to decline the water lease agreement, it may violate the 1995 agreement between the city and District 6 and possibly result in legal action against the city with the associated expense. Staff time: Stafftime required to administer the water lease agreement will be part of staff's normal work plan. ANALYSIS: In 1990, the city of Boulder dedicated use of some of its municipal water supply to the CWCB for maintenance of instream flows in North Boulder Creek and Boulder Creek. When the water is not being used for instream flow purposes, the city may use the water in its municipal system. The city and the CWCB changed the use of this water to include instream flow and irrigation through water court proceedings and received a decree in AGENDA ITEM # PAGE 1993. The water rights decree names specific ditch companies to which the city may lease the reusable portion of the instream flow water after the water passes the downstream terminus of the designated instream flow reach at 75~' Street. In 1995, the city signed an agreement with District & that further defined the conditions by which the District 6 member ditch companies named in the decree may lease the reusable portion of instream flow water. Three of the ditch companies named in the decree (The New Consolidated Lower Boulder Reservoir & Ditch Company, The Boulder & Weld County Ditch Company, and Houck No. 2 Ditch Company) contacted the city in 2007 about exercising their right under the 1995 agreement to lease residual instream flow water. Under the new proposed agreement, the city would lease up to 504 acre-feet annually of the available, reusable portion of the instream flow water at the current CBT lease rate. The lease would be for a term of five years, inclusive of the 2447 irrigation season, commencing April 1, 2447 and ending October 3 1, 2411. As an example of the potential revenue generated from this lease agreement, if the city were to lease the maximum annual amount of water at the 2447 CBT rate ($27 per acre foot), the city would generate $13,544 annually for the Water Utility Enterprise Fund. The CWCB, through the city as its contractual agent, usually starts using the particular dedicated instream flow water rights that generate residual leasable water in late June or July when streamflow in Boulder Creek drops from the high spring runoff levels. The water is protected for instream flow use in Boulder Creek until it flows past 75~' Street. The city may lease the reusable portion of the water flowing past this point until the end of the irrigation season. If the city does not lease the residual water, the water becomes available for diversion by downstream users according to the priority of their water rights. Under this scenario, the city cannot designate who will receive the water or what it is used for and will not receive any lease revenue. The city's long-standing support for preservation of the agricultural sector within the Boulder Creek basin would be continued with this lease agreement. ATTACHMENTS: A. Water lease agreement with The New Consolidated Lower Boulder Reservoir & Ditch Company, The Boulder & Weld County Ditch Company, and Houck No. 2 Ditch Company B. Decree in Case No 94CW 193 for the Boulder Creek Instream Flow Program. C. 1995 Agreement with Water Users Association of District No. 6. AGENDA ITEM # PAGE Attachment A WATER LEASE THIS WATER LEASE is made this day of , 2007, by and between the CITY OF BOULDER, a Colorado municipal corporation ("City") and The New Consolidated Lower Boulder Reservoir & Ditch Company, The Boulder & Weld County Ditch Company and Houclc No. 2 Ditch Company (collectively "Lessee"). WITNESSETH: WHEREAS, the City is the owner of certain water that is reusable for irrigation purposes after its first use for instream flow purposes pursuant to the decree in W ater Court Case No. 90CW193 ("Decree"); and WHEREAS, Lessee desires to lease up to 500 acre-feet per yeaz of such reusable water for irrigation purposes from the City pursuant to the agreement between the City and Water Users Association of District No. 6 dated October 5, 1995 ("Agreement"), NOW, THEREFORE, in consideration ofthe mutual promises and covenants ofthe parties hereto, it is agreed as follows: 1. For and in consideration of payments to the City, the City does hereby lease to Lessee for irrigation purposes up to 500 acre-feet per year of the reusable water available pursuant to the Decree and the Agreement. 2. Lessee shall not lease this water to any other person or entity. 3. The City shall deliver the leased water to Lessee in Boulder Creek at or near the intersection of Boulder Creek and 75`~ Street at a point in Secfion 13, T1N, R70W, 6~' P.M., approximately 950' from the west section line and 1,700' from the south section line. Lessee shall bear any losses associated with conveyance ofthe leased water from the delivery point to the location where Lessee may use the water. The City shall notify Lessee of the quantity of water to be delivered at the delivery point 24 hours in advance of its delivery and Lessee shall accept delivery of or reject said water within 24 hours of said notification. The notification and acceptance or rejection contemplated by this paragraph may be made orally; however, within five (5) days following the end of each month in which Lessee has accepted water from the City, Lessee shall confirm in writing the quantity of water accepted by Lessee during the preceding month. Leased water shall be delivered only during the period April 1 through October 31. 4. Lessee shall pay the City $25.00 per acre-foot for each acre-foot of water which Lessee accepts in 2007. There is no obligation upon Lessee to pay for water which Lessee does not accept. Any water which Lessee does not accept may be used by the City or leased or sold by the City to another water user. Any payment due shall be paid within 15 days following the end of the month in which the v?ater is accepted by Lessee. In future years of this lease, the lease rate shall be the then current rate established by City ordinance for the annual lease of CBT water. 5. Lessee shall divert the leased water at the headgates of the Lower Boulder Ditch, the Boulder and Weld Ditch and/or the Houck No. 2 Ditch anal shall use said water for irrigation of the land served by those ditches. 6. The term of this lease shall be for the period commencing April 1, 2007 and terminating on October 31, 2011. 7. The City shall not incur any liability for failure to deliver any of said water. 8. The City does not make any express or implied warranties or representations concerning the quality of the leased water or its suitability for the uses described above. 9. It is understood by Lessee that the City may not renew this lease or may not provide water on any other basis after the teen of this lease, subject to the City's obligation to lease water to ditches below 75~' Street pursuant to the Agreement, and Lessee specifically waives any claim, legal or equitable, for such renewal and specifically disclaims any expectation for such renewal. 10. If Lessee owns water rights, Lessee shall use all water available in priorityto its own water rights prior to requesting or talting delivery of leased water hereunder. 11. This instrument represents the complete agreement of the parties hereto, and no oral modification shallberecognized. Any amendments or additionsshallbemadeinwritingand signed by the parties. 12. This Lease is binding upon the parties uid their successors. i 2 Dated the date and year first written above. CITY OF BOULDER By City Manager ATTEST: Director of Finance and Record, Ex Officio City Clerk APPROVED: ~ ~ C'ty Attoi ey ~i I 3 THE NEW CONSOLIDATED LOWER BOULDER RESERVOIR & DITCH COMPANY By~,O~rr~ ~J r~a~rt~ ATTEST: Dave Yardley, Secretary 4 I ~a,-{-PY jc~5e ~~3V7 w ~7F Qoulaler THE BOULDER & WELD COUNTY DITCH COMPANY By ~ Preside t ATTEST: ~~ljoard rYlesnj?tr i 5 HOUCK N0.2 DITCH COMPANY r / By ~,~4~1/Z~~ ~ / Presi ent ATTEST: i~~''~t,~,e j) ~r~ Secretary 6 • Attachment B FLED IN , g7iSTRICT COUF.~ WATER D!~%. ! ' ~ ~ Q 1593 DISTRICT COURT WATER DIVISION NO. 1 COLORADO w'_ Case No. 90CW193 _ FINDINGS OF FACT, CONCLUSIONS OF LAW, JfJDGMENT AND DECREE CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE COLORADO WATER CONSERVATION BOARD ON BEHALF OF THE STATE OF COLORADO AND WATER RIGHTS OF THE CITY OF BOULDER IN BOULDER COUNTY This matter has come before the Court on the amended application of the Colorado Water Conservation Board (the "Board") and the City of Boulder ( "Boulder" ) for approval of changes of water rights. The Court, having reviewed the pleadings, the evidence presented during trial on November 29 and 30, 1993 and December 1, 2 and 8; 1993, and the stipulations of the parties, hereby enters the following Findings of Fact, Conclusions of Law, Judgment and Decree: FINDINGS OF FACT I. GENERAL. 1.1 The names and addresses of the applicants are: Colorado Water Conservation Board 1313 Sherman Street, Suite 721 Denver, Colorado 80203 City of Boulder P.O. Box 791 Boulder, Colorado 80306 1.2 The application and the amendment to the application in this case were filed on December 26, 1990 and May 29, 1992, respectively. Timely and adequate notice of the application and the amendment to the application was given as required by law, and the Court has jurisdiction over the subject matter of this proceeding and over all parties affected hereby, whether they have appeared or not. None of the lands or water involved in this case are within the boundaries of a designated ground water basin. 1.3 Timely statements of opposition were filed by Public Service Company of Colorado, North Boulder Farmers Ditch Company, - the Boulder & White Rock Ditch & Reservoir Company, Water Users Association of District No. 6, City of Lafayette, City of Louisville, the Boulder and Left Hand Ditch Co. and City and County_ ' - - i ~ - - - _ ~ Y U City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 2 of Denver, acting by and through its Board of Water Commissioners. The time for filing statements of opposition has expired. 1.4 Applicants have entered into stipulations with the following opposers: the Boulder & White Rock Ditch & Reservoir Company, Water Users Association of District No. 6, the Boulder and Left Hand Ditch Co., City and County of Denver, acting by and through its Board of Water Commissioners, City of Louisville, Public Service Company of Colorado, and North Boulder Farmers Ditch Company. The Court has reviewed the stipulations and finds that this decree is consistent with the provisions of each stipulation. 1.5 Applicant Board seeks approval of changes of the water rights described in Part II below to add use for instream flow for the protection of the natural environment to a reasonable degree in segments of North Boulder Creek and Boulder Creek described in' paragraph 4.1 below as Segments A, B and C. Applicant Boulder seeks to add use for irrigation by lessees of Boulder downstream of the terminus of Segment C on Boulder Creek. Applicant Boulder also seeks approval of changes of the subject agricultural water rights described in Part II below that have not previously been changed from the originally decreed use, to points of diversion at Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline described in paragraph 3.2 below and to municipal use (including domestic, irrigation, commercial, industrial and recreation use). 1.6 The Board is the owner of a 15 cfs instream flow water right to maintain a minimum stream flow to protect the natural environment to a reasonable degree in Segment C of Boulder Creek, described in paragraph 4.1 below, which water right was decreed on January 21, 1980 in Case No. W-7636-74 with an appropriation date of October 1, 1973. The Board is also the owner of a water right for 1.0'cfs, originally decreed to the G. Berkley Ditch, with an appropriation date of June 1, 1862, decreed in Boulder County District Court on June 2, 1882, and changed from irrigation to instream flow purposes in Case No. 79CW308 on May 13, 1981. 1.7 Pursuant to §37-92-102(3), C.R.S., the Board is vested with statutory authority to acquire, by grant, purchase, bequest, devise, lease, exchange, or other 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. 1.8 The use of water for instream flow hereunder will be made exclusively by the Board pursuant to §37-92-102(3), C.R.S., and pursuant to Agreement between the Board and Boulder dated July 20, 1990 and recorded August 27, 1990 at Reception No. 01060612_,, ' T' T - City of Boulder and Colorado Water Conservation Board Case No. 90CW193 • Page 3 Boulder County real estate records; First Addendum to Agreement between the Board and Boulder dated December 14, 1990 and recorded December 17, 1990 at Reception No. 01078866, Boulder County real estate records; and Second Addendum to Agreement and Assignment between the Board and Boulder dated May 26, 1992 and recorded May 27, 1992 at Reception No. 01187397, Boulder County real estate records ("Instream Flow Agreements"). 1.9 The Instream Flow Agreements provide for Boulder to act as agent for the Board- for administration and monitoring of instream flow water rights and instream flows in Segments A, B and C of North Boulder Creek and Boulder Creek described in paragraph 4.1 below, including monitoring flows, placing calls, maintaining necessary records and .reporting to the Board. The Board shall notify the State water administration officials in writing if this agency relationship is revoked under the terms of the Instream Flow Agreements. II. WATER RIGHTS TO BE CHANGED. II 2.1 Anderson Ditch: A. The Anderson Ditch was decreed a water right for 25.0 cfs for irrigation use, with an appropriation date of October 1, 1860, by the District Court in and for Boulder County on June 2, 1882. The Anderson Ditch is owned and operated by the New Anderson with 100 shares of stock Ditch Company, a mutual ditch company outstanding. B. 9.7072 shares (2.4268 cfs) of the New Anderson Ditch Company are the subject of this application. 7.2291 of these 9.7072 shares- were the subject of the decree entered by the District Court, Water Division No. 1 on May 31, 1989 in Case Nos. W-7569, W-7570 and W-8520-77. By that decree, the point of diversion and type and place of use of those 7.2291 shares were changed to allow use by Boulder in its municipal water supply system. The remaining 2.4781 of the subject 9.7072 shares have not previously been changed from their originally decreed irrigation use. C. The originally decreed point of diversion for the Anderson Ditch is on the south bank of Boulder Creek in the NE4 NE'-, of Section 35, Township 1 North, Range 71 West of the 6th P.M.; the location of the actual point of diversion for the Anderson Ditch is on the south bank of Boulder Creek approximately 625 feet south and 125 feet west of~the NE corner of Section 35, Township 1 North; Range 71 West o~ the 6th P.M. The currently decreed points of- - . City of Boulder and Colorado Water Conservation Board Case No. 90CtV193 Page 4 diversion for the 7.2291 shares that were the subject of the decree in Case Nos. W-7569, W-7570 and W-8520-77 are Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline described below in paragraph 3.2. 2.2 Farmers Ditch: A. The Farmers Ditch was decreed a water right for 73.29 cfs for irrigation use, with an appropriation date, of October 1, 1862, by the District Court in and for Boulder County on June 2, 1882. 4.51 cfs of the originally decreed 73.29 cfs were abandoned by Boulder pursuant to the decree in Case Nos. W-7569, W-7570 and W-8520-77 entered by the District Court, Water Division No. 1, on May 31, 1989. The Farmers Ditch is owned and operated by ~ the Farmers Ditch Company, a mutual ditch company with 100 shares of stock outstanding. a es 13.52 cfs of the Farmers Ditch B. 24.602 sh r ( ) Company are the subject of this application. These 24.602 shares ' were also the subject of the decree entered by the District Court, Water Division No. 1 on May 31, 1989 in Case Nos. W-7569, W-7570 and W-8520-77. By that decree, the type and place of use of the subject 24.602 shares were changed to allow use by Boulder in its municipal water supply system. C. The decreed point of diversion for the Farmers Ditch is on the north bank of Boulder Creek in the NW4 NWT of Section 36, Township 1 North, Range 71 West of the 6th P.M.; the location of the actual point of diversion for the Farmers Ditch is on the north bank of Boulder Creek approximately 250 feet south and 126 .feet east of the NW corner of Section 36, Township 1 North, Range 71 West of the 6th P.M. 2.3 Harden Ditch: A. The Harden Ditch was decreed a water right for 21 cfs for irrigation use, with an appropriation date of June 1, 1862, by .the District Court in and for Boulder County on June 2, i 1882. 13.2 cfs of the originally decreed 21 cfs were abandoned by ' Boulder pursuant to the decree in Case Nos. W-7569, W-7570 and W-8520-77 entered by the District Court, Water Division No. 1, on May 31, 1989. B. 1.8 cfs of the Harden Ditch water right are the subject of this application. These 1.8 cfs were also the subject of the decree en~ered by the District Court, Water Division No. i on May 31, 1989 in Case Nos. W-7569, W-7570 and W-8520-77. By that decree, the poir.~ of diversion and type and place of use of that, ' City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 5 1.8 cfs were changed to allow use by Boulder in its municipal water supply system. C. The decreed points of diversion for the subject ~ 1.8 cfs of the Harden Ditch water right are Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline, described below in paragraph 3.2. 2.4 McCarty Ditch: A. The McCarty Ditch was decreed a water right for 5 cfs for irrigation use, with an appropriation date of June 1, 1862, by the District Court in and for Boulder County on June 2, 1882. 1.56 cfs of the originally decreed 5 cfs were abandoned by Boulder pursuant to the decree in Case Nos. W-7569, W-7570 and W-8520-77 entered by the District Court, Water Division No. 1, on May 31, 1989. B. 295 shares (0.655 cfs) of the McCarty Ditch Company are the subject of this application. 293 of these 295 shares were also the subject of the decree entered by the District Court, Water Division No. 1 on May 31, 1989 in Case Nos. W-7569; W-7570 and W-8520-77. By that decree, the point of diversion and type and place of use of those 293 shares were changed to allow use by Boulder in its municipal water supply system. The remaining two of the subject 295 shares have not previously been changed from their originally decreed irrigation use. C. The originally decreed point of diversion of the McCarty Ditch was on the north bank of Boulder Creek in the SW4 SW4 of Section 30, Township 1 North, Range 70 West of the 6th P.M.; the location of the actual point of diversion is on the north bank of Boulder-Creek approximately 875 feet east and 125 feet north of the SW corner of Section 30, Township 1 North, Range 70 West of the 6th P.M. The currently decreed points of diversion for the 293 shares that were the subject of the decree in Case Nos. W-7569, W-7570 and W-8520-77 are Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline, described below in paragraph 3.2. 2.5 Smith and Goss Ditch: A. The Smith and Goss Ditch was decreed a water right for 44.3 cfs for irrigation use, with an appropriation date of November 15, 1859, by the District Court in and for Boulder County on June 2, 1882. 14.5814 cfs of the originally decreed 44.3 cfs were abandoned by Boulder pursuant to the decree in Case Nos. W-7569, W-7570 and W-8520-77 entered by the District Court, Water Division No. 1, ~n May 31, 1989. The Smith and Goss Ditch is owned r - r i r - - City of Boulder and Colorado G4ater Conservation Board Case No. 90CW193 Page 6 and operated by the Smith and Goss Ditch Company, a mutual ditch company with 218.375 shares of stock outstanding. B. 83.25 shares (2.3069 cfs) of the Smith and Goss Ditch Company are the subject of this application. 73.85 of the subject 83.25 shares were also the subject of the decree entered by the District Court, Water Division No. 1 on May 31, 1989 in Case Nos. W-7569, W-7570 and W-8520-77. By that decree, the point of diversion and type and place of use of those 73.85 shares were changed to allow use by Boulder in its municipal water supply system. The remaining 9.4 of the subject 83.25 shares have not previously been changed from their originally decreed irrigation use. C. The originally decreed point of diversion for the Smith and Goss Ditch is on the north bank of Boulder Creek in the SW; SW; of Section 30, Township 1 North, Range 70 West of the 6th P.M.; the location of the actual point of diversion of the Smith and Goss Ditch is on the north bank of Boulder Creek approximately 875 feet east and 125 feet north of the SW corner of Section 30, Township 1 North, Range 70 West of the 6th P.M. The currently decreed points of diversion for the 73.85 shares that were the subject of the decree in Case Nos. W-7569, W-7570 and W-8520-77 are Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline, described below in paragraph 3.2. 2.6 Silver Lake Reservoir: A. The following water rights, and none others, of those decreed to Silver Lake Reservoir are to be changed hereby: 322.7 acre-feet, with an appropriation date of September 6, 1928, and 3,020 acre-feet with an appropriation date of December 31, . 1941, both decreed on September 28, 1953 by the District Court in and for Boulder County in Civil Action No. 12111. The 807.3 acre- feet refill right, with an appropriation date of September 3, 1906, decreed on March 13, 1907 by the District Court in and for Boulder County in Case No. 4842 which was included in the application has been withdrawn and shall not be available for instream flow purposes under this decree. B. That amount of water available under the above water rights which has been or from time to time will be assigned by Boulder to the Board pursuant to the terms of the Instream Flow Agreements and further described in paragraph 4.7 below is the subject of this application. C. Silver Lake Reservoir is located in the NW1/4 NW1/4 of Section 28, SiVl/4 SW1/4 of Section 21, NE1/4 NE1/4 and NW1/-4_ f ,1 ~ 1 City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 7 NE1/4 of Section 29, SE1/4 SE1/4, SW1/4 SE1/4, SE1/4 SW1/4 and NW1/4 SEl/4 of Section 20, all in Township 1 North, Range 73 West ' of the 6th P.M.; the location of the outlet of Silver Lake Reservoir is approximately 250 feet south and 750 feet east of the NW corner of Section 28, Township 1 North, Range 73 West of the 6th P.M. 2.7 Barker Meadow Reservoir: A. The following water rights owned by Boulder are decreed to Barker Meadow Reservoir: 4,000 acre-feet, with an appropriation date of May 15, 1956, decreed on March 4, 1964 for municipal purpose by the District Court in and for Boulder County in Civil Action No. 14622; 4,000 acre-feet, with an appropriation date of April 22, 1966, decreed on December 30, 1975 for municipal purposes by the District Court, Water Division No. 1 in Case No. W-2361. B. That amount of water available under the above water rights which has been or from time to time will be assigned by Boulder to the Board pursuant to the Instream Flow Agreements and further described in paragraph 4.9 below is the subject of this application. C. Barker Meadow Reservoir is located on the mainstem of Middle Boulder Creek in the West Half of Section 17 and in Section 18, Township 1 South, Range 72 West of the 6th P.M. and in the East Half of Section 13, Township 1 South, Range 73 West of the 6th P.M.; the location of the outlet of Barker Meadow Reservoir is approximately 438 feet east and 1,750 feet south of the NW corner of Section 17, Township 1 South, Range 72 West of the 6th P.M. Barker Meadow Reservoir is currently owned by the Public Service Company of Colorado, and it is used by Boulder, together with associated facilities, by virtue of a contract of May 7, 1984. 2.8 Boulder City Pipe Line: A. The Boulder City Pipe Line was decreed a water right for 20 cfs for municipal and related uses, with an appropriation date of February 9, 1904, by the District Court in and for Boulder County on November 3, 1909 in Case No. 5563. B. 1.5 cfs of the Boulder City Pipe Line water right are the subject of this application. C. The decreed North Boulder Creek point of diversion for the Boulder City Pipe Line is on the north bank of North Boulder Creek at a point whence the West quarter corner of City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 8 Section 6, Township 1 South, Range 72 West of the 6th P.M. bears N55`35'E 889 feet. There are other decreed points of diversion for the Boulder City Pipe Line which are not involved in this application. i 2.9 The Anderson Ditch, Farmers Ditch, Harden Ditch, McCarty Ditch and Smith and Goss Ditch water rights described in paragraphs 2.1 through 2.5 above are owned by the Board pursuant to conveyances from Boulder under the terms of the Instream Flow Agreements, subject to the retention by Boulder of the right to use these water rights under certain conditions. 2.10 The Silver Lake Reservoir, Barker Meadow Reservoir and Boulder City Pipe Line water rights described in paragraphs 2.6 through 2.8 above are owned by Boulder. Water released from Silver Lake Reservoir or Barker Meadow Reservoir, or bypassed at the North Boulder Creek goint of diversion for the Boulder City Pipe Line described in paragraph 2.8.C above, will be made available by Boulder to the Board for instream flow use pursuant to the terms of the Instream Flow Agreements. III. CHANGE OF WATER RIGHTS TO MUNICIPAL USE. 3.1 The 2.4781 New Anderson Ditch Company shares, the 2 McCarty Ditch Company shares and the 9.4 Smith and Goss Ditch Company shares which have not previously been changed from their originally decreed use for irrigation ("agricultural rights") are proposed to be changed to new points of diversion and to municipal use (including domestic, irrigation, commercial, industrial and recreation use) in the Boulder water supply system. ed ew oints of diversion for the a ricultural 3.2 The ro os n p 9 P P rights are described as follows: A. Lakewood Pipeline: The pipeline intake from Lakewood Reservoir also known as Headgate No. 1 of the Boulder City Pipeline (Lakewood Pipeline), located at a point whence the SE corner of Section 1, Township 1 South, Range 73 West of the 6th P.M. bears 53~15'E a distance of 2300 plus/minus feet; B. Silver Lake Pipeline: Headgate No. 3 of the Boulder City Pipeline, located at a point whence the NW Corner of Section 34 Township 1 North, Range 73 West of the 6th P.M. bears N77`35'W a distance of 1076 plus/minus feet; C. Barker Pipeline: The pipeline intake from Barker Reservoir, located at a point whence the NW corner of Section 17, Township 1 South, Range 72 West of the 6th P.M. bears N16`04'W a City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 9 distance of 1920 plus/minus feet. (This pipeline supplies the Boulder City Pipeline #3, which diverts from the Public Service Company penstock located in Section 34, Township 1 North, Range 71 West of the 6th P.M.). 'i 3.3 In the case of each of 'the agricultural rights, Boulder has demonstrated that the future use of water therefrom by direct flow means for municipal purposes will be no more consumptive than the historical use for irrigation. This finding is dependent upon the present pattern of consumptive uses from the Boulder water supply system, as more particularly described in the attached Exhibit "A". Exhibit "A" is based upon the currently accepted methodology which was used by Boulder's engineers which is approved by the court. Previous cases making similar findings may have been based on other methodologies and any differences are not to be construed as necessarily showing an actual change in consumptive use. This decree presumes the continuation of this pattern without material changes in the future. Boulder has specifically agreed that it forgoes any claim to any portion of the return flow from the municipal use of the agricultural rights. The historical use occurred only during the irrigation season and then only as needed for beneficial direct flow purposes. Future diversions are to be limited to specific seasonal periods and further limited to those -times within those seasons when, but for the present transfers, water would have been used pursuant to historical practices during similar hydrological and meteorological conditions for beneficial direct flow irrigation by bona fide agricultural users on land under the respective ditches. 3.4 The subject 2.4781 New Anderson Ditch Company shares (0.62 cfs) may be changed to municipal use (including domestic, irrigation, commercial, industrial and recreation use) and may be diverted at Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline described in paragraph 3.2 above, subject to the following terms and conditions: A. As determined in Case Nos. W-7569, W-7570 and W-8520-77, the net irrigable acreage under the entire Anderson Ditch is 1,860 acres. The acreage allocable to the subject 2.4781 shares is 46 acres. B. 0.1239 of the subject 2.4781 shares shall be left in the Anderson Ditch to compensate for ditch losses, provided that in the event that the New Anderson Ditch Company ceases to operate the ditch such shares shall be abandoned to the stream. The 0.1239 shares are equivalent to .031 cfs of the 25 cfs originally decreed to the Anderson Ditch. City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page l0 C. The remaining 2.3542 shares (0.589 cfs) may be diverted at Lakewood Pipeline, Silver Lake Pipeline and/or Barker Pipeline for direct flow municipal use by Boulder. Diversions shall not exceed 124 acre-feet per year, and a cumulative total of 1,019 acre feet in any period of ten consecutive years, at the alternate points of diversion under these 2.3542 shares and the rate of diversion at the alternate points of diversion under these 2.3542 shares shall not exceed the following: Month Rate of diversion (cfsl May 0.26 June 0.55 July 0.53 August 0.40 ' September 0.30 D. Diversion of the 2.3542 shares at the new alternate points of diversion shall be limited to the pro rata share of water that is legally and physically available therefor at the historical Anderson Ditch headgate under the priority system and to the period May 1 through September 30 of each year. Diversions shall be I'i further limited to those times within such season when, but for this change of water right, water would have been used pursuant to historical practices during similar hydrological and meteorological conditions for beneficial direct flow irrigation by bona fide agricultural users on land under the Anderson Ditch. Any call made the sub~ect 2.3542 shares by Boulder for municipal purposes under 7 shall be administered at the historical Anderson Ditch headgate on Boulder Creek and not at the new alternate points of diversion. Boulder shall not initiate a call for municipal purposes under the subject 2.3542 shares if sufficient water is then available in Boulder Creek at the historic Anderson Ditch headgate to meet the demands of the shareholders of the New Anderson Ditch Company, including Boulder, who are requesting direct flow diversions under the Anderson Ditch water right. E. Boulder shall continue to be liable for all lawful and regular assessments of the New Anderson Ditch Company allocable to the subject 2.4781 shares. F. Upon entry of this decree, the amount that may be diverted at the historical Anderson Ditch headgate by the remaining shares for irrigation under the original Anderson Ditch decree shall be reduced to 10.544 cfs. 3.5 The subject 2 McCarty_Ditch Company shares (0.015 cfs) may be changed to municipal use (including domestic, irrigation.,. ' City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 11 be diverted at d recreation use and ma commercial, industrial an ) Y Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline described in paragraph 3.2 above, subject to the following terms and conditions: A. The gross irrigable acreage under the entire McCarty Ditch was 146.9 acres, portions of which were also irrigated by the Smith and Goss Ditch. The acreage allocable to the subject ~ shares is 0.44 acres, 90 percent of which is irrigable. Boulder stipulated in Case Nos. W-7569, W-7570 and W-8520-77 that at least 0.0278 cfs per gross acre should be abandoned in all future transfers. 0.012 cfs of the subject 0.015 cfs is therefore abandoned herein by Boulder. B. The remaining 0.003 cfs of the subject 0.015 cfs may be diverted under the subject 2 shares at Lakewood Pipeline, Silver Lake Pipeline and/or Barker Pipeline for direct flow municipal use by Boulder, subject to the provisions of subparagraph C herein. C. Diversion of the 2 shares at the new alternate points of diversion shall be limited to the pro rata share of water that is legally and physically available therefor at the historical McCarty Ditch headgate under the priority system and to the period May 1 through September 30 of each year. Diversions shall be further limited to those times within such 'season when, but for this change of water right, water would have been used pursuant to historical practices during similar hydrological and meteorological conditions for beneficial direct flow irrigation by bona fide agricultural users on land under the McCarty Ditch. Any call made by Boulder for municipal purposes under the subject 2 shares shall be administered at the historical McCarty Ditch headgate on Boulder Creek and not at. the new alternate points of diversion. Boulder shall not initiate a call for municipal purposes under the subject 2 shares if sufficient water is then available in Boulder Creek at the historic McCarty Ditch headgate to meet the demands of the shareholders of the McCarty Ditch Company, including Boulder, who are requesting direct flow diversions under the McCarty Ditch water right. D. Upon entry of this decree, the amount that may be diverted at the historical McCarty Ditch headgate by the remaining shares for irrigation under the original McCarty Ditch decree shall be reduced to 2.785 cfs. 3.6 The subject 9.4 Smith and Goss Ditch Company shares (1.907 cfs) may be changed to municipal use (including domestic, irrigation, commercial, industrial and recreation use) and may be diverted at Lak=wood Pipeline, Silver Lake Pipeline and Barker • City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 12 Pipeline described in paragraph 3.2 above, subject to the following terms and conditions: A. The gross acreage under the Smith and Goss Ditch and irrigated solely by the Smith and Goss Ditch was 85.4 acres. As set forth in Paragraph 3.5(A), above, additional water diverted by the Smith and Goss Ditch also irrigated portions of the lands under the McCarty Ditch. Boulder stipulated in Case Nos. W-7569, W-7570 and W-8520-77 that at least 0.19745 cfs per share should be abandoned in all future" transfers. 1.856 cfs of the subject 1.907 cfs is therefore abandoned herein by Boulder. B. The remaining 0.051 cfs of the subject x.907 cfs may be diverted under the subject 9.4 shares at Lakewood Pipeline, Silver Lake Pipeline and/or Barker Pipeline for municipal use by Boulder, subject to the provisions of subparagraph C herein. C. Diversion of the 9.4 shares at the new alternate points of diversion shall be limited to the pro rata share of water that is legally and physically available therefor at the historical Smith and Goss Ditch headgate under the priority system and to the period May 1 through October 15 of each year. Diversions shall be further limited to those times within such season when, but for this change of water right, water would have been used pursuant to historical practices during similar hydrological and meteorological conditions for beneficial direct flow irrigation by bona fide agricultural users on land under the Smith and Goss Ditch. Any call made by Boulder for municipal purposes under the subject 9.4 shares shall be administered at the historical Smith and Goss Ditch headgate on Boulder Creek and not at the new alternate points of diversion. Boulder shall not initiate a call for municipal purposes under the subject 9.4 shares if sufficient water is then available in Boulder Creek at the historic Smith and Goss Ditch headgate to meet the demands of the shareholders of the Smith and Goss Ditch Company, including Boulder, who are requesting direct flow diversions under the Smith and Goss Ditch water right. 3.7 The diversion of water at the new alternate points of diversion shall be limited to those times when there is a live stream between the historic headgate and the upstream points of diversion. The state water administration officials may, on a case by case basis, waive this condition if they find there will be no injury to any other water user. 3.8 In order to prevent injury to the instream flow water right decreed to the Colorado Water Conservation Board in Case No. W-7636-74, the diversion of water under the subject 2.3542 Anderson. City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 13 Ditch shares, the subject 9.4 Smith and Goss Ditch shares and the subject 2 McCarty Ditch shares at the new alternate points of diversion shall not exceed the lesser of the combined respective limits for those shares as described in paragraphs 3.4.C., 3.5.B. and 3.6.B above or the minimum flow in excess of 15 cfs within that segment of Boulder Creek between the Orodell gage and the Broadway diversion dam, as determined by State water administration ' officials. IV_ CHANGE OF WATER RIGHTS TO INSTRFAM FLOW USE. 4.1 The subject Anderson Ditch, Harden Ditch, McCarty Ditch, Smith and Goss Ditch and Silver Lake Reservoir water rights described in paragraphs 2.1 and 2.3 through 2.6 above are proposed to be changed to add as an alternate type of use and an alternate location of use, instream flow for the protection of the natural environment to a reasonable degree in the following segments of North Boulder Creek and Boulder Creek: Segment A (North Boulder Creek): That segment of the mainstem of North Boulder Creek in Boulder County from the Silver Lake Diversion Structure, located in the NW1/4, NW1/4, Section 34, Township 1 North, Range 73 West of the 6th P.M., at a point approximately 750 feet east and 100 feet south of the NW corner of said Section 34, to the Lakewood Reservoir North Boulder Creek Inlet ("Lakewood Inlet") located in the NE1/4, SE1/4, Section 1, Township 1 South, Range 73 West of the 6th P.M., at a point approximately 370 feet west and 2000 feet north of the SE corner of said Section 1; Segment B (North Boulder Creek/Boulder Creek): That segment of the mainstem of North Boulder Creek and the mainstem of Boulder Creek in Boulder County from the Lakewood Inlet described above to a point immediately below the discharge of Public Service Company of Colorado's hydroelectric plant at Orodell in the NE1/4 SW1/4, Section 34, Township 1 North, Range 71 West of the 6th P.M.; and Segment C (Boulder Creek): That segment of Boulder Creek in Boulder County from a point immediately below the discharge of Public Service Company of Colorado's hydroelectric plant at Orodell in the NE1/4, SW1/4, Section 34, Township 1 North, Range 71 West of the 6th P.M., to the 75th Street Bridge near the center of Section 13, Township 1 North, Range 70 West of the 6th P.M. 4.2 The subject Boulder City Pipe Line water right described in paragraph 2.: above is proposed to be changed to add as an. ' 1 City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 14 alternate type of use and an alternate location of use, instream flow for the protection of the natural environment to a reasonable degree in Segment B (North Boulder Creek/Boulder Creek) and Segment C (Boulder Creek) described in paragraph 4.l above. 4.3 The subject Farmers Ditch and Barker Meadow Reservoir water rights described in paragraphs 2.2 and 2.7 above are proposed d an alternate to be changed to add as an alternate type of use an location of use, instream flow for the protection of the natural environment to a reasonable degree in Segment C (Boulder Creek) described in paragraph 4.1 above. 4.4 The Board determined and the Court decreed, in connection with Case No. W-7636-74, District Court, Water Division No. 1, that the natural environment in Segment C (Boulder Creek) described in paragraph 4.1 above can be preserved to a reasonable degree with a stream flow of 15 cfs. 4.5 The Board determined that the amounts of water assigned to the Board by Boulder under the Second Addendum to Agreement and Assignment do not exceed the amounts of water necessary to preserve the natural environment to a reasonable degree in Segment A (North Boulder Creek) and is Segment B (North Boulder Creek/Boulder Creek) described in paragraph 4.1 above. 4.6 The subject Anderson Ditch, Harden Ditch, McCarty Ditch and Smith and Goss Ditch water rights described in paragraphs 2.1 and 2.3 through 2.5 above may be used by the Board for instream flow in Segments A, B and C described in paragraph 4.1 above, and the subject Farmers Ditch water right described in paragraph 2.2 above may be used by the Board for instream flow in Segment C described in paragraph 4.1 above, subject to the following terms and conditions: A. The subject 9.5833 shares of the New Anderson Ditch Company that are decreed for diversion at Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline pursuant to the terms and conditions of the decree in Case Nos. W-7569, W-7570 and W-8520-77 and paragraph 3.4 of this decree may be left undiverted in North Boulder Creek and Boulder Creek for use by the Board £or instream flow in Segments A, B and C described above, during the period May 1 through September 30. The volume of water used by the Board and Boulder shall not exceed 504 acre-feet per year or a cumulative total of 4150 acre-feet in any period of ten consecutive years, at rates not to exceed the following: . City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 15 Month Rate of diversion (cfsl May 1.07 June 2.23 July 2.16 August 1.62 September 1.23 ~n any water year in which no water will be used for instream flow purposes and in which Boulder so notifies the water commissioner in writing on or before April 29 thereof, said cumulative total limitation shall not apply and that year shall not be included in the calculation of the said cumulative total. In the event that the Anderson Ditch Company ceases to operate the Anderson Ditch, the water associated with the 0.1239 shares of New Anderson Ditch Company stock described in paragraph 3.4.B. above and the water associated with the 0.3805 shares of New Anderson Ditch Company stock described in paragraph 2.B. of the decree in Case Nos. W- 7569, W-7570 and W-8520-77 shall be abandoned to the stream. B. 1.8 cfs of the Harden Ditch water right that are decreed for diversion at Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline pursuant to the terms and conditions of the decree in Case Nos. W-7569, W-7570 and W-8520-77 may be left undiverted in North Boulder Creek and Boulder Creek for use by the Board for instream flow in Segments A, B and C described above during the period May 1 through September 30 of each year, provided that the total amount left undiverted for instream flow use in any year shall not exceed 433 acre-feet. C. The subject 295 shares (0.643 cfs) of the McCarty Ditch Company that are decreed for diversion at Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline pursuant to the terms and conditions of the decree in Case Nos. W-7569, W-7570 and W-8520-77 and paragraph 3.5 of this decree may be left undiverted in North Boulder Creek and Boulder Creek during the period May 1 through September 30 of each year for use by the Board for instream flow in Segments ,A, B and C described above. D. The subject 83.25 shares (0.451 cfs) of the Smith and Goss Ditch Company that are decreed for diversion at Lakewood Pipeline, Silver Lake Pipeline and Barker Pipeline pursuant to the terms and conditions of the decree in Case Nos. W-7569, W-7570 and W-8520-77 and paragraph 3.6 of this decree may be left undiverted in North Boulder Creek and Boulder Creek during the period May 1 through October 15 of each year for use by the Board for instream flow in Segments~A, B and C described above. City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 16 E. Ninety percent (90%) of the subject 24.602 shares (12.17 cfs) of the Farmers Ditch Company that are decreed for diversion by Boulder at the headgate of the Farmers Ditch pursuant to the terms and conditions of the decree in Case Nos. W-7569, W-7570 and W-8520-77 may be left undiverted in Boulder Creek for use by the Board for instream flow in Segment C described above during the period May 1 through September 30 of each year. The volume of water used by the Board and Boulder shall not exceed 2„165 acre-feet per year or a cumulative total of 19,822 acre-feet in any period of ten consecutive years, subject to the following additional monthly limitations: Month Maximum Amount Available (Acre-Feet) May 396 June 725 July 748 August 655 September 284 In any year in which no water will be used for instream flow purposes and in which Boulder so notifies the water commissioner in writing on or before April 29 thereof, said cumulative total limitation shall not apply and that year shall not be included in the calculation of the said cumulative total. Use during the month of May by the Board and Boulder shall be further limited to a cumulative total of 2,290 acre-feet in any period of ten consecutive years; provided, however, any month of May in which no water is used for either municipal or instream flow purposes shall not be included in the calculation of this cumulative total. During times when the subject Farmers Ditch water rights are being left undiverted in Boulder Creek for instream flow use by the Board, the Farmers Ditch may call for and divert as ditch loss replacement the remaining ten percent (10%) of the subject 24.602 shares (1.35 cfs). In the event that the Farmers Ditch Company ceases to operate the Farmers Ditch, the 1.35 cfs left as ditch loss replacement shall be abandoned to the stream. F. Use of the water rights described in this paragraph 4.6 for instream flow purposes shall be limited to the pro rata share of water that is legally and physically available in priority for such water rights at their respective historical headgates under the priority system (including exchange priorities) during the periods described in subparagraphs_A.-E. hereof and shall be further limited to those times within such periods when, but for this change of water right, water would have been used pursuant to historical practices during similar hydrological and - ~ City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 17 meteorological conditions for beneficial direct flow irrigation by bona fide agricultural users on land under the respective ditches. G. The right to use water available under the subject Anderson Ditch, Farmers Ditch, Harden Ditch, McCarty Ditch and ' Smith and Goss Ditch water rights for their decreed municipal and related uses under certain drought or emergency conditions and when not required for instream flow use as described herein is reserved ' to Boulder by the Instream Flow Agreements and by the conveyances to the Board from Boulder thereunder. The decreed municipal and related uses of those water rights are therefore retained as alternate uses. Boulder shall notify the State water administration officials at least 24 hours in advance of its use of any of such water rights for the decreed municipal and related uses. Any such use by Boulder shall be charged against the applicable volumetric and rate of flow limitations for such water rights set forth in this paragraph 4.6, except as specifically otherwise provided with respect to the ten-year cumulative totals for the Anderson Ditch and the Farmers Ditch. 4.7 Water stored in Silver Lake Reservoir under the water rights described in paragraph 2.6 above may be used by the Board for instream flow in Segments A, B and C described in paragraph 4.1 above, subject to the following terms and conditions: A. Water stored by Boulder in Silver Lake Reservoir has historically been released to North Boulder Creek and diverted at either Lakewood Pipeline or Silver Lake Pipeline, described in paragraph 3.2 above, for use in the Boulder municipal water supply system. B. Water may be released by Boulder from Silver Lake Reservoir at the request of the Board and left undiverted in North ' Boulder Creek and Boulder Creek during the period October through April of each year, at a rate not to exceed 0.5 cfs for use by the Board for instream flow in Segment A described above, and at a rate not to exceed 15 cfs for use by the Board for instream flow in Segment C described above, subject to the following additional limitations: 1. Boulder may release water from Silver Lake Reservoir for instream flow use by the Board in Segment A described above under this decree only to the extent required to achieve flows in Segment A not exceeding a total, from all sources available pursuant to this decree, of 0.5 cfs at the Silver Lake Diversion Structure on North Boulder Creek (described in paragraph 4.1 above). City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 18 2. Water released from Silver Lake Reservoir pursuant to B (1) above may be used by the Board for instream flow use in Segment B described above under this decree only to the extent required to achieve flows in Segment B not exceeding a total, from all sources available pursuant to this decree, of the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet (described in paragraph 4.1 above). 3. Boulder may release water from Silver Lake Reservoir for instream flow use by the Board in Segment C described above under this decree at such rate and amount as Boulder determines from time to time, during the period October through April, in its discretion, is available for such use; provided, however, that such releases may be made only to the extent required to achieve flows in Segment C not exceeding 15 cfs. 4. Boulder shall notify the State water administration officials at least 48 hours in advance of the release of water from Silver Lake Reservoir for instream flow use under this decree. C. The assignment by Boulder to the Board of water stored in Silver Lake Reservoir for use for instream flow in Segment C described above is discretionary with Boulder pursuant to the terms of the agreement between the Board and Boulder dated July 20, 1990 and recorded August 27, 1990 at Reception No. 01060612, Boulder County real estate records. The assignment by Boulder to the Board of .water stored in Silver Lake Reservoir for use for_ instream flow in Segments A and B described above is subject to certain reservations pursuant to the Second Addendum to Agreement and Assignment between the Board and Boulder dated May 26, 1992 and recorded May 27, 1992 at Reception No. 01187397, Boulder County real estate records. The decreed municipal and related uses of the subject Silver Lake Reservoir water rights are therefore retained as alternate uses. 4.8 The subject 1.5 cfs of the Boulder City Pipe Line water right described in paragraph 2.8 above may be used by the Board for instream flow in Segments Band C described in paragraph 4.1 above, subject to the following terms and conditions: A. Up to 1.5 cfs of water legally and physically available for diversion by Boulder at the North Boulder Creek point of diversion for the Boulder City Pipeline water right described in paragraph 2.8 above may be left undiverted in North Boulder Creek and Boulder Creek during the period January through April, November City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 19 and December for use by the Board for instream flow in Segments B and C described above, subject to the following additional limitations: 1. Any water .available to the subject 1.5 cfs of the Boulder City Pipe Line water right which is by-passed by Boulder for instream flow use by the Board under this decree shall be water that would otherwise have been diverted by Boulder at the Boulder City Pipeline into its municipal water supply system to meet current demand. 2. Boulder may by-pass water available to the • subject 1.5 cfs of the Boulder City Pipe Line water right for instream flow use by the Board in Segment B described above under this decree only to the extent required to achieve flows in Segment B not exceeding a total, from all sources available pursuant to this decree, of the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet (described in paragraph 4.1 above). 3. Water available to the subject 1.5 cfs of the Boulder City Pipe Line water right which is by-passed pursuant to A (2) above may be used by the Board for instream flow in Segment C described above under this decree only to the extent required to achieve flows in Segment C not exceeding 15 cfs. 4. Boulder shall notify the State water administration officials at least 24 hours in advance of the use of the subject 1.5 cfs of the Boulder City Pipeline water right for instream flow under this decree. B. The right to use water available under the subject 1.5 cfs of the Boulder City Pipe Line water right for its decreed municipal and related uses under certain drought or emergency conditions and when not required for instream flow use as described herein is reserved to Boulder by the Instream Flow Agreements. The decreed municipal and related uses of this water right are therefore retained as alternate uses. 4.9 Water stored in Barker Meadow Reservoir under the water rights described in paragraph 2.7 above may be used by the Board for instream flow in Segment C described in paragraph 4.1 above, subject to the following terms and conditions: • A. Water stored by Boulder in Barker Meadow Reservoir has historically flowed down the Boulder Power Pipeline owned by Public Service Company to the Boulder City Pipeline No. 3 and from City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 20 there into the Boulder water supply system. This use by Boulder has historically occurred during all months of the year. B. Water previously stored by Boulder in Barker Meadow Reservoir may be conveyed through the Boulder Power Pipeline and related facilities from Barker Meadow Reservoir and released to Boulder Creek at the discharge point of Public Service Company of Colorado's hydroelectric plant at Orodell for instream flow use by the Board in Segment C described above under this decree at such rate and amount as Boulder determines from time to time, in-its discretion, is available for such use; provided, however, that such releases may be made only to the extent required to achieve flows in Segment C not exceeding 15 cfs. C. Boulder shall notify the State water administration officials at least 48 hours in advance of the release of water from Barker Meadow Reservoir for instream flow use under this decree. D. The assignment by Boulder to the Board of water stored in Barker Meadow Reservoir for use for instream flow in Segment C described above is discretionary with Boulder pursuant to the terms of the Agreement between the Board and Boulder dated July 20, 1990 and recorded August 27, 1990 at Reception No. 01060612, Boulder County real estate records. The decreed municipal and related uses of the subject Barker Meadow Reservoir water rights are therefore retained as alternate uses. 4.10 In order to replace return flows associated with the historic use of the subject water rights that have occurred or would occur in the future during the period October through March, inclusive, of each year and to prevent injury to water rights that may place a call for water during that period, Boulder has agreed by stipulation that it shall have a return flow obligation of 36 acre feet, and the court approves that stipulation. For that reason the following return flows are ordered: A. For the period October through March, inclusive, of each year, Boulder shall have a return flow obligation pursuant to this decree of 36 acre-feet to be replaced at or above the outfall of its present wastewater treatment plant near 75th. Street. This shall be the entire amount of Boulder's October through March return flow obligation for the subject water rights. B. Boulder currently owns 37 units of Windy Gap water which is fully consumable. Boulder shall retain ownership of one ~(1) unit of such Windy Gap water, up to 38 acre-feet of which shall be used to satisfy the return flow obligation described in City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 21 subparagraph A. above. The return flow obligation may be met by either of the following methods: 1. Return flows from the treatment and direct use of 38 acre-feet (36 acre-feet - .91. This .91 is the weighted average municipal return flow factor for the period October through March.) of such Windy Gap water in Boulder's municipal water supply system during the months of October through March . shall be discharged to Boulder Creek at the outfall of Boulder's present wastewater treatment plant near 75th Street. 2. In the alternative, Boulder shall retain 36 acre-feet of such Windy Gap water in storage in Boulder Reservoir to be released to Boulder Creek through the Boulder Supply Canal at times and at rates for delivery to water rights (either directly or by exchange) as are requested, by State water administration officials. These releases shall be made prior to the May 1 which follows the period of October through March in which the return flow obligation was owed. 3. Boulder also proposes to use as a source of water to meet the return flow obligation hereunder water available to Boulder from any other source which is decreed for replacement or augmentation or is legally permitted to be ' reused and which can be provided in the amount, at the time and at the location required hereunder. Prior to the use of any such water, Boulder shall provide written notification to State water administration officials and the opposers of the source of the water to be used and how the water will be delivered. 4.11 Boulder has specifically agreed that it forgoes any claim to any portion of the outdoor use return flows accruing to Boulder Creek from the municipal use of water rights used in its municipal water supply system in place of the water rights used for instream flow purposes under this decree; provided, however, that this provision does not run with such water rights in the event of their sale or transfer to other parties but instead shall only be a limitation on Boulder's use of such water rights in its system_ 4.12 Water left undiverted or released from storage hereunder for instream flow use by the Board shall not be available for diversion and shall not be diverted by water users in the segment in which the instream flow use is being made by the Board. Water left undiverted or released from storage at a point or points upstream of the upstream point of the segment in which the instream flow use will be made by the Board shall likewise not be available for or diverted by other water users. If necessary, the water t City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 22 administration officials shall deliver such water past intervening water users to the instream flow segment in which the instream flow use will be made by the Board. 4.13 Stream losses, if any, incurred between the point that water is left undiverted in the stream or is released to the stream for instream flow use and the downstream point of the stream segment or segments in which the instream flow use is made, 'as assessed by State water administration officials, shall be borne by the Board. 4.14 The Board shall use water available under the subject water rights pursuant to this decree solely to maintain an instream flow not exceeding 0.5 cfs in Segment A described above, an instream flow not exceeding 1.5 cfs in Segment B described above and an instream flow not exceeding 15 cfs in Segment C described above. With respect to maintenance of instream flow in Segment C, the Board shall first use water available pursuant to its water rights described in paragraph 1.6 above before using any water available under this decree and the Instream Flow Agreements. V. CHANGE OF WATER RIGHTS TO IRRIGATION USE. 5.1 The subject water rights described in paragraphs 2.1 through 2.5, 2.7 and 2.8 above are also proposed to be changed to allow, at Boulder's option, irrigation use to be made by lessees of Boulder once water used for instream flow uses passes the downstream terminus of Segment C of Boulder Creek. Such right to use water for irrigation purposes is reserved to Boulder by the Instream Flow Agreements. Only water which is actually used by the Board in accordance with this decree will be available for lease. 5.2 The ditches to which water is proposed to be delivered pursuant to leases with Boulder are existing ditches with their own decreed water rights which currently lease water from Boulder that is available to Boulder from other sources. These ditches are described as follows: A. Leggett Ditch: The decreed point of diversion for the Leggett Ditch is on the north bank of Boulder Creek in the NE; SE4 SE4 of Section 18, Township 1 North, Range 69 West of the 6th P.M.; the location of the actual point of diversion for the Leggett Ditch is approximately 1,875 feet south and 188 feet west of the NE'-, of Section 18, Township 1 North, Range 69 West of the 6th P.M. City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 23 B. Lower Boulder Ditch and Coal Ridae Ditch: The decreed point of diversion for the Lower Boulder Ditch is on the south bank of Boulder Creek in the SW4 of Section 16, Township 1 North, Range 69 West of the 6th P.M.; the location of the actual point of diversion for the Lower Boulder Ditch is approximately 625 feet east and 1,000 feet north of the SW4 of Section 16, Township 1 North, Range 69 West of the 6th P.M. C. Boulder and weld County Ditch: The decreed point of diversion for the Boulder and Weld County Ditch is on the south bank of Boulder Creek in the SW4 NE4 NW4 of Section 15, Township 1 North, Range 69 West of the 6th P.M.; the location of the actual point of diversion for the Boulder and Weld County Ditch is approximately 1,125 feet east and 1,000 feet south of the NW4 of Section 15, Township 1 North, Range 69 West of the 6th P.M. D. Howell Ditch: The decreed point of diversion for the Howell Ditch is on the north bank of Boulder Creek in Section 1, Township 1 North, Range 69 West of the 6th P.M.; the location of the actual point of diversion for the Howell Ditch is approximately 125 feet east and 125 feet north of the SW4 of Section 1, Township 1 North, Range 69 West of the 6th P.M. E. Martha Mathews Ditch: The decreed point of diversion for the Martha Mathews Ditch is in the SE4 NE4 of Section 11, Township 1 North, Range 69 West of the 6th P.M.; the location of the actual point of diversion for the Martha Mathews Ditch is on the Boulder and Weld County Ditch in the SE4 NE4 of Section 11, Township 1 North, Range 69 West of the 6th P.M. F. Goddina Daily and Plumb Ditch: The decreed point of, diversion for the Godding Daily and Plumb Ditch is on the north bank of Boulder Creek in the NW4 SW4 of Section 31, Township 2 North, Range 68 West of the 6th P.M.-;. ~ l ~ ~ City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 24 the location of the actual point of diversion for the Godding Daily and Plumb Ditch is approximately 375 feet east and 2,063 feet north of the SW4 of Section 31, Township 2 North, Range 68 West of the 6th P.M. G. Houck #2 Ditch: „ The decreed point of diversion for the Houck #2 Ditch is Boulder Creek via Idaho Creek in Section 29, Township 2 North, Range 68 West of the 6th P.M.; the location of the actual point of diversion from Boulder Creek is at the point where the Idaho Slough, also known as Idaho Creek, diverges from Boulder Creek at a point approximately 5 feet east and 2,500 feet north of the SW4 of Section 29, Township 2 North, Range 68 West of the 6th P.M. H. Carr Tyler Ditch: The decreed point of diversion for the Carr Tyler Ditch is Boulder Creek via Idaho Creek in the NW4 NE4 of Section 29, Township 2 North, Range 68 West of the 6th P.M.; the location of the actual point of diversion from Boulder Creek is the aforedescribed point where the Idaho .Slough diverges from Boulder Creek. I. Smith Emmons Ditch: The decreed point of diversion for the Smith Emmons Ditch is Boulder Creek via -Idaho Creek in Section 21, Township 2 North, Range 68 West of the 6th P.M.; the location of the actual point of diversion from Boulder Creek is the aforedescribed point where the Idaho Slough diverges from Boulder Creek. J. Tom Delehant Ditch: The decreed point of diversion for the Tom Delehant Ditch is Boulder Creek via Idaho Creek in Section 21, Township 2 North, Range 68 West of the 6th P.M.; the location of the actual point of diversion from Boulder Creek is the aforedescribed point where the Idaho Slough diverges from Boulder Creek. @ , City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 25 K. Highland and Southside (a/k/a Goddinal Ditch: The decreed point of diversion for the Highland and Southside Ditch is Boulder Creek via Idaho Creek in the SW4 of Section 21, Township 2 North, Range 68 West of the 6th P.M. ; the location of the actual point of diversion from Boulder Creek is the aforedescribed point where the Idaho Slough , diverges from Boulder Creek. L. Rural Ditch- The decreed point of diversion for the Rural Ditch is on the south bank of Boulder Creek in the SE4 of Section 16, Township 1 North, Range 68 West of the 6th P.M.; the location of the actual point of diversion for the Rural Ditch is approximately 438 feet west and 1,250 feet north of the SE4 of Section 16, Township 1 North, Range 68 West of the 6th P.M. M. N.K. Smith Tyler Ditch: The decreed point of diversion for the N.K. Smith Tyler Ditch is on the south bank of Boulder Creek in Section 20, Township 2 North, Range 68 West of the 6th P.M.; the location of the actual point of diversion from Boulder Creek is the aforedescribed point where the Idaho Slough diverges from Boulder Creek. N. Houck #1 Ditch: The originally decreed point of diversion for the Houck #1 Ditch was Boulder Creek via Idaho Creek in the SE1/4 NE1/4, Section 30, Township 2 North, Range 68 West of the 6th P.M. The point of diversion was changed to the Boulder and Weld County Ditch, described in subparagraph C above, by decree of the Boulder County District Court on August 18, 1913 in Case No. 6682. 5.3 Use of water available under the subject water rights for instream flow hereunder by the Board is nonconsumptive except for such stream losses, if any, as are assessed by the State water administration officials pursuant to the provisions of paragraph 4.13 above. n tl . ~ , City of Boulder and Colorado water Conservation Board Case No. 90CW193 Page 26 5.4 Use of water available under the subject water rights by Boulder in its municipal water supply system consumes a portion of the water so used. Boulder has demonstrated that the depletive effect of the consumptive use in its municipal water supply system during the April through October period of each year from base (indoor) use and non-base use (lawn, park and open space irrigation, filling of swimming pools and other outdoor use) is as follows: Month Percent Depleted April 21% May 39% June 48% July 53% August 48% September 34% October 17% The quantity of water available under the subject water rights that has historically been or would in the future be consumed in Boulder's municipal water supply system if the subject water rights are used for their decreed municipal and related uses rather than for instream flow use hereunder is water that has not returned and would not in the future return to Boulder Creek and that would not be available for use by other water users. Use of that quantity of water for irrigation after the instream flow use of the subject water rights has been completed can be made by lessees of Boulder without causing injury to any vested water right or decreed conditional water right. 5.5 Water available under the subject water rights described in paragraphs 2.1 through 2.5, 2.7 and 2.8 which has been used for instream flow purposes hereunder may be used by lessees of. Boulder downstream of the terminus of Segment C described in paragraph 4.1 above, subject to the following terms and conditions: A. Use of water available pursuant to the terms and conditions of this Part V shall be for irrigation purposes only during the months of April through October of each year and such irrigation use shall be made only by the owners of the ditches described in paragraph 5.2 above pursuant to leases with Boulder. B. On or before March 15 of each year, Boulder shall furnish copies of leases to State water administration officials and, upon request, to any of the parties hereta. These leases shall include the names of the parties with whom such leases have been entered ini=, the ditches into which available water is to be, ~ i a t City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 27 delivered, the lands that will be irrigated, and the amount of water leased. Boulder shall include in any such lease a provision that requires the lessee to use all water available in priority to its own decreed water rights prior to requesting or taking delivery of the water leased from Boulder. C. The amount of water available for delivery to Boulder's lessees shall be determined on a daily basis by applying the consumptive use percentage shown in paragraph 5.4 above for the appropriate month to the amount of water left undiverted or released for instream flow use pursuant to Part IV of this decree, adjusted for any stream losses assessed by the State water administration officials pursuant to paragraph 4.13 above. The time at which such water reaches the downstream terminus of Segment C shall be determined by the State water administration officials. D. Boulder and its lessees shall bear stream losses, if any, between the downstream terminus of Segment C and the point of delivery of the leased water, as assessed by the State water administration officials. 6.1 So long as the terms and conditions described above are complied with, the subject water rights may be changed as proposed without causing injury to other water rights. CONCLUSIONS OF LAW 7.1 The Court has jurisdiction over the subject matter of this proceeding and over all who may be affected hereby, whether they have appeared or not. §§37-92-203 and 37-92-302, C.R.S. 7.2 Timely and .adequate notice of the pendency of this proceeding was given in the manner required by law. §37-92-302(3), C.R.S. 7.3 The changes of water rights proposed by applicants and approved .herein are contemplated and authorized by law and, if implemented and administered in accordance with the provisions of this decree, will not result in material injury to any owner of or person entitled to use water under any vested water right or decreed conditional water right. JUDGMENT AND DECREE IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED: City of Boulder and Colorado water Conservation Board Case No. 90CW193 Page 28 8.1 The Findings of Fact and Conclusions of Law set forth above are incorporated herein by this reference and are modified to the extent necessary to make them the judgment and decree of the Court. 8.2 The changes of water- rights described herein are' approved, subject to the terms and conditions of this decree. 8.3 The following measuring devices shall initially be used for administration of this decree: - The U.S.G.S. gage on Boulder Creek at Oradell and staff gages on North Boulder Creek at the Silver Lake Diversion Structure and the Lakewood Inlet (the locations of which are described in paragraph 4.1 hereof), on Boulder Creek at the Broadway pedestrian bridge, on Boulder Creek below the Broadway diversion dam, on Boulder Creek below the Wellman Canal, on Boulder Creek below the Butte Mill Ditch and on Boulder Creek below the Green Ditch. All of these gages are already installed and operating except the gages on Boulder Creek below the Wellman Canal and below the Butte Mill Ditch. Applicants shall maintain, rate and, where necessary, install the measuring devices described above (except the U.S.G.S. gage on Boulder Creek at Oradell which is operated and maintained by the United States Geological Survey) and such additional or improved measuring and recording devices as are necessary for administration of this decree including leases under Part V of this decree, and shall keep records of the readings from such measuring devices. The State water administration officials shall require measuring and recording devices to the extent necessary to assure that other water rights are not adversely affected by the operation of this decree. The state water administration officials shall prohibit delivery of any water leased pursuant to Part V of this decree if the quantity of said delivery cannot be measured with reasonable accuracy. Applicants shall allow the State water administration officials. access to inspect said measuring and recording devices and to record the measurements therefrom, and shall provide copies of their records and accounting forms to the Division Engineer. The accounting forms used pursuant to this decree shall be subject to prior approval by the State water administration officials. Applicants shall submit for approval suggested initial forms for such purpose and shall provide copies of such suggested forms prior to approval to cbjectors who request the same.. Such forms shall show daily diversions and releases by Boulder on all of the water rights subject to this decree, identifying the water rights, flow rates or reservcir levels, identification of the water rights being. e , r. a, c e City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 29 stored on any particular day in each reservoir, points of diversion on a daily basis and the calling water right, evaporation releases, if any are required, and shall include records of deliveries of any water leased pursuant to Part v of this decree. Applicants shall also file with the state water administration officials a depth- area-capacity table for each reservoir subject to this decree and shall, with the approval of the state water administration officials, select an administration year for each of such reservoirs with a fixed starting date. Such records shall be made available at least on a monthly basis to the Division Engineer and, upon request, to any of the parties hereto upon payment of reasonable copying charges. 8.4 Nothing in this decree affects or supersedes the decree for Panama Reservoir No. 1 entered June 21, 1926 in Civil Action No. 6672, Boulder County District Court, as limited by the decree for the Boulder Exchange entered September 15, 1982 in Case No. W-7852-74, District Court, Water Division No. 1. To the extent that Boulder operates the leasing program approved by this decree, Boulder shall not do so in any manner that would result in the curtailment of diversions or prevent the commencement of diversions, by exchange or otherwise, by The Boulder & White Rock Ditch & Reservoir Company that would be in priority in the absence of such leasing program. The Boulder & White Rock Ditch & Reservoir Company shall not, by exchange or otherwise, divert any water in Boulder Creek that is available in-priority for and is being used for instream flow purposes pursuant to the terms and conditions of this decree. 8.5 Pursuant to §37-92-304(6), C.R.S., the Court retains jurisdiction over the changes of water rights approved herein for a period of ten (10) years from the date of this decree for reconsideration of the question whether the provisions of this decree are necessary or sufficient to prevent injury to the vested water rights or decreed conditional water rights of others. Any person, within the ten year period, may petition the Court to invoke its retained jurisdiction. Any such petition shall state with particularity the factual basis for requesting that the Court evaluate injury to vested water rights associated with the operation of this decree. Unless other stated herein, the party lodging the petition shall have the burden of going forward to establish the prima facie facts alleged in the petition. If the Court finds those facts to be established, the Board and Boulder shall thereupon have the burden of proof to show: (a) that any modification sought by the Board and Boulder will avoid injury to other water rights, or (b) that any modification sought by the party lodging the petition is not required to avoid injury to other water rights, o= (c) that any term or condition proposed by the. , City of Boulder and Colorado water Conservation Board Case No. 90CW193 Page 30 Board and Boulder in response to any petition does avoid injury to other water rights. Such petition shall be filed with the Court under the above styled caption and case number and shall be served by certified mail, return receipt requested, on counsel of record for all parties who have appeared herein. If no such petition is lodged within the ten year period, and if the retained jurisdiction period is not extended by the Court in accordance with the provisions of the statute, this decree shall become final under its own terms. 8.6 The parties recognize that Boulder's present wastewater treatment is at its plant near 75th Street. In the event at any time in the future that Boulder changes the location of its discharge to a point below any existing points of diversion or changes the method of treatment to one which is significantly more consumptive than the present one, the changes of water rights described in Parts III and V and approved herein shall be subject to reconsideration on the question of injurious effect on the vested rights of others. Boulder shall provide notice to all objectors if there is a change in location of the discharge point or change in the method of treatment. 8.7 Furthermore, this decree shall be subject to reconsideration at any time in the future regarding any asserted change in Boulder`s municipal consumptive use pattern. Boulder shall monitor the municipal consumptive use pattern within its service area. Any material change in municipal consumptive use resulting from actual changes in the pattern of consumptive uses of water in the Boulder water supply system rather than from changes in the engineering methodologies or assumptions used to estimate such consumptive uses shall be prima facie evidence of injury with respect to the changes of water rights described in Parts III and V and approved herein. Boulder shall provide notice to all objectors if there is a material change in municipal consumptive use. 8.8 In addition to the retained jurisdiction provisions set forth above, any person may in the future file a petition with the Court for the purpose of reviewing the sufficiency of applicants' accounting, monitoring and reporting system, the sufficiency of the measuring and recording devices, the adequacy of the Division Engineer's administration of this decree, and the adequacy of the replacement water described in paragraph 4.10 (3). 8.9 Nothing in this decree is intended to authorize or to prevent or limit any further or additional donations of water, water rights, or interests in water by Boulder to the Board 4~ City of Boulder and Colorado Water Conservation Board Case No. 90CW193 Page 31 allowing an increase in any of the instream flows described herein, provided that any required change of water right is obtained. Dated: December 20, 1993 BY COURT: 6f'G~~G~~~_"_ Ro ert A. Behrman Water Judge Water Division No. 1 State of Colorado _i , i / ~ . ST;(fE ~F ~CCLOP.A[Y,i.~ ; Boulder Municipal Consumptive Use ~ • Average Monthly % of ~ Base Non-Bas Base Non-Bas Total GU % of Delivery Annual Use Use CU CU CU Monthly Month (AF) Use (AF) (AF) (AF) (AF) (AF) Delivery Jan 1019 0 1019 0 51 0 51 5% Feb 993 0 993 0 50 p 50 5% Mar 1131 0 1131 0 57 0 57 5% Apr 1352 0 1061 291 53 204 257, 19% May 1887•, 0 1061 826 53 578 631 33% Jun 2445 0 1061 1384 53 '968 1022 42% Jul 2927 0 1061 1866 53 1306 1359 46% Aug 2711 0 1061 1650 53 1155 1208 45% Sep 2074 0 1061 1013. 53 709 762 37% Oct 1521 0 .1061 460 53 322 375 25% Nov 1105 0 1105 0 55 0 55 5% . Dec 1058 0 1058 0 53 0 53 5% I • I Totai 20223 1 12734 7488 637 5242 5879 -based on 1982-1991 historical data -base use period of November through March - 5% base consumptive use - 70% non-base consumptive use e. .y V L ' a~ ~ ~ ' x `°RO.fECTS\102\035\Ci-IANGE\REPORT1t1AWH2O1N.W01 ~ R~it C~F,i~<<,1 v:1/?'?/~:~~ ~~:.3:.}'i F'i`1 Iil=i^iL Ii=~Tr,TF I::GCOFtI!S q " F~ 1 d4U C'I-IAFiLUTTC' HpIJS i'ON $i71_iLUf'F~: LNTY CU FiECGf;DEF; AGREEMENT The Colorado Water Conservation Board ("Board"), an agency of the State of Colorado, and the City of Boulder (~+Boulder"), ' a Colorado municipal corporation, in consideration of the mutual promises contained in this document, agree as follows: RECITALS A. The Hoard is the owner of a 15 cubic foot per second ("c.f.s.") instream flow water right to maintain a minimum stream flow to protect the natural environment to a reasonable degree in that segment of the mainstem of Boulder Creek in Boulder County from the Public Service Company's hydroelectric plant outlet at Orodell (NE 1/4, SW 1/4, Section 34, Township 1 North, Range 71 West of the 6th P.M.) to the 75th Street Bridge (SW 1/4, Section 13, Township 1 North, Range 70 West of the 6th P.M.) (the "specified reach"), which water right (the "1974 right") was decreed on January 21, 1980, in Case No. W-7636-74, with an appropriation date of October 1, 1973. The Board is also the owner of a water right for 1.0 c.f.s., originally decreed to the G. Berkley Ditch, appropriation date June 1, 1862, decreed in Boulder County District Court on June 2, 1882, and changed from irrigation to instream flow purposes in Case No. 79CW308 on May 13, 1981 (the "Berkley Ditch right"). - B. Pursuant to section 37-92-102(3), C.R.S. (1989' Supp.), the Board is vested with statutory authority to acquire, by contractual agreement, such water, water rights, or interests ' in water as the Hoard determines may be required for minimum stream flows to preserve the natural environment to a reasonable degree. C. The Board determined and the court decreed, in connection with .the filing of the application for the 1974 right, that the natural environment in the specified reach can be preserved to°.a reasonable degree with a stream flow of 15 c.f.s. D. Boulder acknowledges that, under Colorado law, no person or entity other than the Board shall be granted a decree adjudicating a right to water or interests in water for instream flows in a stream channel between specific points for any purpose whatsoever. E. Boulder wants to assist the Board in maintaining instream flows in the specified reach at times when the Board's two decreed instream flow rights as described in paragraph A above do not yield 15 c.f.s. As part of its Raw Water Master Plan dated September 15, 1988, approved by the Boulder City Council on December 20, 1988, Boulder committed itself to the goal of maintaining instream flows of up to 15 c.f.s. in the specified reach. 2294E* o~ F. Subject to the terms of this Agreement, Boulder will convey by deed to the Board certain water rights for use by the Board to maintain instream flows in the specified reach, said conveyance to he subject to a reservation by Boulder of the right to use water available under the conveyed water rights for municipal purposes under certain circumstances relating to extraordinary drout.h or emergency conditions in its municipal water supply, as more fully described in paragraph 2a below. In addition, Boulder will, at its discretion, assign to trie Hoard its right to water stored in its reservoirs. G. The water rights to be conveyed and the water rights to be assigned are currently decreed for municipal and other purposes, but not for instream flow use. The use of the water rights and the water by the Board for instream flow purposes will require Water Court approval of various changes of water rights. . CONVEYANCE OI' DIRECT FLOW WATER RIGHTS 1. Subject to such rights as are reserved by Boulder pursuant to paragraphs 2, 3, and 6 of this Agreement, Boulder shall convey to the Board the following described water rights (the "conveyed water rights"): Farmers Ditch, 13.52 c.f.s. out of 73.29 c.f.s. total decreed, appropriation date of October 1, 1862; Anderson Ditch, 1.81 c.f.s. out of 25 c.f.s. total decreed, appropriation date of October 1, 1860; Smith and Goss Ditch, 0.4 c.f.s. out of 44.3 c.f.s. total decreed, appropriation date of November 15, 1859; McCarty Ditch, 0.64 c.f.s. out of 5.00 c.f.s. total decreed, appropriation date of June 1, 1862; and Hoiden Ditch, 1.8 c.f.s. out of 21.0 c.f.s, total decreed, appropriation date of June, 1 1862. All of the above water rights were original:y decreed by the District Court in and for Boulder County on June 2, 1882, and all were changed from irrigation to municipal use by decree of the Water Court, Water Division No. 1, in Case Nos. W-75fi9, W-7570, and W-8520-77, entered May 31, 1989, subject to the terms and conditions therein. 2. The conveyance of the conveyed water rights shall be made within 30 days of the execution of this Agreement by deed in substantially the form of Exhibit A attached hereto. Said conveyance shall reserve to Boulder: -2- a. The right to use water available under the conveyed water rights for its municipal purposes in the event of extraordinary drouth conditions or of emergency conditions involving the loss of water to its municipal system as a result of catastrophic events (such as failure of conveyance or treatment facilities); provided, however, that extraordinary drouth conditions or emergency conditions shall be deemed to exist only if. Boulder has implemented a conservation program in response to such drouth or emergency which significantly resCricts lawn watering and other outdoor uses and on.1y if Boulder has diverted and used the full amount of water available under all of its direct flow water rights other than the conveyed water rights; b. The right to use water available under the conveyed water rights for municipal purposes at any time it may do so without reducing the flow in the specified reach below 15 c.f.s.; and c. The right to use water available under the conveyed water rights for irrigation purposes downstream from the specified reach, as provided in paragraph 6 below. 3. The Board shall use the conveyed water rights solely to maintain an instream flow not exceeding 15 c.f.s. in the specified reach. When such purpose has been accomplished, any remaining water available under the conveyed water rights shall be reserved to Boulder pursuant to paragraph 2b above. ASSIGNMENT OF THE RIGHT TO USE STORED WATER 4. Boulder shall assign to the Board its right to use such stored water as it determines from time to time, in its sole discretion, to be available for release from reservoirs in Boulder's municipal watershed or in Barker Reservoir. The Board shall use such releases of stored water solely for instream flow purposes in the specified reach. Boulder shall provide reasonable notice to the Board as to the availability of such storage water and shall make releases of such water for the Board's benefit only to the extent requited to achieve flows not exceeding 15 c.f.s. in the specified reach. BY-PASSED EXCHANGE WATER 5. Boulder has an appropriative right of exchange decreed in Case No. W-7852-74, entered as amended on September 15, 1982, which allows it to release water from Houlder Reservoir or Baseline Reservoir and to divert or to store water in its system in amounts up to 250 c.f.s. The appropriation date is December 31, 1954, and the application was filed in 1974, making this exchange right just senior to the Board's 1974 right. Boulder also has a stipulation with the Boulder and -3- l-~ White Rock Reservoir Company ("Company") which acknowledges the Company's senior right of exchange for 100 c.f.s. decreed on June 21, 1926, and which provides that Boulder has the right to substitute its own exchange on Boulder Creek. a. The Board hereby acknowledges that Boulder may attempt to by-pass water otherwise divertible under its appropriative right of exchange or its stipulation with the Company and leave it in the stream channel for delivery to a point of diversion downstream from the specified reach, in which event stream flows in the specified reach would be greater than would otherwise be the case. b. Boulder hereby acknowledges that under this agreement such by-passes will not constitute instream flow water rights and will not be legally cognizable and administerable as such, but rather will become available to the Board's 1974 right to the extent that it is in priority. c. The Board shall have no obligations or responsibilities with respect to such by-passes. Boulder shall bear all risks and costs associated with making such by-passes and with endeavoring to prevent them from being diverted from the specified reach. - BOULDER'S RIGHT TO USE BELOW THE SPECIFIED REACH 6. Below the downstream terminus of the specified reach (i.e., below 75th Street), any legally permissible right to use, re-use or lease the water, water rights, or interests in water acquired by the Board pursuant to this Agreement shall belong exclusively to Boulder. WATER COURT PROCEEDINGS 7. The Board and Boulder, as co-applicants, will file an application with the water court to allow as an alternate use of the conveyed water rights listed in paragraph 1 their use exclusively by the Board for instream flows in the specified reach to achieve flows not exceeding 15 c.f.s. The parties agree that Boulder may seek the alternate right to use the conveyed water rights for irrigation purposes downstream of the specified reach, recognizing that such downstream use will require special proof by Boulder of non-•injury. 8. The Board and Boulder, as r_o-applicants, will file an application with the water court to allow as an alternate use of the storage rights for the reservoirs covered by paragraph 4 the assignment of its right to use water to the Aoard for use exclusively by the Board for instream flows in the specified reach to achieve flows not exceeding 15 c.f.s. _q-- . qs 9. Either party may, in its sole discretion, cause any one of the above two applications to be dismissed at any time before the court issues a final decree. The other party shall not oppose any such effort to dismiss an application. If an application is dismissed for any reason o[ is denied in whole or in part, or if the decree of the court is conditioned in such manner as to prevent this Agreement from being completely fulfilled, then all of the right, title, and interest conveyed by Boulder to the Board under the terms of this Agreement shall be reconveyed by the Board to Boulder within 30 days of written demand by Boulder. In the event of such teconveyance, Boulder shall not receive any right to use water, water rights, or interests in water for instream flows in the specified teach. 10. Boulder shall pay for all of its own and all of the Board's costs and expenses required to file applications for and effectuate the necessary changes of water rights, including any obligation that may be incurred by either party to pay attorney's fees of third parties; provided, however, that Boulder shall not be required to reimburse the Board or the Attorney General for the personal services costs of their respective staffs. Expenses for outside consultants and attorneys and any other costs shall not be incurred by the Board without the prior written approval of Boulder. CALL FOR ADMINISTRATION 11. The Board hereby authorizes Boulder to be its agent for administration and monitoring in the specified reach of the 1974 right, the Berkley Ditch right, the conveyed water rights, and the water assigned to the Board pursuant to paragraph 4 of this Agreement. 12. As the Board's agent, Boulder shall be responsible for monitoring all gauges on Doulder Creek within the specified reach. If the stream flow at any monitored point in the specified reach is less than 15 c.f.s. at any time, then Boulder shall contact the water commissioner or division engineer on the Board's behalf and call for the administration of the legally authorized instream flows. Boulder shall immediately report to the Board any controversy or problem with the administration of instream flows which it believes are legally authorized. 13. Boulder shall be responsible for maintaining all records necessary for the implementation of this Agreement, using forms mutually agreeable to the parties, and all records required by the division engineer for administration of instream flows in the specified reach. 14. Boulder shall provide an annual report to the Board on _ the operation of this Agreement, the actions taken by it as tkie Board's agent and its planned operations for the forthcoming -5- -V year. Said report shall be due on January 1 of each year and cover actions taken during the preceding year and planned operations for the forthcoming year. l5. All costs incurred by Boulder in acting as the Boards agent shall be borne by Boulder. 16. Upon 30 days advance written notice to Aoulder, the Board may, in its sole discretion, revoke this authorization for Boulder to act as its agent; provided, however, that if the Board revokes this authorization then it must assume at its own expense responsibility for the administration and monitoring for which paragraphs 12 and 13 call. MISCELLANEOUS PROVISIONS 17. This Agreement shall not be otherwise assignable by either party without the written consent of the other. 18. All of the provisions of this Agceement shall survive the closing of the conveyance required by paragraphs 1 and 2 and shall not merge therewith. 19. This Agreement shall be a covenant which runs with the conveyed water rights and it shall be recorded by Boulder with the Clerk and Recorder of Boulder County, Colorado, with a conformed copy provided by Boulder to the Board. 20. The Board may not sell, lease, transfer, or otherwise dispose of its interests in the conveyed water rights or the assigned water without prior written consent of Boulder. 21. Any obligation for the continued payment of ditch company assessments or other costs of ownership associated with the .conveyed water rights shall be borne by Boulder. ENFORCEMENT 22. Pursuant to section 37--92-102(3), C.R.S. (1989 Supp.), the terms of this Agreement shall be enforceable by each party as a water matter in 'the District Court for Water Division No. 1; provided, however, that before commencing any action for enforcement of this Agreement, the party aileyiny violation shall notify the other party in writing of the alleged violation and the parties shall make a good faith effort to resolve their differences through informal consultation. 23. Specific performance of this Agreement shall be the exclusive remedy for failure of either party to comply with any provision of this Agreement. -6- _ I / IN WITNESS WHEREOF, the B and Boul "~~~r=~~p`a-ve-executed this Agreement as of the .Zo day of~~~~ V 1990. CITY O OULDER, C 0 O COLORADO WATER CONSERVATION BOARD r iii,'. By : By : L ~ r YC'Ch-.~.~` %"/l (y -~'-'c _ ~ _ Ci ana er ,;,T. William McDonald, Director ~ Colorado Water Conservation Board 1 1313 She[man Street, Rm. 721 Denver, Colorado ©0203 >'Attest~ i I ~ 1 L Director of in ce a Record Ex-Officio Clerk Approved as to form: City Attorney w _7_ ~Ot078866 i~/i7/90 ii:55 AM REAL ESTATE RECDF:DS ' F1654 CHARLOTTE HOUSTDtd E~DULDER CNTY CO RECORDER ~ FIRST ADDENDUM TO AGREEMENT This First Addendum to Agreement is made and entered into by and between the Colorado Water Conservation Board ("Board"), an agency of the State of Colorado, and the City of Boulder ("Boulder"), a Colorado municipal corporation, RECITALS A. The Board and Boulder entered into an agreement on July 20, 1990 (hereinafter the "July 20, 1990 Agreement"). The July 20, 1990 Agreement appears of record in the office of-the. ,Boulder County Clerk and Recorder under Reception No. 01060612. B. The July 20, 1990 Agreement provides for the conveyance by Boulder to the Board of certain water rights for use by the Board to maintain instream flows in that segment of the mainstem of Boulder Creek described in paragraph A thereof ("specified reach"), subject to a reservation by Boulder of the right to use water available under the conveyed water rights for municipal purposes under certain circumstances. C. Boulder owns certain additional water rights that it desires to convey to the Board under the same terms and conditions as are set forth in the July 20, 1990 Agreement. The additional /~~j water rights to be conveyed are currently decreed for irrigation purposes, but not for municipal purposes or instream flow use. The ~ use of these additional water rights and the water by the Board for instream flow purposes will require water court approval of various changes of water rights. CONVEYANCE r DIRECT FLOW WATER RIGHTS 1. Subject to such rights as are reserved by Boulder pursuant to paragraphs 2, 3 and 4 of this First Addendum to Agreement and further subject to the provisions of paragraphs 7 through 23 of the July 20, 1990 Agreement, Boulder shall convey to the Board the following described water rights (the "conveyed water rights"): Anderson Ditch, 2.4781 shares, 25 cfs total decreed, appropriation date of October 1, 1860; Smith and Goss Ditch, 9.4 shares, 44.3 cfs total decreed, appropriation date of November 15, 1859; and McCarty Ditch, 2.0 shares, 5.0 cfs total decreed, appropriation date of June 1, 1862. All of the above water rights were originally decreed for irrigation by the District Court in and for Boulder County on June 2, 1882. r• ~ ~"Z 2. The conveyance of the conveyed water rights shall be made within 30 days of the execution of this First Addendum to Agreement by deed in substantially the form of Exhibit A attached hereto. Said conveyance shall reserve to Boulder: a. The right to use water available under the conveyed water rights for its municipal purposes in the event of extraordinary drouth conditions or of emergency conditions involving the loss of water to its municipal system as a result of catastrophic events (such as failure of conveyance or treatment facilities); provided, however, that extraordinary drouth conditions or emergency conditions shall be deemed to exist only if Boulder has implemented a conservation program in response to such drouth or emergency which significantly restricts lawn watering and other outdoor uses and only if Boulder has diverted and used the full amount of water available under all of its direct flow water rights - other than the conveyed water rights; b. The right to use water available under the conveyed water rights for municipal purposes at any time it may do so without reducing the flow in the specified reach below 15 cfs; and c. The right to use water available under the conveyed water rights for irrigation purposes downstream from the specified reach, as provided in paragraph 4 below. 3. The Board shall use the conveyed water rights solely to maintain an instream flow not exceeding 15 cfs in the specified reach. When such purpose has been accomplished, any remaining water available under the conveyed water rights shall be reserved to Boulder pursuant to paragraph 2.b. above. 4. Below the downstream terminus of the specified reach (i. e., below 75th Street), any legally permissible right to use, re-use or lease the water, water rights, or interests in water acquired by the Board pursuant to this First Addendum to Agreement shall belong exclusively to Boulder. IN WITNESS WHEREOF, the Board and Boulder have executed this First Addendum to Agreement as of the day of p((Ip~-~~(/41 , 1990. CITY OF BOULDER, O RADO COLORADO WATER CONSERVATION BOARD Y~ City gel Director , SECOND ADDENDUM TO AGREEMENT AND ASSIGNMENT This Second Addendum to Agreement and Assignment is made and entered into by and between the Colorado Water Conservation Board ("Board"), an agency of the State of Colorado, and the City of Boulder ("Boulder"), a Colorado municipal corporation, RECITALS A. The Board and Boulder entered into an agreement on July 20, 1990 (hereinafter the "July 20, 1990 Agreement") and a first addendum to agreement on December 14, 1990 (hereinafter the "First Addendum"). The July 20, 1990 Agreement appears of record in the office of the Boulder County Clerk and Recorder under Reception No. 01060612. The First Addendum appears of record in the office of the Boulder County Clerk and Recorder under Reception No. 01078866. . B. The July 20, 1990 Agreement and the First Addendum provide for the conveyance by Boulder to the Board of certain water rights ("conveyed water rights") for use by the Board to maintain instream flows in that segment of the mainstem of Boulder Creek described in paragraph A of the July 20, 1990 Agreement ("specified reach"), subject to a reservation by Boulder of the right to use water available under the conveyed water rights for municipal purposes under certain circumstances. The July 20, 1990 Agreement. further provides for the assignment by Boulder to the Board of the right to use certain stored water for use by the Board to maintain instream flows in the specified reach under certain circumstances. C. Boulder desires to assist the Board in maintaining instream flows in the following segments of North Boulder Creek and Boulder Creek upstream of the specified reach: 1. That segment of the mainstem of North Boulder Creek in Boulder County from the Silver Lake Diversion Structure (NW1/4, NW1/4, Section 34„Township 1 North, Range 73 West of the 6th P.M.) to the Lakewood Reservoir North Boulder Creek Inlet ("Lakewood Inlet") (NE1/4, SE1/4, Section 1, Township 1 South, Range 73 West of the 6th P.M.)("North Boulder Creek specified reach"); and 2. That segment of the mainstem of North Boulder Creek and the mainstem of Boulder Creek in Boulder County from the Lakewood Inlet (NE1/4, SE1/4, Section 1, Township 1 South, Range 73 West of the 6th P.M.) to the Public Service Company's hydroelectric plant outlet at Orodell (NEl/4, SW1/4, Section 34, Township 1 North, Range 71 West of the 6th P.M.)("North Boulder Creek/Boulder Creek specified reach"). D. Subject to the terms of this Second Addendum to Agreement and Assignment, Boulder will assign to the Board the right to use certain stored water and water available to the conveyed water rights to maintain instream flows in the North Boulder Creek ; . specified reach and the North Boulder Creek/Boulder Creek specified reach and the right to use water available to certain additional water rights to maintain instream flows in the specified reach, the North Boulder Creek specified reach and the North Boulder Creek/Boulder Creek specified reach. E. The amount of water to be 'assigned to the Board by Boulder under this Second Addendum to Agreement and Assignment will not exceed the amount of water that the Board finds to be necessary to preserve the natural environment to a reasonable degree in the North Boulder Creek specified reach and in the North Boulder Creek/Boulder Creek specified reach. F. The use of the water to be assigned to the Board for instream flow purposes hereunder will require water court approval of various changes of water rights. A88IGNMENT OF RIGHTS TO USE PATER 1. Subject to such rights as are reserved by Boulder pursuant to paragraphs 4, 5 and 7 below and further subject to the provisions of paragraphs 13 through 23 of the July 20, 1990 Agreement, Boulder hereby assigns to the Board the following rights to use water to be used by the Board to maintain instream flows not exceeding 0.5 cfs in the North Boulder Creek specified reach: a. The right to use water available to the conveyed water rights, alone or in combination with other water listed in this paragraph 1; and b. The right to use water stored in Silver Lake Reservoir in such amount as.may be necessary, alone or in combination with other water listed in this paragraph 1, to maintain a stream flow not exceeding 0.5 cfs in North Boulder Creek at the Silver Lake Diversion Structure ("Silver Lake water"). Boulder shall release such water from Silver Lake for the Board's benefit at rates not to exceed 0.5 cfs and only to the extent required to achieve flows not exceeding a total, from all sources, of 0.5 cfs at the Silver Lake Diversion Structure on North Boulder Creek. 2. Subject to such rights as are reserved by Boulder pursuant to paragraphs 4, 5 and 7 below and further subject to the provisions of paragraphs 13 through 23 of the July 20, 1990 Agreement, Boulder hereby assigns to the Board the following rights to use water to be used by the Board to maintain instream flows in the North Boulder Creek/Boulder Creek specified reach not exceeding the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet: 2 a. The right to use water available to the conveyed water rights, alone or in combination with the other water listed in this paragraph 2; b. The right to use water available to 1.5 cfs of the 20 cfs decreed to the Boulder City Pipe Line water right in such amount as may be necessary, alone or in combination with other water listed in this paragraph 2, to maintain a stream flow immediately below the Lakewood Inlet not exceeding the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet ("Boulder City Pipe Line water"). The Boulder City Pipe Line water right was decreed in Case No. 5563, Boulder County District Court,. on November 3, 1909, with appropriation date of February 9, 1904. Boulder shall by-pass water available in priority to the Boulder City Pipe Line water right at the Lakewood Inlet for the Board's benefit at rates not to exceed 1.5 cfs and only to the extent required to achieve flows in the North Boulder Creek/Boulder Creek specified reach immediately below the Lakewood Inlet not exceeding the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet; and c. The right to use Silver Lake water released by Boulder pursuant to paragraph lb above, in combination with other water listed in this paragraph 2. 3. Subject to such rights as are reserved by Boulder pursuant to paragraphs 4, 5 and 7 below and further subject to the provisions of paragraphs 7 through 23 of the July 20, 1990 Agreement, Boulder hereby assigns to the Board the following rights to use water to be used by the Board to maintain instream flows not exceeding 15 cfs in the specified reach: a. The right to use Boulder City Pipe Line water by- passed by Boulder pursuant to paragraph 2b above. 4. The assignment of the above-described water ("assigned water") is subject to the following reservation by Boulder: a. Boulder reserves the right to use the assigned water for its municipal purposes in the event of extraordinary drought conditions or of emergency conditions involving the loss of water ` to its municipal system as a result of catastrophic events (such as failure of conveyance or treatment facilities); provided, however, that extraordinary drought conditions or emergency conditions shall be deemed to exist only if Boulder has implemented a conservation program in response to such drought or emergency which significantly restricts lawn watering and other outdoor uses and only if Boulder has diverted and used the full amount of water available under all of its direct flow water rights other than the conveyed water rights and the .Boulder City Pipe Line water right; 3 b. Boulder reserves the right to use such amounts of the Silver Lake water as Boulder determines from time to time, in its sole discretion, to be necessary to maintain adequate carryover storage in Silver Lake Reservoir to meet municipal water requirements; c. Boulder reserves the right to use such amounts of the Silver Lake water as Boulder determines from time to time, in its sole discretion, to be necessary for maintenance of fish habitat in Silver Lake Reservoir for the protection of greenback cutthroat trout; d. Boulder reserves the right to use the Silver Lake water and water available under the conveyed water rights for municipal purposes at any time'it may do so without reducing the flow in the North Boulder Creek specified reach below 0.5 cfs and without reducing the flow in the North Boulder Creek/Boulder Creek specified reach below the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet; e. Boulder reserves the right to use the Boulder City Pipe Line water for municipal purposes at any time it may do so without reducing the flow. in the specified reach below 15 cfs and without reducing the flow in the North Boulder Creek/Boulder Creek specified reach below the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet; and f. Boulder reserves the right to use-the Silver Lake water and the Boulder City Pipe Line water for irrigation purposes downstream from the North Boulder Creek/Boulder Creek specified reach, as provided in paragraph 7 below. 5. 'The Board. shall use the Silver Lake water and the water available to the conveyed water rights and assigned hereunder solely to maintain an instream flow in the North Boulder Creek specified reach not exceeding 0.5 cfs and in the North Boulder Creek/Boulder Creek specified reach not exceeding the lesser of 1.5 cfs or the streamflow immediately above Lakewood Inlet. The Board shall use the Boulder City Pipe Line water solely to maintain an instream flow in the specified reach not exceeding 15 cfs and in the North Boulder Creek/Boulder Creek specified reach not exceeding the lesser of 1.5 cfs or the streamflow immediately above Lakewood Inlet.. When such purposes have been accomplished, any remaining Silver Lake water, Boulder City Pipe Line water or water available to the conveyed water rights shall be reserved to Boulder pursuant to paragraphs 4d and 4e above. 6. The flow rate limitations contained in paragraphs.i and 2 above apply solely to the assignment of water by Boulder to the Board under this Second Addendum to Agreement and Assignment 'and are in no way intended to limit the Board's determination of the amount of water necessary to preserve the natural environment to a 4 reasonable degree on North Boulder Creek and on Boulder Creek. The assignment under paragraph 1 shall be for the lesser of 0.5 cfs or the amount of water that the Board determines to be necessary to preserve the natural environment to a reasonable degree in the North Boulder Creek specified reach. The assignment under paragraph 2 shall be for the lesser of 1.5 cfs or the amount of water that the Board determines to be necessary to preserve the natural environment to a reasonable degree in the North Boulder Creek/Boulder Creek specified reach. BOIILDER'8 RIGHT TO USE BELOW THE NORTH BOIILDER CREEK SPECIFIED REACH AND BELOW THE NORTH BOIILDER. CREEK/BOULDER CREEK SPECIFIED REACH 7. Below the downstream terminus of the North Boulder Creek/Boulder Creek specified reach (i.e., below the Public Service Company's hydroelectric plant outlet at Orodell), the right to use, re-use or lease the water assigned hereunder shall belong exclusively to Boulder, subject to any applicable provisions of the July 20, 1990 Agreement and the First Addendum. WATER COURT PROCEEDINGS 8. The Board and Boulder, as co-applicants, will file an amendment to the application pending in Case No. 9oCW193 in the water court to allow as an alternate use of the storage rights for Silver Lake Reservoir and the conveyed water rights their use exclusively by the Board for instream flows in the North Boulder Creek specified reach to achieve flows not exceeding 0.5 cfs and in the North Boulder Creek/Boulder Creek specified reach to achieve flows not exceeding the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet, and to allow as an alternate use of 1.5 cfs of the,Boulder City Pipe Line water right its use exclusively by the Board for instream flows in the specified reach to achieve flows not exceeding 15 cfs and in the North Boulder Creek/Boulder Creek specified reach to achieve flows not exceeding the lesser of 1.5 cfs or the stream flow immediately above Lakewood Inlet. 9. Either party may, in its sole discretion, cause the amendment to the application in Case No. 90CW193 to be dismissed at . any time before the court issues a final decree. The other party shall not oppose any such effort to dismiss the amendment. If the amendment is dismissed for any reason or is denied in whole or in part, or if the decree of the court is conditioned in such manner as to prevent this Second Addendum to Agreement and Assignment from being completely fulfilled, then all of the right and interest assigned by Boulder to the Board under the terms of this Second Addendum to Agreement and Assignment shall be reassigned by the Board to Boulder within 30 days of written demand by Boulder. In that event, Boulder shall not receive any right to use water, water rights, or interests in water for instream flows in the North 5 Boulder Creek specified reach or the North Boulder Creek/Boulder Creek specified reach. 10. Boulder shall pay for all of its own and all of the Board's costs and expenses required to file the amendment to the • application pending in Case No. 90CW193 to effectuate the necessary changes of water rights, including any obligation that may be incurred by either party to pay attorney's fees of third parties; provided, however, that Boulder shall not be required to reimburse the Board or the Attorney General .f or the personal services costs of their respective staffs. Expenses for outside consultants and attorneys and any other costs shall not be incurred by the Board without the prior written approval of Boulder. CALL FOR ADMINISTRATION 11. The Board hereby authorizes Boulder to be its agent for administration and monitoring in the North Boulder Creek specified reach and in the North Boulder Creek/Boulder Creek specified reach of the water assigned to the Board pursuant to paragraphs 1 and 2 of this Second Addendum to Agreement. 12. As the Board's agent, Boulder shall be responsible for monitoring all gauges on North Boulder Creek and Boulder Creek .within the specified reaches. If the stream 'flow at any monitored point in the North Boulder Creek specified reach is less than 0.5 cfs at any time or if the stream flow at any monitored point in the North Boulder Creek/Boulder Creek specified reach is less than 1.5 cfs at any time, then Boulder shall contact the water commissioner or division engineer on the Board's behalf and call for the administration of the legally authorized instream flows. Boulder shall immediately report to the Board any controversy or problem with the administration of instream flows which it believes are legally authorized. IN WITNESS WHEREOF, the Board and Boulder have executed this Second Addendum to, Agreement and Assignment as of the day of 1992. CITY OF BOULDER, COLORADO COLORADO WATER CONSERVATION BOARD Y~ By' City Manager Director 6 TTES , 1 c or o f ance a d cord Ex-officio Ci y Cle Approved as to form: C ti y Atto n III 7 Attachment C / #41562895 11/15/5,5 12:16 PM REAL ESTATE RECORDS (/f//w ~ J F2090 CHARLOTTE HOUSTON BOULDER CNTY CO RECORDER AGREEMENT This Agreement is between the City of Boulder, a municipal home rule city of the 2 State of Colorado ("Boulder"), and the Water Users Association of District No. 6, a Colorado J non-pro rt corporation ("District 6"). Recitals A. Boulder is the owner of certain water that is reusable after its first use for instream flow purposes pursuant to agreements with the Colorado, Water Conservation hoard (the "Reusable Water"). The amouni of Reusable Water available for irrigation purposes was quantified by the District Court, Water Division No. 1, by decree entered on December 31, 1993 in Case No. 90CW193 (the "Decree"). District 6 was a party to that case and entered into a stipulation with Boulder and the Colorado Water Conservation Board consenting to entry of the decree therein. The Decree recognizes Boulder's rights to lease the Reusable Water to the ditches identified in paragraph 5.2 of the Decree ("Ditches"). B. All of the Ditches are members in good standing of District 6. C. Boulder has leased a portion of the Reusable Water to Lakeview Village, Inc. for augmentation purposes and has filed an application requesting approval of the use of such leased Reusable Water for augmentation purposes with the District Court, Water Division No. 1, in Case No. 94CW268. District 6 has filed a statement of opposition to said application in Case No. 94CW268 and asserts that the Reusable Water cannot be used for augmentation purposes or for any purposes other than agricultural irrigation by the Ditches. Boulder disagrees. D. Boulder has been informed by the U.S. Fish and Wildlife Service that in order to protect threatened and endangered species in the Platte River and its tributaries from depletions caused by lawful in-priority municipal water diversions, Boulder may be required to replace some of its depletions in order to obtain federal perrnits or to obtain other federal approval for its facilities. Boulder is not currently required to replace such depletions and does not intend to use the Reusable Water for such a purpose unless absolutely necessary. Boulder desires, however, the ability to use the Reusable Water to replace such depletions, if required. District 6 asserts that the Reusable Water is not usable for species protection purposes, but District 6 does not wish to oppose such use if Boulder is required to provide water for such purpose to protect its municipal water supply. E. The parties wish to resolve their dispute concerning use of the Reusable Water and the purpose of this Agreement is to yet forth the agreements of the parties concerning 1 the future use of the Reusable Water by Boulder, its lessees, successors and assigns, including the Ditches and Lakeview Village, Inc. THEREFORE, the parties agree as follows: 1. The Reusable Water can be used by Boulder, its lessees, successors and assigns, for any and all beneficial purposes under Colorado law including, but not limited to, municipal, augmentation, wetlands mitigation and species protection purposes, provided Boulder obtains a decree of the Water Court, Water Division No. 1 (or successor court), or State Engineer approval of the requested use. 2. District 6 will not object to or oppose in any forum any use of the Reusable Water by Boulder, its lessees, successors and assigns, including Lakeview Village, Inc., that is in accordance with the terms of this Agreement and further will not assert in any forum that the Reusable Water is available only for use for irrigation purposes by the Ditches. 3. During the 20-year period from January 1, 1996 through December 31, 2015, the parties shall have the following rights to use the Reusable Water: a. Boulder shall have the right to use the first 750 acre-feet of Reusable Water available in each year ("Municipal Reuse Water") for any and all beneficial purposes under Colorado law, subject only to the condition set forth in paragraph 1 above; b. The Ditches shall have the right to lease from Boulder on an annual basis all of the Reusable Water available in each year in excess of 750 acre-feet ("Agricultural Reuse Water") except that Boulder shall have the right to use such Agricultural Reuse Water during such 20-year period for federal or state threatened, endangered or sensitive species protection purposes in satisfaction of the terms and conditions of any permit, license, agreement, or other approval required for construction, operation, maintenance, repair or replacement of any facility owned or used by Boulder for municipal water supply. Boulder shall not exercise its right to use the Agricultural Reuse Water for such species protection purposes unless it has investigated other alternatives and determined that no alternative is reasonably available in order to obtain the required permit, license, agreement or approval and Boulder has provided District 6 with a written certification describing the alternatives which were considered by or offered to Boulder and attached the permit, license, agreement or approval requiring water deliveries for protection of threatened, endangered or sensitive species; c. The Ditches shall also have the right to lease from Boulder on an annual basis any part of the Municipal Reuse Water not committed to other uses in any year ("Uncommitted Municipal Reuse Water"). 2 3 4. On and after January 1, 2016, Boulder shall have the right to use all of the Reusable Water for any and all beneficial purposes under Colorado law, subject only to the condition set forth in paragraph 1 above. 5. Boulder will lease the Agricultural Reuse Water and the Uncommitted Municipal Reuse Water to the Ditches for the same price per acre-foot as is then being charged by Boulder per acre-foot of CBT water it is leasing to others for agricultural irrigation purposes. 6. During the 20-year period described in paragraph 3 above, District 6 will act as Boulder's agent for leasing of the Agricultural Reuse Water and the Uncommitted Municipal Reuse Water to the Ditches at no cost or expense to Boulder. All such leases shall be in accordance with the terms and conditions of the Decree and shall be in the form and pursuant to the conditions of the lease attached to this Agreement as Exhibit A including, but not limited to, the condition that only water accepted by the lessee is to be paid for. Any Agricultural Reuse Water or Uncommitted Municipal Reuse Water that is not leased in any year pursuant to the terms of this Agreement, and any Agricultural Reuse Water or Uncommitted Municipal Reuse Water that, if so leased, is not taken when available by the lessee or lessees shall thereafter be available for use by Boulder, its lessees, successors and assigns for any and all beneficial purposes under Colorado law, subject only to the condition set forth in paragraph 1 above. 7. District 6 will, concurrently with the execution of this Agreement, enter into a stipulation with Boulder, the Colorado Water Conservation Board and Lakeview Village, Inc., in Case No. 94CW268, consenting to the entry of a decree granting the application in that case. All water to be used in that case shall be counted against Boulder's Municipal Reuse Water. 8. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any and all prior agreements, understandings and representations, written and oral, between the parties concerning the subject matter hereof. 9. This Agreement is perpetual and may be modified, amended, changed, or terminated, in whole or in part, only by an agreement in writing signed by the parties. 10. This Agreement shall not be assigned or delegated except with the prior written consent of the parties. 11. This Agreement shall be governed by the laws of the State of Colorado. 12. This Agreement shall inure to the benefit of, and be binding upon, the parties and their respective legal representatives, successors and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise specifically authorized in this Agreement. 3 / _ r 13. This Agreement shall be effective on the last date it is approved by the parties. Dated: ~ l ~ 7 1995 CITY OF BOULDER, a Colorado municipal corporation i BY ~ i City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Dated: %C --S~ 1995 WATER USERS ASSOCIATION OF DISTRICT NO. 6 By ~ l-rrz Pr sident ATTEST: cretary 4 EXHIBIT A WATER LEASE THIS WATER LEASE is made this _ day of 199_, by and between the City of Boulder, a Colorado municipal corporation, (the "City") and ("Lessee"). WITNESSETH. WHEREAS, the City is the owner of certain water that is reusable fox irrigation purposes aRex its first use for instream flow purposes pursuant to the decree in Case No. 90CWi93 ("Decree"); and WHEREAS, Lessee desires to lease _ acre-feet of such water for irrigation purposes pursuant to the Agreement between the City and Water Dsers Association of District No. 6 dated 1995 ("Agreement") NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties hereto, it is agreed as follows: For and in consideration of payments to the City, the City does hereby lease to Lessee for irrigation purposes up to aa'e-feet of water available for such purposes pursuant to ehe Decree and the Agreement. 2. Lessee shall not lease this water to any other person or entity. 3. The City shall deliver the leased water to Lessee in Boulder Creek at or near the intersection of Boulder Creek and 75th Street at a point in Section 13, Township 1 North, Range 70 West of the 6th P.M, approximately 950 feet from the west section line and 1700 feet from the south section line. Lessee shall bear any losses associated with conveyance of the leased water fiom the delivery point to the location where Lessee may use the water. The City shall notify Lessee of the quantity of water to be delivered at the delivery point 24 hours in advance of its delivery and Lessee shall accept delivery of or reject said water within 24 hours of said notification. The notification and acceptance or rejection contemplated by this paragraph may be made orally; however, withi? 5 days following the end of each month in which Lessee has accepted water from the City, Lessee shall confirm in writing the quantity of water accepted by Lessee during the preceding month. Leased water shall be delivered only during the period April 1 through October 31. 4. Lessee shall pay the City $ per acre-foot for each acre-foot of water which Lessee accepts. There is no obligation upon Lessee to pay for water which Lessee does not accept. Any water which Lessee does not accept may be used by the City or leased or sold by the City to another water user. Any payment due shall be paid within 15 days following the end of the month in which the water is accepted by Lessee. 5. Lessee shall divert the teased water at the headgate of the ditch and shall use said water for irrigation of tlxe following-described land: V r~ 6. The term of this lease shall be for the period commencing March 15, 199_, and terminating on November 15, 199_. 7. The City shall not incur any liability for failure to deliver any of the said water. 8. The City does not make any express or implied warranties or representations concerning the quality of the leased water or its suitability for use for irrigation purposes. 9. It is understood by Lessee that the City may not renew this lease or may not provide water on any other basis after the term of this lease, subject to the City's obligation to ]ease water to ditches below 75th Street pursuant to the Agreement, and Lessee specifically waives any claim, legal or equitable, for such renewal and specifically disclaims any expectation for such renewal. 10. ]f Lessee owns water rights, Lessee shall use all water available in priority to its own water rights prior to requesting or taking delivery of leased water hereunder. 1 i. This instrument represents the complete agreement of the parties hereto, and no oral modification shall be recognized. Any amendments or additions shall be made in writing and signed by the parties. 12. This lease is binding upon the parties and their successors. DATED the date and year Srst above written. C1TY OP BOULDER By City Manager ATTEST: (seal) Director of Finance and Record, ex-officio City Clerk By ATTEST: .Secretary 2