APPLICANT, THE CITY OF GLENWOOD SPRINGS PRE-MEETING STATEMENT BEFORE THE COLORADO WATER CONSERVATION BOARD ON JULY 15-16, 2015

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1 DISTRICT COURT, WATER DIVISION NO. 5 STATE OF COLORADO Court Address: 109 Eighth Street, Suite 104 Glenwood Springs, CO (970) telephone CONCERNING THE APPLICATION FOR WATER RIGHTS OF: THE CITY OF GLENWOOD SPRINGS, COLORADO in Garfield County, Colorado. Attorneys for Applicant, City of Glenwood Springs: Name: Mark E. Hamilton, #24585 Address: HOLLAND & HART LLP 600 East Main Street, Suite 104 Aspen, CO Telephone: (970) Facsimile: (866) MEHamilton@hollandhart.com Name: Christopher L. Thorne, #20003 Kylie J. Crandall, #41159 Address: HOLLAND & HART LLP th Street, Suite 3200 Denver, CO Telephone: (303) Facsimile: (303) CThorne@hollandhart.com KJCrandall@hollandhart.com COURT USE ONLY Case Number: 13 CW 3109 APPLICANT, THE CITY OF GLENWOOD SPRINGS PRE-MEETING STATEMENT BEFORE THE COLORADO WATER CONSERVATION BOARD ON JULY 15-16, 2015 Applicant, the City of Glenwood Springs, Colorado ( Glenwood Springs or the City ), through its undersigned counsel Holland & Hart LLP, submits this Pre-Meeting Statement (the Statement ) pursuant to the Notice of Pre-Meeting Conference and Deadlines for Submissions circulated by the Hearing Coordinator for the Colorado Water Conservation Board (the CWCB ) on May 6, This Statement includes the following information: (1) an introduction and general overview of the Recreational In-channel Diversion ( RICD ) Water Rights claimed by Glenwood Springs in this case; (2) a discussion of how Glenwood s claims satisfy the CWCB s 1

2 review criteria pursuant to Colorado statutes; (3) Glenwood Springs proposed CWCB findings for this case; and (4) lists of the speakers and exhibits supporting the claims and application that Glenwood Springs anticipates presenting to the CWCB during its July 2015 meeting. 1. Introduction and General Overview of Glenwood Springs RICD Water Rights. Glenwood Springs, Colorado is a small city of approximately 10,000 people, situated at the confluence of the Colorado and Roaring Fork Rivers just west of Glenwood Canyon. It is an historic Colorado town with long and deep-rooted history in recreation and resort businesses. Each year over one million people visit Glenwood Springs to raft, kayak, hike, bike, ski and swim. Glenwood Springs is home to many attractions, including Sunlight Mountain Resort, Glenwood Hot Springs Lodge and Pool, the Hotel Colorado, and the Glenwood Caverns Adventure Park. Much tourism activity is focused around activities that involve the Colorado River, including the existing Glenwood Springs Whitewater Activity Area, located in West Glenwood Springs below the confluence of the Colorado and Roaring Fork Rivers, which features a renowned high water wave that attracts freestyle whitewater enthusiasts from around the world during high stream flows each year. Glenwood Springs filed an application in Case No. 13CW3109, Water Division 5, to confirm conditional water rights for RICD Water Rights in the Colorado River at three proposed whitewater park locations above the confluence of the Colorado and Roaring Fork Rivers. As part of this project, Glenwood Springs desires to improve Glenwood Springs reputation as a travel destination and to enhance local recreational amenities, while continuing to maintain and improve aquatic and riparian habitats. Glenwood Springs primary purposes in seeking to confirm RICD Water Rights is to protect and enhance recreational boating activities on the Colorado River. The 2013 Colorado River Cooperative Agreement ( CRCA ) executed by and between Glenwood Springs, the Colorado River Water Conservation District ( River District ), Denver Water, and numerous other entities, contemplates that Glenwood Springs would confirm RICD Water Rights. a. Colorado River Hydrology The Colorado River drainage basin above the confluence with the Roaring Fork River has an area of 4,560 square miles. The annual volume of Colorado River flows through Glenwood Springs exceeds 1,500,000 acre feet, and the total physical supply of water leaving Colorado in the Colorado River and its tributaries is more than 4,400,000 acre feet on average. The flow regime on the Colorado River upstream of the City of Grand Junction is controlled by two sets of decreed water rights. The first are the water rights associated with the Shoshone Hydroelectric Power Plant in Glenwood Canyon (approximately six miles upstream of Glenwood Springs, and only a few miles above the claimed RICD Water Rights). The second are a number of irrigation water rights in the Grand Valley collectively referred to as the Cameo Call. The Shoshone water rights consist of a 1907 senior right for 1,250 c.f.s. and a 1956 junior water right for 158 c.f.s. for year round non-consumptive, hydroelectric uses. The Cameo Call consists mainly of irrigation water rights owned by major irrigation entities located in the Grand Valley, totaling approximately 2,260 c.f.s. In combination, the Shoshone water rights and the Cameo Call have the potential to place a call on the Colorado River during most times of the 2

3 year except during spring run-off. Because the decreed points of diversion for these water rights are located in and downstream of Glenwood Canyon, these existing calls serve to pull water down to and through the reaches of the Colorado River in which Glenwood Springs claimed RICD water rights are located. The administration and call regime associated with these existing water rights contribute to an existing high quality recreational boating experience that Glenwood Springs is seeking to protect and enhance through its pending application. b. Three Whitewater Parks The proposed RICD Water Rights are associated with three whitewater parks on the reach of the Colorado River in Glenwood Canyon and through the City above the Roaring Fork River confluence, as shown on the Concept Drawings attached as Exhibit 6. Glenwood Springs hosted a site visit and tour for CWCB staff of all three locations on October 30, The locations of the three whitewater parks span approximately 3.5 miles, from a point about onehalf mile east of the City at the No Name Rest Area off of Interstate 70 to a location in downtown Glenwood Springs immediately upstream of the Roaring Fork River confluence. These three park locations are referred to as the No Name Whitewater Park, the Horseshoe Bend Whitewater Park, and the Two Rivers Whitewater Park. (see Exhibit A to the City s Proposed Decree, dated May 21, 2014 (the Proposed Decree )). The No Name Whitewater Park is the furthest upstream of the three proposed whitewater parks. It is located approximately one-half mile east of the present Glenwood Springs municipal boundary at the existing Colorado Department of Transportation ( CDOT ) rest area off of I-70. This rest area is well known to river users, bicyclists and tourists, and already has a heavily used bicycle and pedestrian trail along the northwest river bank. A private river camping resort is immediately downstream. The City is currently is working with CDOT to plan and develop whitewater park facilities at this location in a manner that would complement and add to existing rest area facilities. The Horseshoe Bend Whitewater Park is proposed to be located near the No Name Tunnel on I-70. This site is physically accessed from the No Name exit off of I-70 along the former route of Highway 6. This route was recently repaved by CDOT all the way to the Horseshoe Bend site, which is entirely owned by the City. The Horseshoe Bend Whitewater Park is surrounded by breathtaking steep canyon walls, yet has ample flat space to provide for development of sufficient auxiliary facilities, parking areas, and a vehicular turn-around. It is already a popular destination for biker, boaters, and tourists. The Two Rivers Whitewater Park is the furthest downstream of the City s three proposed whitewater parks. This site, which is surrounded by existing bicycle and pedestrian trails, including an existing pedestrian bridge over the Colorado River from which boating can be viewed, includes part of the existing Two Rivers Park proximate to downtown Glenwood Springs. The proposed RICD structures at this site will be entirely upstream of the confluence of the Colorado and Roaring Fork Rivers. Access would be through the existing Two Rivers Park, where parking, bathrooms, and trails already exist. Access can also be obtained from the other side of the river in central Glenwood Springs, via pedestrian and bike trails through Confluence Park to the pedestrian bridge. 3

4 c. Times and Amounts of RICD Water Rights Claims The proposed season of use for the RICD Water Rights extends from April 1 to September 30. This season was determined primarily through an evaluation of current boating use. Because of the moderate temperatures that continue well into the autumn in Glenwood Springs, boating uses on the Colorado River continue through September and well into October. Numerous s and letters from the boating community supporting the claim for the RICD Water Rights, documenting use of this reach of the Colorado River, and establishing a continued need for flows in this reach through the end of September are attached at as Appendix A to Exhibit 5. To simplify water rights administration, the City is claiming one set of flow rates for all three whitewater parks. The claimed RICD Water Rights are less than 50% of the historic flows of the Colorado River at each location (the historic volume of average daily flow in these reaches is approximately 1,190,499 acre-feet during the RICD season, and the City s aggregate claims comprise only 581,625 acre-feet of this amount). The base flow claimed for the RICD Water Rights is 1,250 c.f.s., and is equivalent to the existing senior call by the Shoshone Power Plant. However, based in part upon interviews conducted by the City s consultants, the boating and business community in and around Glenwood Springs desire to maintain an intermediate level flow of 2,500 c.f.s. for as long as possible, and to develop and host a late season, elite whitewater event or competition around the July 4th holiday, at a time when other, smaller rivers throughout the region are not flowing at a rate sufficient to support such an event. As a result, a 4,000 c.f.s. event flow is claimed by Glenwood Springs for a limited period of up to five days each year. This amount of time is shorter than the 14 days prescribed by statute. The City intends to appropriate a water right for these flows for only five days in order to have a flow sufficient to support competitive events, but not to command more flow than necessary, to the detriment of other competing water demands. The 4000 c.f.s. event flow rate is further limited to no more than 5 continuous days between June 30 and July 6. The specific event flow dates will be as follows: (1) if the Fourth of July falls on a Sunday, Monday, Tuesday or Wednesday, the event flow rate will be in effect June 30-July 4; (2) if the Fourth of July falls on a Saturday, the event flow rate will be in effect July 1-5; and (3) if the Fourth of July falls on a Thursday or Friday, the event flow rate will be in effect July 2-July 6. Additionally, the City s RICD Water Rights will be limited to the period between 6:00 a.m. and 9:00 p.m. each day, except during competitive events when the hours may be extended to 12:00 a.m. The chart below summarizes the City s RICD Water Rights claims: Time Period Flow Rate Days April 1 through June c.f.s. 68 days June 8 through July c.f.s 41 days 4000 c.f.s. 5 days July 24 through Sept c.f.s. 69 days 4

5 d. Water Availability As further discussed below, the historic flows in the Colorado River in the vicinity of Glenwood Springs are substantial due to the large tributary area above the subject reaches and the typical call regime driven by the existing Shoshone and Cameo water rights. The frequency that the flow claims would have been satisfied during the 30-year period of record as a measure of the water availability is shown on Exhibit 7 (Figures B, C and D). As shown, through the claimed flow periods, the 1,250 c.f.s. base flow available approximately 92% of the time, the 2,500 c.f.s. intermediate flow claimed is available approximately 60% of the time, and the 4,000 c.f.s. event flow is available approximately 39% of the time. e. Discussions with Other Parties to the Pending Water Court Case. Through its consultants and counsel, Glenwood Springs, has been actively engaged in settlement discussions with most opposers in the pending water court case. In particular, the City has already reached a stipulation and agreement with the U.S. Bureau of Land Management ( B.L.M. ), which includes a revised legal description for the upstream extent of the Horseshoe Bend Whitewater Park. The City is continuing active discussions with the Glenwood Hot Springs Lodge and Pool concerning additional potential terms and conditions relating to construction of RICD structures at Two Rivers Whitewater Park. Additionally, prior to and since filing the application, Glenwood Springs has been in discussions with Denver Water concerning matters relating to the CRCA. The City is also currently working with the Colorado River Water Conservation District ( River District ) and other objectors to address concerns regarding future river administration, including the preservation of some opportunity for further development of junior water rights in the upper Colorado River Basin upstream of the RICD Water Rights, without increased impact from calls in excess of the existing senior call for the Shoshone power plant. Below is a brief overview of some of the revisions reflected in the Proposed Decree that have resulted from these settlement discussions: i. Compact Administration Language. To address concerns about administration of the RICD Water Rights during any period the Colorado River is subject to compliance with any applicable compact, Glenwood Springs is proposing compact administration language in paragraph 11.a of the Proposed Decree. Pursuant to this new paragraph, Glenwood Springs has agrees not to place a call under its RICD Water Rights if a compact curtailment occurs prior to such time that compact administration rules are implemented by the State Engineer. ii. Non-Opposition Provision. Glenwood Springs is also proposing that its RICD Water Rights would not be used as the basis for opposition to upstream water rights filings involving less than 1000 acre-feet of annual water diversions. iii. Revised Period of Record. To address concerns about whether the study period initially used by Glenwood Springs adequately accounted for trans-mountain diversion projects, Glenwood Springs revised its study period to incorporate the most recent 30 year period of record, which post-dates most major trans-mountain diversion projects. 5

6 iv. Measurement of River Flows and the RICD Water Rights. To address concerns regarding measurement of the RICD Water Rights at the existing Dotsero Gage, Glenwood Springs is proposing to install, operate and maintain a single measurement gauge and compliance point for administration for the RICD Water Rights. v. Confluence of Roaring Fork and Colorado Rivers. As set forth above in the description of the Two Rivers Whitewater Park location, Glenwood Springs is not appropriating water from the Roaring Fork River in this case. Glenwood Springs confirms that RICD structures at the Two Rivers Whitewater Park will be located upstream of the Roaring Fork confluence in paragraph 8.a of the Proposed Decree. 2. Discussion of statutory factors to be considered by the CWCB. The CWCB is required to make written findings on specific factors, relating to all applications for RICD water rights. Pursuant to C.R.S (5), the CWCB, after deliberation in a public meeting, shall consider the following [three] factors and make written findings as to each: (I) (IV) (V) Whether the adjudication and administration of the recreational in-channel diversion would materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; Whether exercise of the recreational in-channel diversion would cause material injury to instream flow water rights...; and Whether adjudication and administration of the recreational in-channel diversion would promote maximum utilization of waters of the state. As described below, Glenwood Springs claims for RICD Water Rights in this case favorably satisfy each the three statutory factors. a. Glenwood Springs RICD Water Rights will not materially impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements. The RICD Water Rights claimed by Glenwood Springs will not impair the ability of Colorado to develop its compact entitlements. The location, amount, and non-consumptive nature of Glenwood Springs RICD Water Rights, together with the terms and conditions in the Proposed Decree, ensure that the RICD water rights will not impair Colorado s development of its compact entitlements. The interstate compacts relevant to the RICD Water Rights are the Colorado River Compact of 1922 and the Upper Colorado River Compact of Pursuant to Glenwood Springs Proposed Decree, the volume of water claimed (sum of average daily flow) at the three whitewater parks is 581,625 acre feet. By comparison, the total average historical volume of water for the stream segments where the diversion structures will be located is 1,190,499 acre feet. Glenwood Springs proposed appropriation is less than 50% of this total. Additionally, because the RICD Water Rights will only be in place for approximately six months each year, Glenwood Springs claims constitute only 38% of average annual flow. 6

7 Therefore, substantial ample unappropriated flows will remain in the Colorado River system upstream of the RICD Water Rights. Additionally, Glenwood Springs is located roughly halfway between the headwaters of the Colorado River and the Utah border. The proposed RICD Water Rights are non-consumptive; so, to the extent that Glenwood Springs is claiming RICD Water Rights for flows above flow levels historically called down to the senior water right for the Shoshone power plant, these additional volumes will be available to downstream water users for consumptive beneficial use along the more than 130 river miles between the location of the whitewater whitewater parks and the Utah border. In addition, Colorado s entitlement under the Colorado River compacts can be developed in other basins in Colorado, including the Yampa, White, Green, Little Snake, Dolores, and San Juan River sub-basins. As described above, Glenwood Springs has included a provision in its Proposed Decree regarding compliance with any compact curtailment rules adopted by the State or the State Engineer pursuant to C.R.S and Glenwood Springs is thereby proposing that it will not call for water for its RICD Water Rights if a compact curtailment occurs and no compact curtailment rules are in effect. Glenwood Springs is also in discussions with various opposers regarding inclusion of additional provisions whereby Glenwood Springs would further agree not to call for more water than the senior Shoshone water right has demanded under certain scenarios. The City is also proposing not to oppose certain water rights applications on the basis of claimed injury to the RICD Water Rights, including applications to implement the CRCA and the Eagle River Memorandum of Understanding up to the contemplated drafts and yields described in these agreements. b. The exercise of Glenwood Springs RICD Water Rights will not cause material injury to instream flow water rights. No existing instream flow water rights exist within these reaches of the Colorado River. As a result, the RICD Water Rights will not cause material injury to instream flow water rights. C.R.S (2) and 303(1). c. Glenwood Springs RICD Water Rights promote maximum utilization of the waters of the state. The non-consumptive RICD Water Rights claimed by Glenwood Springs promote maximum utilization of the waters of the state of Colorado. The claimed RICD Water Rights will preserve and enhance a valuable, beneficial use of water for recreation on a seasonally overappropriated stream, while allowing for continuing utilization and development of the waters of the state of Colorado for both consumptive and non-consumptive uses, without causing any reduction in flow, injury to downstream water rights, or injury to upstream senior water rights. Non-motorized boating on the Colorado River provides substantial economic benefits to Glenwood Springs and to the State in general. As set forth in S2o Design s attached reports, the Glenwood Springs proposed RICD structures have been preliminarily designed to generate a range of freestyle whitewater experiences for beginner, intermediate and advanced boaters, while also providing safe bypass for other water users and fish passage channels at each structure. The proposed RICD structures will therefore efficiently divert and control water in its natural course, 7

8 without waste, and produce targeted recreational experiences at varying river flows. Glenwood Springs has claimed the minimum amounts of water necessary for these targeted reasonable recreational experiences. Glenwood Springs has developed its flow claims for the RICD Water Rights in a manner that would result in only 46 days each year having adjudicated in excess of the senior Shoshone water right in the amount of 1,250 c.f.s. The proposed incremental increases in volume associated with the RICD Water Rights above the existing senior Shoshone water right amount to only 114,000 acre feet (without the event flow) and 129,000 acre feet (with the event flow), as compared with the historical average stream flow of 1,190,499 acre feet. If the junior Shoshone water right and the portion of the Cameo Call that is satisfied with Colorado River flows were added to this calculation, this incremental increase would be significantly less. Allowing Glenwood Springs to appropriate non-consumptive water rights for new whitewater recreation in and around the City is a prime example of utilizing Colorado s water resources in an efficient, beneficial manner. Again, almost all of the flow claimed by the RICD Water Rights is part of the historical Cameo and Shoshone Calls.. In addition, there are more than 130 river miles remaining in Colorado downstream of the RICD Water Rights where the same water can be put to additional beneficial uses. Glenwood Springs claimed RICD Water Rights will not impair maximum utilization of water for other uses upstream in the Colorado River basin. Ample unappropriated flow remains in the Colorado River even after accounting for the RICD Water Rights. Numerous, transmountain diversion projects upstream of the RICD Water Rights exist that will be senior to the 2013, and Glenwood Springs is working with various parties to limit operational conflict between its claimed RICD Water Rights and the additional trans-mountain diversions contemplated by existing agreements. 3. List of Speakers and Exhibits At the public meeting regarding Glenwood Springs RICD Water Rights, Glenwood Springs may present its information through the following speakers, using the following exhibits: a. Speakers Mark Hamilton, Chris Thorne, and/or Kylie Crandall Holland & Hart LLP Attorneys for Glenwood Springs Messrs. Hamilton and Thorne and/or Ms. Crandall will discuss the application, on-going negotiations with parties including CWCB staff, Proposed Decree, and engineering reports. City Mayor, City Manager and/or a Council Member City of Glenwood Springs 8

9 One or more of these representatives may discuss Glenwood Spring s intent in filing the application, and the economic and other benefits to Glenwood Springs from whitewater recreation. Jonathan Kelly, P.E. Wright Water Engineers, Inc. Mr. Kelly may discuss matters from his Preliminary and Supplemental Engineering Reports, including the historical flow regime at the location of the proposed RICD Water Rights, Compact entitlement and administration issues, and maximum utilization. Scott Shipley, P.E. or Dan Woolley, MSCE S2o Design & Engineering, Inc. Messrs. Shipley and Woolley may discuss the design of the structures for the RICD Water Rights, including stream reach appropriateness, the recreational experiences sought at each claimed flow rate, and park design/access issues. b. Exhibits (copies of each are submitted with this statement). 1. Proposed Decree in Case No. 13CW3109 (Water Division No. 5), May 21, 2015 (the Proposed Decree ). 2. Preliminary Engineering Report Wright Water Engineers, Inc., dated May 30, 2014 (the WWE Report ). 3. Supplemental Engineering Report Wright Water Engineers, Inc., dated December 5, 2014 (with amended page 20) (the WWE Supplemental Report, and with the WWE Report, the WWE Reports ). 4. Preliminary Engineering Design Report by S20 Design & Engineering, dated May 30, 2014, and Appendix A and B to the same (the S2o Report ). 5. Supplement to Preliminary Engineering Design Report by S20 Design & Engineering, dated December 5, 2014, and Appendix A to the same (the S2o Supplemental Report, and with the S2o Report, the S2o Reports ). 6. The Land Studios, Inc. and S2o Design and Engineering Conceptual Drawings, as revised May 12, 2105 (the Concept Drawings ). 7. Wright Water Engineers, Inc. Figures A, B, C and D (the WWE Figures ). The City reserves the right to present additional evidence, exhibits or testimony to rebut the information presented by any other party. 9

10 4. Conclusion. At the July 15-16, 2015 CWCB meeting in Southwestern Colorado, Glenwood Springs intends to present information, as outlined in this pre-meeting statement, that will demonstrate that the CWCB should make favorable findings pursuant to C.R. S (5), regarding Glenwood Spring s application for the RICD Water Rights in Case No. 13CW3109. Dated: May 21, 2015 Christopherr L. Thorne Mark E. Hamilton Kylie J. Crandall HOLLAND & HART LLP ATTORNEYS FOR THE CITY OF GLENWOOD SPRINGS, COLORADO _6 10