BOARD01855

• Board Meeting Date: 5/21/2001
• Description: ISF Section - Litigation Settlement Proposal - Town of Breckenridge - Case No. 5-97CW283
• Board Meetings - Doc Type: Memo

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Proposed Settlement
This case is setfor trial on September 10-12,2001. Pursuant to the Board's instructions,
the Staff has developed a settlement that merits consideration by the Board. Under the
proposed settlement, the Town would:

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I. Withdraw, with prejudice, its request for a new appropriation on Miners Creek;
2. Not pursue a modification of the Miners Oreek instream flow water right;
3. Use best efforts to fill the Goose Pasture 'l!am by September 1 of each year; and
4. Limit its use of the Miners Creek Ditch water to an ensuing 12 month period,
when the Goose Pasture Tarn is not full. Whenever Breckenridge is not using the
Miners Creek Ditch water, then it would be "made available to the CWCB in
perpetuity at not cost to enhance the Blue River instream flows..."

Copies of the proposed stipulation and a redlined-versioll, of the proposed decree are
attached to this memorandum. The Office of the Attorney General has provided, under
separate cover, a confidential memorandum explajning the relevant legal issues,

Staff Recommendation
The Staff has two concerns with the currently proposed stipulation and proposed decree.
First, the Applicant has not yet provided adequate proof or documentation, pursuant to
Section 37-92-102(3)(b) of the use of Miners Creek Water that existed on the date of the
CWCB's appropriation on Miners Creek. Such proof or documentation has been
required by the CWCB to permit a water user to utilize Section 37-92-102(3)(b), and the
Staff recommends that the Board require the To'\\?1 to provide adequate documentation.

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Second, the Staff is concerned that the last sentence of Paragraph No.5 of the proposed
stipulation is too broad. This sentence states: "Nbtwithstanding the foregoing, nothing in
this paragraph is intended, or shall be interpreted;. to prevent Breckenridge from operating
its water rights in a manner that it believes is necessary to meet its municipal service
obligations, including without limitation its golf course and contract service obligations
to the Breckenridge Ski Area." The Staff is con,*,med that there is no limitation on the
future golf course and contract service obligatioqs to the Breckenridge Ski Area.
Moreover, the Staff is concerned that the words 'rthat it believes is" could open a
loophole for Breckenridge to do whatever it wants despite the "best efforts" language
earlier in the paragraph. The Staff would be more supportive of this settlement if the
Town would amend this last sentence in the follciwing manner; "Notwithstanding the
foregoing, nothing in this paragraph is intended, or shall be interpreted, to prevent
Breckenridge from operating its water rights in a, manner that it belie'/es is necessary to
meet its current municipal service obligations, iricluding without limitation its existing
golf course and contract obligations to the Breckenridge Ski Area." This language still
provides the Town with considerable latitude to pperate its municipal water supply, while
providing the CWCB with adequate safeguards for its instream flow water rights on the
Blue River. If the Town were able to resolve these two concerns, the Staff would
recommend that the Board enter into this stipulation.

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