fl
imus:ammentamogi0 Ao clora— JUN 12 1985SOUTHEASTERN
COLORADOWATER
CONSERVANCY DISTRICT
••••••••••••••••••••••••••••..••••••••••••••••••••••••••••• •• • •• Mr. Raymond Mims Bureau of ReclamationFryingpan-Arkansas Project Office P.u. Box 515 Pueblo, Colorado 81002 Dear Mr. Willms: UTILITIES DEPARTMENT •••••••■••••••• •••••••• • .. /•• AdmlnIstrAtIon 14/0 Smith 1 SUM!, Ali. :WU 130012 303/695-73 AI February 28, 1985
This letter is intended to serve as a formal request for contract storage space in the Bureau of Reclamation's Fryinpan-Arkansas Project Pueblo Reservoir. The City of Aurora is interested in entering a long-term contract for storage space in the Pueblo . Reservoir.
Thil City forsees a need for 20,000 acre-feet'of .storage space in the Pueblo Reservoir. We anticipate a need to utilize 10,000 acre-feet of space as early as 1986. Out intention would be to store water purchased on the Arkansas River in the Pueblo Reservoir, until such time as the water could be physically exchanged upstream to Twin Lakes Reservoir or Turquoise Reservoir.
This
would place our water in d position whore it would be pumped to the South PlatteRiver Basin and ultimately be taken at the City's intake.
The City of Aurora would be pleased to discuss an equitable rate siructure with you at your earliest convenience.
TG/mbh
cc: File copies (2)
Very truly yours,
'.:.Ma.nager. of.-91anning & Resources
•• 4
-13 • •
. .
•
•
•,.Mayor 1470 South Havana Street Aurora, Colorado 80012 303/695-7015
January 28, 1986
Mr. Raymond Nixon
President, Board of Directors
Southeastern Water Conservancy District P. 0. Box 440
Pueblo, CO 81002
RE: AURORA SHORT-TERM STORAGE IN BUREAU OF RECLAMATION FACILITIES AT PUEBLO RESERVOIR
Dear President Nixon:
The City of Aurora, Colorado, has closely followed the litigation conducted in Water Division Two, Case Number 83-CW-18, the
Application of Resource Investment Group, et al., (RIG), for a change in use and points of diversion of a portion of the Rocky Ford Ditch. As you are no doubt aware, Water Judge Tracey
believes that RIG or Aurora must obtain permission to use the requested alternate points of diversion before he will allow the trial of this matter to proceed. In order to accommodate the Court's position, Aurora has initiated contract negotiations with the Bureau of Reclamation for various short-term storage rights in Pueblo Reservoir. These short term requests are in addition to Aurora's requests to the Bureau for long-term storage made approximately one year ago; said request is now pending and awaiting completion of the Bureau's long-term marketing plan. I understand that Thomas Griswold, Aurora's Manager of Planning and Resources, has forwarded to you copies of the various
requests under cover of his letter of January 14, 1986. I
further understand that per Amendment Four, of the Southeastern District's contract with the Bureau, the District is entitled to review and comment upon such storage requests. Certainly, your Board has a duty to the District to closely review such storage requests to insure the rights and entitlements of the District are not jeopardized; and just as certainly, Aurora does not wish to infringe upon such rights and entitlements. Nonetheless, my City is interested in concluding the matter as soon as possible so that Aurora may comply with the Judge's request. Aurora
believes that its requests for short-term storage are consistent with the District's rights in Pueblo Reservoir; however, it is necessary to be sure of that as soon as possible. To the extent that any incompatibility may exist, it is in our mutual best interest to identify any such areas and quickly resolve any such conflicts. As a vehicle to resolve any problems, I propose that you appoint a committee, made up of members of the District's Board of Directors, to meet with a similar committee composed of personnel from Aurora's administrative offices. These negotiators could then address areas of concern, recommend solutions, and reach positions which would allow quick completion of the review process, and provide for this City's compliance with the Judge's request.
I believe that negotiations between such committees would proceed 'far faster than discussions between legal counsel alone. I also
believe it would be wise to include Messrs. Martin and Willms, from the Bureau, in our discussions. Such a forum is likely to lead to frank discussions which are, the best method of resolving any potential problems that may exist regarding Aurora's
short-term storage requests. •
The water rights represented by the RIG transfer are of great importance to the citizens of my community, and they will
complement the existing long-standing use of Arkansas River water facilities, and Bureau of Reclamation projects by Aurora.
Additionally, the District is most certainly concerned with the protection of its proper position regarding Pueblo Reservoir. Moreover, my staff has informed me of other areas where
negotiations between Aurora and the District could result in long-term benefits for both entities, for example, those matters mentioned in Thomas Griswold's letter of October 22, 1985, to Charles L. Thomson (copy enclosed). Therefore, it is in our mutual best interest to identify and resolve any differences regarding Aurora's short-term storage request and discuss other areas of potential agreement at the earliest possible date. Please consider this concept of a negotiation committee as a means to reach such an expedited solution and achieving an
agreement-We plan to call you _shortly_ by telephone- -in-order- to learn your reaction to this proposal, and hopefully, set up a time and place for a meeting of our respective committees. Your time and prompt attention to this matter is most
appreciated. Sincerely, DENNIS CHAMPINE Mayor DC/b cc: Bill E. Martin Raymond Willms
MARY E. BRICKNER CHARLES E. MATHESON PETER F. BREITENSTEIN CHARLTON H. CARPENTER PATRICK F. KENNEY HOWARD HOLME JAMES L.STONE MICHAEL M. Mc KINSTRY JAC K.SPERLING KEVIN B. PRATT DANIEL R. FROST OF COUNSEL ROYAL C. RUBRIGHT ROBERT L.LOEB,JR. CHARLES J. BEISE (1909-1983)
1600 COLORADO NATIONAL BUILDING
950 SEVENTEENTH STREET DENVER, COLORADO 80202 TELEPHONE (303) 534-6135 TELECOPIER (303) 892-9095 January 13, 1986 Ray Willms
Director, East Slope Projects Office U.S. Bureau of Reclamation
955 'Wilson Avenue P. 0. Box 449 Loveland, CO 80539 DARRELL G. WAAS MARY JO GROSS ROBERT A. HOLMES JOHN J. SILVER JOAN E. SOMMERFELD THOMAS P. KEARNS ROCCO A. DODSON MARY E. MOSER STEPHEN W. SEIFERT CHRISTINE K.TRUITT CHRISTINA N. BEATON BRENT T. JOHNSON PATRICIA D. Mc G RAW MICHAEL B. GENOWAYS
JAN 16 1966
SOUTHEASTERN COLORADO WATT9
CONSERVANCY DISTRICT
Re: City of Aurora application for storage in Pueblo Reservoir Dear Ray:
Pursuant to our telephone conversation January 13, 1986 I understand that the City of Aurora has requested temporary (one-year) storage space in Pueblo Reservoir of 10,000 acre-feet. As you are aware, the application may pertain to the Resource Investment Group case, 83CW18 now pending in Water Division 2.
We have not seen a copy of the request for space and therefore do not know the details. We request that you forward a copy of the request for space to "us as soon as possible.
Our initial response to the request is that it seems peculiar. This is a year when all project reservoirs are overflowing and there is no space for winter storage water or for the water of entities within the Southeastern District. Since Aurora's space would be the first to spill and the last to fill, the request seems a futile gesture. There is no reasonable likelihood that space will be available. Further, unless the request indicates the source of the water to be stored in the space, we are unaware of Aurora owning any additional water which would be available for storage this year. We will look forward to reviewing Aurora's request to learn those details. We believe that the Bureau should not accept temporary storage requests when there is no reasonable likelihood that space will ever be available. To do so could result in sham contracts- for space susceptible to misinterpretation and unreasonable reliance.
We believe that granting of temporary space to any comer, whether or not that entity in fact has water which it can and will store raises policy questions of speculation in reservoir
Raymond Willms January 13, 1986 Page
-2-space, reserving of reservoir space for future use and a fair, public procedure for allocation of space.
Because the City of Aurora's request for temporary space is, I understand from you, the first occasion that Bureau has been faced with a specific request for storage in project reservoirs by an entity outside the boundaries of the Southeastern Colorado Water Conservancy District and therefore not paying ad valorem taxes to the District, the request should be handled most carefully. The Southeastern District is very concerned about potential precedent to be set by a request by an entity outside the District for storage space. *Further, the Southeastern District is vitally concerned with the charges for such storage and the effect on Southeastern's repayment obligations to the United States as well: as the publicity which will surround an incident of a non-taxpayer receiving the benefits of the project.
The Southeastern District on December 19, 1985 executed Repayment Contract Amendment 4. That contract states at Article
11 (f) that:
"All payments for storage space under contracts between the United States and entities desiring storage space in the Project East Slope Storage System consisting of Pueblo, Twin Lakes and Turquoise Reservoirs shall be applied by the United States as a credit toward the District's total obligation referred to in Explanatory Recital (h), HOWEVER, such credits shall not reduce the District's annual payments under Article 11(a). Such contracts shall be submitted to the District for comment and review before execution by the United States".
Pursuant to that contract provision, the Southeastern District is relying upon the Bureau to submit any proposed contract with the City of Aurora for review and comment prior to a decision whether or not to adopt that contract. The Southeastern District will of course require reasonable time to review any proposed contract.
Further, the Southeastern District believes that any meetings between the Bureau and the City of Aurora should be open ,to representatives of the Southeastern District. We hereby request that if any meetings are held between the Bureau and the City of Aurora in connection with reservoir space, that Southeastern District representatives be advised and be given the opportunity to attend.
Raymond Willms January 13, 1986 Page
-3-We request that prior to any decision by the Bureau in connection with Aurora's request for storage space, that the Bureau meet with us to discuss the ramifications of that request.
Because this matter is of significant concern to the District, I am also sending a copy directly to Bill E. Martin for his information.
Sincerely,
Kevin B. Pratt of
FAIRFIELD AND WOODS KBP/prh
cc: Charles L. Thomson Raymond D. Nixon
Duplicate pages
not
scanned
See originals in folder
Water Resources Archive
Attorney and Counselor At Law 1470 South Havana Street
Suite 820 Aurora, Colorado 80012-4090 Telephone; (303) 695-7030 January 14, 1986 HAND DELIVERY Mr. B. E. Martin Regional Director Bureau of Reclamation Denver Federal Center Denver, CO 80225
Subject: Aurora Application For Storage Space For Municipal and Industrial Water Dear Mr. Martin:
In order to meet urgent water needs for the City of Aurora, Aurora requests permission to store 10,000 acre-feet of municipal and industrial water in Pueblo Reservoir on an annual basis. This request has been discussed with Mr. Willms, Fryingpan-Arkansas Project Manager, who told us that a request for storage in excess of 2,000 acre-feet would need to be brought to your attention, and perhaps may require the approval of Commissioner Duvall. The City of Aurora commits to the payment of such processing and storage fees as are customarily charged for this type of water.
Because of Aurora's urgent need for the water at issue in the present Water Court proceeding in Case No. 83-CW-018, and because the relationship between the City
of Aurora and the Bureau of Reclamation concerning the storage of such water has been raised in that litigation, the City requests that the Bureau of Reclamation act on this request as quickly as possible. The Water Court for Water Division No. 2 in Case No. 83-CW-018 has scheduled an evidentiary hearing concerning Aurora's ability to ultimately receive and store the water which is the subject of Case No.
83-CW-018. That hearing is presently scheduled for
January 22nd. Aurora's representatives stand ready to meet with you or Commissioner Duvall at any time as may be necessary to expedite the processing of this request.. A copy of this proposal has been sent to the Southeastern Colorado Water Conservancy District.
January 14, 1986 Page Two
Aurora understands that storage of this water will be on a space available basis. Aurora also wishes to negotiate for long-term storage in Pueblo Reservoir as soon as the
Bureau of Reclamation has completed the necessary studies to permit the execution of long-term storage agreements.
We have attached copies of the Water Court documents which explain the nature of the transfer sought and the Court's inquiry regarding Aurora's ability to store water.
Thank you very much for your prompt attention to this matter. Please let me know if you need any additional supporting information.
n Dingess
ecial Counsel to he City of Aurora JD/lm
cc: Raymond D. Nixon Charles L. Thomson Kevin B. Pratt, Esq.
INDEX OF MATERIALS
CONCERNING THE CITY OF AURORA'S
APPLICATION TO THE BUREAU OF RECLAMATION FOR STORAGE
1. ORDER ENTERED IN CASE NO. 83CW018 BY WATER JUDGE, WATER DIVISION NO. 2, DATED JANUARY 8, 1986, SETTING EVIDENTIARY HEARING FOR JANUARY 22, 1986.
2. CORRESPONDENCE BETWEEN THE CITY OF AURORA AND THE BUREAU OF RECLAMATION CONCERNING STORAGE SPACE.
3. MAP ENTITLED "WATER SUPPLY SYSTEM OF THE CITY OF AURORA, COLORADO."
4. APPLICATION AND AMENDED APPLICATION IN CASE NO. 83CW018, WATER COURT, WATER DIVISION NO. 2, BY RESOURCE INVESTMENT GROUP, ET AL.
5. CONTRACT BETWEEN RESOURCE INVESTMENT GROUP AND THE CITY OF AURORA, COLORADO, CONCERNING ROCKY FORD DITCH WATER.
MARY E.BRICKNER CHARLES E. MATH ESON PETER F. BREITENSTEIN CHARLTON H. CARPENTER PATRICK F. KENNEY HOWARD HOLME JAMES L.STONE MICHAEL M. Mc KINSTRY JAC K.SPERLING KEVIN B. PRATT DANIEL R. FROST OF COUNSEL ROYAL C. RUBRIGHT ROBERT L.LOEB. JR. CHARLES J. BEISE (11;109-1c183)
ATTORNEYS AND COUNSELORS AT LAW
1600 COLORADO NATIONAL BUILDING
950 SEVENTEENTH STREET DENVER, COLORADO 80202 TELEPHONE (303) 534-6135 . TELECOPIER (303) 892-9095 March 6, 1.986 Mr. Raymond H. Wilms Project Manager Bureau of Reclamation
Eastern Colorado Projects Office P. 0. Box 449
Loveland, Colorado 80539-0449 Dear Mr. Whims:
Re: Proposed Bureau Contracts with Aurora
DARRELL G. WAAS MARY JO GROSS ROBERT A. HOLMES JOHN J. SILVER JOAN E. SOMMERFELD THOMAS P. KEARNS ROCCO A. DODSON MARY E. MOSER STEPHEN W. SEIFERT CHRISTINE K.TRUITT CHRISTINA N. BEATON BRENT T. JOHNSON PATRICIA D. McGRAW MICHAEL B. GENOWAYS CRAIG A. UMBAUGH STEPHEN H. LEONHAROT
The Southeastern District Board requested that we advise you at this time, before the Board has submitted its full set of com-ments, of the District's assertion that the Bureau does not have authority to enter into contracts with Aurora for temporary storage space.
On January 21, 1986, we wrote to the Bureau inquiring, "Pur-suant to what authority can the Bureau of Reclamation contract with the City of Aurora for municipal water storage space in east slope Fryingpan-Arkansas Project reservoirs?" You responded by letter dated February 10, 1986, and relied on three authorities: (1) the authorizing legislation for the Fryingpan-Arkansas Project, Sec-tion 2(b), (2) the ReclamaSec-tion Project Act of 1939, SecSec-tion 9(c), and (3) the December 14, 1965, Contract between the United States, and the Cities of Aurora and Colorado Springs for use of the Home-stake facilities, and specifically Article 10(f)[sic 10(b)] of that Contract. At our meeting with you and Regional Director Bill Martin of February 10, 1986, we asked Bill Martin to send us any other memos concerning authority for a contract with Aurora, which he agreed to do. Nothing further has been sent to us and we infer that there is no further information available from the Bureau concerning authority.
In light of, and in spite of, your letter of February 10, 7.986,-we do not believe the United States has authority to contract with Aurora for temporary space.
Mr. Raymond H. Whims March 6, 1986
Page Two
The proposed contracts with Aurora are unique and unprece-dented: They would be the first contracts where the Fryingpan-Arkansas facilities would be used for the purpose of removing native waters of the Arkansas valley from the basin for use else-where, and represent the first occasion on which Aurora or any other entity outside the Southeastern District boundaries would contract for use of the project facilities (other than the Home-stake contract, which I discuss further below).
Authorizing Legislation
In your letter of February 10, 1986, you referred us to Sec-tion 2(h) of the authorizing legislaSec-tion for the Fryinpan-Arkansas Project. Section 2(b) does not authorize storage space contracts for the purpose of removing water from the Arkansas Valley and does not authorize storage space contracts with entities outside the Southeastern District boundaries. The language states in full:
Rates charged for commercial power and for water for municipal, domestic, or industrial use or for the use of facilities for the stor-age and/or delivery of such water shall be designed to return to the United States, within not more than 50 years from the completion of each unit of the Project which serves those purposes, those costs of constructing, operat-ing, and maintaining that unit which are allo-cated to said purposes and interest on the unamortized balance of said construction allocation, and, in addition, within the period fixed by Subsection (a) of this sec-tion, so much of the irrigation allocation as is beyond the ability of the water users and their organizations to repay. P.L. 87-590, § 2(b), Aug. 16, 1962.
Section 2(b) simply states the method of calculating rates for water and storage. Further, the section pertains to "storage and/or delivery of such water," which refers to Project water. Thus, Section 2(b) on its face is inapplicable and does not autho-rize the Aurora contracts.
Mr. Raymond H. Willms March 6, 1986
Page Three
Legislative History
The legislative history of the Fryinpan-Arkansas Project demonstrates without exception that Congress never considered contracts with the City of Aurora or others outside the Arkansas valley, that. Congress never contemplated the Fryingpan-Arkanasas Project being used to remove native water from the Arkansas Valley, and that Congress in no way approved such actions. We refer you to the following comments in the legislative history.
William I. Palmer, Assistant Commissioner of Reclamation, states to the House Committee in 1961 (all emphasis below is ours):
The water supply aspects of the Project are likewise unchanged from our previous testi-mony. The Project would result in the impor-tation on the average of about 69,000 acre-feet annually from the Colorado River Basin and the regulation, use, and reuse of native Arkansas River winter flows and flood flows totaling more than 140,000 acre-feet per annum. These water supplies would provide needed supple-mental, municipal, and industrial water to the Cities of Colorado Springs and Pueblo, as well as to other communities in the Arkansas River Basin.
Hearings before the Subcommittee on Irrigation and Reclamation, 87th Congress, 1st Session, May 15 and 16, 1951, p. 31.
In House of Representatives Report No. 694, 87th Congress, 1st Session,- Report to Accompany H.R. 2206 from the Committee on Interior and Insular Affairs under the captions "Purpose" and "Area Needs and Project Accomplishments," the purpose of the Project for the benefit of the Arkansas Valley is discussed at pp. 2, 3, and 4, concluding:
In summary, it can he said that the most pres-sing and immediate needs of the Upper Arkansas Valley can be met by construction and operation of the Fryingpan-Arkansas Project as proposed in H.R. 2206.
Mr. Raymond H. Willms March 6, 1986
Page Four
In the same report at p. 5, specific municipal water delivery facilities, i.e., the Fountain Valley Pipeline and Arkansas Valley Conduit, are contemplated in connection with municipal use. Fur-ther, at p. 11, discussion of "Water Supply" indicates that the Fryingpan-Arkansas water supply is intended for Arkansas Basin use. The report concludes at p. 13 in the "Summary of Findings and Conclusions" that:
(3) The Project is urgently needed to supplement the supply of water for existing acreage now under cultivation and for muni-cipal use in the Arkansas Valley.
(4) The supplemental water supply for 280,000 acres will stabilize the livestock industry in the Arkansas valley, and will permit flexibility in farming operations.
(5) The most pressing and immediate needs of the Upper Arkansas Valley. can be met y constructton and operation of the Frying-pan-Arkansas Project as recommended in this legislation. •
During debate on the floor of the House of Representatives, June 12, 1962, the purpose of benefit to the Arkansas Valley by supplemental water supply for irrigation and municipal purposes was emphasized by Representative Sisk, Congressional Record - House, 87th Congress, 2d Session, Vol. 108, No. 95, pp. 9396 and 9397. Representative Wayne Aspinall, in his remarks on the House floor, characterized the Fryingpan-Arkansas Project as a "rescue opera-tion" for the Arkansas Valley. Congressional Record - House, June 12, 1962, pp. 9402 to 9404. Wayne Aspinall said to the House:
The purpose of the Project is to take water out of the Fryingpan tributaries and send it across the mountains through this tunnel which is indicated here on the map and drop it into the Arkansas Valley and send it down to the users, the agricultural, munici al, industrial, and power users in the Arkansas Valley.
At 9404. Aspinall went on to explain the relationship of the Project to the Southeastern District:
Mr. Raymond H. Willms March 6, 1986
Page Five
I spoke a while ago in regards to the contri-bution to be made by the taxpayers of the District. These areas which are shown in purple, or lavendar color, and a part of them outside the irrigated land area, are the areas of the Conservancy District. These are the areas which will have an ad valorem tax. You notice that the City of Colorado Springs, the City of Pueblo, Canon City, Buena Vista, and others are not going to receive too many direct benefits as far as their cities are concerned, but they will pay part of the irrigation con-struction cost that is authorized in this bill. The merchants, the professional people, the workers, the whole people all know the indirect benefits that .will accrue to them, and they have pledged themselves to pay about $500,000 a year toward the cost of the Project."
At 9404. Aspinall goes on to note that one Project benefit is the exchange opportunity. "The 69,000 acre-feet of imported water makes possible the exchange and regulation of Arkansas water that results in a new water supply total of 183,600 acre-feet." At 9406. Aspinall goes on to state, "The Fryingpan Project Is a rescue operation designed to preserve an existing economy and not to bring more land into cultivation." At 9406. And again:
•••
At 9406.
It [the Project] involves extensive federal interest and is beyond the capability of local enterprise. It benefits an area where the people themselves have gone as far as they can in meeting their needs. Irrigation in the Arkansas Valley, up to this point, has been by private development.
Then Representative Chenoweth urged the benefits to the . Arkansas Valley. Answering a question on the House floor as to "How many people will be directly benefited when this Project is completed"" he responded, "My congressional district has a popu-lation of over 450,000, but not everyone would be benefited by this Project. I would say in the neighborhood of 350,000 people would
Mr. Raymond H. Whims March 6, 1986
Page Six
benefit directly and indirectly from this Project." At 9407. Mr. Chenoweth goes on at 9408 and 9410 to further emphasize the purpose of the Project to benefit the Arkansas Valley.
Representative Dominick, from northeastern Colorado, who would be expected to have had the most interest in any benefits to the South Platte Basin as a result of the Fryingpan-Arkansas Pro-ject, emphasized the Arkansas Valley purpose of the ProPro-ject, stat-ing, "The Fryingpan-Arkansas Project is not going to irrigate any new land. It will better irrigate some land already under irri-gation. Perhaps even more important will be the assurance of a more adequate water supply to the Cities of Pueblo, Colorado Springs, Rocky Ford, La Junta, Las Animas, Lamar, Canon City, and Leadville." At 9411.
Benefits to the Arkansas Valley is reiterated in the comments of Mr. Rogers of Texas at 9411 and 941/.
Similar comments appear in the Senate legislative history. See, e.g:, the hearing before the Subcommittee on Irrigation and Reclamatlon of the Committee on.Interior and Insular Affairs of the United States Senate, 87th Congress, 2d Session, on S-284, state-ments of Representative J. Edgar Chenoweth at pp. 24 and 25. The Secretary of the Interior, Stuart L. Udall, told the Senate Com-mittee:
The Fryingpan-Arkansas Project is a trans-basin diversion project which will result in an increase in Arkansas River Basin water supply and will permit more effective utilization of native Arkansas Basin water.
At 30. Governor Steve McNichols of Colorado emphasizes the Arkansas Valley purpose of the Project, at 33. William I. Palmer, Assistant Commissioner of Reclamation, also discussed the benefits to the Arkansas Valley of importation of water and regulation of native Arkansas River winter flows and flood flows, as well as supplemental municipal and industrial water to "Colorado Springs and Pueblo, as well as to other communities in the Arkansas River Basin." At 47. Charles Boustead, from the Southeastern Colorado Water Conservancy District, informed the Senate Committee that:
Mr. Raymond H. Willms March 6, 1986
Page Seven
The lifeblood of this valley is the Arkansas River. The authorization of the Fryinpan Project will make possible, not only the re-regulation of existing waters of the Arkansas River, but will permit us to introduce into the Arkansas River a vital new supply of water which, by exchange and reregulation, use and reuse, will produce the effect of many times the amount of water introduced.
At 62. Senator Carroll told the Committee, "We are trying to emphasize that this water will be used for municipal and industrial purposes, as well as by the farmers in an area where there is a great scarcity of water." Leonard R. Kuiper, Acting Director of the Colorado Water Conservation Board, commented on the importance of reservoir space to the Arkansas Valley when he stated:
Past controversies about transbasin diversions of water have had the unfortunate effect of obscuring one of the most important aspects of the Fryingpan-Arkansas Project. That is, the fact . that the greatest portion of the water to be delivered by the Project origi-.nates from flood flows and reregulation of
native Arkansas River water.
Like most western rivers, the Arkansas is greatly erratic in both yearly and seasonal fluctuations. Pueblo Reservoir, which is contemplated as the principal storage struc-ture for the Project, would permit the conver-sion of these yearly and seasonal fluctuations into dependable and controlled releases.
At 58. Mr. Kuiper also 'emphasized the need for improvement of quality of water for municipal purposes in the Arkansas Valley, at pp. 59 and 60.
Report No. 1742 of the Senate Committee on Interior and Insu-lar Affairs of the 87th Congress, 2d Session, Report to Accompany S-284, again describes the purpose to benefit irrigators and muni-cipalities in the Arkansas Valley, at pp. 2 and 3.
Mr. Raymond H. Whims March 6, 1986
Page Eight
In the debate on the Senate floor, August 6, 1962, as reported in the Congressional Record, vol. 108, No. 136, pp. 14649 through 14660, Senators Allott and Carroll from Colorado again focused the Senate on the benefits to the Arkansas Valley.
The Bureau's own "Reevaluation Statement on the Fryingpan-Arkansas Project" of January 1960, appearing at p. 135 of the hearings before the Subcommittee on Irrigation and Reclamation of the House Interior and Insular Affairs Committee, 86th Congress, 2d Session, June 6 and 7, 1960, discusses at p. 140, "Irrigation and Municipal Water Supplies," with the focus again on the "entire Arkansas River Valley in Colorado."
In conclusion, and without exhaustive citation of all of the comments appearing in the years of legislative history of the Project, it is uncontroverted that the Fryingpan-Arkansas Project east slope facilities were intended to benefit the Arkansas River Valley. Nowhere are benefits to the South Platte Basin, the City of Aurora, or entities outside of the Arkansas Valley (other than from Ruedi Reservoir) mentioned, considered, debated, or approved by any representative from Colorado, from the Bureau of Reclama-tion, or from Congress. There can be simply no conclusion but that the Project is authorized for the exclusive benefit of the Arkansas Valley water users. The benefits listed in the legislative history include not only the imported water supply, but the regulation of native water supplies for irrigation, municipal, and industrial users in the Arkansas Valley, as well as indirect benefits to the taxpayers of the Southeastern Conservancy District. Opportunities to exchange native water to the benefit of Arkansas Valley users and water quality benefits to municipal users also stand out in the committee and floor debates on the Project. The Bureau's reliance for authority upon language in the authorizing legislation is misplaced.
The Project facilities cannot be used to remove water from the Arkansas River Basin. Such action would be antithetical to the purpose of the project. The United States Court of Appeals for Colorado has recently ruled with respect to another reclamation project that because express Congressional authorization for recre-ation purposes was absent, the project could not be used for such purposes. The Court reasoned:
Mr. Raymond H. Whims March 6, 1986
Page Nine
••••
It is our view that the applicable federal statutes prohibit storage of San Juan-Chama water solely for recreational purposes, because it is out of harmony with the entire basic philosophy of this project, if for no other reason.
From the very beginning of the reclama-tion program, Congress has restricted the use of water released from reclamation projects.
* * *
The present. law, as exemplified by 43 U.S.C. § 485h, authorizes the Secretary of the Interior to undertake projects for purposes other than the provision of water for irriga-tion. However, § 484h(c) states in part that "No contract relating to municipal water supply or miscellaneous purposes or to elec-tric power or power privileges shall be made unless, in the judgment of the Secretary, it will not impair the efficiency of the project for irrigation purposes." In City of Fresno v. State of California, supra, the Supreme Court found that a state law giving priority to municipal water users was overridden by this provision. Thus, it is clear that Congress can and generally does restrict the uses to which water which is released from federal reclama-tion projects can be applied. From the early years of reclamation projects, state law has governed only as to use, allocation and dis-tribution among water users seeking to utilize water for congressionally recognized purposes. In order to be able to determine whether stor-age of water for recreation is a recognized purpose in this case we must examine the sta-tutes which authorize the San Juan-Chama project.
Mr. Raymond H. Willms March 6, 106
Page Ten
Jicarilla Apache Tribe V. United States, 657 F.2d 1126, 1138 (10th Cir. 1981). The Court concluded there that the San Juan-Chama Project did not authorize storage for recreation and so denied the use proposed which had been agreeable to the Bureau of Reclamation.
The legislative history and authorizing legislation shows no intent to permit Aurora to use project facilities to remove water from the Arkansas Valley. The conclusion is thus the same. The Bureau does not have authority to enter the proposed Aurora contract.
Reclamation Project Act
The Bureau states in the February 10, 1986, letter that the Reclamation Project Act of 1939 authorizes water supply contracts for municipal purposes. That statute, 43 U.S.C. § 485h(c), states:
The Secretary is authorized to enter into contracts to furnish water for municipal water supply or miscellaneous purposes . . . No contract relating to municipal water supply or miscellaneous purposes or to electric power or power privileges shall be made unless, in the judgment of the Secretary, it will not impair the efficiency of the project for irrigation purposes.
We first note that the statute speaks of "contracts to fUrnish water," not contracts with respect to space. We believe the sta-tute on its face does not create authority for municipal space contracts.
However, even if it were that the authority to contract to furnish water implied authority to contract to furnish space, the same restrictions would apply. Thus, the finding that the contract will not impair the efficiency of the Project for irrigation pur-poses must be made under 43 U.S.C.
g
48511(c).Further, a contract to supply water for other purposes than irrigation must meet the requirements of 43 U.S.C. S 521. That statute requires that (1) the District approve the contract,
Mr. Raymond H. Willms March 6, 1986
Page Eleven
(2) that there is no other practicable source of water for the purpose, and (3) that no water shall be furnished for municipal purposes if the delivery of the water is detrimental to the water service for such irrigation project or to the rights of any prior appropriator. None of these prerequisites has been met.
It is our conclusion that the Bureau must, among other things, submit the proposed contracts with Aurbra to the Southeastern District for approval, not simply the review and comment. We submit that execution of contracts with Aurora, absent District approval, would be in violation of federal law.
Homestake Contract
The Bureau's letter of February 10, 1986, asserts that the December 14, 1965, Homestake Contract, at Article 10(f) [sic 10(b)), grants to Colorado Springs and Aurora the option to nego-tiate for additional storage.
First, we note that the Southeastern District was not a party to that Contract. Second, a reading of the Contract in full indi-cates that the possibility of additional storage was intended for Homestake water. For example:
Coodination of Project's Operations.
2(c) Whenever the Homestake water in storage in the East Slope Project Works amounts to 30,000 acre-feet, importations of Homestake water into the Project system shall be re-stricted to the rate of Homestake evacuations from the Project facilities, plus an appro-priate allowance for Homestake water losses, except as provided in Subarticle 10(b).
* * *
Service to Homestake Cities.
4(a) During the terms of this Agreement, or any renewal thereof, the United States will provide in accordance with the principles and
Mr. Raymond.H. Whims March 6, 1986
Page Twelve
criteria set forth herein: (1) carriage service for the Cities' Homestake water via the East Slope Project Works, including the Snow-den Canal, Elbert and Otero Power Canals and (2) storage service in the Project storage system for not more than 30,000 acre-feet except as provided in Subarticle 10(b).
* * *
Interim or Other Agreements.
* * *
10(b) The United States hereby grants an option to the Cities to negotiate for addi-tional storage service in the Eastern Slope Project Works over and above the 30,000 acre-feet contemplated by this Agreement, if and when there may be capacity in the system unused by the Project or uncommitted by prior agree-ments."
The "30,000 acre-feet contemplated by this Agreement" pertains to storage of Homestake water.
Third, the option given is to the "Cities," which are Colorado Springs and Aurora together. There is not an independent option to Aurora alone.
However, whatever the meaning of the Homestake Contract, it is clear that the Bureau's simply having entered a contract does not create authority for the contract itself or the now proposed con-tracts allegedly based upon authority created by the earlier contract.
Most instructive is the recent opinion in Jicarilla Apache Tribe V. United States, 657 .F.2d 1126 (10th Cir. 1981). In that case, the City of Albuquerque wished to store water in Elephant Butte Reservoir for recreational purposes. Albuquerque argued that it had a contract with the Bureau of Reclamation for storage of recreation water. The Court held that the contract did not create authority for the Bureau's action:
Mr. Raymond H. Whims March 6, 1986
Page Th5rteen
Also, the contract cannot add to the basic statutory directive for the San Juan-Chama Project • . • The Bureau of Reclamation cannot validly contract to deliver water on terms that are outside the authorization by Congress • • • •
* * *
The fact that Congress knew that Albuquerque might not require its full allocation imme-diately falls short of proving that Congress intended that the city should be free to do as it pleases with the excess water. It is true that Albuquerque •was authorized to sell extra water, but resale must be made in a manner consistent with the Project Act. The contract alone cannot be a basis for storage of large portions of project water solely for recrea-tional use.
At 1142. The Court concluded by holding the contract invalid, null and void.
We believe that the Homestake contract created no basis for the proposed Aurora contracts.
It is clear that Congress has sometimes included specific authorization for the Bureau to contract for space to cities for municipal use. See, for example, the Boulder Canyon Project Act, 43 U.S.C. § 617d, and the Colorado Storage Project Act, 43 U.S.C. § 620c. _Congress has also generally authorized irrigation storage contracts at 43 U.S.C. § 523, and water for towns in the immediate vicinity of irrigation projects at 43 U.S.C. § 567. Where, as here, there is no express authorization of the Aurora contracts, but where Congress on other occasions has expressly authorized those types of contracts, the legal implication is that there is no authority here.
Mr. Raymond H. Willms March 6, 1986
Page Fourteen
We see no authority for the Bureau to contract with the City of Aurora under the present circumstances. We see no evidence that Congress intended the Fryingpan-Arkansas Project to be used to remove native water from the Arkansas River Basin, which would undermine of the tax base of the Southeastern District and reduce the District's ability to repay the United States.
Very truly yours, Kevin B. B. Pratt
of
Fairfield and Woods KBP:rk
cc: SECWCD Board of Directors Mr. Charles L. Thomson Mr. B. E. Martin
BUREAU OF RECLAMATION
EASTERN COLORADO PROJECTS OFFICE P.O. BOX 449 LOVELAND, COLORADO 805394449 IN IMPLY •ICEFER TO: E -100 840. Mr. Howard Holme
Attorney, Fairfield and Woods 1600 Colorado National Building 950 - 17th Street Denver, CO 80202
APR 2
5
1986 cc el(
J- 71
"
ri
opri
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777'APR 2
8 1986
FAIRFIELD AND WOODS
Dear Howard:
Enclosed as requested is a copy of a revised proposed contract for temporary storage for the City of Aurora. This proposed contract has been given to the Attorney for the City of Aurora for the purpose of presenting to the Aurora City Council.
Enclosure* Sincerely yours, Raymond H. Willms Project Manager • •
(.7
A-mer
•UNITED STATES
DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION
Eastern Colorado Projects Office, Colorado
CONTRACT BETWEEN THE UNITED STATES AND THE CITY OF AURORA, COLORADO
FOR TEMPORARY
STORAGE OF WATER IN PROJECT FACILITIES
INDEX
Article Title Page,
Preamble 1
1 Explanatory Recital 1
2 Term of Contract 1
3 Storage 2
4 Payment for Storage 2
5 Credits
, 2
6 Delivery of Water 3
7 Records and Accounting for Water 3
8 United States Not Liable 3
9 General Obligation - Benefits
Conditioned upon Payment 4
10 Charge for Delinquent Payments 4
11 Quality. of Water 4
12 Water and Air Pollution Control 5
13 Notices 5
14 Equal Opportunity 5
15 Assignment Limited - Successors
and Assigns Obligated 6
16 Officials Not to Benefit 6
17 Contingent on Appropriation or
Allotment of Funds 7
18 Books, Records, and Reports 7
19 Rules, Regulations, and Determinations 7 20 Compliance with Civil Rights Laws and
Regulations 8
Signature Clause
•
IItIAPR
28 1986
CZL. FAIRFIELD AND WOODS
UNITED STATES
DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION
Eastern Colorado Projects Office, Colorado CONTRACT BETWEEN THE UNITED STATES AND
THE CITY OF AURORA, COLORADO FOR TEMPORARY
STORAGE OF WATER IN FRYINGPAN-ARKANSAS PROJECT FACILITIES THIS CONTRACT, made this day of , 19 in pursuance generally of the Act of June 17, 1902 (32 Stat. 388) and Acts Amendatory thereof and Supplementary thereto and the Act of August 4, 1939 (53 Stat. 1187), as amended, and particularly the Act of August 16, 1962 (76 Stat. 389), as amended by the Act of October 27, 1974 (88 Stat. 1486), all collectively hereinafter referred to as the Federal Reclamation Laws, between the UNITED. STATES OF AMERICA, hereinafter referred to as the United States, represented by the officer executing this contract hereinafter referred to as the Contracting Officer, and the CITY OF AURORA, COLORADO, hereinafter referred to as the Contractor.
WITNESSETH THAT:
EXPLANATORY RECITALS
1. WHEREAS, the following statements are made in explanation:
a. The Contractor is in need of temporary storage of water and desires to obtain such storage in facilities of the Fryingpan-Arkansas Project hereinafter referred to as the Project; and
b. The United States is willing to furnish such temporary storage to the Contractor, pursuant to Federal Reclamation Laws in accordance with the terms and conditions hereinafter stated;
NOW THEREFORE, in consideration of the premises and the covenants . herein contained, the. parties agree as follows:
TERM OF CONTRACT
2. This contract becomes effective on the date first above written and will continue in force through December 31, 1986, and it is espe-cially agreed and understood that the furnishing oforater storage serv-ice herein is temporary for the term of this contract and shall not be considered as binding the United States to furnish water storage service to the Contractor after the end of said period.
3. During the term of this contract
and to the extent as exclu-sively determined
by the United States that storage capacity is available in the Project storage system, in excess
of the requirements of the Project incluling winter water, the existing
permanent storage contractors of tile United Statec,-14d- temporary storage
Contractors of the United States located within the boundaries
of the Southeastern Colorado Water Conservancy
District, the United States will store for the Contractor in the Project storage system, but after
those temporary water storage contractors
of the United States located within the bound-aries of the Southeastern ColopdG—ikater
Conservancy District, such Lp, quantity of water not to exceecUMN)acre-feet
at any one time as may be legally available to the Contractor
for storage in the Project storage system. The Contractor
shall be solely responsible for making whatever arrangements under
Colorado water laws are necessary for making water available to it for storage in the Project
storage system. The United States will not store water for the ContrActor
without_Erior -Thi----Contric
for
hereby grants the United
States permission to move water into
and/or out
of any of the reservoirsof the Project storage system to optimize the use of the available
storage space and to conserve water. All water stored by the Contractor
shall be evacuated by the end of the contract term. Any water
imported from the western slope of Colorado remaining in Project storage
after expiration of this contract shall become Project-owned water and any water stored under
east slope decree remaining in Project storage
will be evacuated unless other contractual arrangements have been made.
PAYMENT FOR STORAGE 4. The charge to the Contactor for
orage of water in the Project storage system shall be at the rate of
er acre-foot and shall .be based on the maximum
acre-feet of s orage space occupied by the Contractor's water during
the term of this contract. The Contractor shall make an advance payment
of(II,P010301 or before the beginning of the
term
of the contract which win-be considered a readiness
-to-serve charge and will not be refundable.
For payment of the readiness -to-serve charge, 10aSontractor
shall be entitled to temporary storage of not to exceed(31.25>acre-feet
in the Project storage system. Additional water may
be llored
for the Contractor in the Project storage system during the contract term, not to exceed the anyiunt
specified in Article 3, upon payment in advance
at the rate of Ig)per acre-foot for the anticipated quantity of water to be stored. Adjustment
of the total amount to be paid during the term of this contract
shall be made at the close of the term of the contract
on the basis of the maximum storage space actually occupied by the Contractor's
water. Adjustments and settlement shall be made by refund or credit as the situation
indicates.
CREDITS
5. In the event the United States is required
to evacuate any Contractor water from the Project
storage system in order to provide
t
LA-3 %-1)
s-13
storage contractors or temporary storage contractors located within the boundaries of the Southeastern Colorado Water Conservancy District, the Contractor shall receive a credit, provided the Contractor does not divert the evacuated water into its water distribution system. The amount of credit for storage charges paid shall be the product of (1) the acre-feet of Contractor water evacuated times (2) the applicable rate per acre-foot set forth in Article 4 hereinabove, but the credit shall not exceed the total amount advanced by the Contractor for storage service in excess of the readiness-to-serve charge during the term of this contract. The readinessto-serve charge is nonrefundable.
DELIVERY OF WATER
6. Upon the Contractor's demand and after payment as provided in Article 4 hereof, the United States will deliver to the Contractor the water stored for the Contractor in the Project storage system at the routlet Nark_s_of_ihe_s_esejads_in...whicLiterter was admitted to the 50EE storiseusiem....at rates of flow as reWerbrthe tontfiEra, except that the stored water.may be delivered at the outlet works of any other dam, provided that an appropriate exchange has been arranged in accordance with Colorado law and has the approval of the State of Colorado's Division of Water Resources and the Contracting Officer. Any exchange of the Contractor's water with Project water will require a separate exchange agreement with the United States. The Contractor understands the United States may decline to enter into such an agreement,„1 The United States is not responsible for any transportation losses assessed by the State of Colorado's Division of Water Resources and/or associated with the delivery of the Contractor's water from the point of delivery at the outlet works of Pueblo Dam or other dams to the place of use. Should it be necessary at any time as determined by the Secretary to release water stored for the Contractor to provide space for Project storage, permanent Project storage contractors or temporary storage contractors located within the boundaries of the Southeastern Colorado Water Conservancy District, the United States will advise the Contractor of such necessity and of the quantity to be released and of the time of such releases, and any release so made shall be as if made on the demand of the Contractor. The releases of Contractor water will be before temporarily stored water of those Contractors located within the boundaries of the Southeastern Colorado Water Conservancy District.
RECORDS AND ACCOUNTING FOR WATER
7. The United States shall maintain daily accounting of the Contractor's water showing (a) the amount of Contractor water stored in the Project storage system, (b) the amount delivered to the Contractor, (c) the evaporation losses charged against Contractor water which shall be on a prorata basis with all other water stored in Pueblo Reservoir, and (d) the amount of water remaining in storage. , The Contractor will furnish the United States without charge such Contractor records as may
be required for such daily accounting.
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tArz—td,-, va-t,
8. The United States shall not be responsible beyond the point of delivery' for control, carriage, transportation losses, handling, use, disposal, or distribution of water stored pursuant to this contract, and the Contractor shall hold the United States harmless on account of damage, or claim for damage of any nature whatsoever arising out of or connected with the control, handling, use, disposal, or distribution of such water beyond the point of delivery.
GENERAL OBLIGATION - BENEFITS CONDITIONED UPON PAYMENT
9. The obligation of the Contractor to pay the United States as provided in this contract is a general obligation of the Contractor not withstanding the manner in which the obligation may be distributed among the Contractor's water users and notwithstanding the default of individ- ual water users in their obligations to the Contractor.
b. The payment of charges becoming due hereunder is a condition precedent to receiving benefits under this contract. No water will be made available to the Contractor through Project facilities during any period in which the Contractor may be in arrears in the advance payment of any storae service charge due the United States. The contractor shall not furnish water made available pursuant to this contract for land or parties which are in arrears in the advance payment of toll charges as levied or established by the Contractor.
CHARGES FOR DELINQUENT PAYMENTS
10. a. The Contractor shall be subject to interest, administrative and penalty charges on delinquent installments or payments, pursuant to section 11 of the Debt Collection Act of 1982 (Public Law 97-365). When a payment is not received within 30 days of the due date, the Contractor shall pay an interest charge for each day the payment is delinquent beyond the due date. When a payment becomes 60 days delinquent, the Contractor shall pay an administrative charge to cover additional costs of billing and processing the delinquent payment. When a payment is delinquent 90 days or more, the Contractor shall pay an additional penalty charge of 6 percent per year for each day the payment is delinquent beyond the due date. Further, the Contractor shall pay any fees incurred for debt collection services associated with a delinquent payment.
b. The interest charge rate shall be the greater of the rate prescribed quarterly in the Federal Rigister by the Department of the Treasury for application to overdue payments, or the interest rate of 0.5 percent per month prescribed by section 6 of thf Reclamation Project Act of 1939 (Public Law 76-260). The interest charge rate shall be determined as of the due date and remain fixed for the duration of the delinquent period.
the amount received shall be applied first to the penalty and admin-istrative charges, second, to the accrued interest, and third to the overdue payment.
QUALITY OF WATER
11. The operation and maintenance of Project facilities shall be performed in such manner as is practicable to maintain the quality of raw water made available through such facilities at the highest level reasonably attainable as determined by the Contracting Officer. The United States does not warrant the quality of water and is under no obligation to construct or furnish water treatment facilities to main tam n or better the quality of water.
WATER AND AIR POLLUTION CONTROL
12. The Contractor, in carrying out this contract, shall comply with all applicable water and air pollution laws and regulations of the United States and the State of Colorado and shall obtain all required permits or licenses from the appropriate Federal, State, or local authorities.
NOTICES
13. Any notice, demand, or request authorized or required by this contract shall be deemed to have been given, on behalf of the Contractor, when mailed, postage prepaid, or delivered to the Project Manager, Eastern Colorado Projects Office, PO Box 449, Loveland, Colorado 80539, and on behalf of the United States, when mailed, postage prepaid, or delivered to the City of Aurora, Colorado, 1470 South Havana, Aurora, CO 80012. The designation of the addressee or the address may be changed by notice given in the same manner as provided in this article for other notices,
EQUAL OPPORTUNITY
14. During the performance of this contract, the Contractor agrees
as follows:
a. The Contractor will not discriminate against any employee or applicant for employee because of race, color, religion, sex, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including
appren-available to employes and applicants for employment, notices to be pro-vided by the Contrating Officer setting forth the provisions of this nondiscrimination clause.
b. The Contractor will, in all solicitations or advertisement for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without discrimination because of race, color, religion, sex, or national origin.
c. The Contractor will send to each labor union or represent-ative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the Contracting Officer, advising the labor union or workers' representative of the Contractor's commitments under Section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. d. The Contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended, and of the rules, regulations, and relevant orders of the Secretary of Labor.
e. The Contractor will furnish all information and reports required by said amended Executive Order and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will per-mit access to its books, records, and accounts by the Contracting Officer and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
f. In the event of the Contractor's noncompliance with the non-discrimination clauses of this contract or with any of the such rules, regulations, or orders, this contract may be cancelled, terminated, or suspended, in whole or in part, and the Contractor may be declared ine-ligible for further Government contracts in accordance with procedures authorized in said amended Executive Order, and such other sanctions may be imposed and remedies invoked as provided in said Executive Order, or by rul, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
g. The Contractor will include the provisions of paragraphs (a) through (f) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of said amended Executive Order, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, That in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor 44 a result of such direction by the Contracting Officer, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.
15. The provision of this contract shall apply to and bind the suc-cessors and assigns of the parties hereto, but no assignment or transfer of this contract or any part or interest therein shall be valid until approved in writing by the Contracting Officer.
OFFICIALS NOT TO BENEFIT
16. No Member of or Delegate ot Congress or Resident Commissioner or official of the Contractor shall benefit from this contract other than as a water user or landowner in the same manner as other water users or. landowners.
CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS
17. The expenditure or advance of any money or the performance of any obligation of the United States under this contract shall be con-tingent upon such appropriation or allotment of funds. Absence of appropriation or allotment of funds shall not relieve the Contractor from any obligations under this contract. No liability shall accrue to the United States in case funds are not appropriated or allotted.
BOOKS, RECORDS, AND REPORTS
18. The Contractor shall establish and maintain accounts and other books and records pertaining to administration of the terms and con-ditions of this contract, including: the Contractor's financial trans-actions, water supply data, project operation, maintenance and replacement logs, and project land and right-of-way use agreements, the water users' land-use (crop census), land-ownership, land-leasing and water-use data; and other matters that the Contracting Officer may require. Reports thereon shall be furnished to the Contracting Officer in such form and on such date or dates as the Contracting Officer may require. Subject to applicable Federal laws and regulations, each party to this contract shall have the right during office hours to examine and make copies of the other party's books and records relating to matters covered by this contract.
RULES, REGULATIONS, AND DETERMINATIONS
19. a. The parties agree that the delivery of water or the use of Federal facilities pursuant to this contract is subject to Reclamation law, as amended and supplemented, and the rules and regulations pro-mulgated by the Secretary of the Interior under Reclamation law. •
b. The Contracting Officer shall have the ;-ight to make deter-minations necessary to administer this contract that are consistent with the expressed and implied provisions of this contract, the laws of the United States and the State, and the rules and regulations promulgated
consultation with the Contractor.
COMPLIANCE WITH
CIVIL
RIGHTS LAWS AND REGULATIONS20. a. The Contractor shall comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), Section 504 of the Rehabilitation Act of 1975 (P.L. 93412, as amended), the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other applicable civil rights laws, as well as with their respective implementing regulation and guidelines Imposed by the U.S. Department of the Interior and/or Bureau of Reclamation.
b. These statutes require that no person in the United States shall, on the grounds of race, color, national origin, handicap, or age, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving financial assistance from the Bureau of Reclamation. By exe-cuting this contract, the Contractor agrees to immediately take any measures necesary to implement this obligation, including permitting officials of the United States to inspect premises, programs, and documents.
c. The Contractor makes this agreement in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts, property discounts or other Federal financial assistance extended after the date hereof to the Contractor by the Bureau of Reclamation, including installment payments aftersuch date on account of arrangements for Federal financial assistance which were approved before such date. The Contractor recognizes and agrees that such Federal assistance will be extended in reliance on the representations and agreements made in this article, and that the United States reserves the right to seek judicial enforcement thereof.
•
as of the date and year first above written.
CITY OF AURORA, COLORADO
Attest:
By Title
Title (SEAL)
THE UNITED STATES OF AMERICA
STATE OF
COUNTY OF ) SS.
By Project Manager
Bureau of Reclamation Missouri Basin Region Eastern Colorado Projects
Office ACKNOWLEDGMENT
On , 19 before me,
appeared
The person(s) whose name(s) (is)(are) subscribed to the within instru-ment and known to me to have executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year in this acknowledgement first above written.
(SEAL)
My commission expires:
Notary Public
•
FOR A RESOLUTION AUTHORIZING THE EXECUTION OF A WATER STORAGE CONTRACT WITH THE UNITED STATES
BUREAU OF RECLAMATION
WHEREAS, the City Council executed a Water Purchase Agreement with Resource Investment Group upon February 18, 1983; and
WHEREAS, said Agreement calls for Aurora to obtain the right to store said water; and
WHEREAS, the United States Bureau of Reclamation has offered to enter into a storage contract upon terms and conditions
substantially the same as. those listed within Exhibit A, attached hereto and referentially incorporated herein; and
WHEREAS, recently expressed beliefs of the Water Judge and the associated water transfer case dictate that Aurora execute the Bureau's proposed storage contract before May 1, 1986; and WHEREAS, the execution of said contract will facilitate
the
prosecution
of the said water rights and thereby allow their eventual delivery to the City of Aurora.NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF AURORA, COLORADO:
That the Mayor shall execute on behalf of the City of Aurora that certain Agreement attached hereto as Exhibit A.
BE IT FURTHER RESOLVED:
That the Mayor is further authorized to execute any other agreement in lieu of that set forth in Exhibit A as long as the major provisions thereof are substantially the same as those set forth in Exhibit A.
28th April
RESOLVED AND PASSED this day o A.D. 1986. • • • • 7 .•.. „•-•.- • ; • • . • ,;,\J \-1 L
DENTS CHAMPINy Mayor
DONNA L. YOUNG, Depu 'APPROVED AS TO FORM: res • TrOtemft..
•
STATE OF COLORADOCOUNTIES OF ADAMS & ARAPAHOE ) SS CITY OF AURORA
Date 7/
• t
/' ri•
Certifie.a to be a full, true and correct copy of.-the original in my custody..
a.&//(7 ge 2 ,(•• •er-e (?M'e, /4f777. , .••••• •••• ••• •••• • ,••••• Exhibit No. 2 ,I1.1.•••••••••••• •
IN REPLY REFER TO:
BUREAU OF RECLAMATION
EASTERN COLORADO PROJII(71S 01 F P.O. BOX 449
LOVELAND, (X)LORADO 805994)419 E-100
APR 3
0
1986
Mr. Raymond D. Nixon
President Southeastern Colorado Water Conservancy District P.O. Box 440
Pueblo, CO 81002 Dear Mr. Nixon:
I have made the decision to execute a temporary storage contract with the City of Aurora. Our plan is to have the contract fully executed by May 12, 1986. The proposed contract has been revised to incorporate some of the comments included in Mr. Kevin Pratt's letter of March 25, 1986. Enclosed is a copy of the revised proposed contract. We will consider additional comments on the revisions to the contract if received in this office by May 5, 1986. As a matter of information, it is our intent to use the terms of this contract in future temporary storage contracts subject to the appropriate adjustment to the price and spill priority for entities within the District.
Our decision to proceed with the contract has been made after having given the District more than ample opportunity to present their comments and arguments through letters, telephone conversations, and face-to-face meetings. Regional Director, Bill Martin will be in Pueblo on Friday May 2 should you desire to hear firsthand the basis of our decision.
•
Mr. Pratt's letters of January 21 and March 6, 1986, raised questions concerning our authority to contract with the City of Aurora. After a careful review of Mr. Pratt's letters, the applicable statutes, and other pertinent documents, we have concluded that the United States does have the authority to contract with the City of Aurora for storage service in the Fryingpan-Arkansas Project reser-voirs.
Mr. Pratt asked what is the authority to store water for the City of Aurora in east slope Fryingpan-Arkansas Project (Project) reservoirs. He then divided his question into two parts. First, what is the authority to contract for storage of water for a municipality? The irrigation storage authority he cited (43 U.S.C. 523), Act of February 21, 1911, is referred to as the Warren Act which
