by Brent Gardner-Smith, Aspen Journalism
ASPEN – Six statements of opposition have been filed in water court regarding the city of Aspen’s application for several new water rights, including rights for water from a well that may be drilled 3,000 feet down to reach a major underground aquifer.
The city is seeking rights for the new well, as well as increased diversions of 1.5 cubic foot per second from the Roaring Fork River into the Riverside Ditch, and a storage right of 1.5 acre-feet of water in Snyder Pond, which is in Snyder Park on Midland Ave.
Aspen has also filed an augmentation and exchange plan that involves releasing up to 7.85 cfs of water from the 400 acre-feet of water the city owns in Ruedi Reservoir on the Fryingpan River.
Such back-up water plans can protect junior water rights in the event of a call for water from holders of senior downstream water rights.
The city filed its application on Dec. 31, 2015.
Attorney Paul Noto of the water law firm of Patrick, Miller and Noto, filed a statement of opposition on March 31 on behalf of five entities, including The Wonderful Company, which is owned by Stewart and Linda Resnick.
The Resnicks, said by Forbes to be worth over $4 billion, own an estate east of Aspen that the Pitkin County assessor estimates is worth $15.8 million.
Along with the Wonderful Co., there are four other parties represented by Noto in the case: the Stage Road Homeowners Association; Russell B. Wight, Jr.; Mountain Queen, Inc.; and Rocky Mountain Property II Trust.
In his sparsely worded statement of opposition, Noto suggests his clients’ concerns include the use of the proposed underground water, the use of water from Ruedi Reservoir and the use of an unspecified irrigation ditch that he claims the city “has no ownership in.”
Also filing a statement on March 31, the deadline to do so, was a collection of entities controlled by Daniel Och, the CEO of Och-Ziff Capital Management Group, who owns a home on Willoughby Way.
The entities are called Red Mountain Willoughby Associates, LLC, RMWW Holdings, LLC, RMWW Holdings 25 QPRT, and RMWW Holdings 30 Year QPRT.
“Opposers are the owners, users and beneficiaries of water rights that might be adversely affected by the granting of the application filed herein,” the statement of opposition from the Red Mountain entities states, without raising specific issues with the city’s application. Attorney Mark Hamilton of Holland and Hart filed the statement.
The Stillwater Ranch Open Space Association, the Duroux Ditch Co., the Basalt Water Conservancy District, and a state agency, the Colorado Water Conservation Board, also each filed a statement of opposition in the case.
The Stillwater Ranch Open Space Association is tied to a neighborhood of luxury homes, upstream of the Aspen Club.
The Duroux Ditch Company owns and manages the Duroux Ditch, which diverts water from Hunter Creek and sends it across Red Mountain to Willoughby Way.
The members of the Duroux Ditch Co. include Och, Will Mesdag, a former partner in Goldman Sachs and the founder of Red Mountain Capital Partners, LLC, and Bennett Goodman, a senior managing partner at the Blackstone Group and founder of the company’s GSO Capital Partners.
Christopher Geiger, an attorney with Balcomb and Green representing the Duroux Ditch Co., noted in his statement of opposition that the city must prove that its claimed water rights “are not speculative.”
Gleaning a party’s true intent from a statement of “opposition” can be hard to do, as statements don’t always signal litigious intent. Such statements can be filed as a means to learn more about a proposed new water right or to simply monitor a case.
But attorneys do sometimes suggest project-specific concerns in their statements of opposition.
“Applicant claims a tributary underground water right that is not fully augmented and is thus contrary to law,” was one point made in the filing by attorney Noto.
Noto’s mention of a “tributary underground water right” refers to the city seeking the right to drill down to reach an ancient aquifer sitting in a layer of Leadville Limestone below Aspen.
The Aspen Queen Street Well is proposed for a site just off Queen St., in the Prockter Open Space, which borders the Roaring Fork and is across Neale Ave. from Herron Park.
The city is seeking the right to draw 3.3 cfs from the deep well primarily as a back-up water supply, but its application also seeks a long list of potential uses, including the production of geothermal energy.
The city also wants to increase diversions from the Roaring Fork River and into the Riverside Ditch, by 1.5 cfs. Today the ditch, from its head gate near the Aspen Club, winds through residential areas near Riverside Drive, goes under Highway 82, and then passes through Snyder Park.
The city said it intends to use 1 cfs from the additional diversions into the Riverside Ditch to fill, re-fill and freshen Snyder Pond, which is used to irrigate Snyder Park, and to use .5 cfs to irrigate the Prockter Open Space and neighboring Herron and Newbury parks.
But the new water right would also include many other potential uses.
In a proposed augmentation plan, the city proposes to back-up its new water rights when needed by releasing water from Ruedi Reservoir. Ruedi water would protect the ongoing use of the Queen Street Well, as well as the other elements in its application, in the face of a downstream call.
The state, however, has concerns about the city’s proposed water rights.
In its statement of opposition, the CWCB said, “the proposed plan for augmentation and exchange may not replace depletions in the proper time, place and amount, which could injure the CWCB’s instream flow water rights.”
The CWCB holds an instream flow right of 32 cfs in the Roaring Fork between Difficult Creek and Maroon Creek and a right of 30 to 55 cfs, depending on the season, between Maroon Creek and the Fryingpan River.
“Terms and conditions should be included in the decree to ensure that the proposed change will not injure the CWCB’s instream flow water rights,” the statement of opposition from CWCB said.
The city is aware of the concerns of the CWCB and other water rights owners.
Phil Overeynder, an engineer with the city who oversees long-range water planning, said in February that the burden will be on the city to show that its use of water from a new Queen Street Well will not harm any other water rights.
A status conference in the case, number 2015CW3119 in Division 5 water court in Glenwood Springs, has been set for April 28.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Monday, April 11, 2016.
Please also see: “City of Aspen files for a water right tied to a deep new well”