Aspen’s deep well application draws interest in water court

The Roaring Fork River, looking upstream from No Problem Joe Bridge, in February 2016. This stretch of river runs along a proposed deep well site.
The Roaring Fork River, looking upstream from No Problem Joe Bridge, in February 2016. This stretch of river runs along a proposed deep well site.

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.

A map from the city's water rights application showing the location of the potential Queen Street Aspen Well.
A map from the city's water rights application showing the location of the potential Queen Street Aspen Well.

Deep Well

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.

A map from the city's water rights application showing Newberry and Herron parks and Prockter Open Space.
A map from the city's water rights application showing Newberry and Herron parks and Prockter Open Space.

Aug plan

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”

#ColoradoRiver: Aspinall Unit operations update #COriver

Blue Mesa Reservoir
Blue Mesa Reservoir

From email from Reclamation (Erik Knight):

The April 1st forecast for the April – July unregulated inflow volume to Blue Mesa Reservoir is 515,000 acre-feet. This is 76% of the 30 year average. Snowpack in the Upper Gunnison Basin is currently 87% of average. Blue Mesa Reservoir current content is 558,000 acre-feet which is 67% of full. Current elevation is 7487.0 ft. Maximum content at Blue Mesa Reservoir is 829,500 acre-feet at an elevation of 7519.4 ft.

Black Canyon Water Right

The peak flow and shoulder flow components of the Black Canyon Water Right will be determined by the May 1 forecast of the April – July unregulated inflow volume to Blue Mesa Reservoir. If the May 1 forecast is equal to the current forecast of 515,000 acre-feet of runoff volume, the peak flow target will be equal to 3,197 cfs for a duration of 24 hours. The shoulder flow target will be 300 cfs, for the period between May 1 and July 25. The point of measurement of flows to satisfy the Black Canyon Water Right is the Gunnison River below Gunnison Tunnel streamgage at the upstream boundary of Black Canyon of the Gunnison National Park.

Aspinall Unit Operations ROD

Pursuant to the Aspinall Unit Operations Record of Decision (ROD), the peak flow and duration flow targets in the lower Gunnison River, as measured at the Whitewater gage, will be determined by the forecast of the April – July unregulated inflow volume to Blue Mesa Reservoir and the hydrologic year type. At the time of the spring operation, if the forecast is equal to the current forecast of 515,000 acre-feet of runoff volume, the hydrologic year type will be set as Moderately Dry. Under a Moderately Dry year the peak flow target will be 8,029 cfs and the duration target at this flow will be 1 day.

Projected Spring Operations

During spring operations, releases from the Aspinall Unit will be made in an attempt to match the peak flow of the North Fork of the Gunnison River to maximize the potential of meeting the desired peak at the Whitewater gage, while simultaneously meeting the Black Canyon Water Right peak flow amount. The magnitude of release necessary to meet the desired peak at the Whitewater gage will be dependent on the flow contribution from the North Fork of the Gunnison River and other tributaries downstream from the Aspinall Unit. Current projections for spring peak operations show that flows in the Gunnison River through the Black Canyon could be between 5,000 cfs and 5,500 cfs for 1 day in order to achieve the desired peak flow and duration at Whitewater. If actual flows on the North Fork of the Gunnison River are less than currently projected, flows through the Black Canyon could be even higher. With this runoff forecast and corresponding downstream targets, Blue Mesa Reservoir is currently projected to fill to an elevation of around 7508.5 feet with an approximate peak content of 733,000 acre-feet.

Fog-filled Black Canyon via the National Park Service
Fog-filled Black Canyon via the National Park Service

Denver: Platte to Park Hill Project stirring the waters of neighborhood discontent

Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin) Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).
Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin)
Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).

From The Denver Post (Jon Murray):

Lawyers for opponents of a huge northeast Denver flood-control project raised legal objections and notified the city about the possibility of lawsuits this week over two major components.

The “Platte to Park Hill” project is aimed at improving the flow of storm runoff toward the South Platte River. The city says it would provide heightened flood protection for some neighborhoods. And it also would divert water away from the planned state project to expand Interstate 70 and lower a portion below ground level, a source of controversy among opponents of the I-70 project.

The letters to City Attorney Scott Martinez, who says he is confident the project follows the law, cite potential legal violations and allege city officials have misled residents.

They target plans to regrade the western portion of City Park Golf Course to create a detention area and a mile-long open drainage channel along 39th Avenue, from Franklin to Steele streets, in and near the Cole neighborhood.

On Wednesday, Denver Public Works officials announced that the golf course option had been selected for the detention area over an alternative. They also disclosed that the overall project is now estimated to cost $267 million to $298 million, up at least 54 percent since the previous estimate last summer, because of an expansion in project scope.

Attorney Jerome M. Reinan sent one letter Tuesday. He says he represents a group of Cole residents, including Ed Armijo and Heidi Sue Harris.

He alleges city officials and contractors have misinformed neighborhoods about the project’s intent, which he characterizes as protecting I-70 and development in River North closer to the river. He also argues that the city has misused money raised by the wastewater rate over the years and violating the Taxpayer’s Bill of Rights. His final contention is that the drainage channel would take advantage of a low-income and minority neighborhood while disturbing contaminated soil.

Though the Cole neighborhood “is a generally underserved, low-income, minority neighborhood,” Reinan writes, “it has the organization and legal assistance it needs to prevent itself from being victimized by its elected officials.”

The allegations in the letter have been widely discussed among residents and examined by local media in recent weeks. City officials have pushed back against such assertions, saying the project would increase flood protection the most substantially for neighborhoods closer to I-70 while providing a basis for future projects that would provide relief further south.

“We are confident any city project, including this one, goes forward well within the bounds of the law,” Martinez said Friday. “As the process progresses, we strive to provide any clarity and certainty around any legal questions that may arise.”

The other letter raising the possibility of legal action was sent to Martinez on Monday, before the golf course’s selection was announced, by attorney Aaron D. Goldhamer. He says he represents former Colorado Attorney General J.D. MacFarlane, who served from 1975 to 1982.

Goldhamer’s letter cites past court decisions, the city charter and more recent documents involving Denver Parks and Recreation to argue the City Park Golf Course detention area would “remove city park land from current uses and would appear to violate applicable law,” which allows only parks and recreation uses on park land.

Goldhamer’s letter said MacFarlane hoped to avoid seeking legal intervention.

In a two-page response Martinez sent to Goldhamer on Friday, the city attorney disputed that argument.

“I want to assure Mr. MacFarlane that the recreational and open space values of the City Park Golf Course will be maintained,” Martinez wrote. “Dual use of parks facilities and compatible storm water management purposes are used nationally and have historically been lawfully used in Denver at many parks.”

He cited other golf courses and parks in the city and metro area that are graded to detain water during heavy storms while allowing golfing and recreation during dry weather.

There’s an interesting political wrinkle to Goldhamer’s involvement.

He’s currently running to represent the open Colorado House District 8 seat, which includes City Park. He is locked in a tight Democratic primary June 28 with Leslie Herod

Goldhamer said in an interview that his concern in drafting the letter was for good government, and “that speaks to me both as a candidate and as an attorney.”

He said city officials seemed determined to move forward with the drainage project, despite opponents’ objections.

“I think they’re going to proceed apace,” he said, “unless and until they have an injunction stopping them.”

Snowmass taxpayers asked to approve mill levy for wastewater treatment plant

Wastewater Treatment Process
Wastewater Treatment Process

From The Aspen Times (Jill Beathard):

Ballot measure 5A asks to increase the water district’s debt to $19.85 million, or a monthly tax increase of $1.89 per $100,000 of assessed value. The funds will go toward replacing the district’s current wastewater-treatment plant to comply with new federally mandated guidelines.

No one likes to pay more taxes, especially in a year when Snowmass Village property owners may be asked for more (the fire district is eyeing a new station and is currently weighing how to fund it). But by paying for it this way, the district hopes to avoid having to increase its rates in order to cover the costs.

The changes have to do with nitrogen and phosphorus removal in the treatment plant, district manager Kit Hamby said in a presentation at the April 4 Town Council meeting. Because of a mandate from the federal Environmental Protection Agency, the state of Colorado has established new discharge restrictions for sewer plants above a certain capacity, restrictions intended to improve stream quality.

Glenwood Springs-based engineering firm SGM is helping with the design of the new plant, and its current plan repurposes 75 percent of the currently facilities. However, the plant will still be getting a whole new building, and the current facility will have to continue to be operable while the new plant gets built…

Assuming the funding and design process moves forward as planned, construction will start next year and take 18 to 24 months. When asked at the council meeting about traffic impacts, Hamby acknowledged they will be significant…

SGM has estimated the project will cost about $19.8 million, said Joe Farrell, president of the water district board, at the meeting. The alternative to the mill levy is an increase in rates for water district customers, estimated at an 80 percent hike, and the board does not support that, according to a notice sent to voters.

Mayor Markey Butler asked about the penalties involved if the district didn’t move forward with the project. Hamby responded that the state can assess fees of $20,000 a day if it does not comply.

“Quite frankly, we don’t have a choice,” Butler said.

Ballots will go out to all registered voters in the Snowmass Water and Sanitation District over the next week. Completed ballots must be received by 7 p.m. May 3.</blockquote

#Snowpack news: Big widespread storm needed for #Colorado

Westwide SNOTEL map April 10, 2015 via the NRCS.
Westwide SNOTEL map April 10, 2015 via the NRCS.

From CBS Denver:

Scientists hiked up Berthoud Pass in Summit County on Thursday to measure the snowpack as part of the annual snow survey for Colorado.

“There might be about six feet of snow but there might only be two feet of actual liquid water stored,” said Karl Wetlaufer, assistant snow surveyor…

Many of the recent large storm events missed the southern and southwest mountains where snowpack is largely 70-80 percent of normal…

“We’re in a really good situation, particularly in the northern and central mountains and basins in Colorado,” said Wetlaufer.

From Steamboat Today (Tom Ross):

The Yampa River basin stands to see near normal spring runoff after March provided an abundance of wet snow in the Park, Gore and Flat Top mountain ranges. The moisture may have come just in time…

The U.S. Geological Survey, which measures streamflows, reports the Yampa River at Fifth Street in downtown Steamboat Springs typically begins to rise in the first week in April, and on Thursday, the river spiked sharply, from just above 300 cubic feet per second (cfs) to almost 500 cfs. That’s about 100 cfs above the median for the date.

[Brian] Domonkos, who works for the Natural Resources Conservation Service in Denver, reported this week that, after a disappointing February, the northern half of Colorado was favored by the storm pattern in March. Still, the snowpack in the combined Yampa and White River basins is 97 percent of the median for the date.

Rabbit Ears Pass is among the outliers — the snow there was 73 inches deep Friday, and snowpack is 132 percent of median, with 33.3 inches of standing water, compared to the median 25.2 inches.

The Dry Lake snowpack measuring site at the foot of Buffalo Pass is 120 percent of median, but the Tower site near the top of the pass is just 86 percent of median, with 39 inches of water compared to the normal 46 inches. Yet, with a snow depth of 107 inches, Tower leads the state.

Tower is one of more than 800 remotely monitored snow measuring stations in the mountain west that scientists use to predict how much water will flow down streams and rivers this springs, which correlates directly with water supply…

Northwest Colorado is in much better shape than the combined San Miguel, Dolores, Animas and San Juan river basins, which drain the western San Juan Mountain Range. Snowpack there is just 71 percent of median. Snowpack at Red Mountain Pass and Molas Lake, between Silverton and Durango, is in the 60th percentile.

#Colorado’s share of the Rio Grande outsized and ill-timed according to #NM water users

Rio Grande and Pecos River basins
Rio Grande and Pecos River basins

From Taos News (J.R. Logan):

Shortly after midnight last Friday (April 1), irrigators in Colorado’s San Luis Valley opened the gate on a diversion dam and pushed 80,000 gallons-a-minute of the Río Grande into a canal system that includes 210 miles of ditch and serves hundreds of farmers.

April 1 marks the beginning of irrigation season for the valley’s farmers. The Río Grande is at the heart of the valley’s massive agricultural industry, and farmers waste no time in taking their share…

Agriculture is big business north of the border. An incredibly complex infrastructure of dams and canals spreads water from the river across the valley, most of it to fill shallow aquifers that feed hundreds of center pivot sprinklers. But the water demands of the industry on that side of the state line in spring often leave little water in the river by the time it hits New Mexico. At times in recent years, the river at the border was more than 90 percent smaller than when it entered the valley.

Environmentalists complain that dramatically altering the natural pulse of spring runoff has devastating ecological effects that extend far downstream. And rafting outfitters in Taos County have said Colorado irrigators sucking most of the river dry hurts their business by making popular sections of the river — namely the Taos Box through the Río Grande del Norte National Monument — impassible. “They’re starting earlier, and it’s more intense,” says Cisco Guevara, outfitter and owner of Los River Runners. Guevara and other outfits started running the Taos Box in March, when early runoff swelled the river enough to get a boat through. But between April 1 and April 5, flows at the state line dropped by more than half…

Exactly how low the flow will go depends on the snowpack in the Río Grande’s headwaters in Colorado. Under the Río Grande Compact — a water sharing agreement struck by Colorado, New Mexico and Texas nearly 80 years ago — Colorado must “deliver” a certain percentage of the river to the state line every year. That percentage varies, depending on the total amount of water that goes downriver each year.

The catch – for New Mexico – is that the delivery is calculated on an annual basis, meaning Colorado can let every drop of the river go to New Mexico during the fall and winter while taking most of the river during the spring and summer and still fulfill its debt to New Mexico.

Unfortunately for river rats like Guevara, peak rafting season happens to coincide with irrigation season.

Still, the demands of thirsty irrigators in Colorado don’t necessarily mean the river will shrink to a trickle at the state line. Peak runoff is still weeks off, and when ample snowpack melts in earnest and the Río Grande really gets rolling, farmers can only take so much water, meaning there’s plenty left for those downstream…

As of Wednesday (April 6), snowpack in the Río Grande headwaters was at 86 percent of the 30-year average, suggesting flows this year will be slightly below average. But that could change if the mountains see additional spring snow storms that bolster snowpack, as was the case last year.

Raft guides aren’t the only ones griping about the way water in the Río Grande is shared.

In 2014, Santa Fe-based environmental group WildEarth Guardians served notice of its intent to sue the state of Colorado, arguing extreme diversions for agricultural use imperiled the habitat of the endangered silvery minnow in the Middle Río Grande Valley.

No such lawsuit has been filed. Instead, the group is suing the state of New Mexico, hoping to compel the state engineer to limit the amount of water that can be diverted by the Middle Río Grande Conservancy District, which serves farmers in the center of the state.

Westwide SNOTEL map April 10, 2015 via the NRCS.
Westwide SNOTEL map April 10, 2015 via the NRCS.