By Brent Gardner-Smith, Aspen Journalism
GLENWOOD SPRINGS — In its effort to secure water rights for three proposed whitewater parks on the Colorado River, the city of Glenwood Springs has reached formal or conceptual agreements with a list of opposing parties in the water court case, including Denver Water, but it’s still facing opposition from Aurora and Colorado Springs.
“We have a number of parties that have already settled,” said Mark Hamilton, an attorney with Holland and Hart representing Glenwood. “And while there are still some significant question marks, we think the process so far has been productive and continues to be productive.”
Since December 2013, the city has been seeking a recreational in-channel diversion (RICD) water right tied to three whitewater parks on the popular Grizzly-to-Two Rivers section of the Colorado River, at No Name, Horseshoe Bend and the upper end of Two Rivers Park.
The two wave-forming structures in each of the three whitewater parks would operate under a common water right that could call for 1,250 cubic feet per second of water from April 1 to Sept. 30, 2,500 cfs of water for up to 41 days between April 30 and July 23, and 4,000 cfs on five consecutive days sometime between June 30 and July 6.
The 1,250 cfs level is the same as the senior water right tied to the Shoshone hydropower plant, which is upstream from the three proposed whitewater parks. Glenwood officials have previously said, however, that 2,500 cfs is a better level for boating and floating than 1,250 cfs, and the city wants the flows of 4,000 cfs for five days around the Fourth of July to hold expert whitewater competitions.
But Aurora and Colorado Springs, both as individual cities, and together as the Homestake Partners, have told the water court that Glenwood is seeking more water than it needs.
“Glenwood has ignored the law limiting a RICD to the minimum flow necessary for a reasonable recreation experience, and instead has reverse-engineered its proposed RICD to tie up half the flow of the mainstem of the Colorado River,” the Front Range cities said in a June 2015 statement filed with the court.
And the cities, which own conditional water rights upstream of Glenwood, said that the city’s proposed water right “would dramatically and adversely affect the future of water use in the Colorado River drainage, if not the entire state.”
Hamilton has met twice this year with representatives of Aurora and Colorado Springs, most recently on April 22 in Denver, to see if a deal can be worked out on how much water is appropriate.
“We’re talking,” said Joe Stibrich, the water resources policy manager at Aurora Water. “But, we’ll see where it goes.”
“There are ongoing negotiations and discussions that seem to be productive at this time,” said Kevin Lusk, principal engineer at Colorado Springs Utilities. “Whether or not we can reach agreement, of course, is really up to how those discussions go.”
A status conference with the water court referee is set for June 23. The referee could then decide to send the application up to James Boyd, the judge who hears Division 5 water court cases in Glenwood Springs, or the parties in the case could ask for more time to keep talking before heading to trial.
“We are actively communicating with Colorado Springs and Aurora concerning the possible development of additional call reduction provisions in order to protect future yield to their systems,” Hamilton said. “And we remain hopeful that a stipulated decree may be able to be entered after completion of these ongoing negotiations.”
Glenwood has recently worked out a “call reduction provision” with Denver Water.
“There has been a lot of progress on our end with the RICD discussions,” said Travis Thompson, a senior media coordinator at Denver Water. “In fact, in the collaborative spirit of the Colorado River Cooperative Agreement (CRCA), Denver Water has agreed to allow Glenwood Springs to exceed 1,250 cfs under certain conditions.”
In the CRCA, signed in 2013, Denver Water agreed not to oppose a future recreational water right application if it did not seek flows greater than 1,250 cfs. But given that Glenwood is also seeking 46 days at 2,500 cfs and five days at 4,000 cfs, above the relatively consistent flow of 1,250 cfs, Denver did file a statement of opposition in this case.
Glenwood and Denver have now agreed that Glenwood would reduce its call for the whitewater parks to 1,250 cfs if continuing to call at a higher rate, such as 2,500 cfs, would limit a potential future water project that is described in the CRCA as providing 20,000 acre-feet to the East Slope.
Staff at Denver Water approved such an agreement with Glenwood on March 9, according to Thompson, and Hamilton said a copy would soon be filed with the court.
Glenwood enjoys the support of three “opposers” in the case: American Whitewater, Western Resource Advocates and Grand County, as the entities have filed statements “of opposition in support,” which is an option in Colorado’s water courts.
And Glenwood has now filed formal agreements in water court that it has reached with five other true opposers with a range of issues: Glenwood Springs Hot Springs & Lodge Pool, Inc., BLM, Grand Valley Water Users Association, Orchard Mesa Irrigation District, and Ute Water Conservancy District.
The Glenwood Hot Springs Lodge & Pool is concerned about the project disrupting the deep Leadville limestone aquifer that provides its hot water.
But they’ve reached an agreement with the city that allows them to review construction plans for the wave structures at the Two Rivers Park location and requires the city to monitor the resulting wave structures for five years to watch for scouring of the riverbed, among other provisions.
And an agreement between Glenwood and the BLM was filed with the court in June 2015. It says that if the city needs to cross BLM property to create a whitewater park in Horseshoe Bend then the city will go through the required federal land use process.
The city has also signed a memorandum of understanding with CDOT that moves issues coming from the use of land at the No Name rest area on I-70 out of water court and into a future potential land-use application.
“One of the conditions is that the city will have to work with CDOT as they move forward with building the whitewater park, as the (No Name) location falls in CDOT right-of-way,” said Tracy Trulove, a communications manager for CDOT. The agreement has yet to be filed with the court.
The city is also close to finalizing agreements with the Colorado River District, the town of Gypsum, and the West Divide Water Conservancy District, according to Hamilton.
Peter Fleming, general counsel for the Colorado River District, which represents 15 West Slope counties, said staff at the district is now comfortable with proposed settlement language in the Glenwood case.
And he said once the district’s initial goals in a RICD case are met, the district often stays in the case on the side of the applicants “in order to support the right of its constituents to use water for recreational purposes that will support and/or enhance the local economy.”
“We anticipate that such participation may be necessary in the Glenwood Springs RICD case,” Fleming said.
At the end of the list of opposers is the Colorado Water Conservation Board, a state agency whose board of directors in June 2015 recommended against the proposed RICD after concluding it would “impair Colorado’s ability to fully develop its compact entitlements” and would not promote “the maximum beneficial use of water” in the state.
“While we stand by our initial decision on this RICD, we’re encouraged that the applicants are actively seeking resolution with stakeholders and hope they will resolve the issues we raised,” James Eklund, director of the Colorado Water Conservation Board, said this week.
Eklund said the CWCB staff will likely reconsider Glenwood’s proposal after it has reached agreements with other opposing parties in the case, and if staff is satisfied, bring the proposed decree back to the board.
“Water for recreation in Glenwood Springs and around Colorado is essential and we want to make sure all RICDs strike the right legal, design, and safety balance,” Eklund said.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of water and rivers in Colorado. The Daily News published this story on Saturday, April 30, 2016.