City of Aspen to discuss possible dams on Castle and Maroon creeks

A rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city.
A rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – Officials at the city of Aspen intend to hold at least one public meeting this summer to discuss the conditional water rights it holds that are tied to potential dams on upper Castle and Maroon creeks.

The city’s next diligence filing for its conditional water rights for the two dams and reservoirs is due in Division 5 water court in Glenwood Springs by Oct. 31. It’s highly unusual in Colorado for a city, or any other entity, to hold a public meeting on a pending diligence filing.

David Hornbacher, city of Aspen director of utilities and environmental initiatives, said that while holding a public meeting is indeed “different,” he is acting at the direction of the city council.

“These are important questions,” he said. “And it’s very much about looking into the future and how do we ensure Aspen has what it needs to continue to thrive and be the place that it is, and what’s the best approach.”

Paul Noto, a water attorney with Patrick, Miller and Noto, which specializes in water law and has represented many clients in the Roaring Fork River watershed, said it was “very unusual” for a city to hold a public hearing about a pending diligence filing.

“I’ve never heard of it, although that’s not to say it’s never occurred,” Noto said. “I’ve just never heard of it.”

 A rendering from Wilderness Workshop showing the potential Castle Creek Reservoir. The rendering was developed by a professional hydrologist and i sbased on engineering plans filed by the city.
A rendering from Wilderness Workshop showing the potential Castle Creek Reservoir. The rendering was developed by a professional hydrologist and i sbased on engineering plans filed by the city.

15-story dams?

If built as currently described by the city’s plans, which were first presented to a water court judge in 1965, the Maroon Creek reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam just below the confluence of East Maroon and West Maroon creeks.

While only about a third of the size of Paonia Reservoir, which can hold 15,553 acre-feet when full, a Maroon Creek reservoir would still cover 85 acres of U.S. Forest Service land about a mile-and-a-half below Maroon Lake.

It would also inundate portions of both the East Maroon Creek and West Maroon Creek trails in the Maroon Bells-Snowmass Wilderness.

The Castle Creek reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the historic town site of Ashcroft.

It would inundate 120 acres of mostly private land between Fall Creek and Sandy Creek and flood a small piece of Forest Service land within the Maroon Bells-Snowmass Wilderness.

Both reservoirs would be located in Pitkin County.

Since 1965, the city has told the state eight different times it intends to build two large dams in pristine locations in the upper Castle and Maroon creek valleys, and it is on the record that the city intends to file a diligence application this fall. In its September 2009 diligence filing the city told the water court “it has steadily applied efforts to complete” the reservoirs “in a reasonably expedient and efficient manner.”

A court official, known as a water referee, agreed.

“To date, the city of Aspen has not needed to construct the storage structures as it has devoted considerable resources to reducing per capita water consumption,” the unnamed referee wrote. (Please see related story).

A rendering from Wilderness Workshop showing how a Castle Creek Reservoir might look on a seasonal basis after water has been drawn done to meet downstream needs.
A rendering from Wilderness Workshop showing how a Castle Creek Reservoir might look on a seasonal basis after water has been drawn done to meet downstream needs.

Private and public meetings

Hornbacher said this week he will hold one private meeting with stakeholders in early July about the dams and at least one public meeting in July or early August, “depending on the level of public interest.”

After presenting information about the water rights and taking questions and suggestions at the meetings, Hornbacher said he would report back to the council in a work session in August or September to get its direction by the Oct. 31 filing deadline.

He said council could direct staff to proceed with the diligence filing and try and keep the water rights on the books for another six years.

Or it could direct staff not to file, or to file a modified application.

Hornbacher said a modified application could mean filing on one dam and reservoir, but not both, or it could mean filing on both reservoirs but changing their size and shape.

It’s not unheard of for entities to walk away from conditional water rights. The Colorado River District made the decision to abandon rights for two large dams on the Crystal River in 2013. And over the last five years, the district has stepped away from a number of other conditional water rights.

Among the stakeholders Hornbacher plans to invite to a private meeting are Wilderness Workshop, Roaring Fork Conservancy, U.S. Forest Service, and Pitkin County.

Wilderness Workshop first reported the city’s decision to hold public hearings in a newsletter it sent to members on June 1. The headline of the article read, “Potential dams on Maroon and Castle creeks still on the books” and a subhead read, “A diligence filing this fall would keep them alive; WW says, ‘No way!’”

The city of Aspen intends to hold at least one public meeting on the conditional water rights it holds for two large dams, one on upper Castle Creek and one on upper Maroon Creek, shown here in this 2012 file photo, with the Maroon Bells visible in the background. The dam on Maroon Creek would be 155-feet-tall and store 4,567 acre-feet of water.
The city of Aspen intends to hold at least one public meeting on the conditional water rights it holds for two large dams, one on upper Castle Creek and one on upper Maroon Creek, shown here in this 2012 file photo, with the Maroon Bells visible in the background. The dam on Maroon Creek would be 155-feet-tall and store 4,567 acre-feet of water.

Proving diligence

Typically, owners of conditional water rights need to demonstrate to the court they meet the “can and will” doctrine – that they can build the proposed water supply project and that they will build it.

The city may also need to meet standards developing in the wake of a Colorado Supreme Court decision in Pagosa Area Water & Sanitation Dist. v. Trout Unlimited.

Alan Martellaro, the Division 5 engineer based in Glenwood Springs, told the city in May, in response to a separate conditional water rights application it filed, that “the applicant [the city] must demonstrate that speculation is overcome per the criteria in ‘Pagosa.’”

“The applicant must demonstrate the proposed appropriation can and will be diverted and put to beneficial use for each of the proposed uses: a) within a reasonable planning period; b) using normal population growth assumptions; and c) the amount claimed is necessary and unappropriated water is available,” Martellaro wrote.

In past filings, the city has left the state with the distinct impression that it intends to build the two reservoirs, especially in the face of the uncertainty of climate change. But it has also left citizens with another impression – that it is simply protecting its water rights, not warming up bulldozers in view of the Bells.

Noto, the Aspen water attorney, says “you can’t have it both ways.”

“It’s a really important point,” Noto said. “You either are moving forward toward completing your project, which is essentially the standard for keeping your water right, or you’re not. And there’s no in-between.”

Noto has represented clients in the past who successfully opposed the city’s proposed hydropower plant on Castle Creek, but said he is not currently representing a client regarding the city’s pending diligence filing.

As such, Noto was willing to talk on the record in the role of citizen and as an experienced local water attorney.

He said he doesn’t agree with the city’s reasoning that a hotter future may increase the need for the reservoirs.

“I don’t buy it,” he said. “To use climate change as a pretext for damming the Maroon Bells and damming upper Castle Creek is not appropriate.”

The city of Aspen recently completed a raw water availability study that concluded that Aspen has sufficient water to meet future municipal demands, but in one of out of 20 years it might have trouble meeting its goal of keeping instream flows of at least 14 cfs in Maroon Creek and 13.3 cfs in Castle Creek.

The language in the water availability study leaves open the door for the city to suggest that building dams on the upper sections of the creeks could help meet its instream flow goals on the lower sections of the creeks.

A map produced by Pitkin County from a map on file with the state of the city of Aspen's proposed Maroon Creek Reservoir, located just below Maroon Creek Lake, shown to the left as the smaller of the two bodies of water. The map was commissioned by Aspen Journalism and confirmed in 2012 as accurate by city officials.
A map produced by Pitkin County from a map on file with the state of the city of Aspen's proposed Maroon Creek Reservoir, located just below Maroon Creek Lake, shown to the left as the smaller of the two bodies of water. The map was commissioned by Aspen Journalism and confirmed in 2012 as accurate by city officials.

Good planning?

“What we’re talking about is trade-offs,” Noto said. “Is maintaining an instream flow worth building large dams at the Maroon Bells and upper Castle Creek? Absolutely not. There are other ways that the city could meet the instream flow such as eliminating some irrigation during times of shortage. There are better ways to meet your goals than building big dams. And the people aren’t going to stand for it.”

Noto was asked if he could see a reason why the city should hold on to its conditional water rights on Castle and Maroon creeks.

“I don’t see it,” he said. “I can’t, for the life of me, envision a scenario where it would be good planning or good policy to dam Maroon Bells and to dam upper Castle Creek.”

Wilderness Workshop told its members in its June newsletter that it would be working “to convince the city to abandon the rights to these reservoirs (and we’ll need your help).”

American Rivers is also on the record as opposing the city’s plans to build dams and reservoirs.

“We are absolutely and always will be opposed to new reservoirs on Castle and Maroon creeks,” said Matt Rice, director of the Colorado River Basin Program for American Rivers. “They contradict the values of Aspen and the state of Colorado — values we will fight for.”

American Rivers is a national nonprofit dedicated to river restoration and protection, which fought vigorously against the city of Aspen’s Castle Creek hydro power plant.

Rice said whether or not American Rivers will oppose the city in water court if it does decide to file a diligence application is a strategic decision to be made down the road.

“We think the city’s willingness to have an open, transparent process with citizens is a good thing, if indeed that’s what it is,” Rice said. “There needs to be a sincere and open examination of these projects and what people would be giving up if they were developed.”

Editor’s note:
Aspen Journalism, the Aspen Daily News, Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published this story on Monday, June 20, 2016.

Guffey: Water districts review progress on augmentation plans — The Flume

Upper South Platte Basin
Upper South Platte Basin

From The Fairplay Flume (Flip Boettcher):

About 30 people met at the Bull Moose Restaurant and Bar June 5 in Guffey to hear how the Center of Colorado Water Conservancy District and the Upper South Platte Water Conservancy District’s plans for augmented water in water division 2 were progressing.

There was a town hall water meeting with CCWD and USPWCD last year in April.

Colorado has seven water basins and parts of two of them are located in Park County.

Division 1 is in the South Platte water basin and covers most of Park County. The South Platte water basin has “free water,” that is, water not claimed by water rights.

Division 2, which includes far southern Park County, in the Guffey area, is in the Arkansas water basin. The Arkansas basin is over-appropriated. This means more water has been designated as available than is actually in the river.

Therefore, the CCWCD and the USPWCD needed a plan for augmented (supplemental) water to supply Division 2’s water needs.

In attendance at the meeting were local resident Bill Betz, organizer of the meeting; Dan Drucker, Operations Manager for CCWCD; David Shohet, legal representative for CCWC and HASP (Headwater Authority of the South Platte); and the entire board of directors for the USPWCD, John Rice, Tom Wells, Lynda James, local Guffey resident Bob Slagle and Dave Wissel, president.

The CCWCD, which serves only Park County and the USPWCD, which serves Park County and parts of Teller, Douglas, Jefferson and Clear Creek counties, have been working nearly 20 years on a water augmentation program for Division 2, and it is close to being finished, Drucker said.

It is just waiting for the judge’s signature, he added. HASP was formed by the two water districts to be the business entity for the augmented water plans within their service areas.

An augmented water plan is a legal way to replace upstream water use to downstream water rights.

One doesn’t actually get the augmented water, explained Shohet. Currently, Division 1 has an augmentation plan in place.

According to Wissel, the Division 2 augmentation water plan is still in the preliminary design phase, but finally there is a legal way to divert water to Division 2.

What is really needed is the purchase of native water rights and storage vessels, including ponds, Wissel added.

One of HASP’s goals is to locate and develop water resources for use by its customers.

HASP has purchased senior water rights and storage vessels at Twin Lakes in Lake County. This will enable HASP to release water downstream for upstream augmented water use in Division 2, stated Shohet.
HASP would also like to purchase some water rights on Badger and Currant creeks in Park County.

HASP is also looking for local ponds to store water in, but these ponds need to be by a live stream, said Drucker, so HASP can take out water, store it, and release it in a timely manner.

Another goal of HASP is to help businesses and residents in their service area obtain water supplies for their water uses. HASP’s biggest interest is to help existing subdivisions – not new ones – obtain a water supply as well as commercial uses.

HASP can only supply augmented water in its service areas.

HASP’s last goal is to bring out-of-compliance water users into compliance with state regulations. HASP is not an enforcement agency, stressed Drucker. HASP can only develop and sell augmented water to its service area customers.

The state does the enforcement of out-of-compliance users. The augmented water plan is not only a way to bring out-of-compliance users into compliance, Wissel said, but also a way for those already compliant users to obtain additional water.

Drucker said many water users with an in-house use only well are running 8-10 cows and doing outside watering.

In-house use only wells means no outside tap. These users would need to purchase augmented water to come into compliance.

Domestic wells allow for an outside tap, watering for livestock and watering of a up to 1-acre garden. Any water use over that would require the purchase of augmented water.

According to Shohet, one domestic well is allowed per 35-acres.

Right now, according to Shohet, anyone can get a water right for any stream or creek in Colorado, but with the “first in time, first in line” water rule, you may not actually get water without an augmented water plan.

Since augmented water is based on usage, augmented wells will be metered. In existing compliant wells, only augmented water will be metered.

The Division 2 augmented water plan is not ready yet. There are no customers for the augmented water, but the need for water will generate customers once the plan is in place, said Drucker.

There are also plans to transport water from Division 1 to Division 2, but storage vessels are needed, Wissel said.

A question was raised about HASP holding people hostage and charging sky high rates for augmented water.
HASP is composed of three members from CCWCD and USPWCD. It takes three members to approve actions.

James said HASP would never be in a profit mode, that it is a legal entity and a beneficial monopoly.

In December 2015, Gov. John Hickenlooper signed into law Colorado’s water plan which notes the broad, near-term actions needed to secure future water.

The plan includes continued efforts to conserve water; additional efforts to reuse and recycle water; more water options for agriculture; and a path forward for interests to agree and create benefits for basins that provide water.

If you need water, contact HASP at HASP@HaspWater.com, http://haspwater.com/, 719-466-3908, or P.O. Box 1747, Fairplay, CO 80440.

Contact CCWCD at http://centerofcoloradowater.com/. Contact USPWCD at https://www.uspwcd.org/.

#Snowpack news: Adiós #Colorado Water Year 2016 snowpack

Click on a thumbnail graphic to view a gallery of Colorado snowpack data from the Natural Resources Conservation Service.

The June 2016 issue of Headwaters Pulse is hot off the presses from the CFWE

headwaterspulsejune2016cfwe

Click here to read the newsletter. Here’s an excerpt:

What do Rainbarrels mean for Colorado Water Conservation?

Last month, Governor Hickenlooper signed HB 16-1005 into law, making rainwater harvesting widely legal in Colorado. Thanks to the legislation, precipitation can be collected from residential rooftops, provided a maximum of two barrels with a combined storage of 110 gallons or less are used; precipitation is collected from a single-family residence or building that houses no more than four families; collected water is used on the residential property where it is collected; and water is used for outdoor purposes. Rainwater harvesting in Colorado has been subject to a lot of hype and the new legislation heralds much excitement, but how much water will it really conserve? Continue reading

Barr Milton Watershed Tour June 28th

Barr Lake State Park photo via Colorado Parks and Wildlife.
Barr Lake State Park photo via Colorado Parks and Wildlife.

From email from the Barr Milton Watershed (Amy Conklin):

Please join us for the BMW Watershed Tour on June 28th, beginning at 9:30 at Barr Lake State Park. Attached and copied in below is the agenda and directions to the tour stops. Please be sure to RSVP so we know how much food to get. We’ll have a delicious BBQ and kayaking on Milton Reservoir, weather permitting. I hope to see you there.

Transportation will be provided. Lunch will be provided but only if you RSVP to amy.conklin@comcast.net.

“We need new people…It’s the only way you’ll create a change” — Jay Winner

Basin roundtable boundaries
Basin roundtable boundaries

From The Pueblo Chieftain (Chris Woodka):

One of the fears when the state Legislature created the Interbasin Compact Committee and basin roundtables in 2005 was that the jaded “water buffaloes” would take over the process.

One of the hopes was that fresh, new voices would join in a conversation about how to deal with Colorado’s water problems.

One of those fresh new voices was Jay Winner, who had just six months under his belt as the general manager of the Lower Arkansas Valley Water Conservancy District, which formed in 2002 to keep water from being siphoned off of farmland.

Somewhere along the line, Winner believes, he must have sprouted horns and hooves, taking on the shaggy countenance of a water buffalo himself.

Next month, Winner, now 58, will step down after 11 years of chairing the Arkansas Basin Roundtable needs assessment committee, the clearinghouse for water project funding through the Water Supply Reserve Account. He’ll also be leaving the IBCC after nine years this fall, hoping for fresh blood.

“We need new people,” Winner said. “It’s the only way you’ll create a change. You need new people with new ideas.”

Winner hasn’t done a bad job. The roundtable has secured $34.28 million with 76 grants and 15 loans since 2005, when the WSRA was created.

That’s roughly 15 percent of the state total for nine roundtables, so an above-average showing for the basin. All of those projects came through the needs assessment committee before gaining roundtable approval.

Most were massaged in the process to iron out wrinkles, and a few ideas never saw the light of day.

By the time the roundtable sees a project, the road to acceptance has been paved with adjustments and compromises.

Some projects that broke out of the committee without consensus led to ugly battles within roundtable meetings.

Winner broke onto the Arkansas Valley water scene in memorable ways, trying to apply a lifetime of management experience — he essentially ran a Kremmling gas station for its owners at the age of 13 and has been running things ever since — to a basin divided by water worries. The drought of 2002 had spawned the Lower Ark district and from the first day at its helm, Winner began ruffling feathers. Maybe even throwing rocks at cozy nests.

He sent a message to Congress in late 2004 that stopped a water storage bill which everyone else had assumed was a lock. He spoke before a congressional committee visiting Pueblo the next year to torpedo a different version of the Preferred Storage Options Plan. The Lower Ark district filed a federal lawsuit in 2007 that derailed yet another rollout of the PSOP plan.

He mixed it up with Aurora in 2009 to get some concessions about future withdrawals of water from the Arkansas River basin. And, as he likes to point out, the Lower Ark district is the only government entity in Pueblo County that hasn’t signed off on Colorado Springs stormwater projects.

That’s the Jay Winner that makes headlines most often.

When the roundtables formed, Winner jumped in as the chairman of the needs assessment committee, heading a loose collection of people with diverse interests from throughout the 22-county basin.

“When I got into it, no one else wanted to be chair,” Winner said. “As I worked on it, I began to see it was such a good opportunity to bring dollars into the basin.”

Winner doesn’t claim credit for thinking up the projects that the roundtable approved. In his familiar cryptic corporatespeak, he calls himself a “B-to-Y man.”

“A lot of people are A and Z people,” Winner said, stretching his hands to frame his point. “I provide the B, C, D and all the way to Y that you need to get the job done.

We (the Lower Ark district) pay people to write grants for projects. A lot of people know the problem, and the answer, but don’t know how to get from one to the other.”

Winner often pulls out little lessons like this in front of a room full of adults in a way that usually makes them feel like schoolchildren and even bristle. Despite that, Winner always makes them listen — and sometimes even agree with him.

One of his high points was a $275,000 grant from the CWCB that paired up with a $2.8 million loan to provide a water line to the Ordway Cattle Feeders, the largest agriculture- related business in Crowley County.

“That helped out the county so much,” Winner said.

On the other hand, he rejected a proposal by Pete and Nancy Moore for a gray-water line in Ordway because it had no local buy-in.

“They were nice people, but someone had to say no,” Winner said.

Oh yeah, and Pete Moore chaired the Lower Ark board, so was Winner’s boss at the time. Nancy Moore was the mayor of Ordway.

Another attempt was made to get funds that basically would have sent a girl to a beauty pageant, which was easier to reject.

“People ask for all sorts of things,” Winner said.

“Those that wouldn’t succeed, we kicked back.” Winner is stepping down at a time when he believes the criteria for grants will begin to tighten. Funds are more restricted following a state Supreme Court decision on mineral severance taxes that fund the WSRA. Projects also will need to line up with Colorado’s Water Plan and have multiple purposes and funding sources.
Winner said he plans to stay on the committee, but he’s running out of time and energy to continue leading the charge.

“I’ve got an RV trailer that I’ve used once,” said Winner, who plans to take his wife Lori, a Pueblo City Council member, on a vacation soon. “It’s time for someone younger to step in.”