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.”
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).
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!’”
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.
“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.