ASPEN – After holding both private and public meetings last week about its conditional water rights for dams and reservoirs on upper Maroon and Castle creeks, the city of Aspen is likely facing opposition in water court if it files a request to extend the water rights for another six years.
“If their diligence filing is consistent with the current project configuration, I do think we will file a statement of opposition,” said Matt Rice, Colorado basin director for American Rivers, a national river conservation organization.
The city has until the end of October to file a due diligence report in Division 5 water court in Glenwood Springs. Such filings are required every six years.
In its September 2009 diligence filing, which was approved in 2010, the city told the water court “it has steadily applied efforts to complete” the dams and reservoirs “in a reasonably expedient and efficient manner.” The city first filed for the conditional water right in 1965 and the conditional rights were formally decreed in 1971.
At a public meeting Thursday a consultant working for the city, Larissa Reed of Common Ground Environmental Consulting LLC, told the gathering of about 35 people that the city’s pending due diligence filing was “routine.”
“City council is not proposing to build water storage reservoirs at this time,” Reed said. “What they are doing is thinking about the conditional water storage rights and whether or not they should be filed for again in October for another six years.“
A work session with city council on the question is to be held in September or October.
Reed then explained some aspects of conditional water rights, including the “can and will” test for proposed water supply projects.
“The phrase ‘can and will’ suggests, in the law, that you have to be making progress towards developing this water supply in order to re-up every six years in your diligence filing,” Reed said. “The idea is that applicants have to show that they are making progress on those water rights, that they’re not just sitting on them doing nothing.”
Can and will?
Since 1965, the city has consistently told the state it intends – at some point – to build a 155-foot-tall dam at the confluence of East and West Maroon creeks that would store 4,567 acre-feet of water behind it and build a 170-foot-tall dam on Castle Creek that would back-up 9,062 acre-feet of water.
The city has not undertaken feasibility or cost studies of the dams and reservoirs since filing for the water rights, although the Bureau of Reclamation did conduct limited test drilling on the Castle Creek dam site in 1970.
Nor has the city determined how much water storage it actually might need in the future, or what other storage locations might be feasible, according to David Hornbacher, the city’s director of utilities and environmental initiatives.
On Wednesday, the city held a private stakeholders meeting about the conditional water rights with representatives from American Rivers, Wilderness Workshop, Roaring Fork Conservancy, Aspen Center for Environmental Studies, the Colorado River District, U.S. Forest Service, and Colorado Parks and Wildlife.
The formats of both the private stakeholders meeting and Thursday’s public meetings were the same, with remarks from the consultant and Hornbacher, limited time for questions, and then facilitated small-group discussions focused on questions crafted by the city.
“I’m hopeful that they will take this public input and present it to the council in an unbiased and accurate fashion,” said Rice of American Rivers, who attended Wednesday’s stakeholder meeting, “but if the city moves forward with due diligence for a reservoir on Maroon Creek and a reservoir on Castle Creek, we intend to stand up for those rivers and those wild places and oppose.”
When asked if American Rivers was prepared to take its opposition to a level of active litigation in water court, which typically comes after a lengthy period of time when parties are asked by the court to work out their differences in private meetings, Rice said he hoped it wouldn’t go that far.
“I would hope that it would give the city an opportunity to investigate real alternatives to this project to meet their future water supply needs,” he said of discussions during the initial phase of the process. “One thing that a statement of opposition in a diligence filing does is that inspires those discussions at a quicker pace than would happen otherwise.”
American Rivers filed a statement of opposition in response to a diligence filing in 2011 from the Colorado River Water Conservation District and the West Divide Water Conservancy District for conditional water rights for two large dams on the Crystal River.
The River District and the West Divide District agreed to abandon those water rights in 2013.
Pitkin County also filed a statement of opposition against the Crystal River conditional water rights and took an active role in the proceedings.
After Thursday’s public meeting on the rights on Maroon and Castle creeks, Laura Makar, an assistant county attorney for Pitkin County, said the county had not yet decided if it would oppose a diligence filing by the city.
“We don’t have a position at this point in time,” Makar said. “The diligence filing is not due until October. Any statement of opposition would not be due until December. We’re in August right now, so I anticipate we’ll have a position at some point.”
Pitkin County Commissioner Rachel Richards, a former mayor of Aspen, attended Thursday’s meeting. She said during the small-group discussions that she thought it was “premature” for the city to abandon its conditional rights for the dams and reservoirs.
Will Roush, a conservation advocate for Wilderness Workshop, attended both the private stakeholders meeting and the public meeting.
When asked Friday if Wilderness Workshop intended to oppose the diligence filing, Roush said, “We’ll make that decision once they decide whether or not to file a diligence filing,” but also said his organization wants Aspen to abandon the water rights.
Paul Noto, a water attorney at Patrick, Miller, Noto who fought the city’s proposed hydropower plant on lower Castle Creek on behalf of a group of local clients, was asked if he expected someone to file a statement of opposition if the city filed.
“It’s not a question of someone, it is a question of how many,” Noto said. “There is going to be a lot of opposition to this project. The reason is Aspenites, and others, hold Castle and Maroon creek valleys near and dear to their hearts and I think a lot of people passionately believe, rightly so, that there shouldn’t be dams in those valleys.”
Rob Harris, the senior staff attorney at Western Resource Advocates of Boulder, also was at Thursday’s meeting. Afterward, he was critical of the city’s dueling messages about its intentions for the dams and reservoirs.
“The city can’t and shouldn’t say different things to the public that it says to the water court,” Harris said. “The city shouldn’t come in here, to this public meeting, and say, ‘We don’t really have any plans to build these dams’ and then go into the water court and say, ‘We can and will build these reservoirs.’ Those are two different, inconsistent, statements.”
He also challenged the way the city made it sound that climate change made the dams necessary.
Ashley Perl, the director of the city’s Canary Initiative, had presented climate projections at the meeting that showed less water would likely be in Aspen-area rivers in a hotter future. She said that Aspen doesn’t have any water storage facilities, which made it vulnerable, and that the community needed to have a conversation about storage.
But Harris said, “It is important to note that nothing we saw tonight connected any of those water availability scenarios under those climate models to actual water needs that the city of Aspen has. There was nothing presented tonight that showed that in any of those scenarios that Aspen would in fact be short of water.”
Harris added, “If the city does identify a water need, they have lots of other alternatives” than the dams and reservoirs.
The city has set up an email address for citizens to send comments and questions about the conditional water rights, at firstname.lastname@example.org, until Aug. 19.
Regional reservoirs and dams, ranked by normal storage capacity
During a public meeting on Aug. 4, 2016, the city of Aspen presented a graphic comparing the surface area of various regional reservoirs with the surface area of the proposed Castle and Maroon creek reservoirs.
We’ve expanded the list, added more criteria, ranked it by storage capacity, and used data from the Colorado Dept. of Dam Safety, including their term of “normal storage” for the storage capacity amount.
For Castle and Maroon, which the city labeled in their presentation as “proposed,” we’ve simply used “storage capacity.”
AF means “acre feet.” There are 325,851 gallons of water in an acre-foot.
Normal storage: 102,369 AF
Dam height: 291 feet
Dam length: 1,060 feet
Surface area: 998 acres
Normal storage: 42,900 AF
Dam height: 231 feet
Dam length: 1,996 feet
Surface area: 333 acres
Normal storage: 20,950 AF
Dam height: 199 feet
Dam length: 770 feet
Surface area: 334 acres
Rifle Gap Reservoir
Normal storage: 13,602 AF
Dam height: 124 feet
Dam length: 1,450 feet
Surface area: 359 acres
Proposed Castle Creek Reservoir
Storage capacity: 9,062 AF
Dam height: 170 feet
Dam length: Approx. 1,000 feet
Surface area: 112 acres
Proposed Maroon Creek Reservoir
Storage capacity: 4,567 AF
Dam height: 155 feet
Dam length: Approx. 1,500 feet
Surface area: 80 acres
Spring Park Reservoir
Normal storage: 1,732 AF
Dam height: 20 feet
Dam length: 1,645 feet
Surface area: 258 acres
Normal storage: 1,100 AF
Dam height: 75 feet
Dam length: 1,100 feet
Surface area: 50 acres
Normal storage: 752 AF
Dam height: 16 feet
Dam length: 270 feet
Surface area: 82 acres
Normal storage: 590 AF
Dam height: 56 feet
Dam length: 792 feet
Surface area: 44 acres
Normal storage: 460 AF
Dam height: 40 feet
Dam length: 580 feet
Surface area: 20 acres
Normal storage: 248 AF
Dam height: 28 feet
Dam length: 500 feet
Surface area: 16 acres
Normal storage: 100 acre feet
Dam height: 37 feet
Dam length: 160 feet
Surface area: 10 acres
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Monday, August 8, 2016.