By Brent Gardner-Smith, Aspen Journalism
GLENWOOD SPRINGS – The city of Glenwood Springs is making progress toward securing a recreational water right for three potential whitewater parks on the Colorado River, but it has yet to come to terms with Aurora, Colorado Springs and the Colorado Water Conservation Board.
In kayaking terms, it could be said the city has greased close to a dozen Class II and III rapids so far since it started its run through water court in 2013. And it’s recently made it cleanly through a Class IV hole called “Denver Water.” But it is now facing two gnarly Class V rapids called “Homestake” and “CWCB.”
Aurora and Colorado Springs are co-owners of the Homestake Project, which includes a reservoir on Homestake Creek in the upper Eagle River basin that holds 43,300 acre-feet of water.
The water is stored and then shipped through the Homestake Tunnel to Turquoise Reservoir and on to the two Front Range cities, which also hold conditional water rights in the Homestake Project that could allow for development of more water.
The two cities, acting jointly as Homestake Partners, have told the water court and the Colorado Water Conservation Board (CWCB) that Glenwood Springs is claiming more water than it needs for a valid recreational experience.
And they say Glenwood Springs’ proposed water right for the parks would prevent the additional development of more water-supply projects in the upper Colorado River basin within Colorado.
“Glenwood’s proposed RICD [recreational in-channel diversion] would unilaterally foreclose development in the Colorado River basin above Glenwood, affecting users both in the basin and on the Front Range,” Aurora and Colorado Springs told the water court in June 2015. “This will result in further ‘buy and dry’ of agricultural water rights, and could in addition motivate West Slope users to make trans-basin diversions from other river basins, such as the Yampa and Gunnison.”
Glenwood Springs has filed for a single water right tied to “three proposed boating parks” to be known as the No Name, Horseshoe Bend and Two Rivers whitewater parks. Each park would include two wave-producing structures.
The whitewater parks would be able to call for between 1,250 cubic feet per second of water from April 1 to Sept. 30, for 2,500 cfs between June 8 and July 23, and for 4,000 cfs for five days between June 30 and July 6.
The ability for Glenwood to call for 1,250 cfs doesn’t seem to be much of an issue in the case, as that’s the same amount of water that the Shoshone hydropower plant upstream of the proposed whitewater parks has been calling downriver since 1902.
But flows of 2,500 and 4,000 cfs are apparently a different matter.
“We see nothing substantiating that there is any demand for water-based recreational experiences beyond those that are already available in view of the current stream regimen,” wrote attorneys for Homestake in 2014.
Yet the city has so far managed to file signed stipulations in water court with Denver Water, Ute Water Conservancy District, Orchard Mesa Irrigation District, Grand Valley Water Users Association, Ute Water Conservancy District, Glenwood Hot Springs Lodge and Pool, Bureau of Land Management and Colorado Dept. of Transportation.
The most recent of those agreements approved in Div. 5 water court in Glenwood Springs was with CDOT on July 25 and with Denver Water on May 31.
The agreement with Denver Water includes a provision where Glenwood Springs will not oppose a future, and as yet undefined, project to develop an additional 20,000 acre-feet of diversions from the West Slope, as contemplated in the 2013 Colorado River Cooperative Agreement, or CRCA, which Glenwood Springs signed.
“We’ve just agreed that we’re not going to have our water right impede that project once it’s defined and agreed to by the signatories of the CRCA,” said Mark Hamilton of Holland and Hart, the attorney representing Glenwood Springs in the case (2013CW3109).
Glenwood Springs has also reached conceptual agreements with the Colorado River District, West Divide Water Conservancy District and the town of Gypsum, but has yet to file signed stipulation agreements with the court.
Also in the case, but in support of Glenwood Springs’ application, are American Whitewater, Western Resource Advocates, and Grand County.
“We’ve made a really diligent specific effort to address a whole variety of concerns from a whole bunch of different people,” Hamilton said. “We’re making every effort to get there, but until Homestake and CWCB come to rest, we can’t assure anybody we still don’t need to have some kind of hearing in front of Judge Boyd.”
Judge James Boyd oversees water court proceedings in Div. 5 water court. The city’s application is still before the water court referee, who works with opposing parties to see if settlements can be reached before referring the case to the judge.
The referee has given the parties at least until Oct. 27 to see if agreements can be reached, but extensions of time are not usually hard to obtain.
Hamilton is set to meet on Sept. 8 with representatives from Aurora and Colorado Springs in another effort to reach an agreement. It will be the fourth such meeting since February.
Joe Stibrich, the water resources policy manager for Aurora Water and a member of the board of the Homestake Steering Committee, said last week he couldn’t discuss the ongoing settlement negotiations, but did say Aurora and Homestake Partners were working in good faith.
He also said, however, that the concerns already articulated by the two cities to the court and CWCB are still outstanding.
Carving out the MOU
Aurora and Colorado Springs are both parties to the Eagle River Memorandum of Understanding, which is tied to the Homestake Reservoir and Tunnel.
The 1998 agreement allows for a new water supply project in the upper Eagle River basin that would provide 10,000 acre-feet of water for a variety of West Slope entities and 20,000 acre-feet for Aurora and Colorado Springs.
Such a project is now being actively studied, and may include a new dam on lower Homestake Creek that would flood complex wetlands.
Hamilton put a clause in the draft water rights decree that Glenwood Springs “shall not use the RICD water rights as a basis to oppose” projects described in the Eagle River MOU.
“That’s something that we offered up without even having a settlement agreement with them,” Hamilton said. “It was my initial shot at trying to draft a ruling that I though would address their concerns. And so I would envision that any additional settlement terms would be laid on top of what we’ve already put in there.”
There is likely more than the Eagle River MOU of interest to Aurora and Colorado Springs.
In 2012, the two cities told the BLM and USFS, in comment letters regarding potential Wild and Scenic designation on a section of the Colorado River, that “as much as 86,400 acre feet of water supplies may be developed by completion of the Homestake Project” and that “Aurora and Colorado Springs plan to develop the remaining portions of Homestake Project.”
Even if an agreement can be worked out with Aurora and Colorado Springs, Glenwood Springs will still need to come to terms with the Colorado Water Conservation Board, which recommended in June 2015 that the water court deny the city’s RICD filing.
The CWCB is charged by the state legislature with reviewing proposed RICDs and then making a recommendation to the water court.
When it came to Glenwood’s filing, the CWCB board of directors concluded in an 8-to-1 vote that 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.
The state agency also directed its staff to oppose Glenwood’s filing in water court.
It’s not clear at this point how Judge Boyd might handle the recommendation-to-deny from the CWCB, or if Glenwood Springs might be able to get the CWCB to change its stance opposing the proposed water right.
“If we reach settlements with Homestake it’s possible that the CWCB would then reconsider and change its recommendations,” Hamilton said.
When it comes to reaching terms with Aurora and Colorado Springs, Hamilton said he remains “optimistic.”
“There is diligent ongoing discussion on all sides and good faith efforts being made,” he said. “And if it fails, it fails, and we’ll go to Judge Boyd and start setting deadlines and dealing with things more formally. But I think everybody is giving it a fair shot and seeing if we can get there shy of that.”
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, Sept. 5, 2016.