By Brent Gardner-Smith, Aspen Journalism
ASPEN – A representative of the U.S. Forest Service told Aspen City Council Tuesday that the federal agency is likely to oppose the city if it files to extend conditional water rights it holds for dams on upper Maroon and Castle creeks.
The city has until Oct. 31 to submit a due diligence filing in Division 5 water court in Glenwood Springs to keep its conditional water rights alive for another six years, and the council held a work session Tuesday where it took public comment on the issue.
Kevin Warner, who is serving as the acting district ranger in the Aspen-Sopris Ranger District, said legal counsel for the Forest Service at the regional level had advised him that the federal agency would likely submit a statement of opposition if the city filed to extend its conditional water rights.
He said that given the city’s ongoing exploration of whether or not it should seek to renew its conditional water rights, the Forest Service also took an “in-depth” look at the rights.
“In this instance, we’ve taken a little more time, looked into it,” Warner told the council. “And based on advice from our counsel, we are considering filing a statement of opposition to this diligence filing.”
If built as currently described by the conditional water rights, 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.
The Maroon Creek Reservoir would cover 85 acres of Forest Service land about a mile and a half below Maroon Lake. The reservoir would also inundate portions of the Maroon Bells-Snowmass Wilderness.
The potential Castle Creek Reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the ghost town of Ashcroft.
The reservoir, inundating 120 acres, would affect mostly private land but would also flood some Forest Service land within the wilderness.
The city originally filed for the water rights in 1965, citing an expectation that it would need to build at least one of the reservoirs by 1970 to meet demands for water.
In its last diligence filing in 2009, the city told the water court “it has steadily applied effort to complete the appropriation of this water right in a reasonably expedient and efficient manner.”
On Tuesday, the city’s director of utilities and environmental initiatives, David Hornbacher, told the city council there could be a gap in the future between the city’s water supply and demand, especially given climate change, but he did not cite the specific size of the perceived gap, or how the potential reservoirs would be used to meet it.
He did, however, recommend that the city file an application in water court to maintain its conditional water rights and then look at alternatives.
A draft resolution put forward by city staff says “the city should also continue to further investigate alternative locations and sizing requirements of the Maroon Creek Reservoir and/or Castle Creek Reservoir, and, if appropriate, seek water court approval for modification of one or both conditional decrees, with their existing appropriation dates.”
Not compatible with USFS management plan
Art Daily, a member of the Aspen City Council and a veteran attorney with Holland and Hart in Aspen, asked Warner during Tuesday’s work session whether the Forest Service viewed filing a statement of opposition in water court as an “opportunity” or a “responsibility.”
Statements of opposition in water court cases do not always reflect a party’s intent in the case. A statement could be simply a way to monitor court proceedings, or it could signal intent to litigate against a proposed water right.
In response to Daily’s question, Warner said the agency saw it as a responsibility to oppose the city, rather than an opportunity.
Warner said the Forest Service’s opposition to the city’s water rights was based on the fact that the reservoirs would inundate portions of the Maroon Bells-Snowmass Wilderness.
“Based on our understanding of the Wilderness Act, and the fact that there was no exception built into the designation for the Maroon-Bells Wilderness Area … it would need to go to the president” in order for the reservoirs to be approved, Warner said.
Without such an authorization, the Forest Service could not support the city’s conditional water rights.
“It is nothing against this particular one, it’s just a legal thing,” Warner told the council. “It is kind of our opportunity in the court system to say, ‘You guys would have to get this done,’ and therefore it is kind out of our control.”
Will Roush, conservation director at Wilderness Workshop in Carbondale, told the city council in an Aug. 19 letter that no president has granted such an exemption to the Wilderness Act since it was approved 52 years ago.
Roush wrote, “the city would have to convince the president of the Unites States that the ability of Aspen residents and second homeowners to water their lawns in late summer was of a greater national interest than the internationally recognized ecological and scenic values of the Maroon Bells-Snowmass Wilderness.”
He also urged the city, on behalf of Wilderness Workshop, to abandon its conditional water rights.
This is not the first time the Forest Service has warned the city of Aspen that its proposed dams and reservoirs conflict with federal policy.
In 2009, the last time the city filed to extend its conditional water rights, White River National Forest Supervisor Scott Fitzwilliams sent the city a letter about its conditional water rights, but did not file a statement of opposition.
“As currently decreed, the locations of the Castle Creek and Maroon Creek reservoirs would not comply with the goals and objectives of the White River National Forest’s land and resource management plans for these areas,” Fitzwilliams wrote. “For example, the Maroon Creek Reservoir, as currently sited, would not be compatible with the specific management of the highly visited area for the protection of its high scenic value. Both proposed structures would conflict with our management objective to maintain or improve long-term riparian ecosystem conditions on the forest.”
County in question
In addition to the likely pushback from the Forest Service, American Rivers has also stated it will oppose the city in water court.
“American Rivers strongly encourages the city of Aspen to not file to maintain its conditional water rights for new dams on Castle and Maroon creeks,” wrote Matt Rice, the director of the Colorado River basin program for American Rivers on Aug. 17. “Aspen does not need these dams for municipal water supply, climate resiliency, or for stream protection now or at any time in the foreseeable future.”
Last month, Rice also said in an interview that American Rivers would oppose the city in water court if it filed to extend the conditional water rights.
The Roaring Fork Conservancy also weighed in with an Aug. 25 letter to the council, arguing that based on relevant studies, the city “appears to have sufficient water supply to meet its forecasted demand” without the reservoirs, which would “result in needless, drastic alteration of the natural landscape of two of our state’s most scenic places.”
“Rather than prolonging this debate for another six-year diligence cycle, Roaring Fork Conservancy believes now is the appropriate time to cancel these conditional water rights and tfor the city to pursue any other water demand and supply initiatives,” says the letter signed by director Rick Lofaro.
The city council also heard Tuesday from Lisa Tasker, the chair of Pitkin County’s Healthy Rivers and Streams Board, which recently sent a letter to the city saying the board “does not support new construction of impoundments on Maroon and Castle creeks.”
Tasker also suggested that Pitkin County might oppose the city’s diligence filing.
But Laura Makar, an attorney with the county who specializes in water issues, said Wednesday that the board of county commissioners “has not taken any position on any possible permutation of a diligence application the city of Aspen might file and I expect the [commissioners] will not have any position until any application is filed.”
Opposition in Maroon Creek Valley
The city also received a letter from an attorney representing the Larsen Family Limited Partnership, which owns water rights on Maroon Creek.
Craig Corona, a water attorney in Aspen who represents the Larsen family, wrote a letter on Aug. 17 to the city saying, “The city has not demonstrated that it will have a water supply shortfall in the future raising questions as to the need for these water rights. Even if such a supply issue arises, the city has other far less damaging options to meet its needs, including improving conservation and efficiency, developing additional groundwater sources (which the city is currently doing), and developing multiple smaller storage structures in more appropriate locations.”
Corona also told the city that it “should not file for diligence on its Castle Creek and Maroon Creek Reservoir water rights and should allow them to be canceled.”
Marcella Larsen of Aspen is co-manager of the Larsen Family Limited Partnership. She’s also a member of the Maroon Creek Caucus, which advises Pitkin County on land use in the Maroon Creek Valley.
Larsen recently sent a comment letter to the city from the Maroon Creek Caucus, opposing the Maroon Creek Reservoir, noting, “The city has made several statements to the public that it has no plans to build the reservoir and merely seeks to keep its options open by maintain the water rights. But when it files in court, the city will have to prove that it ‘can and will’ build the reservoir. Put differently, the city must prove that the project is essentially a foregone conclusion, not just a potential pursuit.”
The caucus concluded, “We think the only reasonable decision is for the city of Aspen to choose to not maintain its Maroon Creek Reservoir water right.”
The city council next plans to meet in a closed-door executive session with its water attorney on Monday about its conditional water rights, and then hold another public work session on Tuesday.
It also plans to vote on Oct. 10 whether or not to file to maintain the conditional water rights.
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 Thursday, Sept. 22, 2016.