City of Aspen votes to maintain rights for dams on Maroon and Castle creeks

A view from where a dam would stand to form the potential Maroon Creek Reservoir.
A view from where a dam would stand to form the potential Maroon Creek Reservoir.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – The Aspen City Council unanimously voted Monday night to tell the state of Colorado this month that it “can and will” build a 155-foot-tall dam on Maroon Creek within view of the Maroon Bells and a 170-foot-tall dam on Castle Creek two miles below Ashcroft.

The council passed a resolution directing staff to file a diligence application in Division 5 water court in Glenwood Springs by Oct. 31 that seeks to maintain the conditional water rights from 1965 that are tied to the potential dams.

“File and pursue an application for finding of reasonable diligence in the development of the Castle and Maroon creek conditional water rights on or before Oct. 31, 2016,” the resolution states.

It also says that “the city is obligated and intends to provide a legal and reliable water supply and to that end can and will develop all necessary water rights, including but not limited to, Maroon Creek Reservoir and Castle Creek Reservoir.”

(Please see maps of the potential Maroon Creek and Castle Creek reservoirs.)

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.

Not a decision to build

Despite the language in the resolution stating Aspen’s apparent intent to someday build the two dams, Aspen Mayor Steve Skadron stressed that Monday’s decision to file a diligence application in water court was about maintaining water rights, and was not the same as deciding to build the dams.

He said an article in Monday’s Aspen Daily News by Aspen Journalism made it sound “as if the bulldozers are at the roundabout ready for this vote to come and they are going to go up tomorrow.”

“The question is not to build or not to build dams,” Skadron said. “That’s a false premise. The issue is whether to keep water rights alive by the can-and-will due-diligence measures the state has imposed on us, as opposed to letting these water rights become available and appropriated by others. That’s the challenge.

“And so without knowing more about viable alternatives, it simply would not be prudent water management and planning on our part to give these water rights up,” he said.

However, Paul Noto, an experienced Aspen water attorney now representing the national advocacy group American Rivers, told the council Monday night that it was a misperception on their part to think that there was room in Colorado water law to tell the state that the city “can and will” build the dams if the city really just wants to keep its options open to perhaps do so in the future.

“I want to clarify again that in order to keep these rights you have to prove that you actually will build these dams within a reasonable period of time, and that’s typically looked at within a 50-year horizon,” he said. “So this notion that we are going to file to keep our options open doesn’t really jibe with the legal standard that we have to prove in a court of law that we will build these dams within 50 years.”

Noto also said that there was still an apparent misunderstanding of what might happen if the city were to abandon the water rights.

“The rights simply go away,” he said. “No one can take them. No one can buy them. If you didn’t file, the rights simply go away. They no longer exist, and if someone came in and wanted to file for new water rights for that amount of water in that location, it would be under a 2016 or later priority date, not 1965.”

He also said it would be “legally impossible” under the Colorado River Compact of 1922 for some downstream entity, such as Los Angeles or Las Vegas, to somehow come in and control the water in Castle and Maroon creeks.

American Rivers has stated publicly that it intends to oppose Aspen’s efforts in water court to maintain the conditional water rights for another six-year period, as has the U.S. Forest Service.

One of the many wetlands in the area that would be covered by a Castle Creek Reservoir.
One of the many wetlands in the area that would be covered by a Castle Creek Reservoir.

At some point?

Since 1971, the city has consistently told the state, through required periodic diligence filings, that it intends, at some point, to build a dam on upper Maroon Creek, just below the confluence of East and West Maroon creeks, to store 4,567 acre-feet of water; and that it intends to build a dam on upper Castle Creek, not far below Fall Creek, that would hold 9,062 acre-feet.

In its most recent diligence filing in 2009 the city told the state “it has steadily applied efforts to complete” the dams and reservoirs “in a reasonably expedient and efficient manner.”

In 1966, an engineer working for the city told a water court judge during a hearing on the proposed rights that at least one of the dams would be needed by 2000 to meet the demands of the then-projected population of 30,000 residents in Aspen. Today, the city’s population is under 7,000.

And a recent study commissioned by the city concluded the municipality had enough water, without the reservoirs, to meet expected water demands for the next 50 years, even in the face of climate change.

The city today also has senior water rights on Castle and Maroon creeks that provide adequate water to the municipal water system.

But most City Council members on Monday said that giving up the water rights tied to the potential dams, despite their locations in pristine alpine valleys, might be doing a disservice to the city in the distant future, which could be much drier.

“I have no more interest in building dams on Castle and Maroon creeks than anybody else in this room or anyone else in this community,” said Art Daily, a council member and a veteran attorney with Holland and Hart. “At the same time, we are facing serious unknowns at the present time regarding our future water supply and storage capacity, and I can’t in good conscience cancel out an eventual water-storage resource.”

Daily added that further study of the city’s long-term storage needs in the face of climate change, including both location and amount, would be a good next step in the process.

“It is simply not in the best interest of our community to give up these conditional rights … until we know with far greater certainty than we have now that they are not going to be essential to our future water needs,” Daily said.

A view of the Maroon Bells, through a zoom lens, from the meadow that would be flooded by a potential 155-foot-tall dam on Maroon Creek. The city of Aspen voted Monday to tell the state this month it still intends to build such a dam - someday - if necessary.
A view of the Maroon Bells, through a zoom lens, from the meadow that would be flooded by a potential 155-foot-tall dam on Maroon Creek. The city of Aspen voted Monday to tell the state this month it still intends to build such a dam – someday – if necessary.

Storage study?

The resolution passed Monday night calls for city staff to “investigate alternative locations and sizing requirements” for the two reservoirs and to report back to the council.

And it says, “if appropriate,” the city could “seek water court approval for modification of one or both conditional decrees.”

Will Roush, the conservation director for Wilderness Workshop, told the council Monday before their vote that his organization wants the city to abandon the rights.

But barring that, he requested the city conduct a comprehensive study as to whether the city actually needs water storage, and if so, where a dam might best be located.

“If you were starting from scratch, I can almost bet that nobody would say ‘Let’s look at the Maroon Bells,’” he said. “So find out if those are the right places, if in fact storage is needed.”

Once the city files its diligence application in water court, parties will have 60 days to file a statement of opposition in the case. Then, typically, a water court referee works with the parties in a case to see if a settlement can be reached before going to trial in front of a water court judge.

Please also see:

Aspen leaders renew water rights linked to potential dams

Council poised to approve dam diligence filing

Wilderness dams are 
Aspen’s latest policy void

Guest commentary: Don’t dam the Maroon Bells

Castle, Maroon Creek reservoirs inappropriate and unnecessary

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 Tuesday, Oct. 11, 2016.

#ClimateChange Behind Surge in Western Wildfires — Climate Central

West Fork Fire June 20, 2013 photo the Pike Hot Shots Wildfire Today
West Fork Fire June 20, 2013 photo the Pike Hot Shots Wildfire Today

From Climate Central (John Upton):

Western firefighting veterans lamenting a “new normal” amid surging forest fires have received an explanation for the destructiveness they’ve been unable to quell. Rising temperatures are flatly to blame for recent fearsome fire seasons, leading scientists reported Monday.

The number of acres of forest burning yearly in large Western fires ballooned nine-fold from 1984 to 2015, with climate pollution and natural changes in the weather playing roughly equal roles in driving the deadly trend, research published in Proceedings of the National Academy of Sciences concluded.

The study showed that more than a century of fossil fuel burning, deforestation and farming has helped push the American West into an explosive new wildfire regime, and the findings suggest far worse could be ahead.

“The authors clearly demonstrate that a human influence on wildland fire as a consequence of global warming isn’t just a prediction for the future — it’s happening now,” said Kevin Anchukaitis, a University of Arizona scientist who was not involved with the study.

Previous efforts to link Western wildfires with climate change have hinted at a profound relationship but led to unconvincing results, largely because long lists of factors influence ignition and wildfire properties.

Monday’s study focused on forest dryness, identifying the commanding role it has been playing in driving fires. The researchers relied on climate data and modeling to present a sweeping regional view of 30 years of worsening forest fires…

Western wildfires have been devouring forests parched by higher temperatures in recent years, draining federal and local firefighting funds, killing residents unable to flee fast-moving flames and filling skies with sometimes-crippling levels of air pollution.

The new analysis showed temperature increases caused by rising levels of greenhouse gas pollution have had a drying effect on Western forests that caused 10.4 million acres to char in large fires during the three decades.

That suggests 44 percent of the forest area that burned during the three decades analyzed burned because of the effects of global warming. The finding was an estimate, with the researchers concluding global warming likely drove between 6 million acres and 16 million acres of forest fire.

Commission offers $1.8 million to leave #ColoradoRiver untouched — The Deseret News #COriver

The Colorado River in Cataract Canyon, just above Lake Powell, where water officials are keeping a close eye on water levels. Photo: Brent Gardner-Smith/Aspen Journalism
The Colorado River in Cataract Canyon, just above Lake Powell, where water officials are keeping a close eye on water levels. Photo: Brent Gardner-Smith/Aspen Journalism

From The Deseret News (Amy Joi O’Donoghue):

Drought is turning the nation’s largest reservoir dry — Lake Mead reached its lowest levels this summer since the 1930s — and Lake Powell is limping along, just a little over half full.

That scenario is prompting the Upper Colorado River Commission to offer $1.8 million in funding for pilot projects in which users in the upper basin states of Utah, Colorado, Wyoming and New Mexico voluntarily reduce their demand on the Colorado River.

The idea is to test what works and what won’t work in a drought contingency plan, and what may be the most effective ways to keep water levels at Lake Powell at the elevation necessary to maintain hydropower production.

Robert King, the interstate streams engineer for the Utah Division of Water Resources, said the commission hopes to learn if river system conservation actually sends that water on to Lake Powell.

Because there are more water rights than water that exists in the Colorado River in Utah, King said the concern is even if there are reductions made along the way, there’s no guarantee Lake Powell will see the benefit.

“We hope it works,” he said. “A major part of this is to see how it works with water rights. That is what we are trying to evaluate or if it will actually take something more drastic institutional changes.”

Municipal, industrial and agricultural users are encouraged to submit proposals that, among other things:

• Generate signficant, measurable consumptive water savings.

• Involve multiple participants.

• Involve a ditch company or irrigation district.

• Include opportunities for federal or tribal participation.

• Partners with state in-stream flow programs and downstream water users to move saved water downstream.

Pilot program participants will be selected on factors that include implementation schedule, the identified environmental benefits, the cost per acre-foot saved and the demonstration of water savings.

Creation of a drought contingency plan is just one of the recent steps being embraced by Western states struggling with the dynamics of little precipitation, growing populations and increasing demand on water resources.

#AnimasRiver: Superfund project manager known for community outreach — The Durango Herald

On April 7,  2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear. Eric Baker
On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

From The Durango Herald (Jonathan Romeo):

“If you have Rebecca, you are extremely lucky,” said Tony Berget, a former Lincoln County Commissioner in Libby, Montana, home to one of the largest and longest running asbestos cleanup sites in the United States.

“At times, the (Superfund process) went really well, and at other times, I’ve been very disappointed. But Rebecca, especially, was really willing to listen. She was one of the bright stars of my experience with the EPA.”

Last month, the EPA formally listed 48-mining sites responsible for degrading water quality in the Animas River Basin as a Superfund site, with Thomas, based in Denver, as project manager for the Bonita Peak Mining District Superfund program.

The announcement came just a year after the Gold King Mine blowout, in which an EPA crew triggered a massive release of mine wastewater, reigniting the longstanding issue of metal loading into the watershed.

Yet the blowout also reversed stubborn resistance from the small, historic mining town of Silverton, home to a fluctuating population of about 600, not so keen on parting ways with its legacy of mining.

It’s a situation Thomas, throughout her career, has stepped into with ease, as evidenced by major projects in Libby, Montana, and Leadville.

Leadville
By the mid-1990s, tensions between the once-thriving community of Leadville and the EPA surrounding the cleanup of 16-square-miles of mining sites had escalated into a vitriolic, hostile environment.

“They came in and said: ‘We are the EPA, and you will do this,’” said resident and environmental consultant Mike Conlin. “One day everyone that lived in the Superfund boundary got a brown paper envelope saying: ‘Congratulations. You’re a potentially responsible party and may be responsible for the cost of cleanup.’”

In Gillian Klucas’s 2004 book detailing the bitter confrontation – Leadville: The Struggle To Revive an American Town – effigies of EPA personnel were dragged through town, cars bore “EPA: GO TO HELL” bumper stickers and one state senator even championed a public hanging.

“My suggestion is to simply hang one (EPA staffer) at each end of town,” state senator Ken Chlouber, a Leadville native, told a national Republican Party in 1994. “In my community, that is the voice of moderation.”

Relationships between the two entities had deteriorated so badly that EPA replaced its fledging personnel with two new project managers: Mike Holmes and Thomas.

“That was very much the turning point,” said Howard Tritz, an ex-miner and county assessor at the time. “They were decent. They explained things to people, and they were not belligerent.”

Indeed, Klucas’s book said local newspapers proclaimed “a new era of cooperation” in 1998 after the arrival of Holmes and Thomas, which eventually led to one of the most complicated but also successful cleanups in the EPA’s history. The Arkansas River, for instance, once referred to as an “industrial sewer,” now boasts a Gold Metal fishery, and is one of the most popular rivers to fish in the state of Colorado.

“They (Holmes and Thomas) were able to direct the energy of the community to the issues rather than personalities,” Conlin added. “They had more of a tendency to say: How can we work together to make something with long-term benefits to the community?’”

[…]

Silverton
Now, Thomas, 53, is entering her 24th year in the EPA’s Superfund program, and is turning her attention to the highly mineralized and complicated network of mines surrounding Silverton.

Early on, town and county officials, as well as residents, demanded a seat at the table in EPA’s decision-making process, even delaying a vote to pursue Superfund designation until that assurance was met.

Already, it seems like EPA is living up to that promise.

“Rebecca is genuinely concerned and has excellent communication with the community,” said Silverton Town Administrator Bill Gardner. “We were promised a seat at the table, and that’s exactly what’s happening.”

Thomas, for her part, said she was taken aback by the amount of investment from groups such as the Animas River Stakeholders Group, which has carried on nearly two decades of remediation projects in the basin.

She said this winter local, state and federal agencies will review a swath of data taken over the past year, and start to formulate a strategy to tackle what is one of the worst metal-loading districts in the American West.

“We need to work with all affected communities and establish what we want this cleanup to do,” Thomas said. “And I think Superfund does bring the resources to a project of this size and complexity that would be hard for a group of individuals to fully address.”

Fewer October Nights Below 40°F — Climate Central #ClimateChange #keepitintheground

From Climate Central:

…as the planet warms from the increase in greenhouse gases, the number of October nights with sweater weather is decreasing in most of the U.S.

In this analysis, we examine the number of cool October nights — defined as a temperature below a characteristic threshold for your city. If you feel like the frequency of those cooler October nights is decreasing, it’s probably not your imagination.

The decrease in cool nights is one feature of an overall fall warming trend. Nationwide, fall is warming at a rate of 0.43°F per decade since 1970, with the fastest rates of warming in the Northeast and the West. Similarly, the growing season has lengthened the most in the Northeast and the West. Nationally, the growing season is already about 15 days longer than at the beginning of the 20th century.

The decrease in cool nights can also delay the start of some of the traditional cold season activities, such as snow skiing, in northern states. With the number of nights below freezing decreasing, snow may start showing up later and insects can survive later into the year.

Temperature trends — October nights -- Denver via Climate Central.
Temperature trends — October nights — Denver via Climate Central.
Temperature trends — October nights -- Colorado Springs via Climate Central.
Temperature trends — October nights — Colorado Springs via Climate Central.
Temperature trends — October nights -- Grand Junction via Climate Central.
Temperature trends — October nights — Grand Junction via Climate Central.