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.”
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.
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.
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.
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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.