Division engineer, referee, question substance of Aspen’s water rights applications tied to dams and reservoirs

A group of citizens during a site visit in September standing in the meadow near the Maroon Bells that would be flooded by a potential 155-foot-tall dam across Maroon Creek. State officials have recently questioned the city of Aspen’s claims to extend conditional water rights for the dam, and another one on Castle Creek, for another six years.
A group of citizens during a site visit in September standing in the meadow near the Maroon Bells that would be flooded by a potential 155-foot-tall dam across Maroon Creek. State officials have recently questioned the city of Aspen’s claims to extend conditional water rights for the dam, and another one on Castle Creek, for another six years.

By Brent Gardner-Smith, Aspen Journalism

City of Aspen also signs flurry of contracts with water professionals to study reservoirs and Aspen’s water storage needs

GLENWOOD SPRINGS – After conferring on the city of Aspen’s applications to extend its conditional water rights tied to potential dams and reservoirs on Maroon and Castle creeks, the division engineer and the water court referee in Division 5 together have raised substantial questions about the two applications.

The two state officials, based in Glenwood Springs, said recently in two required summary of consultations that the city “must demonstrate that it will secure permits and land use approvals that are necessary to apply the subject water rights to beneficial use.”

It also said the city needs to show that it “will complete the appropriations within a reasonable time,” that the city has to show that “a specific plan is in place to develop the subject water rights” and that it is “not speculating with the subject water rights.”

Alan Martellaro, the division engineer in Division 5, signed the two summary of consultations on Jan. 23, one regarding Maroon Creek Reservoir and one regarding Castle Creek Reservoir. They are identical save for the names of the reservoirs and differing case numbers.

Martellaro wrote in both reports, “I cannot recommend approval of this application” until the concerns cited in the reports are addressed.

And the reports say that the “state and division engineers ask that the issues discussed in this consultation be addressed prior to granting any findings of diligence” for either the Maroon Creek or Castle Creek reservoirs.

The city filed two “due diligence” applications on Oct. 31, one for Maroon Creek Reservoir and one for Castle Creek Reservoir. Aspen is seeking to extend the conditional water storage rights for another six years. The rights were appropriated in 1965 and adjudicated in 1971.

The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.

The conditional rights, as currently decreed, cannot be made absolute unless the city builds a dam 155 feet tall and an estimated 1,280 feet wide across Maroon Creek, within view of the Maroon Bells, and a dam 170 feet tall and an estimated 1,220 feet wide across upper Castle Creek two miles below Ashcroft.

The Maroon Creek Reservoir would hold 4,567 acre-feet of water and flood 85 acres of land, and the Castle Creek Reservoir would hold 9,062 acre-feet of water and flood 120 acres of land. Water in both reservoirs would flood some land within the wilderness boundary.

Members of the City Council indicated this fall said they are loath to actually build the dams, but still want to maintain the water rights for future potential use.

However, the language in the applications the city filed with water court in October indicates the city intends to build the dams some day.

The city told the court the two reservoirs are “part of Aspen’s integrated water supply system” and are “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”

The city also said it has “steadily applied effort to complete the appropriation” of the water rights for the reservoirs and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”

But the consultation reports in the two cases show that state water officials are skeptical about the city’s claims.

Aspen “is not entitled to an exemption from the anti-speculation doctrine” and “it cannot assert issue or claim preclusion to avoid the ‘can and will’ and the ‘anti-speculation’ doctrines,” the reports say.

The reports also observe that the city lists “other beneficial uses, both consumptive and non consumptive” in its water right application, in addition to storage. And as such, the city “must explain what these ‘other’ uses are or they should be cancelled by the court as speculative.”

Many of the points raised in the consultation reports were also raised by some of the 10 opponents to the city’s applications in their statements of opposition.

The United States of America, on behalf of the U.S. Forest Service, and Pitkin County are among the 10 parties that have filed statements of opposition in the two cases.

In addition to the two governments, four environmental organizations and four private-property owners also filed statements of opposition in the cases.

Attorneys at the U.S. Justice Department told the court the city “cannot show that it can and will” complete the two reservoirs “within a reasonable time” because both potential reservoirs would flood portions of the Maroon Bells-Snowmass Wilderness.

And Pitkin County told the court the city “appears to be speculating with no reasonable demonstration of need” for the reservoirs.

It is standard procedure in Division 5 water court for applicants to eventually file a “response to the summary of consultation.”

Orange tape marks the location of a potential 155-foot-tall across upper Maroon Creek near the Maroon Bells. The City of Aspen has filed to extend its conditional water tied to the potential dam and reservoir, as well as another dam on Castle Creek, but the state division engineer and water court referee in Division 5 have challenged the city's claims.
Orange tape marks the location of a potential 155-foot-tall dam across upper Maroon Creek near the Maroon Bells. The city of Aspen has filed to extend its conditional water rights tied to the potential dam and reservoir, as well as another dam on Castle Creek, but the state division engineer and water court referee in Division 5 have challenged the city’s claims.

Relevance of consultations

Under Colorado law, the water court referee and the division engineer are required to review all applications to water court.

The law says the officials are to “make such investigations as are necessary to determine whether or not the statements in the application and statements of opposition are true and to become fully advised with respect to the subject matter of the applications and statements of opposition.”

The law then requires that the “engineer consulted shall file a report” within 35 days.

But it is sometimes hard to discern how much weight such a report carries in the water court process.

Holly Strablizky, who recently stepped down from her position as water court referee in Division 5 after almost seven years, said last week during a presentation at the Colorado Water Congress that as water referee she “really tried hard and I know our division engineer tried really hard as well … to use the consultation process to get a better product out there.”

Strablizky, who is now an assistant county attorney for Eagle County, said the engineer and the referee also need to look at a given application from a statewide perspective.

“The constitution really says that we as the water court need to think not only of the parties that are in the cases, but the people of Colorado,” Strablizky said.

She also praised the use of the water court referee process, where parties are encouraged to settle their differences.

“I think it relieves pressure of hard deadlines and it allows for thoughtful and creative settlement discussions,” Strablizky said of the referee period, which usually lasts 12 to 18 months. “And it creates that opportunity for concise, and understandable, proposed decrees.”

The parties in Aspen’s two conditional water rights cases are set to have a joint initial telephone conference with the new water court referee, Susan Ryan, on Feb. 9.

A detail of a map of the potential Castle Creek Reservoir, prepared by Wilderness Workshop and based on a map filed by the city with the state in 1965. The dam would be 170-feet-tall and 1,220 feet across the valley.
A detail of a map of the potential Castle Creek Reservoir, prepared by Wilderness Workshop and based on a map filed by the city with the state in 1965. The dam would be 170 feet tall and span 1,220 feet across the valley.

Community water planning

In addition to participating in the two water rights cases regarding due diligence, the city is also launching a community-based water planning effort, and has signed a flurry of contracts to study its storage needs and better understand at least the potential Castle Creek Reservoir location.

It also not retreating from its call to build a new dam somewhere in the future.

In a memo about a Jan. 31 work session, city staff wrote, “Without water storage, Aspen’s water supply for households and businesses will be threatened.”

To move its new water-planning process forward the city has entered into a contract with the Consensus Building Institute of Cambridge, Mass., to develop a “convening assessment” that will lead to a “collaborative process,” according to the staff memo.

“It is critical to use an effective community-based approach in order to leverage the expertise in the community and develop a long-term water supply plan with the greatest chance of success to secure Aspen’s water future,” the city’s memo states.

The convening assessment is expected to take two months and then a collaborative process will begin by summer.

According to the memo for the work session, which was written by Margaret Medellin, the city’s utilities portfolio manager, Aspen has also entered into a contract with Headwaters Inc. in South Jordan, Utah, to perform a “preliminary review of risks in Aspen’s demand and supply” of water through 2065.

The city has also signed a contract with Sopris Engineering of Carbondale “to update surveying for Castle Creek Reservoir” and it has “met with dam and reservoir expert, Terry Arnold, to review certain existing geological data.”

A series of test bores in 1971 by the Bureau of Reclamation found 142 feet of loose rock and sand under the proposed Castle Creek dam site and that it was also on an unstable fault zone.

The city also signed a contract in January with Deere and Ault Consultants of Longmont for a feasibility study on the use of storing water underground, including in old mine shafts, which are plentiful under downtown Aspen.

The consulting firm says on its website that it is “a specialized civil engineering firm focused on water resources, geotechnical, dam, slurry wall, tunnel, and mine reclamation projects.”

And the city memo notes that “on January 26, 2017, consultants Don Deere and Victor DeWolf met with staff and performed on site investigative tour of local mines.”

The city also signed a contract with Carollo Engineers, a national engineering firm focused on water projects, to help it gain approval from the Colorado Dept. of Public Health and Environment to use treated effluent from the Aspen sewage treatment plant.

The city has been working on this reuse project for several years and plans to pump water up from the treatment plant for a number of uses, including watering the city golf course and for snowmaking.

The Jan. 27 staff memo closed by saying “staff is developing a project specific budget that will include estimates of the costs of community facilitation” as well “identified supporting engineering consultant and expert services, legal expenses and staffing.”

The budget details are to be presented at a follow-up work session.

Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published a version of this story on Monday, Jan. 30, 2017.

@NASA Measures ‘Dust on Snow’ to Help Manage Colorado River Basin Water Supplies

Click here to go to the NASA website for all the inside skinny. Here’s an excerpt:

The snow-capped mountains of Colorado and Utah contain trillions of gallons of water stored in the form of snow. Meltwater from this snow will eventually flow into the Colorado River, delivering much needed water to seven Western states and 33 million people. Accurately predicting water from snowmelt is critical to the region, and Earth-observing satellites can help. Credits: iStock
The snow-capped mountains of Colorado and Utah contain trillions of gallons of water stored in the form of snow. Meltwater from this snow will eventually flow into the Colorado River, delivering much needed water to seven Western states and 33 million people. Accurately predicting water from snowmelt is critical to the region, and Earth-observing satellites can help.
Credits: iStock

When Michelle Stokes and Stacie Bender look out across the snow-capped mountains of Utah and Colorado, they see more than just a majestic landscape. They see millions of gallons of water that will eventually flow into the Colorado River.

Dust on Snow podcast (MP3; 11 MB)

The water stored as snowpack there will make its way to some 33 million people across seven western states, irrigating acres of lettuce, fruits and nuts in California, generating enormous amounts of electricity and ultimately flowing from taps in seven states. For a few of these sun-drenched states, snowfall (and its subsequent melt) provides up to 80 percent of the annual precipitation, which is ultimately used for drinking, farming, recreation and power generation. While it’s important for water managers in these states to know the amount of water they can expect from snowmelt, it’s every bit as important for them to know when to expect it.

In the Flow

As hydrologists at the Colorado Basin River Forecast Center, Stokes and Bender do just that, by providing stream flow forecasts for watersheds within the Colorado River Basin and the region. This Basin includes some of the most parched land in the United States. As a result, so much water is taken out for human uses and so little put back in that the river routinely runs dry before it ever reaches its mouth at the Gulf of California in Mexico. With such a scarce resource, every drop counts.

Water for drinking, agriculture, recreation and even power generation also comes from the Colorado River Basin. And of course fish, birds and numerous other species rely on this water too. Credits: NASA
Water for drinking, agriculture, recreation and even power generation also comes from the Colorado River Basin. And of course fish, birds and numerous other species rely on this water too.
Credits: NASA

“The forecasts we get from the center provide crucial information for managing our water resources and reservoir facilities,” said Dave Kanzer, a deputy chief engineer for Colorado River District in Glenwood Springs, Colorado. “The water supply forecasts are critical. If we receive less water than the forecasts predict, we won’t have enough saved in the reservoirs to keep the river flowing throughout the irrigation demand season. Conversely, if we receive more than forecasted, we could have to release extra water, without causing damaging floods.”

Aware of the importance of accuracy, the center inputs numerous readings into a complex computer program that uses that information to generate its forecasts. Prior to 2011, those inputs came solely from ground-based sensors and direct observations from staff. However, 2009 served as a turning point when massive storms blew what seemed to be unprecedented amounts of dust from the Colorado plateau onto the pristine white snow in the Rocky Mountains. Under a thick blanket of dust, the normally reflective white snow absorbed more of the sun’s energy, and the snowpack melted at a much faster rate than expected during the runoff season.

“We found that really dusty conditions increase the rate of snowmelt about as much as raising the temperature by 1 to 3 degrees Fahrenheit,” explained Bender. “It became very clear that we had to identify a more precise way of measuring dust on snow.”

resh white snow can reflect up to 90 percent of sunlight, but with dust on the snow more light is absorbed and the snowpack melts at a much higher rate during runoff season, so measuring the dust can help better forecast water flow. NASA satellites Terra (shown in this artist's concept) and Aqua can detect dust in the snow to estimate the additional heat-producing energy absorbed by the snowpack, which is factored into the water runoff forecasting model. Credits: NASA
resh white snow can reflect up to 90 percent of sunlight, but with dust on the snow more light is absorbed and the snowpack melts at a much higher rate during runoff season, so measuring the dust can help better forecast water flow. NASA satellites Terra (shown in this artist’s concept) and Aqua can detect dust in the snow to estimate the additional heat-producing energy absorbed by the snowpack, which is factored into the water runoff forecasting model. Credits: NASA

While measuring dust might seem like the time to zoom in, Stokes and Bender actually had to zoom out—way out. As they soon discovered, the answer was orbiting high above the Rocky Mountains up in space.

Measuring Up

Tom Painter has spent his fair share of time among the pristine peaks of the Rockies. As a research scientist at NASA’s Jet Propulsion Laboratory in Pasadena, California, he’s been studying dust and snowpack for years. In 2011, Painter and his colleagues signed on to help Stokes and Bender improve streamflow forecasts by harnessing the power of Earth observations from space; a fruitful collaboration was born.

With NASA’s help, the center began to incorporate two sets of remotely sensed data into its forecasting model. The first set gave them a more accurate reading of where the snow was located, while the second provided them with a clearer picture of the snowpack’s surface conditions and specifically the amount of additional sunlight absorbed by dust contained in the snowpack.

“When we first started using remote sensing data, everything shifted,” said Bender. “In fact, our research shows that using remote sensing data reduces the error by about 70 percent in some watersheds. It enables us to predict the stream flow timing much better than what our system did before.”

With more accurate forecasts, water managers are now able to make better decisions about when and how much water to store and/or release into the Colorado River basin—decisions that can have a dramatic impact on the lives and well-being of people and wildlife.

With this information, water managers can make better allocation decisions pertaining to drinking water, food, energy and ecosystem needs. Credits: iStock
With this information, water managers can make better allocation decisions pertaining to drinking water, food, energy and ecosystem needs. Credits: iStock

“We know how crucial water is to farmers and communities,” said Kanzer. “At the same time, without enough water flowing through the rivers, entire generations of endangered fishes could be put at risk. The more accurate the forecasts are, the better equipped we are to strike that balance.”

Pooling Resources

As water management becomes increasingly vital due to population growth and recurring droughts, the connection between Earth-observing satellite data and those working hands-on with that information is increasingly critical. “Collaboration is essential to finding answers and providing information that benefits our communities,” said Painter. “With these partnerships, we’re able to leverage enhanced knowledge of planet Earth to advance science, while simultaneously helping to create healthier livelihoods, economies, and environments. And these partnerships help us identify new questions and important areas for research.”

By working together to use NASA’s satellite data, Painter and the Colorado Basin River Forecast Center ensure that more than 33 million people have a more secure water supply and don’t have to worry about consulting a forecast before turning on the faucet.

About the Science

Despite the importance of snowpack albedo—the proportion of light that is reflected versus absorbed—in controlling snowpack runoff, snowpack albedo has been unquantified for much of the United States. To measure it, Painter’s team at NASA detects light absorbing impurities (such as dust) on the snow with its MODIS (Moderate Resolution Imaging Spectroradiometer) instruments aboard two satellites: Terra and Aqua. NASA uses these data to estimate the additional energy absorbed by the snowpack, an essential input for understanding snowpack energy-balance dynamics. Growing from this effort, Painter’s team has developed the Airborne Snow Observatory, which assembles the combination of albedo and snow water equivalent, the two most important controls on timing and magnitude of snowmelt runoff.

Morgan Conservation District’s 62nd Annual Meeting, February 9th, 2017

View of runoff, also called nonpoint source pollution, from a farm field in Iowa during a rain storm. Topsoil as well as farm fertilizers and other potential pollutants run off unprotected farm fields when heavy rains occur. (Credit: Lynn Betts/U.S. Department of Agriculture, Natural Resources Conservation Service/Wikimedia Commons)
View of runoff, also called nonpoint source pollution, from a farm field in Iowa during a rain storm. Topsoil as well as farm fertilizers and other potential pollutants run off unprotected farm fields when heavy rains occur. (Credit: Lynn Betts/U.S. Department of Agriculture, Natural Resources Conservation Service/Wikimedia Commons)

From the Morgan Conservation District via The Fort Morgan Times (Angela Werner):

Morgan Conservation District’s 62nd annual meeting will be held on February 9th.

It will be held at the Fort Morgan Home Plate Restaurant, 19873 U.S. Hwy. 34. Breakfast will be at 8 a.m. and the meeting will start at 9 a.m. The cost of the meeting will be $25 in advance, and that will cover the annual meeting, annual membership in Morgan Conservation District, and free breakfast that morning.

If you do not RSVP in advance, and show up on the day of the meeting, please be advised that the cost will be the same, however breakfast will not be free, due to our needing to order the food in advance. Our keynote speakers, Bill Hammerich and Andrew Neuhart.

Bill Hammerich has served as the CEO of Colorado Livestock Association (CLA) for the past fourteen years. He grew up on a cattle and farming operation in Western Colorado and he attended CSU where he graduated with a degree in Agricultural Economics. Following graduation, he began working with Monfort of Colorado, then Farr Feeders and was with the Sparks Companies before joining CLA in 2002.

His time spent in the cattle feeding industry provided him not only with an understanding of how to feed cattle, but also the importance of protecting and sustaining the environment in which one operates.

Bill and his wife Sabrina live in Severance, Colorado and have two grown children, Justin and Jessica, and four grandsons.

Andrew Neuhart completed both a B.S. in Natural Resource Management and an M.S. in Watershed Science at CSU. After spending two years assisting in precision farming studies in the San Luis Valley for the USDA Soil, Plant and Nutrient Research team, Andrew went to work for the State of Colorado’s Water Quality Control Division. For 9 years with the WQCD, Andrew led a Permitting Unit for discharge permits under the Clean Water Act, for both industrial and domestic wastewater treatment facilities. Working for Brown and Caldwell over the last 4 years, Andrew assists clients with regulatory issues under the Clean Water Act, and has been working with the Ag Task Force, part of the Colorado Monitoring Framework, to get the word out regarding nutrient regulations and their impacts to agricultural operations.

Mr. Hammerich and Mr. Neuhart will be speaking about Regulation 85.

Regulation 85 establishes requirements for organizations holding a NPDES permit and with the potential to discharge either nitrogen or phosphorus to begin planning for nutrient treatment based on treatment technology and monitoring both effluents and streams for nitrogen and phosphorus.

The data from these efforts is designed to better characterize nutrient sources, characterize nutrient conditions and effects around the state and to help inform future regulatory decisions regarding nutrients. Please come to the meeting and learn more from our very knowledgeable keynote speakers!

Please RSVP as soon as possible to Angela at morganconservationdistrict@gmail.com or call 970-427-3362. Space is limited.

@WaterCenterCMU report: “Conservation Planning for the #ColoradoRiver in Utah”

Click here to read the report. Here’s an excerpt (Christine G. Rasmussen and Patrick B. Shafroth):

Strategic planning is increasingly recognized as necessary for providing the greatest possible conservation benefits for restoration efforts. Rigorous, science-based resource assessment, combined with acknowledgement of broader basin trends, provides a solid foundation for determining effective projects. It is equally important that methods used to prioritize conservation investments are simple and practical enough that they can be implemented in a timely manner and by a variety of resource managers. With the help of local and regional natural resource professionals, we have developed a broad-scale, spatially-explicit assessment of 146 miles (~20,000 acres) of the Colorado River mainstem in Grand and San Juan Counties, Utah that will function as the basis for a systematic, practical approach to conservation planning and riparian restoration prioritization. For the assessment we have:

1) acquired, modified or created spatial datasets of Colorado River bottomland conditions; 2) synthesized those datasets into habitat suitability models and estimates of natural recovery potential, fire risk and relative cost; 3) investigated and described dominant ecosystem trends and human uses; and 4) suggested site selection and prioritization approaches. Partner organizations (The Nature Conservancy, National Park Service, Bureau of Land Management and Utah Forestry Fire and State Lands) are using the assessment and datasets to identify and prioritize a suite of restoration actions to increase ecosystem resilience and improve habitat for bottomland species. Primary datasets include maps of bottomland cover types, bottomland extent, maps of areas inundated during high and low flow events, as well as locations of campgrounds, roads, fires, invasive vegetation treatment areas and other features.

Assessment of conditions and trends in the project area entailed: 1) assemblage of existing data on geology, changes in stream flow, and predictions of future conditions; 2) identification of fish and wildlife species present and grouping species into Conservation Elements (CEs) based on habitat needs; and 3) acquisition, review and creation of spatial datasets characterizing vegetation, fluvial geomorphic and human features within the bottomland. Interpretation of aerial imagery and assimilation of pre-existing spatial data were central to our efforts in characterizing resource conditions. Detailed maps of vegetation and channel habitat features in the project area were generated from true color, high resolution (0.3 m) imagery flown September 16, 2010. We also mapped channel habitat features at high flow on 1.0-m resolution, publicly available, true color imagery. We obtained additional layers such as land ownership, roads, fire history, non-native vegetation treatment areas, and recreational use features from public sources and project partners.

From The Grand Junction Daily Sentinel (Dennis Webb):

A new report published by Colorado Mesa University aims to help in planning and prioritizing river restoration projects along 146 miles of the Colorado River from the Colorado-Utah border to the upper reaches of Lake Powell.

“Conservation Planning for the Colorado River in Utah” is the third in a series of scientific and technical reports issued through CMU’s Ruth Powell Hutchins Water Center.

Gigi Richard, a geology professor and faculty director for the center, said the report is available to anyone who’s interested, at http://www.coloradomesa.edu/water-center/scientific-technical-reports.html…

The river restoration report was written by Patrick Shafroth of the USGS and Christine Rasmussen of EcoMainstream Contracting in Durango.

It’s expected that federal and state agencies, conservation groups and others will be able to use the assessment and datasets to identify and prioritize projects to improve wildlife habitat and make the river’s ecosystems more resilient. Already, such entities have been involved in an effort called the Colorado River Conservation Planning Project…

The datasets include maps of existing habitats, areas inundated during high and low flows, and locations of campgrounds, roads, invasive vegetation treatment areas and other features.

The report says that “detailed resource maps can be used in project planning to help maximize the benefits of restoration dollars and minimize overlap of restoration efforts.” The report can identify where conservation efforts could address multiple habitat needs and prioritize projects with the potential to recover without intervention.

rasmussen_shaftroth_2016_watercenter_cmu