Timeline since Oct. 2016 of Castle and Maroon creek dam cases

Aspen Journalism has been producing a timeline concerning the potential Castle Creek Reservoir and the potential Maroon Creek Reservoir. The historic timeline has grown fairly massive, so AJ has updated the tail end of the timeline, starting with Oct. 31, 2016, when the city of Aspen filed two diligence applications on the reservoirs. Please see below.

Oct. 31, 2016, City files two diligence applications, one for Castle Creek Reservoir and one for Maroon Creek Reservoir.

Dec. 31, 2016, Ten parties file statements of opposition in two diligence cases.

January 23, 2017, Division Engineer and Water Court Referee file statements of consultation on city’s diligence applications.

January 27, 2017, City of Aspen lays out plans for public process and additional studies on storage needs and concepts.

Feb. 9, 2017, first status conference in diligence cases held.

The location of the potential Maroon Creek Reservoir.

March 3, 2017, A report from the Consensus Building Institute is completed. The report, prepared for the city after extensive stakeholder interviews by outside consultants, found that “the city currently has a unique opportunity to plan for Aspen’s future water needs in an engaged, collaborative, and comprehensive way, but some daunting challenges do exist.”

It also said:

“There is a need to carefully manage the relationship and timing between the collaborative process and the due diligence case currently before the water court referee in Division 5.”

“Stakeholders expressed concern regarding the degree of transparency that will be possible, in light of the concurrent conditional water rights case and indications from the city that some of the information germane to the court may not be publicly released during that time.”

“Stakeholders expressed interest in transparency regarding the data and studies being used by the city, including the city’s underlying assumptions and beliefs regarding the data, its sources, comprehensiveness, and predictability.”

And, “The city has an opportunity to increase trust in its process and decisions and also must overcome a deficit, to some degree, of public trust.”

March 16, 2017, Aspen officials, Steve Barwick and Margaret Medellin, discuss storage needs and options with Pitkin County Healthy Rivers and Streams Board. At the meeting, which was recorded by Aspen Journalism, Barwick told the river board:

“All of this, this whole notion of how much water do we need and how much water do we need to store, and all of that, has been based upon very preliminary analysis. And now it’s time to tighten up the whole analysis and do a rational set of studies so we can have a rational discussion with the entire valley about what are we going to do here. How much storage do we need, and where do we want to put it?”

Barwick also said:

“We have a very large work program that we’re looking at doing. We’re going to be spending hundreds of thousands of dollars over the next few years. But we don’t anticipate that we’re going to get even preliminary answers for several years down the road.”

March 21, 2017, The first initial settlement conference in the diligence cases held. According to multiple parties in attendance, early on in the meeting Aspen Mayor Steve Skadron scolded the opposing parties for “suing” the city in water court.

March 28, 2017, Brent Gardner-Smith of Aspen Journalism interviews Ward Hauenstein, candidate for Aspen city council for Grassroots TV’s “Probeline” series. Hauenstein would go on to win a seat on the council in a runoff election on June 6, 2017. The interview turns to the subject of the Castle and Maroon creek reservoirs at at 36:50.

April 5, 2017, Brent Gardner-Smith of Aspen Journalism interviews Ann Mullins, an incumbent city council member, for “Probeline.” Mullins would be re-elected, with the most votes of any council candidate, in May, to a second four-year term. The interview turns to the subject of the Castle and Maroon Creek reservoirs at 37:23.

April 5, 2017, The Aspen Times asks the two mayoral candidates their opinions about the diligence rights and the dams and reservoirs.

Aspen Mayor Steve Skadron, who would go on to handily win re-election in May, said “The city should reserve its rights. Without knowing more about viable alternatives to water storage, it simply would not be prudent water management or responsible government to give up these water rights.”

April 6, 2017 Brent Gardner-Smith of Aspen Journalism interviews Aspen Mayor Steve Skadron for “Probeline.” Skadron would be re-elected in May to a third two-year term. The interview turns to the subject of the Castle and Maroon Creek reservoirs at 47:44.

April 12, 2017, The Aspen Times asks council candidates about the potential dams.

Ann Mullins, who would go on to get the most votes in the election for council, said “The last thing I want to do is build a dam, and in the next few years with the cooperation of everyone concerned we can come up with the solution that works for Aspen.”

Ward Hauenstein, who would go on to win a run-off for a council seat, said, “The city should not build dams on either Maroon or Castle creeks. The environment should not be compromised.”

April 19, 2017, The Aspen Daily News publishes a letter from the “city of Aspen Utilities and Environmental Initiatives staff via Margeret Medellin,” a member of the staff.

The letter states that “Aspen’s legal rights for storage in Maroon and Castle Creeks have been a part of our Integrated Water System since 1965. To maintain these rights, Aspen must file diligence applications with water court every six years through a public process. These rights are not, nor have they ever been, secret.”

April 25, 2017, Aspen Journalism interviews Chris Treese, the external affairs manager at the Colorado River District about Aspen’s conditional water rights. The resulting edited transcript explores a number of questions about conditional water rights. The River District is not a part in the water court cases, and it has itself walked away from conditional storage rights on the Crystal River. Treese’s perspective is worth reading. Highlights below.

“BGS: To be clear, if you’ve steadily applied effort to ‘complete the appropriation’ of the conditional water right, then you’re moving towards storing the water. And if you are moving toward storing water, you need to be moving toward building a structure, a dam.

“CT: Yes, right.

“BGS: That’s what ‘complete the appropriation’ ultimately means, right?

“CT: Yes it does. Storage is clearly the end game, but diligence doesn’t specifically mean you’ve applied for a permit, or that you’ve hired bond counsel. There are a lot of early steps that may qualify as diligence.”

“Municipalities have enjoyed almost unfettered ability to hold on to water rights and to perfect their conditional rights as part of their portfolio, either because they are growing or because they may grow. So the great and growing cities doctrine has provided an essentially unconstrained ability for municipalities to hold large quantities of water rights.”

“The Supreme Court found that 50 years is a reasonable planning horizon, and it recognizes that water projects take a long time to develop and water rights can be evermore critical during a period like 50 years. It also said that there has to be some common sense, some historical reality, to the projections over that 50-year period.”

“What you can’t do is come in to a diligence filing and say, ‘We’ve talked about this.’ That’s not diligence. You would have had to do more than talk about it, you would have had to at least study it.”

“The courts recognize that developing a reservoir is not as simple as getting a bunch of spray-painted shovels and having a ground-breaking ceremony. There are a lot of studies, and permits, and financing, and there’s a lot that goes into the early conditional period when planning for a reservoir.”

“We don’t see this as the bargaining chip that we need to, or have been asked to, help preserve. It’s a tool in the toolbox, perhaps, but we haven’t analyzed exactly how these water rights might be used in the ongoing poker game.”

April 27, 2017, Western Resource Advocates and Wilderness Workshop sent a letter and a memo to the city of Aspen proposing to work with the city on exploring three alternatives to the potential reservoirs – water efficiency, reuse of water, and alternative agricultural transfer.

April 30, 2017, Aspen Daily News publishes a letter from Marcella Larsen titled “Aspen dams wrong policy, bad precedent.”

She wrote, “Remember, Aspen’s dams are a specific approval to store water in a particular place far up Castle and Maroon creeks, conditioned on actual construction of dams within a reasonable period of time. Aspen’s senior water rights that supply drinking water are not the same as the conditional dam rights. If this case does not settle and goes to trial, Aspen will have to prove it can, will, and legitimately needs to dam the Maroon Bells, including wilderness areas.”

Berries in the meadow near the Maroon Bells that would be flooded by a Maroon Creek Reservoir.

May 1, 2017, the city of Aspen sends a draft work plan with an anticipated timeline for various studies to all of the attorneys representing the opposing parties in the Castle and Maroon creek cases and cc’s six city officials.

The work plan includes tasks (primarily studies) estimated completion dates, and consultants, if known. The tasks are named below and sorted by the “estimated end date” on the chart from the city:

“investigation of mine water/storage potential,” July 2017, Deere and Ault;

“investigation of in-situ storage,” July 2017, Deere and Ault;

“groundwater system strategy,” December 2017, HRS;

“collaborate with WRA, WWW and others on conservation, reuse, agriculture transfers and other alternatives,” December 2017, TBD;

“update climate change models,” December 2017, TBD;

“update streamflow and demand projections,” December 2017, Headwaters Corp.;

“studies in support of public process;” December 2017, TBD;

“public outreach,” until February 2018, consultant tbd;

“present recommendations of public process to city council,” February 2018 to April 2018, no consultant;

“implementation of reuse system,” April 2018, Carollo;

“conservation programs,” June 2018, Element, others TBD; and

“additional studies as required to respond to city council direction,” June 2018, TBD.

None of the studies listed directly pertain to the feasibility of either the Castle or Maroon creek reservoirs.

A wetland area that would be flooded by a Castle Creek Reservoir.

May 8, 2017, Craig Corona, the water attorney for the Larsen Family Limited Partnership, sends a settlement letter to Cynthia Covell, the water attorney for the city of Aspen. (The letter is later released to the public by Marcella Larsen, on May 15, 2017).

The letter says, “We propose that the opposers agree to a stay of this diligence proceeding to give the City time to file an application to change the location and size of the reservoir water rights in water court. At a minimum, the City would have to agree to move the reservoirs from their decreed location to a location within the City’s jurisdiction.”

May 9, 2017, a status conference on the two water court cases for Castle and Maroon is held by the water court referee. The referee holds, in a “minute order,” that the city must file a response to the summary of consultation in the case by July 10, 2017, and also on that same day must file “a timeline that is as concrete as possible for completing the reports necessary to support the diligence claims.” The next status conference was set for Aug. 10, 2017. Notably, Larsen Family LP reserved its right to re-refer the case directly to the water court judge at any time.

May 9, 2017, Cynthia Covell sends Craig Corona a letter regarding the settlement proposal. The letter was later referenced in a story published by the Aspen Daily News, on May 18, 2017, in this paragraph: “Cynthia Covell, a Denver water attorney who handles water rights issues for the city, responded to the May 8 letter with questions about how the stay would function, while also defending the city’s ongoing process to study future water supply and demand, Corona said.”

May 11, 2017, Craig Corona sends Cnythia Covell another letter regarding the Larsen settlement proposal. (The letter is made public by Marcella Larsen on May 15, 2017).

The letter states, in part:

“If all parties agree to it, the City’s two diligence cases can be stayed and put on hold while the City files an application to change the location of the reservoirs. The goal would be to have the opposers agree not to oppose the change application (with some limitations). If an outside party opposes because the diligence cases aren’t finished first, the City could withdraw the change application and the parties will be in the same position they are in now. But, if there’s no objection and the change is decreed, dams won’t be built in the wilderness and the City will retain its water rights – a win-win. Unlike our first proposal, this allows the City to test whether a change case will be successful before giving up the decreed locations.”

“The City is concerned with giving up the current locations for the dams. But, the City can’t build the reservoirs there, anyway. It would take twenty to forty million dollars (at least) to condemn private property for the Castle Creek dam. The City would need a special use permit to inundate Forest Service property, and private legislation from Congress to inundate wilderness – highly improbable, if not impossible. So, if the City transfers the rights to a new location that has challenges, the City will be no worse off than they are now.”

“The City’s claims are weak. In almost fifty years, the City has done almost nothing to develop these rights. The City has no need for storage, especially not a sixty-year supply, according to the City’s engineers. Unless the City settles, it will not come out of these cases with its water rights intact.”

“The delay for the City’s studies is unnecessary and is self-inflicted. With no need for storage, it should be simple to determine a reasonable supply amount and risk. The 1,200 acre feet we originally offered would give the City a five-year supply. Is the City concerned that Castle Creek and Maroon Creek will be completely dry for more than five years? If that happens, 1965 reservoir rights are not going to help.”

“Instead of engaging in meaningful settlement discussions, the City engaged a myriad of consultants at great expense to study its ‘needs’ when it already has a demand study. This work should have been done before filing the application, not after. The City’s reluctance to pursue timely settlement gives the appearance that the City is simply preparing for trial causing unnecessary expense to the City and to the opposers. Perhaps this will change as the make-up of City Council changes.”

“Larsen Family LP will never stipulate to diligence for dams in the wilderness. It seems it should be easy for the City to say it will never dam the Maroon Bells. But, apparently, that’s not the case.”

May 11, 2017, Deere and Ault consultants issue a report on the idea of storing water in old Aspen mines, concluding that “it appears that the cons generally outweigh the pros” and that mine storage is a “high risk alternative.”

The Castle Creek reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the historic town site of Ashcroft. The city’s conditional water rights for the Castle and Maroon creek reservoirs are officially on the state’s books through 2016, when the city will need to convince the state water court it is diligently making progress toward building the dams.

May 15, 2017, Aspen city council holds a work session on “Aspen’s water future,” including a presentation from consultants from Deere and Ault on potential mine storage and in-situ storage. At the meeting, there was a limited running discussion of the potential need for the city to store 14,000 acre feet of water, or not.

The documents made public as part of the meeting included:

a quarterly progress report on implementing Reso 16-141, regarding the reservoirs;

an April 2017 monthly status report on progress on implementing Reso 141;

a March 2017 monthly status report on Reso 141; and

a request for proposals from the city for public outreach services.

The May 15 work session included a presentation on the findings from engineers Deere and Ault after their explorations into the feasibility of storing mine in old silver mines in Aspen and of building an in-situ reservoir under the city’s golf course.

The meeting was interesting for the presentations about mine and in-situ storage, but also for a running sub-discussion that revealed more about what some of Aspen’s elected officials know about the potential reservoirs and what they do not know. Please our notes on the meeting. Some highlights are below.

“We don’t even have a ballpark for the upper valley storage solution,” Adam Frisch, Aspen city council member.

“We have an old number, but it would be something that we would need to update,” Margaret Medellin, utilities portfolio manager for the city of Aspen.

“I think it would help us to have a better idea of the problem we’re trying to solve before we try and solve the problem,” Bert Myrin, Aspen city council member.

“So, yes there is money, and yes we potentially we could do it, if we have permission from the president or whatever to build in the Bells, maybe we could do this. The bigger question is, would we?” Myrin.

“I think, personally, we’re about 95, 98 percent built out residentially, as well as commercially, so unless there is a huge transfer of second homes, part-time homes into full-time ownership of epic proportions that’s never been seen in a community, in a resort community, anywhere, I don’t know how we get from 6,500 people full-time to 17,000,” Frisch.

The location of the potential Maroon Creek Reservoir.

May 15, 2017, Marcella Larsen of Larsen Family Limited Partnership, one of the opposing parties in the Maroon Creek Reservoir case, sends copies of two letters concerning a proposed settlement agreement directly to the Aspen city council and copies the email, with the documents attached, to reporters at Aspen Journalism, The Aspen Times and the Aspen Daily News. The two letters, dated May 8, 2017 and May 11, 2017, were from her attorney Craig Corona to the city’s water attorney, Cynthia Covell.

The subject line of Larsen’s email reads, “Solutions to Aspen’s Wilderness Area Dams, which you don’t even know about … ”

The body of the email is below.

“Dear Aspen City Council:

“As you know, the Larsen Family LP is an objector in Aspen’s efforts to place dams in the Maroon Bells Wilderness Area. Recently, we sent an offer of settlement to Aspen (5/8 and 5/11), which we understand council has not been provided, even though you had a work session today regarding your so-called water storage needs (unsupported by any study, so far).

“At this point, without addressing the legal and ethical issues of failing to provide you our settlement offer, we are simply sharing our offer with you directly.

“Also copied are the press, meaning the public, whom should be informed of the facts as well.

“There are solutions to your wilderness area dams. We hope you will take us up on our generous offer to settle the mess you have gotten yourselves into, without more needless and irresponsible expenditures of taxpayer funds.

“Marcella Larsen
Co-Manager, Larsen Family LP”

A view of the Castle Creek valley near the proposed dam site for the Castle Creek Reservoir.

May 18, 2017, Aspen Daily News publishes a story headlined “Settlement offer proposed to city on future dams.”

May 22, 2017, Aspen city council approves new landscaping and watering regulations designed to reduce water use.

May 22, 2017, the Aspen city council holds an executive session for, in part, the purpose of a “conference with attorneys regarding pending litigation, Castle and Maroon Creek diligence cases … ” and for “determining positions relative matters that may be subject to negotiations; developing strategy for negotiations … ”

May 23, 2017, Cynthia Covell on behalf of the city of Aspen sends Craig Corona, the water attorney for the Larsen Family Limited Partnerhsip, a letter informing him that “Aspen cannot accept your client’s settlement offer.”

The letter was distributed to the attorneys representing other opposing parties in the two cases, and according to an attorney in the cases, the letter also said, “A new application to change the location (of) the Maroon Creek Reservoir conditional storage right would require that a new location be specified. Aspen must complete its supply/demand study and identify an alternative location or locations for the Maroon Creek Reservoir storage right in order to be able to file a change application to move that right, or some portion thereof, to another location.”

The letter also stated that the city was working on a hosting a second settlement meeting during week of July 31 to August 4, and indicated that Steve Wickes, would once again facilitate the meeting.

May 31, 2017, Marecella Larsen of Larsen Family LP responds, in an email exchange, to questions from Aspen Journalism. Larsen is a retired attorney and served for four years as the assistant Pitkin County attorney from 1997 to 2001. Her answers, and point of view, as perhaps the most aggressive of the opposing parties in the two cases, are notable. Highlights below.

“Instead of trying to justify 14,000 acre feet of storage that would provide sixty-five years of unneeded storage, we wish Aspen would identify a realistic storage amount and location.”

“Our offer was quite clear that there were terms that could be negotiated, and the basic concept was that we would support (along with the other opposers) Aspen’s relocation of its dam rights, in a location and amount to be determined through negotiation. Again, that offer was rejected by Aspen.”

“The credible and credentialed expert Aspen hired in 2016 to prepare Aspen’s Water Supply Availability report concluded that Aspen ‘can always provide sufficient potable and raw water supplies’ without dams/reservoirs. When Aspen realized that the Wilson Water Group’s finding conflicted with their desire to continue with dam rights up Castle and Maroon Creek, they hired an economist (not a scientist) to prepare a new report.

“We expect this new ‘study’ from Headwaters will do what Aspen wants it to do: prove up an extreme ‘Mad Max’ scenario where both Castle and Maroon Creeks are obstructed for a long period of time, wildfires burning, land sliding, and water short.”

June 9, 2017, Aspen City Manager Steve Barwick responds to a query from Aspen Journalism seeking confirmation of the May 23 settlement letter to Craig Corona.

Barwick’s reply, in total, was “The City of Aspen is still working with all parties in the water case with the hope of reaching a mutually agreeable settlement. We are still trying to refine water supply and demand estimates and study alternative storage locations.”

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