From Aspen Journalism (Brent Gardner-Smith):
A water court judge last week said the city of Aspen needed to supply more information to the court before he could find the city has met the legal standards for “diligence” and “need” concerning its conditional water-storage rights tied to potential reservoirs on upper Castle and Maroon creeks.
The judge’s request for more substance in the court record could be a setback for the city in its two ongoing diligence cases, which began in 2016, and are now being heard together as one case.
If that were to occur, the city would next file a change application in water court to move the rights from Castle and Maroon creeks to five other potential locations. All opposing parties in the cases have agreed not to fight the city’s effort to do so.
The potential reservoir locations, where the city says it will store as much as 8,500 acre-feet of water, are the city-owned golf course, the Maroon Creek Club’s golf course, the Cozy Point open space, the gravel pit in Woody Creek and a city-owned vacant land by the gravel pit.
During a public case-management conference Thursday with most of the water attorneys in the case, Boyd said he had reviewed the record and had concerns about several issues, including fundamental questions of diligence and need.
Boyd told the city’s water attorney, Cynthia Covell of Alperstein & Covell, that there wasn’t sufficient evidence in the court record for him to conclude that there was a “substantial probability that the project will ultimately reach fruition.”
He asked Covell to file with the court “either a supplemental factual record, a legal brief or just a new proposed decree, or any combination of those” by Jan. 18, if possible.
Asked after the conference call what she thought of the judge’s request, she said “I think the judge is being thoughtful and conscientious about this. I think he’s saying, ‘These are a couple of things that I would like to see more in the record on in order to sign off on this decree.’”
Boyd also asked the city to provide the court with its current long-range water-supply plan.
“In terms of filling in that factual record, there is a reference in the applications to Aspen’s long-range plan to maintain a reliable water supply, which at least invites the possible conclusion that there is a single document that is the plan, and if there is, it seems to me, perhaps it should be part of the record in this case,” Boyd said. “Or perhaps it is something other than a single document.”
Covell said the city’s water plan is in a series of documents.
The city first filed for the conditional water rights in 1965, informing the state it intended to build a 155-foot-tall dam on Maroon Creek that would store 4,567 acre-feet of water, and a 170-foot-tall dam on Castle Creek that would store 9,062 acre-feet of water.
The city obtained conditional decrees for the two reservoirs in 1971. Since then, it has submitted to the state periodic diligence applications, saying each time that it “can and will” someday build the two reservoirs, if necessary.
In current proposed decrees now in front of Boyd, the city is seeking a right to store 8,500 acre-feet in Castle Creek Reservoir, down from 9,062 acre-feet.
It’s also seeking a right to store the original 4,567 acre-feet in Maroon Creek Reservoir, even as it plans on moving both those rights, according to the settlement agreements, and forever walking away from the original locations.
In the settlement agreements, the city also has said it will seek to store no more than 8,500 acre-feet of water, in some configuration, at one or more of the five new locations.
The 8,500 acre-feet of water could come from both Castle and Maroon creeks, in some combination, or it could all come from Castle Creek.
On Thursday, Judge Boyd said he had questions about the city’s estimated storage needs.
“In terms of the obligation to show a need for the water — at least as I review the record — I have an engineering report that contemplates a need of 8,500 acre-feet of storage, which is, of course, the exact size proposed for one of the reservoirs, but the two reservoirs in combination total over 13,000 acre-feet,” Boyd said, “and there is nothing in the record to really explain why that’s an appropriate number for the court to approve, and I think I may need some record to support that.”
He also said the proposed decrees “are completely silent about that contemplated relocation of these reservoirs, and there is really no information in the record about the ability, under the ‘can and will’ doctrine, to put these reservoirs in the new locations that are suggested as possible alternatives,” Boyd said. “So I don’t know if I have any information, really, in the record for me to make the finding that as part of a diligence decree, or diligence burden of proof, of a substantial probability that the project will ultimately reach fruition, so it seems to me I may need some additional actual record to support that conclusion.”
Boyd also said it’s the first time he has seen a request such as the city’s, which involves moving conditional rights out of their original location, but only after first obtaining a diligence finding for the water rights in their original locations.
“If it goes forward at all, it will be in a different location,” he said, “and I think that needs to be articulated more clearly in the decree and, as well, give me enough information to conclude it meets the standards for reasonable diligence.”
The Castle and Maroon creek decrees have nearly identical terms, other than size. In fact, they’re often referred to as one decree.
It’s not the first time in the case that the state has asked the city to provide more information.
In a January 2017 “summary of consultation” between the division engineer and the water court’s so-called “referee,” the state said the city must show “a specific plan is in place to develop the subject water rights,” must demonstrate “substantiated population growth in order to justify the continued need for these water rights,” and must show it is “not speculating with the subject water rights.”
The city responded, but not in a way that satisfied the referee.
In August, more than a year and a half after the summary of consultation, the referee, Susan Ryan, sent the city’s two cases to Boyd for him to resolve.
She had noted that outstanding issues in both cases “will require water judge adjudication of the facts and/or rulings of law.”
Editor’s note: Aspen Journalism covers rivers and water in collaboration with The Aspen Times. The Times published this story on Monday, Dec. 3, 2018.