From Aspen Journalism (Brent Gardner-Smith):
The question of whether the City of Aspen has valid conditional water-storage rights tied to the potential Castle and Maroon creek reservoirs — rights the city now wishes to move to other locations — remains unresolved before state water court.
The latest activity in the two water-court cases about the Castle and Maroon water rights took place April 19, when water attorneys for the city responded to a judge’s request to provide more information about two key legal questions: whether the city has been diligent in its efforts to develop the reservoirs and whether it has a legitimate need for the amount of water it is claiming.
It’s not yet clear whether the information the city submitted to the court April 19 will be enough to satisfy Judge James Boyd, who is overseeing both cases — one involving the Castle Creek Reservoir water right and the other involving the Maroon Creek Reservoir water right — in Division 5 water court in Glenwood Springs.
A case-management conference call in the case was slated for Thursday morning — and that may have provided some insight into how the judge viewed the city’s latest information — but another ongoing trial required the judge to reschedule the conference call about the Castle and Maroon water rights for May 8.
Boyd in November told the city’s water attorney, Cynthia Covell of Alperstein and Covell, that he needed more information on both diligence and need.
“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 said in November.
Regarding the city’s stated need for up to 13,000 acre-feet of water between the two potential reservoirs, he also said, “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.”
The city is seeking a ruling from the judge that it has been diligent in developing the two potential reservoirs.
The city has told the court that, after obtaining a positive diligence finding, it intends to try to transfer the location of the conditional water-storage rights, which carry a 1971 adjudication date and 1965 appropriation date, from the original locations in upper Castle and Maroon creeks to locations closer to the Roaring Fork River.
The locations include the city’s golf course, the Maroon Creek Club golf course, the Cozy Point open space, the Woody Creek gravel pit operated by Elam Construction and an empty parcel of land next to the gravel pit now owned by the city.
In the information submitted to the court April 19, in both cases, Covell made the city’s case in succinct fashion, submitting a six-page, revised proposed decree and a four-page supplement to an earlier motion to approve the proposed decree.
The city has previously told the court that it has been diligent in its efforts to develop the reservoirs and that it does, in fact, need the water to meet future demands, especially given climate change.
And it said so again April 19 — but without adding much, if any, new information to the existing court record.
“Aspen needs the Maroon Creek Reservoir water right,” the city said in the April 19 filing. The city also told the court that it “has exercised reasonable diligence in the development of the Maroon Creek Reservoir water right.”
It made similar statements regarding the water right tied to a potential Castle Creek Reservoir.
Under Colorado water law, decisions about whether an applicant has been reasonably diligent in pursuing the development of a given water project are made by a judge on a case-by-case basis.
The court cases began when the city filed a diligence application with the water court in October 2016 seeking to maintain its conditional water-storage rights for both reservoirs, which the city first filed for in 1965.
Ten parties — Pitkin County, the U.S. Forest Service, American Rivers, Wilderness Workshop, Colorado Trout Unlimited, Western Resource Advocates and four private property owners — filed statements of opposition in response to the city’s 2016 diligence applications.
Two years later, in October 2018, the city announced it had reached agreements with all of the opposing parties in the two cases and submitted those agreements to the court, along with a request that the court issue a new decree finding that the city has been diligent and that the conditional water-storage rights are valid for at least another six years.
The new decree also incorporates the terms of the agreements reached with the opposing parties.
The agreements say the city will not build the Maroon and Castle creek reservoirs in their decreed locations and, instead, will seek to move the location of the conditional water storage rights out of the two pristine valleys.
The city also is now limited to storing no more than 8,500 acre-feet of water in the new locations, instead of potentially storing more than 13,000 acre-feet under the original decrees. The water for the 8,500 acre-feet of storage could come from both Castle and Maroon creeks under the agreements.
Today, the city’s water supply comes primarily from Castle Creek, but the supply is supplemented with water from Maroon Creek. The city has senior water rights for those diversions that are not tied to the conditional water storage rights.
The opposing parties also agreed not to challenge the city’s anticipated request to change the location of the conditional storage rights, but other outside parties may still do so.
Notably, in the latest information submitted by the city, there is a sentence in each case that seems to contradict the city’s agreed-upon position that it no longer intends to build either the Castle or Maroon creek reservoirs.
A sentence in the supplement to an earlier motion in the Maroon Creek case says, “Aspen intends to construct the Maroon Creek Reservoir to provide a legal, reliable water supply to its customers.”
In the Castle Creek case, a similar sentence says, “Aspen intends to construct the Castle Creek Reservoir … .”
Asked about the sentence in the Maroon Creek Reservoir case, which seems at face value to indicate that Aspen still intends to build a big dam within view of the iconic Maroon Bells, Covell said, “They intend to construct the reservoir. They intend to construct it at a different location.”
Aspen Journalism covers rivers and water in collaboration with The Aspen Times and other Swift Communication newspapers. The Aspen Times published this story on Friday, April 26, 2019.