Local officials say damming a creek between Leadville and Minturn — and routing water normally flowing into the Colorado River — is necessary to sate the future thirsts of a city growing on land where water is scarce.
Aurora Water and Colorado Springs Utilities recently applied together for a permit to drill underground near the creek and test where a large Whitney Reservoir would be best situated.
For the dam, the utilities are eyeing four possible locations about six miles southwest of Red Cliff.
But damming Homestake Creek would also require moving the boundary of the Holy Cross Wilderness, affecting ancient, pristine wetlands.
Greg Baker, Aurora Water’s manager of public relations, said the Whitney Reservoir could be built in 25 years if key steps such as test drilling on Forest Service land are approved.
Baker said it’s another creative step to make sure that Aurora doesn’t go dry.
“You don’t leave anything on the table when you’re in Colorado, because most of the water has been appropriated in river basins,” he said.
Baker said the reservoir could eventually hold anywhere from 9,000 acre-feet to 19,000 acre-feet of water. The water would then be pumped near Leadville and travel to the Front Range through tunnels to the South Platte River basin.
Currently, only Aurora and Colorado Springs would benefit, Baker said.
The project is another alliance between Aurora Water and Colorado Springs Utilities. The two cities — the state’s largest behind Denver — are both growing quickly. Baker said the new reservoir could help ensure the taps keep flowing, especially in an era with snowpack decreases that imperil creeks and rivers.
For two decades, hydrogeologist Lee Pivonka has monitored toxic waste at and around the Superfund site for Colorado Department of Public Health and Environment.
He’s one of the most prominent voices in the state calling for more scrutiny of the site.
Pivonka told Sentinel Colorado that pollution testing wells — not private wells for drinking — north of the Superfund site boundary were found to have unacceptably high levels of contamination as far back as 1995, when city councillors gave Murphy Creek the green light. Chemicals in many wells have never returned to acceptable levels, he said.
In 2002, EPA became concerned with a chemical called 1,4 dioxane. The stuff is widely found in trace amounts in household products such as detergents and shampoos. It is probably a carcinogen if ingested in high-enough concentrations through drinking contaminated water, the EPA says, but most people will not be exposed to it that way in their lifetimes. The New York state legislature recently passed a ban on products with more than trace amounts of 1,4 dioxane. The bill is pending Governor Andrew Cuomo’s signature.
For Murphy Creek golfers teeing off and residents, the danger is low, the WSDs said.
Further to their point, it’s unheard of for golfers to drink the creek water. The course itself, like the Murphy Creek neighborhood, is irrigated with clean City of Aurora water.
But scientists have also monitored 1,4 dioxane because it moves quickly in water. They believe that tracking the chemical could indicate other toxic waste following it.
As the state government’s lead researcher for the site, Pivonka has watched for the last 20 years and conducted more evidence about the leaking waste. In 2015, he co-authored a lengthy analysis to try and spur new fixes.
That paper mapped underground chemicals spreading down the Murphy Creek wash past East Jewell Avenue, below the edge of the Murphy Creek Golf Course and the community itself.
The paper estimated that 425.6 million gallons of contaminated water has leaked from the site in the plume, according to data from about a decade earlier. It’s a worrisome prospect for homes near the plume and on well water, such as the Raders’.
In the paper, Pivonka recommended that the EPA and the polluters try something new. The EPA recently heeded his suggestion that EPA stop injecting huge amounts of treated water north of the site.
Water was treated for various chemicals except for 1,4 dioxane, and pumped north of the site until the early 2000s. The WSDs then began treating water for 1,4 dioxane and injecting that north of the site until October 2018.
But while Pivonka and others conduct their own studies, the EPA and polluters have relied on separate studies and often come to separate conclusions. The debate over how and when the pollution has spread is rooted in a parallel universe of research at the EPA.
That agency’s conclusions, however, are often based on research commissioned by the WSDs.
The WSDs told Sentinel Colorado that, based on their information and EPA conclusions, the plan for containing the waste is currently protecting the public.
Karen Crummy of public relations firm BluePrint Strategies responded to Sentinel Colorado as the WSD spokeswoman. Crummy is routinely a spokesperson for oil and gas industry political causes.
The group believes the plume exists but is shrinking, pointing to data from a commissioned 2018 study indicating decreases in 1,4 dioxane levels at various locations north of the site.
Dave Wilmoth, a City and County of Denver official and environmental engineer, recently toured the site. He is a site expert representing Denver in the WSD group…
Wilmoth said the plan in place is working effectively. The contamination north of the site is little more than trace amounts of 1,4 dioxane, he said, blaming the outdated practice of dumping water contaminated with the stuff beyond the site’s northern barrier wall.
“No regulations,” he said of 1,4 dioxane. “No one knew.”
But that was almost two decades ago.
EPA spokesperson Rich Mylott said the containment plan is “working effectively to prevent off-site exposure to contaminants.”
However, the EPA is not sure that shallow and deep groundwater is safe from contamination, and directed the WSDs to commission their own studies of possible contamination. Two years ago, the agency declined to say in a multi-year study and report whether the site was adequately protecting the public.
The possible contamination of aquifers is a huge concern for Pivonka and Rader.
Two aquifers, the Denver and Dawson, overlap just north of the site where the plume is contaminating surface waters. The Dawson formation lies above the Denver, a 3,000-square mile table of water, separated by a leaky barrier of earth.
Both are important sources of drinking water for the dry Front Range. Serious contamination would threaten a key resource that scientists believe will become more scarce in the decades to come.
The EPA also acknowledges the existence of the surface water plume in the review but said the WSDs need to conduct more studies before it creates a plan.
In the years since, the polluters’ group has been doing just that. They say they are working to get the additional data EPA needs to again find the site remedy “effective and protective.”
The WSDs said it could also consider new solutions, such as drilling new monitoring wells — in addition to the 500 that already exist — changing how they monitor the groundwater, and studying the impact of injecting water north of the site.
The prospect of polluters running their own studies for the EPA worries Bonnie Rader, who is now chairing the site Community Advisory Group.
The group has long received funds from the EPA to hire out its own, independent contractors to study the pollution.
She doesn’t trust the polluters nor the EPA to reach their own conclusions.
The CAG consultant, McGinnis and Associates, reviewed a polluter-funded study of the site in 2013. Rader sent the review to a lead scientist at the EPA, who analyzed the study line-by-line, finding inaccuracies and omissions. The errors include misrepresenting levels of 1,4 dioxane in test wells.
McGinnis also believes the plume is growing, not shrinking.
It’s emblematic of an information gap that strains relationships between the various consultants and agencies.
Different studies come to different conclusions, frustrating all parties involved. Technical disagreements can turn sharky in tone.
Generally, the EPA and polluters believe they should stay the course, while CDPHE and the citizen-hired McGinnis and Associates think more should be done to contain and clean up the waste.
The EPA and polluters can press ahead with their own plans, but area residents and their consultants are extremely concerned about the leaking waste and continue to pressure them.
In the 2017 review, EPA staffers conducted interviews with locals. “All private citizens interviewed are concerned about groundwater contamination and the use of private residential wells,” the report says.
The gulf between the parties has also widened because of little trust and bad communication.
Four years after his paper’s findings, Pivonka said the EPA and polluters “have not been receptive to the recommendations, and continue the same approach to the site.”
Rader is disillusioned with the WSDs and their studies. She said she’s been hearing the same old reassurances for the last 30 years while the waste spreads north, closer to her home.
The polluters’ trust disagrees with the notion that they have not listened to residents, Crummy said. She said WSD representatives regularly attend meetings with locals.
The mass of evidence, varying conclusions and convictions on all sides leaves residents with vague concerns at best but nightmares at worse about the situation actually harming people…
…the mere possibility of pollution has encouraged new, suburban residents to forge an alliance with Rader and other environmental crusaders. While a subdivision lies close to the spreading plume, they are vehemently opposed to a new plan to house thousands of new residents on its doorstep, for reasons of their own…
The Superfund site and its leaking waste was not news to [Nicole] Johnston, who represents the eastern frontier region of the city. She actually became involved in the CAG herself before running for city council, and was interviewed in the EPA’s 2017 review study that downgraded the protectiveness of the site.
She said that 1,4 dioxane may not even be her biggest concern, compared to other chemicals dumped in the Superfund site.
“They put some really, really bad things in there,” she said. “Those other, really bad chemicals could be right behind it.”
Johnston met with Rep. Jason Crow that April afternoon when he visited the plume.
She said that, although the plume concerns her very much, the possibility of two injection wells about five miles from the site could dramatically change the area’s geology.
The wells, proposed by Wyoming- and Denver-based Expedition Water Solutions, would flush mostly saltwater and other by-products from oil and gas extraction more than 10,000 feet below the surface.
Injection wells are known to cause earthquakes in some circumstances, according to the United States Geological Survey.
But the science that the Superfund site geology could be disrupted is far from certain.
Zach Neal, a spokesperson for EWS, said the proposed location was the only possible place for the injection wells because of county zoning restrictions.
He added that the wells would be safely built and regulated. EWS would inject the waste far deeper below the surface than the Denver and Dawson aquifers.
Arapahoe County officials told Sentinel Colorado that staff are still reviewing the applications, and the state government agency charged with reviewing proposals has not taken action since EWS filed its paperwork in February.
Arapahoe County Commissioner Jeff Baker represents the Superfund site area and the residents that live in the unincorporated county. He said he’s also worried about the injection well permits and will be scrutinizing them, he said.
But Baker said he is also open to considering whether the solution to keeping residents safe from the Lowry Landfill should still be trying to contain the waste. He’s open to discussing a plan to clean up the waste, once and for all.
It’s an idea that Bonnie Rader has clamored for during the last 50 years.
Here’s the release from Aurora Water (Greg Baker):
Water rights purchase provides environmental benefit
Aurora Water has finalized the purchase of water rights associated with the London Mine, located near Alma, in Park County. 1,411 acre feet (af) of water has been acquired at price of $22,000 per af, with additional costs of $2 million for an option to acquire additional water rights as they are developed and $1M for an easement. An acre foot of water is 325,851 gallons, enough water to serve 2.5 households on average. The seller of the rights is MineWater Finance, LLC and No Name Investors, both Colorado companies. The total value of this initial purchase is $34,042,000. The sellers are confident that the source of the rights could ultimately result in additional water that Aurora has the exclusive option to purchase for $21,500 per acre foot.
The source of this water is from a basin that is recharged from snowmelt on London Mountain. A geologic fault contains the water underground and prevents it from discharging into South Mosquito Creek, a tributary of the South Platte River. This water is pumped from the basin to a water tunnel in the London Mine and from there, discharged into South Mosquito Creek, which is upstream of Aurora’s Spinney Mountain Reservoir. Since this water is not naturally connected to the streams, it is decreed under Colorado Water Law as non-tributary. This has special meaning as this water is fully reusable and can be recaptured utilizing Aurora’s Prairie Waters system, a potable reuse system.
Aurora Water has been a national leader in water efficiency, including an acclaimed Prairie Waters water reuse system, and a nationally recognized water conservation program. Water acquisition is still necessary to meet future demands.
“Looking for new water supplies in the arid west requires innovative thinking,” said Marshall Brown, Director for Aurora Water. “This is a supply that historically has not been tapped by water providers, but the easier supplies are gone.”
The environmentally positive aspects of purchase have resulted in praise from organizations such as the Boulder-based Water Resource Advocates (WRA).
“New water supplies in Colorado are extremely limited and, at the same time, nearly 2,000 miles of streams in Colorado are polluted by mines,” Laura Belanger, Water Resources and Environmental Engineer with WRA stated. “We commend Aurora Water for taking a leadership role in finding this inventive and environmentally beneficial solution to meeting its customers’ water needs.”
Aurora Water completed substantial due diligence prior to this initial closing. Additional water rights under the option provision will be purchased as they are adjudicated and decreed through Colorado’s Water Courts.
Aurora Water is only purchasing the water rights. MineWater will continue to be responsible for the mine property, wells and associated permits. Questions regarding the mining operations, including the permits, should be directed to the MineWater contact listed above.
Click here to read the London Mine Purchase and Sale Agreement Fact Sheet.
Click here to read the mine water attachments to the release.
From 1874 until the 1940s, the London Mine was one of the top-producing gold mines in the state. It also produced lead, silver and zinc. In 1991 the mine eventually closed, but a fault within the mountain created a natural reservoir, one that fills with snowmelt.
In the nearly three decades since the mine has been closed, the state health department and U.S. Environmental Protection Agency have had their eye on the mine and its previous owners. In 2009, 2011 and 2013 CDPHE cited the mine for violating the discharge permit. A treatment plan for the mine was created, but it failed. And in 2016 CDPHE slapped the owner previous to MineWater with a $1.1 million fine.
Water officials and MineWater have studied the water, and will continue to do so, to make sure it’s a safe source.
MineWater, which has completely reworked the plumbing of the mine, will still continue its operations and hold all mine permits. Aurora water is only purchasing the water rights.
CNHP Wetland Ecologists Joanna Lemly and Sarah Marshall hold a wetland soil core taken from Todd Gulch Fen at 10,000 feet in the Colorado Rockies. The dark, carbon-rich core is about 3 feet long. Living plants at its top provide thermal insulation, keeping the soil cold enough that decomposition by microbes is very slow. William Moomaw, Tufts University, CC BY-ND
San Creek in Aurora
Map of the Roaring Fork River watershed via the Roaring Fork Conservancy
Here’s the release from the Environmental Protection Agency (Lisa McClain-Vanderpool):
Colorado Natural Heritage Society and Colorado State University-Natural Heritage Program will provide invaluable resources to Roaring Fork and Aurora watershed stakeholders
EPA has awarded $575,333 in wetlands grants to two programs in Colorado to survey, assess, map and provide technological tools such as smart phone applications.
“The data these projects generate are important to understanding, protecting and restoring wetlands in the state of Colorado,” said Darcy O’Connor, Assistant Regional Administrator of the Office of Water Protection. “Supporting decision making with solid scientific data is the wise approach to wetlands protection.”
Colorado Natural Heritage Society was awarded $221,250 to survey and assess critical wetlands in the Roaring Fork watershed in western Colorado. This project proposes to conduct a prioritized survey and assessment for critical wetlands within the Roaring Fork Watershed. The primary goal is to provide stakeholders, including private landowners with scientifically valid data on the condition, rarity, location, acres, and types of wetlands within the watershed.
Colorado State University’s Colorado Natural Heritage Program (CNHP) was awarded $221,250 for the 5th phase of CNHP’s wetlands database including vegetation classification, floristic quality assessment, a wetland restoration database and updates to the Colorado Wetlands Mobile App. The CNHP will revise Colorado’s wetland and riparian vegetation classification and floristic quality assessment, and create a Colorado wetland and stream restoration database.
The CNHP was also awarded $132,833 to assess critical urban wetlands in the city of Aurora, Colorado. CNHP will update the National Wetland Inventory mapping and conduct field-based wetland assessments in the greater Aurora area. Water quality data will also be collected at these sites. The goal is to create useful products for local land managers, land owners and community members.
EPA has awarded over $2.5 million in wetlands grant funding for 11 projects across EPA’s mountains and plains region of the West (Region 8). Healthy wetlands perform important ecological functions, such as feeding downstream waters, trapping floodwaters, recharging groundwater supplies, removing pollution, and providing habitat for fish and wildlife.
Wetlands Program Development Grants assist state, tribal, local government agencies, and interstate/intertribal entities in building programs that protect, manage, and restore wetlands and aquatic resources. States, tribes, and local wetlands programs are encouraged to develop wetlands program plans, which help create a roadmap for building capacity and achieving long-term environmental goals.
The $9 million project will replace an intake and diversion structure and install a fish passage and boat chute on what is considered the last non-navigable stretch of the river between Leadville and Cañon City, according to a Thursday news release from the local utility provider.
Once the project is completed, skilled whitewater boaters, including rafters and kayakers, will be able to traverse the span of river near Clear Creek Reservoir without portaging…
Aurora Water, [Colorado Springs Utilities] is also financing construction on the project, and grants from Colorado Parks and Wildlife and the Colorado Water Conservation Board are providing about $1.2 million.
The stone diversion, south of Granite, was constructed in 1964 as the original intake for the Otero Pump Station a few miles north of Buena Vista. At the time, river recreation was not considered during the design process, said Brian McCormick, a senior project engineer for Colorado Springs Utilities.
“This project will bring this diversion and this site up to modern design standards, including the addition of facilities for recreational boating,” McCormick said.
“This is a real nice example of really balancing both the demands we place on the river for water supply and for recreation.”
The structure is now a backup intake for the pump station, which is served by water from nearby Twin Lakes, he said. It is part of the Homestake Project, a partnership between Aurora Water and Colorado Springs Utilities to move water from west of the Continental Divide eastward to the two Front Range cities.
The project, slated for completion in November 2019, will affect about 400 feet of the river. Construction in the river is expected to begin after Labor Day weekend, McCormick said.
The fish passage, also known as a fish ladder, will allow brown and rainbow trout to swim upstream past the diversion when they spawn, he said.
The boat chute will be a channel on one side of the river made up of a series of drops and pools to get the boats safely past the structure, McCormick said.
Commercial outfitters raft the stretch now, but they must portage to get around the diversion, with its jagged concrete and exposed steel, said Rob White, park manager of the Arkansas Headwaters Recreation Area.
The project will add “a nice stretch of whitewater possibilities” for adventure-seekers ready for rapids ranked Class III and above, White said.
Utilities and Aurora Water staff members have spent more than a decade developing the project. The Pueblo Board of Water Works is donating easements needed to build and maintain the diversion, according to the news release.
The AHRA Clear Creek North Recreation Site will be closed during the project, but the Clear Creek South Recreation Site will remain open, the release says.
Aurora’s futuristic recycled water project — Prairie Waters— is running at full-tilt for the first time in its eight-year history, a move designed to make the city’s water supplies last longer in the face of severe drought conditions.
“We’re pushing it as hard as we can,” said Greg Baker, a spokesman for Aurora Water.
In February, as mountain snows failed to accumulate, Baker said the city began mobilizing to ramp up plant operations, knowing its reservoirs would likely not fill this summer. “We were very worried.”
By April, Prairie Waters was running at full speed, generating 9.7 million gallons a day (MGD), up from 5.1 MGD last summer, a 90 percent increase in production.
“We could possibly push it to 10 MGD,” said Ann Malinaro, a chemist and treatment specialist with Prairie Waters, “but we consider 9.7 MGD full capacity.”
“Prairie Waters was huge, not just in terms of volume, but also because it’s really helped us advance as a state in accepting potable [drinkable] reused water,” Belanger said. “Historically, there has been a yuck factor. But Prairie Waters has helped folks understand how systems can be designed so they are safe and effective.” [Laura Belanger]
Twenty-five Colorado cities, including Denver, Colorado Springs, Fort Collins and Louisville, operate recycled water facilities, according to the Colorado Department of Public Health and Environment, but that water is used primarily to water parks, golf courses and to help cool power plants, among other nonpotable, or non-drinkable, uses.
But Aurora, faced with fast-growth and a shortage of water, realized more than a decade ago that reusing its existing supplies and treating them to drinking water standards was the only way to ensure it could provide enough water for its citizens.
Completed in 2010, the Prairie Waters Project recaptures treated wastewater from the South Platte River and transports it back to Aurora through a series of underground wells and pipelines. As the water makes its 34-mile journey from a point near Brighton back to the metro area through subsurface sand and gravel formations, it undergoes several rounds of natural cleansing.
Once it reaches the Prairie Waters treatment facility near Aurora Reservoir, it runs through a series of high-tech purification processes using carbon filters, UV light and chlorine, among other chemicals. Then, before it is delivered to homes, the reused water is mixed with the city’s other supplies, which derive from relatively clean mountain snowmelt that is carried down from the mountains.
As a way to settle a 2009 state water court case led by Pitkin County and the Colorado River District, the Front Range city of Aurora has agreed to let as much as 1,000 acre-feet of water run down the upper Roaring Fork River each year instead of diverting the water under Independence Pass.
The pending settlement could mean that about 10 to 30 cubic feet per second of additional water could flow down the river through Aspen in summer and fall.
It’s an amount of water that Pitkin County Attorney John Ely said would be “visibly noticeable” and would help bolster flows in the often water-short stretch of the Roaring Fork between Difficult and Maroon creeks.
“It’s exciting,” Ely said. “It’s not very often you get to put water into the upper Roaring Fork. These opportunities are pretty limited, and I’m not sure if we’ll ever see another one.”
A June 13 memo from Ely on the agreement states that “the Pitkin County Healthy Rivers and Streams Board has long recognized this reach of the Roaring Fork as one of the most stressed reaches of the Roaring Fork” and that “the Roaring Fork Conservancy’s State of the Watershed report identifies the upper Roaring Fork just above Aspen and heading into town as being severely degraded.”
The Pitkin Board of County Commissioners is expected to approve the settlement in the form of an intergovernmental agreement with Aurora on Wednesday.
Aurora’s city council also is expected to approve the agreement, as is the Colorado River District board of directors at its July meeting. A Water Court judge has set a July 20 deadline for the parties to file the settlement.
Officials with Pitkin County and the Colorado River District see the deal with Aurora as a victory, especially as some estimates, according to Ely, place the value of water in Aurora at $50,000 an acre-foot, which makes the 1,000 acre-feet of water potentially worth $50 million.
The settlement is also of high value to officials at the Colorado River District, who led the efforts of the West Slope entities in the case.
“I think it’s a big deal,” said Peter Fleming, the general counsel for the Colorado River District, which represents 15 counties on the Western Slope. “I think it’s going to be a good deal for Pitkin County, the Roaring Fork River, and the West Slope as a whole. And frankly, I think it’s a pretty good deal for Aurora, as well.”
But Tom Simpson, a water resource supervisor with Aurora, said it’s a “bittersweet” deal for the growing Front Range city.
“We’ve worked hard on this agreement over the last year,” Simpson said. “It is bittersweet, but we are happy that we are finally there.”
The deal lets Aurora retain its current use of 2,416 acre-feet of water it diverts on average each year from the top of the Fryingpan River Basin, but Aurora also is giving up 1,000 acre-feet of water it now diverts from the top of the Roaring Fork River Basin.
Aurora also is agreeing to abide by operating protocols and future potential use of the senior water rights on the Colorado River now tied to the Shoshone hydropower plant in Glenwood Canyon. That agreement could limit the amount of additional water Aurora can divert in the future from the Colorado River Basin.
The provisions of the agreement relating to the Shoshone water right also include an acknowledgement that the senior water right might someday be changed to include an instream flow right rather than the water being diverted out of the river and sent to the hydropower plant.
“Aurora will not oppose an agreement between a West Slope entity or entities, the Colorado Water Conservation Board, and any other entity entered for the purpose of adding instream flow as an additional use of the senior hydropower right,” the agreement states.
Simpson agreed the overall deal represented a “haircut” for Aurora’s water rights in the Colorado River Basin.
“Yes, we’re going to get the 2,416 acre-feet out of Busk, but we’re going to make these other deliveries on the Roaring Fork, and we might lose just a little bit of water on the Shoshone protocol,” he said. “It’s a haircut, absolutely.”
On the other hand, Simpson said “while this agreement is not perfect, we feel like it is a good agreement, and preserves some of our Busk-Ivanhoe water and lets us all move forward.”
Started in 2009
In December 2009, Aurora filed a water rights application in Division 2 Water Court in Pueblo to change the use of its water rights in the Busk-Ivanhoe transmountain diversion system in the Fryingpan River headwaters.
The system, built in the 1920s, gathers water from Ivanhoe, Pan, Lyle, and Hidden Lake creeks and diverts the water through the Ivanhoe Tunnel to Turquoise Reservoir near Leadville before it is sent to East Slope cities. The system was built to deliver water to irrigators in the lower Arkansas River basin.
The water rights to the system carry appropriation dates from 1921 to 1927, which makes them junior to the senior water rights on the Colorado River near Grand Junction known as the “Cameo call.”
The Pueblo Board of Water Works bought half of the Busk-Ivanhoe system in 1972, and Aurora gradually secured its half-ownership in the system between 1986 and 2001.
In its 2009 application, Aurora told the water court it wanted to change the use of its water in the Busk-Ivanhoe system from irrigation to municipal use.
However, it also conceded it had already been using the Busk-Ivanhoe water for municipal purposes in Aurora, even though its water-right decree limited the use of the water to irrigation in the lower Arkansas River valley. It also came to light that Aurora was first storing the water in Turquoise Reservoir without an explicit decreed right to do so.
That caught the attention of Pitkin County, the Colorado River District, a host of other Western Slope water interests, and the state engineer’s office, which administers water rights.
As Ely put it in a June 13 memo to the Pitkin County commissioners, “In 1987, Aurora began using Busk-Ivanhoe water for undecreed municipal and residential purposes in an undecreed area, the South Platte Valley, after storing the water in an undecreed manner in Aurora system reservoirs.”
Aurora’s stance was that since the water had been diverted under the Continental Divide, it didn’t matter how it used or stored the water, as it should make no difference to the West Slope. But an array of West Slope entities, including the Colorado River District, disagreed with Aurora’s position.
In July 2013 the Western Slope entities and the state took Aurora to a five-day trial in Div. 2 Water Court in Pueblo, arguing that Aurora should not get credit for its 22 years of undecreed water use and storage.
“It was always an issue of fact at trial as to how much water was in play because it depends on how you calculate the yield of the project,” Ely said.
In 2014, thought, the district court judge in Division 2 ruled in Aurora’s favor, and the West Slope interests then appealed to the state Supreme Court.
The appeal process prompted a host of entities on both sides of the Continental Divide to come forward and argue aspects of the case before the court. It also prompted a scolding of Aurora by former Supreme Court Justice Greg Hobbs over the use of undecreed water rights.
In 2016, the Colorado Supreme Court reversed the lower court’s decision, ruled in favor of the Western Slope, and remanded Aurora’s original change application back to the lower court.
“The Supreme Court wrote that notwithstanding the fact that the change application and original decree concerned developed transmountain water, water used for undecreed purposes cannot be included in a calculation for historic consumptive use and is therefore excluded from water available for change of use,” Ely wrote in his June 13 memo.
So, rather than going back to Water Court and continuing to fight over the potential size of the Busk-Ivanhoe rights, which the West Slope now saw as being between zero and well-less than 2,416 acre-feet, Aurora began negotiating in January 2017 with the Western Slope entities still in the case, which included Pitkin County, Eagle County, the Colorado River District, the Grand Valley Water Users Association, the Basalt Water Conservancy District, Eagle County, Orchard Mesa Irrigation District, and Ute Water Conservancy District.
Today, each of those entities is also a party to the intergovernmental agreement expected to be submitted to the water court in July, along with a proposed decree for Aurora’s Busk-Ivanhoe rights.
Ely said Pitkin County didn’t start out in the case with an eye on securing 1,000 acre-feet for the Roaring Fork, but did have a local interest in the operation of the Busk-Ivanhoe project.
“We weren’t doing it to obtain an end result, we were doing it because the [Busk-Ivanhoe] project is in our backyard and we felt it was the right thing to do,” Ely said. “And all the other dialogue developed after the trial and the Supreme Court decision.”
At the time of the 2016 Colorado Supreme Court decision, Pitkin County had spent $353,000 in legal and other fees in the case, using money brought in by a tax to fund the county’s Healthy River and Streams program, which includes litigation in water court.
Since then, Ely said the county had spent an additional $27,300 for hydrology and engineering work, but had not spent more on additional outside legal help, as he and Assistant County Attorney Laura Makar handled the settlement negotiations for the county.
Pan, or Fork?
For Pitkin County and other Western Slope entities, it made more sense to negotiate with Aurora for some of the water it owns in the Independence Pass-Twin Lakes system rather than the Busk-Ivanhoe system, as any water bypassed by the Busk-Ivanhoe system would be scooped up by the Fry-Ark Project, which sits below the Busk-Ivanhoe system in the upper Fryingpan valley and also diverts water to the East Slope.
Aurora owns 5 percent of the shares in the Twin Lakes Reservoir and Canal Co., which operates the Independence Pass Transmountain Diversion System. Its share of the water diverted each year from the top of the Roaring Fork equals about 2,100 acre-feet a year, so the 1,000 acre-feet of water equals about half of Aurora’s water in the Twin Lakes company.
In the 10 years from 2007 through 2016, Twin Lakes Co. diverted a total of 485,762 acre-feet of water from the upper Roaring Fork River Basin through its diversion system, putting the 10-year average for that period at 48,567 acre feet. 2011 was the biggest year of diversions since 2007, with 67,463 acre-feet diverted, and 2015 was the lowest year since 2007, with 18,374 acre-feet diverted.
Colorado Springs owns 55 percent of the shares in Twin Lakes Co., Pueblo 23 percent, Pueblo West 12 percent, and Aurora 5 percent. There are also other minority shareholders, holding 5 percent of the shares, still using the water from the system for agriculture.
Twin Lakes is not a party to the intergovernmental agreement between Aurora and the West Slope entities, but it is willing to work with all involved to make the water deliveries as beneficial as possible for the Roaring Fork River.
Ely said Pitkin Country was grateful for the willingness of the Twin Lakes Co. to work with the county and the Colorado River District to release the water in a way that benefits the river, even if it means more work for the operators of the Independence Pass-Twin Lakes system.
According to Kevin Lusk, the president of the Twin Lakes Reservoir and Canal Co. and a senior engineer at Colorado Springs Utilities, the company is simply responding to the desires of a shareholder in the company, Aurora.
He also said it’s legal under a 1976 water-rights decree held by Twin Lakes to bypass water for use on the West Slope instead of diverting it under the Continental Divide.
“The decree allows for this type of operation and so really all we’re doing as a company is accommodating the request of one of our shareholders to do something that was contemplated and provided for in the decree,” Lusk said.
And as part of the agreement, representatives from Pitkin County, the Colorado River District, Aurora, and Twin Lakes will meet each year to agree on a delivery schedule for the water that describes the “desired rate, timing, amount, location and ultimate use of the water, as well as the operational needs and constraints” of the Independence Pass-Twin Lakes diversion system.
In a letter attached to the agreement laying out how Aurora and the Twin Lakes Co. plan to manage the releases, Aurora said it “would prefer the water to be delivered at times of the year and at locations that will provide the most benefit to the Roaring Fork River stream flow. Typically this will be in the second half of the summer, beginning July 15, through the fall season.”
And Pitkin County feels the same way, according to Ely.
“We would like it delivered later in the year when the flows of the river start to go down,” he said.
However, Lusk at Twin Lakes said if the West Slope entities wait too long in the season to bypass the water, it may not be there to bypass.
“I know that there is a great interest in saving a lot of this water and bypassing it at the end of the season,” Lusk said. “But it’s going to be a bit of a balancing act. You’ve got to take the water when it’s there, because if you don’t take advantage of it there won’t be any to release later.”
Lusk also said that if the West Slope really wanted to take full advantage of the water, it might consider building a reservoir above Aspen to store the water at peak runoff and then release it later in the season.
Flows on the Fork
According to a draft resolution to be voted on by the Pitkin County commissioners Wednesday, there were several factors that went into the county’s goal of acquiring 1,000 acre-feet per year of water for the upper Fork, including “the expected amount of yield for Aurora in the Busk-Ivanhoe system; existing in-basin and out-of-basin diversions from the Roaring Fork River between Independence Pass through the City of Aspen; potential future demand on the river; extent of existing conditional water rights; and the results of a stream analysis and channel measurement study.”
If the deal is approved, as soon as next year 700 acre-feet of Aurora’s water is expected to be captured briefly in the Independence Pass system, which includes dams on Lost Man Creek, the main stem of the Roaring Fork River, and on Grizzly Creek, and then released down either the Fork or Lincoln Creek toward Aspen.
Another 200 acre-feet of Aurora’s Twin Lakes water will be held in Grizzly Reservoir on Lincoln Creek, which holds 570 acre-feet of water. That water will then be released late in the year, after most transmountain diversions have stopped, to bolster late-season flows in the river.
“So it’s actually reservoir release of previously stored water, while the [700 acre-feet] is a true bypass of water that would have gone through the tunnel that day to the other side,” Lusk said. “It’s new for us. We typically don’t operate the reservoir that way. Typically we would run that reservoir quite a bit lower, just for safety-of-dam reasons. But this change in operation is going to be holding the reservoir up much fuller for a lot longer, and we just need to watch the behavior of the dam.”
Another 100 acre-feet of water could also eventually be left in the Roaring Fork each year after a complicated exchange-of-water arrangement is worked out with Aurora and other parties on the Fryingpan River, which brings the potential total water left in the Fork to 1,000 acre-feet.
There is also a drought contingency provision which will allow Aurora to bypass 100 acre-feet less than they would have under the deal if the water level in their system of reservoirs falls below 60 percent on April 1 in a given year. So in a dry year, that could bring additional flows in the Roaring Fork back to 900 acre feet.
The pending Busk-Ivanhoe settlement also includes a provision that allows the Basalt Water Conservancy District to store 50 acre-feet of water in Ivanhoe Reservoir, which holds 1,200 acre-feet of water and serves more as a forebay for the Ivanhoe Tunnel diversions than a storage reservoir.
And, in a provision to Aurora’s benefit, the West Slope entities, including Pitkin County, have agreed not to fight, at least on a wholesale basis, the permitting of two potential reservoirs that Aurora is working on, Wild Horse Reservoir in South Park and Box Creek Reservoir, which could hold between 20,000 and 60,000 acre-feet on private land on the south flank of Mt. Elbert.
“Any participation in the permitting processes by the West Slope Parties will not seek to prevent the project in its entirety and comments or requests may be raised only for the purpose of addressing water related impacts caused directly by either of the two above specified projects on the West Slope,” the draft agreement between Aurora and the West Slope says.
The concession from the West Slope is significant as Box Creek Reservoir will be able to store water from the West Slope.
The West Slope entities also agree not to oppose changes in diversion points tied to the Homestake transmountain diversion system in the Eagle River Basin, not to oppose Aurora’s efforts to repair the Ivanhoe Tunnel, which is also called the Carlton Tunnel. The tunnel was originally built as a railroad tunnel, and then used as a highway tunnel.
Finally, the parties to the deal have agreed, in what’s called a “diligence detente,” not to challenge in water court for 15 years a list of conditional water rights, held by both East Slope and West Slope entities, that are required to periodically file due-diligence applications with the state.
The list of conditional water rights includes rights held by Aurora tied to the Homestake project and rights by the Southeastern Water Conservancy District tied to the Fry-Ark Project. They also include rights held by the Colorado River District on a number of West Slope water projects, including the potential Iron Mountain Reservoir near Redcliff and the Wolcott Reservoir near Wolcott.
Notably, the agreement does not include provisions to legally shepherd the water from the Independence Pass-Twin Lakes system all the way to the confluence of Maroon Creek, so it’s possible that diverters on the river near Aspen, such as the Salvation Ditch, could pick up the water left in the river.
However, Ely said the county will seek cooperation from diverters on the river near Aspen.
“We’ve had some conversations with water users on this side of the hill, and we’ve had conversations with the Division 5 engineer’s office, and we’re hopeful that when the water is being bypassed and put in the river and there is an increase of flow, folks won’t take advantage of that and we’ll be able to get it down through Aspen,” Ely said. “And eventually, you know things will change, and we hope to have that water associated with its own water right, so we can call it further down, but that won’t be the case right away.”
An additional benefit to the deal, according to Ely, is that the management of the 1,000 acre-foot pool of water from Aurora may also lead to better management of a 3,000 acre-foot pool of water also available in the Independence Pass-Twin Lakes system.
That pool was created to mitigate the impacts to the Roaring Fork River from diversions by the Fry-Ark Project on Hunter, Midway, and No Name creeks, which drain into the Fork in central Aspen. And while Twin Lakes releases the water down the Roaring Fork, releases from the Fry-Ark Project replace the water in Twin Lakes Reservoir, where both transbasin diversion systems can send water.
For years, the water from the 3,000 acre-foot pool has been released at a rate of 3 cfs on a year-round basis and has not been timed to help bolster low-season flows. Now, given the greater cooperation over the management of the 1,000 acre-foot pool from Aurora, how the 3,000 acre-foot pool from Fry-Ark is managed may also change, to the benefit of the river.
Aspen Journalism is collaborating on the coverage of rivers and water with The Aspen Times. The Times ran a shorter version of this story on Tuesday, June 12, 2018.