On Wednesday a collection of six environmental advocacy groups – Save the Colorado, the Environmental Group, Wildearth Guardians, Living Rivers, Waterkeeper Alliance Inc. and the Sierra Club – filed a lawsuit in Colorado’s federal district court against the proposed Gross Reservoir Expansion Project, alternately called the Moffat Firming Project…
The legal process surrounding Gross Reservoir has deep significance to Grand County. The county serves as the source for much of the water Denver Water relies upon, which is transported out of the county through the Moffat Tunnel near Winter Park Resort. The county is also party to a collaborative water management group called Learning By Doing. The group looks to improve river habitat in Grand County by conducting environmental water projects and through other means.
The lawsuit filed by the environmental groups does not name Denver Water and instead is directed at the US Army Corps of Engineers, the Department of the Interior and the US Fish and Wildlife Service. The 57-page complaint lays out 32 separate specific claims related to alleged violations of the National Environmental Policy Act, the Clean Water Act and the Endangered Species Act.
The alleged violations claimed by the environmental groups cover a wide range of technical issues related to the formal processes by which large construction projects, such as the Gross Reservoir Expansions, are approved by federal agencies. Many of the claims made by the environmental groups revolve around allegations that the Corps of Engineers, Interior Dept. and US Fish and Wildlife failed to exercise independent judgment related to claims made by Denver Water about the project.
“Denver Water’s proposal to build the largest dam in Colorado history will hurt the 40 million people in six states and two countries who depend on the Colorado River – a critical but disappearing, resource – for their water supply,” said Daniel E. Estrin, general counsel and advocacy director at Waterkeeper Alliance. “Waterkeeper Alliance stands united with our many Colorado River Basin Waterkeepers who are fighting to protect their waterways and their communities from this senseless and destructive water grab.”
For their part officials from Denver Water said the court filing did not surprise them.
“We expected it,” Jim Lochhead, CEO of Denver Water, said. “This is a really critical project for Denver Water. In the last 15 years we have come close to running out of water a couple of time at the north end of the system.”
Lochhead noted that those two incidents came in 2002 and 2013.
While Denver Water is not directly named in the lawsuit Lochhead said the organization will be entering the lawsuit to “provide our own perspective on the adequacy of the approvals.”
“We are confident the federal agencies follow regulations and federal law,” Lochhead said. “I think a court will uphold the findings by those agencies.”
When asked whether he believed Denver Water and the environmental groups who oppose the Gross Reservoir Expansion Project could reach some form of compromise agreement Lochhead answered, saying, “I think their position is pretty clear.”
In a fast-growing state that places greater demands on its water supply each day, a state that regularly faces withering droughts, Hickenlooper has spent his eight years in office navigating water issues and leading the development of a state water plan that Denver’s chief water official calls a “real act of political courage.”
But not everyone believes the governor has made all the right choices on water. Colorado still faces daunting water-supply challenges. Some say Hickenlooper should have done more to promote dams and reservoirs and there’s no clear way to pay for the ambitious state water plan he fostered.
Still, many give Hickenlooper credit for reshaping how Colorado deals with water.
“He was the first governor to put water at the forefront,” said veteran northern Colorado water manager Eric Wilkinson.
Hickenlooper’s legacy may depend on what is done with the water plan that he is leaving for his successor. Colorado Politics talked to members of Colorado’s water community to see what they think his legacy in water looks like – and the governor weighed in on that, too.
When Hickenlooper became mayor of Denver in July 2003, the state was already entering the second year of a record-setting drought. Gov. Bill Owens, in his 2003 State of the State address six months earlier, claimed the 2002 drought was the worst in 350 years, with most of Colorado in what the U.S. Drought Monitor called “exceptional drought,” the worst stage in their rankings.
So water got into the future governor’s mind early on, although as mayor, his control was limited primarily to appointing commissioners to Denver Water, the state’s largest water utility.
But as he saw it, he wasn’t dealing with just Denver’s water. It was water that belonged to the entire state, he said.
At the time, state officials were also trying to figure out how to solve the water problem. In the midst of devastating drought, the General Assembly and Owens began working on several ideas that still hold water today, including a new assessment of Colorado’s water supply, known as the Statewide Water Supply Initiative (SWSI)…
In the 2005 session, the General Assembly approved a law setting up groups known as basin roundtables, which divided Colorado into nine regions, each representing a major river, plus one for Denver.
But the groups weren’t required to work with each other. There were differences among the regions, including claims from the Western Slope that the Denver area was seeking more “transmountain diversions” to channel water from the Colorado River and other western waters through the mountains to the Front Range. That claim still sticks today.
And there were long-standing hard feelings over what happened about 15 years earlier, when ski towns joined forces with environmentalists to help defeat a major Denver reservoir project…
Two Forks was a proposed dam on the South Platte River that would have created a million acre-feet reservoir, flooding 30 miles of canyon from Deckers south to the river’s confluence with its north fork.
Advocates said the project was vital to supplying growing metro Denver. But environmentalists sounded the trumpets, complaining of the potential drowning of much of Cheesman Canyon with its prime fishing, hiking and kayaking areas, and the Environmental Protection Agency vetoed a permit for the project in 1990.
Denver Water, which exhausted its appeals of the rejection in 1996, was forced to shift to conservation rather than looking for major new water supplies from storage.
That’s the environment that Hickenlooper walked into as mayor. And that’s when his water legacy started, says Eric Kuhn, who has spent 40 years working on the Colorado River, including as general manager of the Colorado River Water Conservation District.
It was then, he said, that the groundwork was laid with Denver Water board members to build cooperation with Western Slope water providers.
Knowing that Denver Water controlled a quarter of the state’s water supply, it meant new conversations with the Western Slope water community. Those discussions started in 2006 between Denver Water and 42 Western Slope partners, ranging from water providers to local governments to ski resorts.
That eventually became the groundbreaking Colorado River Cooperative Agreement, first reached in 2011 and signed by all parties by 2013. The agreement resolved at least some of the historic fights over the Colorado River. It focused on efforts to improve the river’s health and looked for ways to provide additional water supplies to Denver Water…
Hickenlooper got one other big advantage during his time as mayor: The Denver Water board selected a new general manager, Jim Lochhead, who would continue the agenda set forth by the board and with Hickenlooper’s vision in hand. That took place in 2010.
Hickenlooper “made very thoughtful appointments” to the Denver Water board, including people like Tom Gougeon, John Lucero and George Beardsley, Lochhead told Colorado Politics. They were “really strong leaders with the ethics for moving Denver Water forward but with having us take a far-sighted approach with the Western Slope,” he said.
Part of a strategic plan
Hickenlooper says he tackled water issues again shortly after being elected governor in November 2010. The state found itself in another multi-year drought starting in 2011, and that’s when Hickenlooper asked if drought would be the new normal and how Colorado would deal with it.
He talked to other governors to research the best practices they employed, and found that what Colorado lacked was a comprehensive water plan, which he called a “serious vacuum” in the state’s framework. It was a risky proposition, given that Coloradans were historically polarized around the issue of water, he said.
There were things – like boosting water conservation – that he knew would be difficult. He knew rural Colorado’s farmers and ranchers did not want to be told what to do. “We couldn’t deny people the right to sell their property,” he said, referring to water rights. But the plan would look at how to incentivize farmers to at least temporarily lease their water rather than sell.
With the traditional east-west divide over water evolving with the completion of the Colorado River agreement, the time to strike came early on in Hickenlooper’s first term. He began asking his cabinet about a water plan.
According to James Eklund, who first served as Hickenlooper’s senior deputy legal counsel and then as director of the Colorado Water Conservation Board (CWCB), the governor was asked if he was willing to spend his political capital by wading into the water wars.
“Some governors only touch (the issue) on a superficial level,” Eklund told Colorado Politics. Previous governors would go to the Colorado Water Congress (the state’s leading water advocacy organization), pound the table, say that water is the lifeblood of the West and then get out.”
After the discussions with the other governors, that wasn’t going to be Hickenlooper’s way. “We have no choice but to treat this as a serious discussion” and to engage in strategic planning, according to Eklund.
Hickenlooper – a former restaurateur – looks at everything through a business lens, Eklund said. That meant that if water is so important to Colorado’s bottom line and there isn’t a strategic plan, that’s not acceptable.
In May 2013, Hickenlooper announced he would task Eklund and the CWCB to come up with a state water plan…
In November 2015, the water plan was unveiled after more than 30,000 public comments from all over the state. “We wanted to make sure all the interests were represented, not just conservation,” Hickenlooper said. “We also put in water storage,” meaning reservoirs, but that also ruffled the feathers of environmentalists, he said.
Hickenlooper said he was most pleased with the ability of the basin roundtables – set up in that 2005 legislation – to take the long view, especially for groups historically polarized over water.
According to many in the water community, it’s the statewide water plan that most defines Hickenlooper’s water legacy…
‘Water at the forefront’
The water plan attempts to address what is now expected to be a 1 million acre-feet shortage of water in Colorado by 2050, based in part on projected population growth of another 3 to 5 million people on top of the state’s current population of 5.6 million.
It focuses on a number of strategic goals: 400,000 acre-feet of water to be gained through conservation, another 400,000 to be gained through new or enhanced storage (dams and reservoirs), and the rest from other steps, such as agricultural water sharing.
The plan has its detractors who have criticized it for lack of specific objectives in how to achieve those goals. And some lawmakers believe the General Assembly has been shut out of the process and that storage gets short shrift.
Senate President Pro Tem Jerry Sonnenberg of Sterling told Colorado Politics that he’s been frustrated with the plan’s lack of attention to storage and that there hasn’t been enough emphasis on how to avoid “buy and dry” – the practice of buying up agricultural land for its water rights and then draining the land dry…
Sonnenberg disagrees that the water plan is a positive legacy for Hickenlooper.
“He tried to put the plan together and it didn’t get a lot of attention other than from the environmental community that wants to make sure we leave more water in the rivers. If you want to be a water leader with a water legacy, you must support water storage that is paid for by the communities planning for growth,” Sonnenberg said, citing the Northern Integrated Supply Project (NISP), which plans two reservoirs – Glade, near Fort Collins and Galeton, east of Greeley.
Sonnenberg complained that the governor has not yet endorsed those projects, although Hickenlooper did endorse two other reservoir projects two years ago: Chimney Hollow, near Loveland, and expansion of Gross Reservoir, near Boulder.
But Eric Wilkinson, who recently retired as general manager of Northern Water, which runs NISP, does believe in Hickenlooper’s water legacy.
“He was the first governor to put water at the forefront,” Wilkinson told Colorado Politics. He was pleased with Hickenlooper’s endorsement of Chimney Hollow, a Denver Water reservoir project, which he said tells federal agencies that the project has cleared Colorado’s permitting and is ready to go forward. That was part of the state water plan, too, Wilkinson noted.
ilkinson also pointed to the people Hickenlooper put in charge of water issues as part of the legacy: Stulp, Eklund and Becky Mitchell, the current head of the CWCB; and both of his heads of the Department of Natural Resources, first Mike King and now Bob Randall.
In the water plan, the balance between conservation and new storage is a pragmatic solution for the state’s future, Wilkinson said. “We need to have a greater ability to manage the water resources, and to do that, conservation is first, but infrastructure is very much needed. The water plan calls that out.”
The timing was right and the leadership was right, Stulp told Colorado Politics.
Hickenlooper saw what had been taking place for the past seven to eight years, after the formation of the basin roundtables, which came up with projects for their own regions. The time was right to pull all that together, Stulp said.
Eklund, now with the law firm Squire Patton Boggs, is still involved in water issues, partly as Colorado’s representative on the Upper Colorado River Commission. He said Hickenlooper’s legacy isn’t only about the water plan; it’s also where he positioned Colorado internationally on water issues.
Colorado’s position as a headwater state that provides water to 18 downstream states and Mexico means “we punch above our weight on water policy,” Eklund said. The eyes of the water-stressed world are on the Southwest United States.
Colorado finally has a platform in that discussion by coming up with the water plan, which he called a “gold standard” for water planning. Other states and nations can look at what Colorado is doing and judge for themselves, he said.
Colorado now speaks with one voice on water, said Mitchell, who was in charge of water planning prior to becoming the CWCB’s latest director.
“The default starting point now on water talk is cooperation, not confrontation,” she told Colorado Politics.
The water plan shows what’s possible, she added, when people with polarized perspectives and faulty assumptions sit down together, listen and speak with civility and respect…
Hickenlooper told Colorado Politics he hopes the next governor recognizes the funding gap for implementing the plan. The General Assembly has so far devoted about $17 million over the past two budget cycles to funding projects in the water plan, but it’s a drop in the bucket compared to the need, which is estimated at around $20 billion.
Water providers are expected to shoulder most of that, but the state’s obligation is expected to be around $3 billion, at $100 million per year for 30 years, starting in 2020.
No one, including Hickenlooper, has come up with a solid plan for where that money is coming from. Lots of ideas have been floated, such as changes to the state’s severance tax structure on oil and gas operations – a no-go with Senate Republicans – bottle taxes, water tap fees and the like.
Hickenlooper said he believes funding for the water plan is sufficient for the next few years, but there is a gap, and at some point, the state will need to spend more money on water infrastructure…
That political courage, and part of the legacy, as Lochhead sees it, is that Hickenlooper opened the door for the next governor to come in and pick up where Hickenlooper ended and made it a little safer for a governor to jump into water issues.
So how does Hickenlooper view his legacy in water?
“If I was to look at the one thing that changed the most in my public life, it’s the collaborative approach,” the governor said. “This is everyone’s issue.”
At least seven major new reservoirs and water diversion projects are being planned in Colorado, which had a population of 5.6 million in 2017. Many would continue the controversial practice of diverting water across the Rocky Mountains from the state’s Western Slope, where the majority of Colorado’s precipitation falls, to its more arid Front Range, where people are flocking to Denver, Boulder, Fort Collins, Longmont and increasingly sprawling suburbs.
The water projects have been inspired partly by the Colorado Water Plan, an effort by Governor John Hickenlooper to solve a projected water deficit of 560,000 acre-feet by 2050, or enough to serve more than 1 million households. The plan calls for 400,000 acre-feet of new water storage and an equal amount of water conservation.
The plan is only two years old. But critics say it has prioritized gray infrastructure – new dams, pipelines and pumps – over green projects like water conservation and sustainable land use…
The state water plan does not recommend any specific water development projects. But Hickenlooper has personally endorsed several of them. He also appointed all the voting members of the Colorado Water Conservation Board, the entity that oversees the Water Plan and awards grants for water projects.
Greg Johnson, chief of water supply planning at the Water Conservation Board, said the state’s plan emphasizes conservation just as much as new water supply projects. But he said the latter may be more more pressing in some cases.
“Some of the bigger projects that are in permitting right now are helping meet really critical supply needs that a lot of those faster-growing northern Front Range suburbs have, where they’ve got new developments going up all over the place,” Johnson said. “They have maybe a 10- or 15-year horizon to get some of those things done.”
One of the water developments endorsed by the governor won a $90 million loan in 2017 from the Water Conservation Board – the largest loan in the board’s history. Known as the Windy Gap Firming Project, it proposes a new reservoir called the Chimney Hollow Reservoir near Longmont to store Colorado River water diverted through an existing tunnel under the Continental Divide.
The loan covers nearly one-fourth of total costs for the project, which is proposed by the Northern Colorado Water Conservancy District.
As its name implies, the project is intended to “firm up” existing Colorado River water rights held by a dozen Front Range cities. The cities already draw on these water rights, but can’t fully tap them in some years because of storage limitations. The new 90,000 acre-foot reservoir will solve this problem and allow them to divert the river almost every year.
The project would result in diverting 30,000 acre-feet more water out of the Colorado River every year than is currently diverted…
Other major projects in the works include the Moffat Collection System, a plan by Denver Water to expand Gross Reservoir to hold 77,000 acre-feet of additional diversions from Colorado River headwaters streams; and the White River Storage Project, a proposal for a new reservoir of up to 90,000 acre-feet in the northwest corner of the state, near the town of Rangely…
Greg Silkensen, a spokesman for the Northern Colorado Water Conservancy District, said the Windy Gap project is vital to many fast-growing Front Range communities that have lower-priority water rights.
“The Colorado economy is just crazy. Everybody and their brother is moving here,” Silkensen said. “There is a great deal of environmental mitigation that will go forward if the project is built. There’s going to be a lot of benefit to the Upper Colorado River if it does go through.”
Those projects include stream habitat restoration in the Colorado River and water quality improvements in Grand Lake, part of the existing Western Slope diversion system.
“The key with Lake Powell is that it is our river savings account,” Andy Mueller told a gathering of more than 200 people who packed into the Steamboat Springs Community Center Tuesday night for the Steamboat State of the River meeting, less than 50 feet from the banks of the Yampa River…
Less understood, Mueller said, is the Colorado River District’s stake in power generation at Glen Canyon Dam, where water levels are coming perilously close to dropping below the intakes for the power plant.
“It really starts with power generation at Lake Powell,” Mueller said. “That dam is a cash register for those of us on the river. It pays for the Colorado Endangered Fish Program, which allows all of us in Colorado to continue to divert water while the endangered fish are being protected.”
Mueller told his Steamboat audience that agricultural water rights continue to be of preeminent importance in the district.
“On the Western Slope, try to picture what it would look like without ag. It is a very different world if we don’t have irrigated agricultural land,” he said. “That’s where the water is. Eighty percent of the water consumed on the Western Slope is in ag. We have to protect this agriculture, and a lot of that has to do with agricultural water rights.”
The district represents about 28 percent of the physical land mass in Colorado but is home to just 500,000 of the 5 million people in the state. And 57 percent of the water produced statewide comes from the Colorado River District…
Lake Powell, backed up by Glen Canyon Dam, just above the Grand Canyon, is where the Rocky Mountain states, including Utah, Wyoming and the northern portions of Arizona and New Mexico store water to ensure they can meet their obligations to send water to the lower basins states including California, Nevada and southern New Mexico and Arizona.
As of 1999 the reservoir was almost full. But subsequent drought years, notably 2002, drew the reservoir down. It took until 2012 to slowly re-build storage in the vast reservoir, but snowpacks in the Colorado Basin have not been generous since.
As winters have grown milder, river flows are sapped and extended growing seasons are also resulting in plants absorbing more of the available water.
“We’re working on cloud seeding, but you have to have storm events in order to hit them with the silver iodide,” Mueller said.
Less water in the stream means less comes into large and critical impoundments such as Lake Powell, which Mueller said is already being “equalized” with Lake Mead. The latter is being drawn down by overuse, not just drought.
“They’ve been draining the savings account at Lake Mead for them (users), and, the way it works, they’ve also been draining Lake Powell,” Mueller said. “ … It isn’t the drought draining Lake Powell as much as it is the overuse and the lower supply of water going in.”
Colorado must be aware of that because of its requirements under the Colorado River Compact to deliver a set amount of water right below Glen Canyon Dam.
“There’s accounting that goes on. Every year, we know exactly how much water is delivered. At a point in time … we can see very clearly, we have a significant risk of not being able to deliver that water,” Mueller said. “When we can’t deliver that water, we will get a call, or a curtailment, coming up the river.”
He said it appeared as though most of those present Jan. 19 have pre-compact water, or senior rights, that are not obligated to be called out. Most municipalities have rights junior to the compact — but they also have the right of condemnation through an involuntarily “buy and dry” process.
“Those (municipal) fire hydrants and those faucets, my guess is, are going to get water in the time of curtailment. That’s the municipal preference in our state constitution,” Mueller said.
To-date, the state hasn’t actually had to determine how this consideration would be applied — in fact, mum’s the word at the state level, Mueller added.
“The reality is, many of the Front Range providers would have rights junior to the compact,” Mueller said. These providers divert about 650,000 acre-feet a year to the Front Range out of the Colorado River Basin, including, at times, the Upper Gunnison.
The Front Range is constantly on the lookout for additional supply, but that’s not the only thing to keep in mind, Mueller said. Front Range providers will continue to supply current municipal needs in that populous part of the state.
The question becomes: What happens in the event of a curtailment when municipalities have the right of condemnation?
“They have the right to come over and buy ag rights. They don’t even have to build a pump. They can just run the water down the stream into Lake Powell. They can dry up the agricultural — buy and dry involuntarily,” Mueller said.
Locals under the Uncompahgre Valley Water Users Association are not necessarily safe from condemnation just because the association is under a right held by the federal government, he said.
Although municipalities cannot condemn against federal property, it’s not certain whether the U.S. Secretary of the Interior would ultimately be comfortable with not delivering water to the lower basin, where the greater population provides a congressional delegation many times the size of the Western Slope’s, Mueller explained.
“The question really is, how do we prevent that from happening?” he said.
“We don’t have the answer yet, but we are studying a number of different mechanisms where we can use voluntary efforts by our agricultural producers on the Western Slope, combined with voluntary efforts of ag users who depend on transmountain diversions on the Eastern Slope; industrial providers on the East Slope, and municipal providers on the East and West Slope, to voluntarily curtail their uses ahead of time and bank that water somewhere and then be able to prevent a curtailment from ever occurring.”
These, Mueller explained, are “thoughts,” not absolutes.
The Federal Energy Regulatory Commission is expected to rule early next year on what would be the biggest public works project in Boulder County history, exceeding the original construction of the Gross Reservoir Dam, which was completed in 1954.
The tree removal plan outlined in Denver Water’s FERC application states that all trees and their associated debris on about 430 acres along 12.5 miles of shoreline will have to be removed in the course of the expansion, which is envisioned as being completed by 2025.
Denver Water spokeswoman Stacy Chesney said the agency has estimated that “the density of the forest ranges from approximately 150 to 1,800 trees per acre. Based on these initial plans, we estimate up to 650,000 trees will need to be removed in the area surrounding Gross Reservoir.”
In a recent interview, Denver Water President Jim Lochhead vowed that every aspect of the project’s completion is being designed and executed with an eye toward mitigation of its impacts on the high country environment and those who depend on it for their recreation or call it home.
“We recognize that this is a major construction project and it has adverse impacts to the community,” said Lochhead, whose utility serves 1.4 million in Denver and many of its suburbs — but not Boulder County.
“We are trying to understand exactly what those impacts are, and see what the needs of the community are, and do everything we can to help address them.”
Referencing project manager Jeff Martin, Lochhead said, “Whether it’s traffic, hauling on the roads, whether it’s noise associated with the quarry, whether it’s the tree removal issues, it’s Jeff’s job to make sure it goes in a way that we’re doing the best that we can by the local community.”
Martin said: “We recognize the brutal aspects of the project. We don’t want to hide from those. That’s not our objective.”
Stressing that Denver Water intends to factor the concerns of reservoir neighbors into its planning of what’s officially known as the Moffat Collection System Project, Martin said, “We look forward to getting that feedback, seeing how we can make it into the most palatable project we can, and turn it into, maybe not reducing all the impacts, but for the greater good, reducing them as much as we can.”
A 48-page plan for the required tree removal prepared by Denver Water describes a mix of ponderosa pine, Douglas fir and Rocky Mountain juniper.
According to data the agency compiled in 2005, most of the trees at that time were 20 to 50 feet high, with a breast-high diameter ranging from 4 to 14 inches.
“Because of the topography, e.g., very steep slopes, rock outcrops, etc., several more complex tree removal (logging) systems will need to be used, and some temporary roads will need to be constructed to remove the trees,” the plan states.
It estimates that 50,000 tons of forest biomass are expected to be produced during the required clearing for the expansion of Gross Reservoir, which is to see its dam raised by 131 feet, expanding the reservoir’s capacity by 77,000 acre feet to a total storage capacity of 118,811 acre feet.
While noting that, “Traditionally, most of the slash would have been piled and burned in place,” the plan acknowledges that, “Today, burning large quantities of forest residue, in close proximity to residential areas, is problematic in the extreme.”
Allen Owen, Boulder District forester for the Colorado State Forest Service — a contracted forest resource management partner to Denver Water through the Forests to Faucets program — said he had been unaware of the number of trees Denver Water is planning to pull out of the Gross Reservoir area, or that it will involve the leveling of all growth on 430 acres of shoreline.
He doubts it would actually reach the 650,000 figure.
“That would mean 1,500 trees per acre over the entire 430-acre unit, and I know that’s not the case,” he said. “The stand densities vary all around the perimeter of the shoreline. There are areas that are nothing but solid rock, with no vegetation on it, to units that may have those number of trees. But there are not that many trees over the entire 430 acres. The number seems high.”
Owen expects state foresters will be involved in plotting how the trees’ removal proceeds.
“It’s something way beyond the ability of the Colorado State Forest Service,” he said. “I would consider that a big logging job, on very steep slopes, with very poor access. It is going to be very difficult, at best.”
Martin discussed three different potential scenarios, including removal by truck, burning and burial of felled lumber, or some combination of those strategies.
In cases where trees are located on small rock bluffs, Denver Water’s current removal plan notes, “the use of helicopter may be necessary.”
Denver Water believes new emerging technologies may pose options for removal that weren’t contemplated when its plan was authored.
“One of the things we’ve committed to is developing a process with public input … going out and getting some public input and some stakeholder input and that includes the U.S. Forest Service, the Colorado state forester and Boulder County, and developing some concepts … and then seeing what fits best for the community from there, and then moving forward with the plan,” Martin said…
Denver Water points to steps it is taking to mitigate the effects of construction wherever possible, and also emphasizes measures that it contends offers some in Boulder County a benefit. Lochhead and Martin touted the provision of a 5,000-square-foot environmental pool in the expanded reservoir, to be available for replenishing South Boulder Creek for the benefit of both Boulder and Lafayette at times when it is running dangerously low.
“That’s kind of a neat partnership there,” Lochhead said.
That does not mean that Boulder supports the Gross Reservoir expansion — but nor does it oppose it.
“Boulder has a neutral position on the overall expansion,” said Boulder’s source water administrator, Joanna Bloom.
“If the project somehow falls apart, then Boulder will continue to try to establish the streamflows on South Boulder Creek through other means,” Bloom said…
Boulder County’s stance on the expansion is more complicated.
The county filed extensive comments on both the draft and final environmental impact statements in the Army Corps of Engineers’ review process, and doesn’t agree that the EIS adequately addressed “the myriad of impacts” that would result for Boulder County and its citizens.
On March 23, the county filed an unopposed motion to intervene in the FERC approval process. One of the points the county addressed at length in that intervention relates to tree removal — and its arguments are based on the presumption of a far more modest, but still significant, removal of trees, at a total of 200,000.
“County roads (Flagstaff Road, Magnolia Road and others) are windy with low volume residential traffic and would be inappropriate for use by trucks hauling trees,” the county argued.
“In addition, it may not be possible to safely navigate SH 72 with trucks full of trees. These heavily laden trucks will cause damage to the roads and present safety concerns for road users.”
Moreover, the county contends Denver Water’s project must come through its land use review process, while the utility maintains that the county’s role is superseded by the FERC review process.
Until that conflict is resolved, the county is tempering its remarks, pro or con, on the Gross Reservoir project, so that it will not be seen as having prejudged any application Denver Water might make in the future through the county’s land review process.
Martin recalled that Denver Water worked extensively with Boulder County in 2012 exploring a potential intergovernmental agreement to facilitate the reservoir expansion.
While such a pact was ultimately rejected by Boulder County commissioners by a 3-0 vote, Martin said, “What we did receive was a lot of information from Boulder County and the public on how we need to shape the project in order to meet the needs of both the community and Boulder County.”
However, independent of the environmentalists’ planned federal lawsuit, there might be a need for another judge to sort out the critical question of whether Denver Water’s plans for tree removal and many other aspects of its reservoir expansion must pass through the county’s land use review process.
“I would say that it is likely that it will take litigation, because neither party is willing to give up its position,” said Conrad Lattes, assistant county attorney for Boulder County. “We need some neutral third party to decide this for us.”
However, on a warm and sunny day back before the chill of approaching winter descended on Colorado’s high country, Denver Water’s brass were flush with optimism.
Martin said that for Denver Water, it’s not just about getting the project done.
“We’re also looking at the social responsibility,” he said, “making sure that when it’s said and done, that we did it in the right way; that we could look back and say we did everything within reason and practicality to make this really the most environmentally, socially responsible project we can.”
The city of Aspen now has until Dec. 29 to provide a “substantive” response to central questions raised by state officials in water court regarding the city’s efforts to develop dams and reservoirs on upper Maroon and Castle creeks.
The questions raised by the state include whether the city can get a permit for the dams, if it can build the dams in reasonable time, if it has a specific plan to build them, and if it needs the water the reservoirs would hold.
After a status conference on Nov. 9 in water court in Glenwood Springs regarding two due diligence applications the city filed in December 2016 for the two potential dam-and-reservoir projects, a water court referee said, for the second time since August, that the city must provide a substantive response to key issues raised by the state.
Susan Ryan, the referee in Division 5 water court, said the city must do so whether or not it is able to reach settlement agreements with the 10 opposing parties in the two cases.
“It is going to require a written response to that summary of consultation regardless of whether or not settlement is reached with all the opposers in the case,” Ryan said during the status conference. “And so I just wanted to clarify that that is what I typically require in every water case and that is what I will require here.”
A summary of consultation in water court can be a routine review of a water rights application by two state officials, the division engineer, who administers water rights, and the water court referee, who functions as an administrative judge and seeks to resolve cases, if possible, before they are sent to a water court judge.
They said 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” and the city must show it “will complete the appropriations within a reasonable time.”
They also said “a specific plan is in place to develop the subject water rights,” that the city “must demonstrate substantiated population growth in order to justify the continued need for these water rights” and that the city is “not speculating with the subject water rights.”
Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam and encroach on portions of the Maroon Bells-Snowmass Wilderness. Castle Creek Reservoir, as currently decreed, would hold 9,062 acre-feet of water behind a 170-foot-tall dam, and would also flood some land in the wilderness boundary.
In two diligence applications filed on Oct. 31, 2016, the city told the court it has “steadily applied effort to complete the appropriation” of the conditional water rights for both of the reservoirs over the past six years, and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”
In July, the city said it was seeking a way to transfer decreed storage rights to locations other than the decreed locations on Castle Creek and Maroon Creek.
On Nov. 7, city of Aspen voters rejected a ballot question that would have given the city the go-ahead to issue $5.5 million in general obligation bonds to purchase a 60-acre parcel in Woody Creek to use for water storage, in conjunction with the gravel pit operated by Elam Construction.
But city officials, before the vote, had stated they intended to buy the Woody Creek parcel whether the ballot question was approved or not. A recent study for the city found that between 1,000 acre-feet and 8,000 acre-feet of water could be stored using varying combinations of the land the city intends to buy and the gravel pit.
Also in July, the city filed brief responses to the summaries of consultation. But in August the water court referee said the city’s effort fell short.
City not eager to file response
During the Nov. 9 status conference, the city’s water attorney, Cynthia Covell of Alperstein and Covell, told Ryan the city would still prefer not to lay out its case in a substantive response at this stage of the proceedings.
“Since the last status conference the city has been working to finalize the reports that it has needed to assist in the settlement process, including its supply-and- demand risk assessment study, and its evaluation of one or more alternative storage sites that are not located in federal wilderness areas or on Castle Creek or Maroon Creek,” Covell said.
Covell said the city has only this week received responses from all 10 of the opposing parties to a Sept. 20 settlement proposal from the city, and that the City Council was scheduled meet in executive session Monday to discuss the responses.
“So at this point, Aspen would like to devote its time and resources to seeing if we can reach a settlement by the end of the year, we hope in both cases,” Covell said.
Attorneys in the cases said in August the main sticking point in the settlement negotiations was that the city wanted to keep open its options regarding transferring rights tied to the potential Castle Creek reservoir, while opposing parties want the rights for the potential reservoirs fully removed from both valleys.
During the status conference, after determining it was still the city’s position that it would prefer not to provide substantive answers at this time, Ryan asked the opposing attorneys what they thought.
“I frankly don’t buy the argument that it’s a hiccup or roadblock in terms of settlement,” attorney Paul Noto said. “I actually feel that it may lay some cards on the table that may in fact help settlement.”
Noto is representing American Rivers, Colorado Trout Unlimited, and the Roaring Fork Land and Cattle Co. in the Maroon Creek case, and the two environmental groups in the Castle Creek case.
Also opposing the city in the cases are Western Resource Advocates, Wilderness Workshop, Pitkin County, USFS, Larsen Family Limited Partnership in the Maroon Creek case, and Double R Creek Ltd. and Asp Properties LLC in the Castle Creek case.
Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of water and rivers. The Times published this story online on Wednesday, Nov. 15, 2017.