@COWaterTrust, @CWCB_DNR, @Nature_Colorado enable Stagecoach releases to bolster Yampa River (again!)

From Steamboat Today (Tom Ross):

Once again this year, the nonprofit Colorado Water Trust and the Colorado Water Conservation Board are collaborating to arrange a release of water from Stagecoach Reservoir to boost lagging flows in the Yampa River under an agreement with dam owner, the Upper Yampa Conservancy District. New this year is the support of The Nature Conservancy.

Last year, conservation releases did not begin until mid-September, but in 2017, with the river already flowing well below normal, water releases from the dam were set at 10 cubic feet per second beginning July 11. But it can’t go on forever this way.

With this year’s release, the role of the Conservation Board, a division of the State Department of Natural Resources, has expanded to include committing to contributing up to $46,692 for water releases. At the same time, the CWCB will undertake the third, and final, approved year to release water into the Yampa. The opportunity cannot be renewed under current law, Water Trust staff attorney Zach Smith said…

This year’s program will forge a new relationship with the Nature Conservancy to carry on the effort when conditions warrant. The Nature Conservancy’s Carpenter Ranch just east of Hayden straddles the Yampa, and for 2017, the global conservation organization has agreed to bring $50,000 to the effort to purchase water releases out of Stagecoach. It will also explore sustainable funding for future years.

Smith said new efforts to bolster the flows in the river during dry seasons could range from seeking ways for the Nature Conservancy and the Water Trust to collaborate on locating new funding sources to perhaps seeking a water source with long-term legal protection.

Upper Yampa Manager Kevin McBride pointed out it’s only because there is a moderate amount of water storage in the upper reaches of the Yampa that mid-summer conservation releases are possible…

Flows in the Yampa have been supplemented with the participation of the Water Trust in 2012, 2013, 2015 and 2016. The Yampa was flowing at 128 cubic feet per second Monday afternoon, 67 cfs below the median for the date…

Water Trust water resources engineer and former Steamboat resident Mickey O’Hara said the return to healthier natural flows in the Yampa this summer “depends on if, and when the monsoons happen.”

South Platte Master Plan — a stream corridor evaluation – is complete

From The Sterling Journal-Advocate (Jeff Rice):

The South Platte Master Plan is a study of flood mitigation and recovery possibilities along 130 miles of the South Platte River from the Morgan-Weld county line to the Nebraska State Line. Authorized and funded by the Colorado Department of Local Affairs, the plan will suggest ways to make the river more “flood resilient,” both to handle the flooding as it occurs, with minimal damage to property and structures, and to quickly recover from a flood in the aftermath.

Five big problem areas were identified in the evaluation, according to Brian Murphy, project director for CDM Smith of Denver, the contractor on the flood study. They were the amount of sediment the floods of 2013 and 2015 deposited in the study area, basically clogging the river and making flooding worse; uncontrolled water in ditches and canals, which can back up and cause damage to structures, homes, and fields; the railroad railroad right of way southwest of Messex, which contains the river along the northwest shoreline but worsens flooding on the opposite shoreline; the hunting lands along the river that provide game habitat but also blocks water flow during a flood, causing the water to spread out into neighboring cropland; and the washed-out headgates of the Henderson-Smith and Lowline ditches, which essentially turn those ditches into another channel of the river.

Stakeholders attending the meeting may have gotten some ideas of how to tackle those challenges from a 90-minute presentation by Jerry Kenny, executive director of the Platte River Recovery Implementation Program. That program comes from an agreement among Colorado, Nebraska, Wyoming, and the U.S. Department of the Interior to preserve habitat for whooping cranes, least terns, piping plovers and pallid sturgeons, four species on the endangered species list. The program maintains water at an adequate level along an 80-mile stretch of the Platte River the Nebraska cities of Lexington and Grand Island in an area call the Big Bend Area.

Kenny’s description of challenges faced in maintaining habitat for those four species brought home to the stakeholders how the river system has been affected by settlement all along its length. For instance, sediment – mostly sand – that once washed downstream past what is now Sterling and settled in the Big Bend area to create habitat for those species no longer makes it that far. Instead, repeated diversion of the river for irrigation reduces and slows down the water flow during what was once rapid spring runoff, depositing the sediment here.

That problem is exacerbated by Lake McConaughy on the North Platte near Ogallala, which traps sediment that once drifted down into Big Bend.

Kenny told the meeting that some of the challenges have been met by practices in all three of the states that have increased stream flow in the Platte River. Most notable in Colorado is the Tamarack Recharge Project near Crook, in which water is pumped into small reservoirs when there is no irrigation demand on the river, and allowed to seep back into the river so more water is available downstream.

Kenny also showed the group slides of off-stream water storage projects that have been used to create wetlands and much-needed sand islands in the project area. Presumably, some of those ideas could be used to mitigate flooding and provide some off-channel water storage in the South Platte basin as well.

After the meeting Morgan County Commissioners Jim Zwetzig and Laura Teague said they are encouraged by the “collaborative effort” shown in the PRRIP agreements…

Project manager Brian Murphy said one of the biggest challenges, once ideas and practices are identified, will be finding the dollars to do it. The PRRIP get about half of its funds from the federal government, and there is tremendous incentive in the form of a mandate to save endanger species. There is no such incentive, other than reducing unpredictable costs of recover, in flood mitigation.

“The big question is, what are the things that can bring dollars to fund this project,” Murphy said. “What are the drivers? There’s been a lot of discussion of duck habitat, open space, trails, and I think it’s going to come down to those things.”

On a more positive note, he said, the PRRIP process has broken new ground when working with the federal permitting process. Some of the techniques that project uses, such as tilling riparian areas to keep vegetation down, are considered agricultural, and so don’t need federal permits.

Monday’s meeting was the third since the plan was introduced to the public in February.

Army Corps of Engineers approves Gross Dam expansion — @DenverWater

The Gross Reservoir Expansion Project will add 77,000 total acre feet — 72,000 for Denver Water use and 5,000 for an environmental pool that provides additional water for South Boulder Creek during low-flow periods — nearly tripling reservoir capacity.

Here’s the release from Denver Water (Stacy Chesney):

Army Corps of Engineers issues record of decision and 404 Permit

Following 14 years of careful study, evaluation and deliberation, the Army Corps of Engineers has approved Denver Water’s request to raise Gross Dam in Boulder County. The additional water stored in Gross Reservoir will help prevent future shortfalls during droughts and helps offset an imbalance in Denver Water’s collection system.

The approval comes in the form of a record of decision and 404 Permit — two documents required by the federal government as part of the National Environmental Policy Act.

“Denver Water appreciates the Corps’ dedication and commitment to careful study of the anticipated impacts of this project,” said Denver Water CEO Jim Lochhead. “We will complete this project responsibly, as evidenced by our actions during the public process and the resulting robust environmental protections we’ve agreed to along the way. We’re proud to be doing the right thing.”

The existing dam was built in the early 1950s and was designed to be expanded in the future to increase water storage capacity. The Gross Reservoir Expansion Project approval completes this original vision.

Expanding Gross Reservoir is a major part of Denver Water’s long-term plan to deliver safe, reliable water to the people it serves now and into the future. The project is part of Denver Water’s multi-pronged approach that includes conservation, reuse and responsibly sourcing new supply.

“Issuance of this permit will unlock significant resources that will allow us to do good things for the river and the environment,” said Mely Whiting, counsel for Trout Unlimited.

In accordance with existing agreements, including the Colorado River Cooperative Agreement and Grand County’s Learning By Doing, and conditions in the 404 Permit, Denver Water will provide millions of dollars to improve watershed health in the critical Colorado and South Platte River Basins. Lochhead said these commitments are one reason that last year Colorado Department of Public Health and Environment found that the project will have a “net environmental benefit” on the state.

The project has earned key endorsements from Gov. Hickenlooper, state and federal lawmakers, major environmental groups, local mayors and city councils, chambers of commerce and economic development corporations, county elected officials and water interests on both sides of the divide.

“The next milestone we anticipate is approval by the Federal Energy Regulatory Commission of Denver Water’s hydropower license amendment application at some point next year,” said Jeff Martin, Gross Reservoir Expansion program manager. “In the meantime, Denver Water continues to make significant investments in setting a firm foundation for the project’s overall success by recently hiring Black and Veatch as the owner’s representative. We are also in the process of procuring a design engineer.”

Preconstruction activities, including dam design and geotechnical work, are expected to begin in 2018. The entire project is expected to be completed in 2025.

Visit http://grossreservoir.org to read more about the project and http://denverwaterTAP.org for additional information.

From The Associated Press via The U.S. News & World Report:

The Army Corps of Engineers announced late Friday it granted the project a permit under the federal Clean Water Act.

The $380 million project involves Gross Dam in the foothills about 5 miles southwest of Boulder.

#ColoradoRiver: “Our family’s irrigated meadows and livestock operation depend on it” — Paul Bruchez @HighCountryNews

Here’s a look at a collaboration effort to improve the Colorado River near its headwaters from Paul Bruchez writing in The High Country News. Click through and read the whole thing. Here’s an excerpt:

The Colorado River runs through the heart of my family’s ranch near Kremmling, Colorado, where I live and work, so we have firsthand knowledge of the importance of water. Our family’s irrigated meadows and livestock operation depend on it, and it’s the common currency of both our local agriculture and recreation economy…

A few years ago, I saw an opportunity to fix our irrigation problems while also improving river and wildlife habitat. My family’s ranch is in one of the most intact traditional agricultural communities remaining in Colorado. Like most ranchers, we’re independent folks. In a pinch, though, we know we can count on each other, so when those of us on the land got together to talk about the river, we agreed on the need for action, and we started looking for partners.

We applied for some grants, and 11 private ranches along with the Bureau of Land Management and a group called Irrigators of Lands in the Vicinity of Kremmling, or ILVK for short, received funding for a pilot project to restore a riffle-pool structure on a stretch of the river. It was an exciting start. But given the scale of the problems, we needed to think bigger.

We gradually added a variety of partners, including Trout Unlimited, American Rivers, the Colorado Basin Roundtable and the Colorado Water Conservation Board, Grand County Government, Northern Water, Denver Water, Colorado Parks and Wildlife, the Upper Colorado River Alliance, the Colorado River District and other river stakeholders.

All of them helped us to see new opportunities and think bigger.

These partners were working to build the Windy Gap reservoir bypass and restore habitat immediately downstream of the reservoir. For our part, the ILVK partners put together an ambitious proposal for restoring a significant stretch of the Upper Colorado River in our valley. All of these were pieces in the larger puzzle of restoring the Upper Colorado River.

Last December, the U.S. Department of Agriculture’s Natural Resources Conservation Service recognized that big vision, awarding the partners $7.75 million under its Regional Conservation Partnership Program. That money will help build the bypass and move forward with the ILVK project, improving irrigation systems and reversing the decline in water quality and fish habitat in the headwaters of the Colorado River.

Under the plan, the ILVK group will install several innovative in-stream structures designed to improve water levels for irrigation while enhancing critical river habitat by rebuilding riffles and pool structure. Our efforts will have greater impact in concert with our partners’ river projects upstream. A crucial piece will involve restoring approximately one mile of the Colorado River’s former channel currently inundated by Windy Gap Reservoir. This ambitious bypass project will reconnect the river — for the first time in decades — and improve riparian habitat in the headwaters area. An additional project, the Colorado River Habitat Restoration Project, will improve the river channel downstream of the reservoir.

Together with our ILVK Project, these projects, when fully implemented, will directly benefit more than 30 miles of the Colorado River and 4,500 acres of irrigated lands. They will also make available up to 11,000 acre-feet of water to improve the river during low-flow conditions.

#Runoff news: Low-head dam hazards

From The Fort Collins Coloradoan (Alicia Stice):

In the past 10 years, more than 15 people have drowned on the river from various accidents. Lopez’s death was the first in years involving a low-head dam.

These [weirs] dot rivers across the country, including in Fort Collins, where there is one low-head dam every 1.5 to 2 miles along much of the Poudre.

In Colorado, there is no agency in charge of overseeing safety at these dams. Instead, the Division of Water Resources has a team charged with overseeing the risks associated with large dams at sites such as Horsetooth Reservoir that could pose a hazard if they failed, Colorado Division of Water Resources Dam Safety Chief Bill McCormick said.

“I think these are some of the most dangerous type of structures we have in the country because most people are unaware of the dangers,” said Bruce Tschantz, a Knoxville, Tennessee, water resources engineer who has studied low-head dams extensively. “People tend to overestimate their ability to overcome the current and underestimate the dangers.”

General currents upstream and downstream from a low-head dam. Graphic via Bruce a. Tschantz

In much of the country, low-head dams have been in place for more than 100 years to serve now defunct mills. In Colorado, many of these dams are still active, diverting water into irrigation ditches for agricultural use. While the structures are old, the danger is relatively new.

“The problem of safety around them is more a recent phenomenon as people are using the rivers more,” McCormick said.

The dams slow water upstream and divert it away from the main channel. The water that flows over them creates a rapid on the downriver side that mimics the hydraulics of a washing machine. The water can force victims underwater and spin them around, making it nearly impossible to swim back up to the surface.

“These structures are often very deceiving,” said Kenneth Smith, Indiana Department of Natural Resources assistant director…

Simple engineering solutions can make low-head dams built today much safer by breaking up the flow of water as it moves over the dam. Solutions could include a set of concrete stairs or large rocks on the downstream side of the structure. In many cases, those solutions could be added to existing dams, but that can be costly, and it can be difficult to track down the owners of these century-old structures.

Poudre Fire Authority has been in discussions about what might be done to make sure people know about the dangers of the dams, including the possibility of installing signs along the river warning people of where they are.

Many in N. #Colorado welcome the @OmahaUSACE approval for Chimney Hollow Reservoir

From The Greeley Tribune (Sharon Dunn):

Just last week, the Army Corps of Engineers approved the Chimney Hollow reservoir project, which will hold 90,000 acre feet of water and feed several Front Range communities, including Greeley.

Such infrastructure is vital for future growth, regardless, [Brian] Werner said.

The fight is not over. The conservancy district will continue to fight for the Northern Integrated Supply Project, a proposed water storage and distribution project that will supply 15 northern Front Range communities with 40,000 acre feet of water. That’s been held up at the Army Corps of Engineers for more than a decade. A decision is expected next year.

“Chimney Hollow and NISP will put a major dent into what we’ll need down the road,” Werner said. “More people are coming whether we build this or not. Our future looks a lot better having some of these storage buckets with more people than a lot more people and no storage buckets. We’ll start drying up more farms. We’ve got to have water.”

In addition to water storage, the city of Greeley, has an intense focus on proper drainage to combat the decades-old problem of flooding in Greeley.

Joel Hemesath, public works director, said the city has been working for the past two years with some bond money to improve drainage in and around Greeley. He said the city is gearing up for downtown projects, as well, that will route drainage to a detention pond by the Poudre River via bigger pipes.

Since 2012, the city has spent a little more than $17 million on stormwater projects.

The city also works hard to improve trails, dedicating just shy of $900,000 to them since 2012.

Hemesath said the city would like to extend Sheep Draw Trail through some more western subdivisions, and extend the Poudre Trail farther east.

The Colorado River District’s take on Aspen’s conditional storage rights — @AspenJournalism

This map from 1984 is one of the few ever published that puts the Maroon and Castle creek reservoirs into the context of the city’s overall water system.

From Aspen Journalism (Brent Gardner-Smith):

Given the ongoing discussion in Aspen about the city’s conditional water storage rights tied to two reservoirs on Castle and Maroon creeks, we thought it would be informative to interview Chris Treese, the external affairs manager of the Colorado River Water Conservation District, which works to protect Western Slope water supplies.

Treese oversees the River District’s legislative and regulatory governmental relations in Denver and Washington, D.C. Treese, who has a master’s degree in economics, describes his current job responsibilities “as everything you don’t want lawyers and engineers doing,” but he still spends much of his time discussing the finer points of existing and proposed water law.

The city of Aspen filed two due diligence applications on Oct. 31 in Division 5 Water Court in Glenwood Springs, seeking to extend the conditional storage rights for Castle and Maroon creek reservoirs until 2022. The city originally filed for the rights in 1965. Ten opposers have filed statements of opposition in the two resulting diligence cases, and the next status conference among the parties is set for August 10, 2017.

We spoke with Treese on April 25 in the River District’s conference room in Glenwood Springs.

The resulting transcript has been edited for clarity.

BGS: Chris, thanks for doing this. It seems like the River District is well-positioned to shed some light on conditional water storage rights. The River District both holds conditional water rights and it also has walked away from conditional water rights, including on the Crystal River in 2013 which were part of the West Divide Project. And the River District is not involved in either of the two water court cases now underway in response to Aspen’s due diligence filings for the two reservoirs.

CT: Correct.

BGS: People have drawn parallels with the Crystal River rights that the River District abandoned, which were tied in part to two large dams, and the option, if you will, for Aspen to do the same. What’s similar and what’s different about the River District’s former rights on the Crystal and Aspen’s conditional storage rights on Castle and Maroon creeks?

CT: One of the similarities is they are both conditional water rights and simply by virtue of being conditional, they are what a conditional water right is, a placeholder in the priority system. But frankly, the differences leap to mind.

One difference is the ownership, as Aspen is a municipality, and municipalities have a different standard for diligence. The West Divide Project did not have a municipal purpose. It was originally, and remains, part of a federal project. And it was an out-of-basin diversion with its own impacts and concerns. I think those differences are significant.

The advantage, if you will, of having a municipal right, is you benefit from what’s known as the great and growing cities doctrine. In contrast to an agricultural or an industrial right with some fixed parameters around acreage or location and purpose of use, the courts have recognized that municipalities grow. And the responsibility of a municipal water provider is to provide water for present as well as the future.

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

BGS: Wasn’t that latitude more closely defined by the two recent Supreme Court decisions known as the Pagosa decisions?

CT: Yes. So now you can’t say you will need the water in 100 years, but you can project need out 50 years. The Supreme Court found that 50 years is a reasonable planning horizon, and it recognizes that water projects take a long time to develop and water rights can be evermore critical during a period like 50 years. It also said that there has to be some common sense, some historical reality, to the projections over that 50-year period.

BGS: You mean you can’t just say Aspen’s population is going to from 7,000 to, say, 100,000 people, because, maybe it could.

CT: The applicant in the Pagosa cases – Pagosa Water and Sanitation District – were projecting 8% annual compounded growth for 100 years, and that was seen as overly aggressive by the court.

BGS: So there is a great and growing cities doctrine, which Aspen presumably can benefit from, but there’s also now some limitations placed on it from the Pagosa cases, primarily concerning reasonable growth projections.

CT: Right.

BGS: It strikes me that one of the similarities is the absurdist factor in both the Crystal River and the Maroon Creek situations. The dam forming Osgood Reservoir on the Crystal River would have flooded the town of Redstone, and Maroon Creek Reservoir requires a 155-foot-tall dam within view of the Maroon Bells. How should someone consider the relative impossibility of building such projects?

CT: One of the challenges to conditional water rights is that you have to prove diligence on the conditional right as filed. In the case of the Crystal it was a conditional water right for a reservoir that would have flooded a large part of the town of Redstone, if built exactly where and to the size as filed.

But the fact is that a water right, conditional or otherwise, can be changed, can be modified. It still would need to meet some of its basic purposes, but you could go into the water court and say, “There’s now a town of Redstone there and before there wasn’t a town of Redstone. And now the highway is there” and seek changes.

In fact, when the River District and its West Divide District partners looked at the Crystal conditional rights, we looked at how those conditional rights could be useful to the Crystal River valley, in contrast to their originally decreed purpose of transferring water out of the Crystal basin. But we knew we would still have to file diligence on the project as originally decreed.

BGS: So how flexible, how portable, are conditional water rights and their priority dates? There’s been ideas floated with the Castle and Maroon rights – that a smaller reservoir could be built, that they could be transferred to an underground storage facility on the city golf course, etc.

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

BGS: Have studied moving it, for example?

CT: Yes, having studied moving it or using it for a different purpose at a different location. But it’s always up to the water court to find what’s adequate diligence, and they can look back at the original project and say, ” I think you’re talking about a new and different project. You need to file for a new water right.” That’s a risk.

BGS: Is there a threshold for what constitutes a new project?

CT: No.

BGS: Can we explore the standards of diligence? It seems there is a difference in what the water court might consider as diligence and what the average person might understand as diligence.

CT: There is a definition of diligence. It’s broad, and fairly non-specific in the legislation.

BGS: Is the diligence standard excused because you’re a municipality? Or does it still apply?

CT: It absolutely still applies. You must demonstrate to the satisfaction of the court that you are moving diligently toward development of the conditional water rights.

BGS: In the last clause of the city’s diligence application for the Maroon Creek Reservoir, it says, “applicant city of Aspen having demonstrated that it has steadily applied effort to complete the appropriation of the Maroon Creek reservoir conditional water right in a reasonably expedient and efficient matter under all the facts and circumstances … ” should be allowed to hang on to the rights for another six years.

So if someone has “steadily applied effort” to complete the appropriation of a conditional storage water right, does that means they’ve steadily applied effort towards storing the water in question?

CT: Yes.

BGS: Which also means they’re steadily applying effort toward building the structures, or dams, that would actually store the water in question?

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

BGS: But “steadily” applying effort means you’re moving towards actually storing the water some day, right?

CT: Yes.

BGS: It’s doesn’t mean you’re just hanging on to the water right for the sake of hanging on to the water right?

CT: Colorado water law prohibits speculation.

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

CT: Yes, right.

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

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

BGS: Aspen, for example, does not claim it has been studying the reservoirs themselves, but instead it says that work on any part of integrated water management system counts as work on the whole system. So something like repairing pipes in downtown Aspen can count as steadily applying effort toward building the dams and reservoirs?

CT: Every water system is an integrated system in one form or another.

BGS: So what’s a citizen to make of that? In Aspen’s case, there appears to be little, if any, actual diligence on aspects of the projects that commonly comprise a feasibility study, such as water supply and demand studies, geological studies, construction analysis, permitting review, etc.

CT: I don’t know that.

BGS: Well, I’ve asked for such studies, and none have been forthcoming. What the city has told the court is that the reservoirs are part of their integrated water management system, they’ve been working on other parts of the system first, and work on one part of the system is work on all parts of the system.

That strikes me as a bit of a loophole, or at least a low bar. But how bulletproof of a legal argument is the integrated water management argument? Is that all the state requires? If you develop a reuse system at a wastewater plant, say, you can legitimately say you’ve also made progress on building two reservoirs?

CT: Nothing’s bulletproof, it’s up to the water court. And I’ll keep saying that. It’s to the satisfaction of the judge in water court. Or, actually, to the water referee and then, if necessary, the water court judge.

I can tell you the history of the integrated water system provision. The oil shale sector was the primary proponent for the amendment to that section of the law. And they said if they were working on other aspects of a system, such as a pump station and a pipeline, then those were physical manifestations of diligence toward developing their overall system.

If say, a pump station was for 20 cubic feet per second, but their conditional right allowed for 100 cfs, they didn’t wish to see the larger amount challenged, as they were simply working in a steady and progressive manner toward eventual development of the entire system and perfection of the conditional right.

BGS: So does a judge have to decide, in a claim of being in an integrated water management system, whether there’s actual progress being made in that claim?

CT: Yes. I think the court would ask, is there a reasonable nexus to the diligence application for the water right in question? Is one action leading to another? The other part of steady progress is that it cannot just be in the last week before you filed. You do have to show you were engaged in steady application of diligence efforts.

BGS: So even though it’s within the confines of an integrated water management system, there still has to be a nexus to the ultimate development of completing the appropriation.

CT: Yes.

BGS: So can Aspen claim it worked on one part of our system, even though it bares little relationship to the actual potential reservoirs, and still claim that as steady effort?

CT: That’s up to the water judge.

BGS: There is no clear standard?

CT: Well, in the diligence applications that I’m familiar with, you include all of the efforts that you feel are relevant. For example, when the River District files for diligence on conditional water rights, we often include details of our work on the recovery program for endangered fish, because it’s critical to the way the river system works today. It may not have a geographic nexus to the conditional filing in question, but it has a hydrologic nexus. And so we hope the water court recognizes our work is a necessary element to be able to ultimately develop the water right.

For example, if a city was going to build a reservoir someday they could look forward to having to go through a NEPA (National Environmental Policy Act) review. As such, they will need to study a range of alternative measures they could take, such as making sure they don’t have leaks, water conservation efforts, pricing, all of that.

You have to accept that water development is an enormous challenge, and you’re going to have to show that you’re using your existing supply to its maximum benefit and efficiency before seeking permits. So a water provider might include in an application for diligence the work done today on those types of activities, even though they don’t appear to be physically linked to the reservoirs. And they can count it as work toward a future reservoir, because it’s related.

BGS: Do you think the city should have been more actively studying its two potential reservoirs?

CT: You have to allow any conditional water right owner to decide what their own timing is that leads to development.

BGS: Okay, but is there any requirement for work to be done on a specific site or project basis? Even if you’re doing other stuff, do you still have to study the project at some basic level?

Because, in this case, it doesn’t appear Aspen has done much, or is doing much, investigating of the feasibility of the reservoirs themselves. And if the city thinks it might actually need the reservoirs, shouldn’t city officials be studying them?

CT: Not necessarily. You have to allow that Aspen has accepted from 1965 that these reservoirs may be necessary. And what they have asserted is that what they’re doing is working on the other elements of their integrated system that require immediate work, and in the succession of development and maintenance of their system, those are their priorities.

The fact that I filed for a reservoir, say, on Three Mile Creek, doesn’t mean that I have to keep drilling every six years to see what the soils look like on Three Mile Creek.

BGS: Yes, but should you have drilled once? No drilling, for example, has ever been done on the location of the Maroon Creek Reservoir, that I can find or that the city can produce.

CT: Eventually you will, but there are many other things required before eventual storage construction. Personally, I don’t know what the order is of when drilling or soils testing is required.

BGS: Wouldn’t you want to know what a drill test says about a key factor in a reservoir, which is where the bedrock is?

CT: Yes. You will.

BGS: Not now?

CT: Maybe not yet. This is probably not the first thing I need to know. Not everything is a study for fatal flaws, especially if you accept that they have a premise around their original filing that this is necessary and appropriate someday. That’s exactly what a conditional water right is.

BGS: It just strikes me as a profound lack of curiosity.

CT: I understand. I think you have a legitimate question as long as you’ll acknowledge that there is a whole series of studies, and hard and soft science steps, that have to be followed before you can get to application, let alone development. Then I think it’s a legitimate question.

BGS: So what’s the average person to make of the larger situation? The city can, in effect, say they are making progress but really, at least in terms of how most people might see the question, they are really not?

CT: Yes.

BGS: I understand then that someone can technically say in water court they are making progress, given the integrated system provision, but it seems to lack a certain integrity from a street corner or real-world perspective.

CT: Well, for example, for the Osgood Reservoir on the Crystal River, the River District didn’t feel we could tell the court “Rest assured, we’re not going to flood the town of Redstone” when the water right as decreed would have done so.

We were, in fact, looking at alternatives, but then it would no longer have been the West Divide project as conditionally decreed. And we would have admitted that to most anybody, except the court. Because if we weren’t going to flood the town of Redstone, by moving the storage right to a more acceptable location, it might be considered a different right by the court.

BGS: So that suggests there is an integrity gap in Aspen’s approach, because they are saying, in effect, “We don’t want to build the dam near Maroon Bells” and yet they are still pursuing the same rights that are tied to the dam.

CT: When you are filing for diligence, you’re filing to maintain the water right’s priority date. And it’s not a secret, and it’s not a lie, that the water right may in fact be developed someday in another fashion for another purpose in another location.

BGS: Well, then, how low are the state’s standards for diligence? If you simply say you’re making progress, and want to keep all your options open, does the court just say, “Okay, carry on.”

CT: Let me acknowledge that conditional water rights are typically not contested. You usually don’t have objectors in a diligence case. And until relatively recently, if a filing didn’t have an objector, including the state of Colorado or anyone else, water courts tended to say, “Nobody’s upset, so no harm, no foul. Continue. Your diligence application is approved.”

Now the bigger filings have had objectors. We’ve had objectors on the Western Slope from eastern Colorado for large filings that were senior to some of the junior aspects of their transmountain diversions. They have had a clear self-interest in attacking these conditional rights, because they would improve the seniority of their junior rights by removing the threat, if you will, of a senior conditional.

But most filings aren’t contested, and uncontested filings are generally approved by the court without much analysis. Admittedly, the court might take exception to that.

BGS: Switching gears, what is the harm in walking away from a water right?

CT: It depends. We maintained the rights on the Crystal because we thought storage in that basin could have been a significant benefit to western Colorado. And our choice to abandon those rights was not as simple as concluding we didn’t need storage there.

We were being challenged in court, and the challenge was to the entire West Divide project. And our partners in that project, the West Divide Water Conservancy District, still intended to pursue aspects of that project that are outside of the Crystal River drainage.

We didn’t want the tail – the potential dams on the Crystal – to wag the dog – the other parts of the project. So we looked at number one, the opposition and the risk to the other water rights outside of the Crystal River basin. And, two, we recognized that if, in the future we still wanted to pursue storage on the Crystal then a new junior storage right would accomplish largely the same goals as those senior rights associated with the conditional filing would have.

BGS: Okay, so the River District made a call to walk away from two large dams. But the city of Aspen seems to always pour cold water on that option by suggesting if they abandon them someone else is going to come in and claim them, and their decreed date of 1971, apparently.

CT: Impossible.

BGS: So if someone else comes in and claims a storage right on Castle and Maroon creeks, it’s going to have a new junior priority date? They can’t come in and claim a 1971 right?

CT: Correct.

BGS: And someone could always still come in and file for a new junior right, whether or not the city abandoned its rights?

CT: Yes, but it’s a very different water right if you’re behind a senior conditional right. And there is the “can and will” test. You may not be able to develop the new junior right if it’s in line behind a senior conditional right. It depends upon the hydrology and how much water is available to store during runoff.

BGS: So if by retaining a conditional senior storage right, you make it less likely that someone’s going to come in and file for a junior right, isn’t that an advantage for a senior rights holder, like Aspen, in this case? If so, that suggests there is value in just sitting, if you will, on a senior conditional right as a preemptive move against future interlopers.

CT: Aspen, or anyone else, may see a strategic value in that approach. But that’s not sufficient diligence. There were a number of people in the Crystal basin who were in favor of water development. Not in favor of flooding Redstone, but who were in favor of water development. And they saw our conditional water rights as a strategic card and said if we didn’t hang onto that water right, then someone like Denver Water could come in and file. But we never said that; we never saw that. It’s not a legitimate or feasible threat. Nor did we see it as a sufficient to present as diligence.

BGS: You mean you can’t protect your water rights unless you’re actually making progress towards completing the appropriation? You can’t just be doing it for strategic purposes?

CT: Correct. You have to be diligently moving toward development. Remember, though, that oil shale has largely maintained its water rights from the 1940s by researching oil shale development. Some would argue there’s no way that they’re moving toward development or perfection of those rights. But the courts so far largely have found that they are.

BGS: Ah, yes, it’s always the court’s call. But how unusual is it to have ten opposers, as Aspen does, in a diligence case? Doesn’t that change things?

CT: It’s certainly uncommon to have opposers in diligence cases. And it’s worth noting that while a city cannot hold onto water rights solely to suit their strategic priorities, opposers can challenge the city’s rights based on their own strategic priorities

BGS: In other words, as an opposer you don’t need to prove standing, you don’t have to show injury.

CT: Essentially right.

BGS: Another outstanding question I have is about storage. The Castle Creek Reservoir would hold 9,000 acre feet of water and the Maroon Creek Reservoir would hold about 4,500 acre feet.

And recently, Aspen City Manager Steve Barwick told the Pitkin County Healthy Rivers and Streams Board, and I quote, “All of this, this whole notion of how much water do we need and how much water do we need to store, and all of that, has been based upon very preliminary analysis. And now it’s time to tighten up the whole analysis and do a rational set of studies so we can have a rational discussion with the entire valley about what are we going to do here. How much storage do we need, and where do we want to put it?”

Given that, why is the city telling the state it needs 14,000 acre-feet of storage if they aren’t sure how much storage they need? How hard is it to determine how much storage a city needs? A recent raw water supply analysis from Wilson Water found the city could meet future needs without storage, even after aggressive climate change projections.

CT: I would suggest that it’s not particularly easy to look 50 years down the road and try to figure out exactly what your needs are going to be.

BGS: So, again, what should a citizen make about the duality in the situation, where the city is telling the state it’s making progress while telling citizen’s it’s the last thing they want to do?

CT: I will say I feel the city’s pain, because while they may not have any actual intent to build that size reservoir in that location, they apparently see a need and a purpose for additional storage. As we did on the Crystal. Were we going to flood the town of Redstone? Not in this day and age. We knew that. Could we admit that anywhere but the water court? Sure. But in the water court, that’s not what you’re able to do.

BGS: So does that speak to the failing of the water court? Or to an issue of integrity?

CT: You keep suggesting that this is an issue of integrity.

BGS: Well, I keep asking.

CT: I think the city recognizes the value, the purpose, and the benefit of storage at large. Storage of some size. Storage in their water supply planning.

BGS: Storage of some size, somewhere, at some point, in some location.

CT: Yes, and that’s what a conditional water right may provide. But it’s not a failing of the court, because it doesn’t, in fact, allow for unfettered flexibility. The court would likely reject a suggestion, say, that a conditional storage right on Castle Creek might be used on Hunter Creek.

BGS: But the city is studying and positioning various potential alternatives, suggesting the rights are quite portable and flexible.

CT: The conditional water right system does allow for movement. But it would likely have to have a junior right if moved too far.

BGS: But no one knows for sure until they go through the process? There’s no standard?

CT: Well there is a standard for that. If you go too far, say if you try to exchange that right to Hunter Creek, it’s going to end up being a new junior right.

BGS: So there’s generally limited flexibility?

CT: Yes. But you never know until you go through water court.

BGS: Can we discuss why the River District has not taken a position, or really, said anything, one way or the other, about Aspen’s conditional water rights? The district is not an opposer, so it apparently doesn’t oppose them, but it hasn’t said, for example, that they think those reservoirs might be valuable for any reason.

CT: Well, we’ve never been asked.

BGS: The city has not come to you? They’ve never consulted with you?

CT: No. Aspen has not asked for help.

BGS: Or sat down and asked you about your experiences on the Crystal?

CT: No. Nor do I find that odd that they didn’t. Montrose hasn’t, and Grand Junction hasn’t. Ute Water is working on developing and permitting storage on the Grand Mesa. They haven’t asked for our help. Others have. Eagle River and Water Sanitation asked for our help in putting together multi-party agreements that years ago resulted in the Eagle River memorandum of understanding, or MOU. Now we’re working on fulfillment of the MOU to develop joint-use, mutually beneficial East Slope-West Slope water.

BGS: Do you feel there’s any harm done if the city’s water rights are abandoned, from a Western Slope water rights perspective?

CT: We have not looked at them.

BGS: With respect, why not? It seems like something the River District would do.

CT: Well, this is what individual utilities do within our 15 county district. They develop their water rights.

BGS: But Aspen suggests there are threats from a Front Range bogeyman, and I wonder if you think a bogeyman is lurking, waiting for the city to give up its rights?

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

BGS: I’m trying to discern the significance of the River District’s neutrality and silence about the Castle and Maroon creek reservoirs.

CT: I find our position unremarkable. There are many entities that are pursuing diligence or perfection of their water rights. We have no interest in jumping into a situation that has already divided our shared constituents. And Aspen has not asked for our help in their diligence filing, or their studies. So we have no direct dog in this fight.

BGS: So, again, is there a downside to Aspen giving up the rights, as the River District did on the Crystal?

CT: I think it may be important to ask what the opposers are seeking. Are they concerned about a dam in that particular location? If the dam were somewhere else, would they have the same concerns? Are their concerns really about growth? Is the concern that Aspen has, or may have, a vision of its future, that is more crowded than some may accept? I don’t know the answer. Is it that Aspen has said that they want to maintain the instream flow rights? Is it the idea that storage can be used for meeting an instream flow, or enhancing an environmental benefit? What are their motivations? And perhaps most importantly, what happens if they succeed?

BGS: Well, fair enough. I’ll follow-up with the opposers, and they have articulated many of their concerns for the water court referee. But that’s why I asked you what harm the River District sees if the rights are abandoned. Apparently you don’t see any, which says something about the size of the bogeyman.

CT: What does Aspen see? Are there any competing conditional rights in between that if Aspen drops out, somebody moves up the line? If there’s an intervening conditional water right on the Roaring Fork, that would be pertinent.

These water rights may be a bar, or a deterrent, to another conditional rights that couldn’t be developed if these rights were senior. So I think it’s a legitimate inquiry as to whether, say, Pitkin County Healthy Rivers and Streams, has considered what the full implications are to not having these water rights. I don’t know the answer. I’m just saying it’s a reasonable question.

BGS: I agree it is a reasonable question. And a reasonable question to ask the River District, too.

CT: We haven’t looked at it.

BGS: Again, with respect, why not?

CT: Nobody’s asked us, nobody’s suggested it. It’s not a problem.

BGS: But isn’t that in your mission? I have to think that if the River District thought that if these rights were to go away it would harm the Western Slope, you would have said something.

CT: If we thought so yes, if we had looked at it and come to that conclusion. But you’re giving us too much credit.

BGS: I guess so.

CT: We haven’t looked at it. I think if they were pre-compact, or pre-1922, rights I guess it would be more interesting to us.

BGS: Do you think there’s a bogeyman out there as it relates to Castle and Maroon?

CT: I think there’s a much bigger bogeyman in the upper Roaring Fork. Castle and Maroon, hard to picture, but the upper Roaring Fork, easy to see. The evidence is all there.