The water court judge reviewing two applications from the city of Aspen to retain, but move, its conditional water-storage rights tied to two potential reservoirs on Castle and Maroon creeks has issued a new decree for the Castle Creek right.
And the judge said Wednesday he is ready to issue a new decree for the Maroon Creek right, once the city works out final language with one of the opposing parties in that case.
“Although perhaps a close call, I’m satisfied and am prepared to approve the conditional rights that have been requested,” District Court Judge James Boyd, who oversees Division 5 water court in Glenwood Springs, said during a case-management conference.
Boyd in November asked Aspen to submit additional information concerning its claims that it has been diligent in developing the dams and reservoirs and that it had a need for the water. The city filed updated information and a slightly revised proposed decree in April, which the judge said he has reviewed.
Under its negotiated settlements with the 10 opposing parties in the Castle and Maroon diligence cases, the city has agreed to store no more than 8,500 acre-feet of water from the two streams in five potential new locations, away from the high-mountain valleys and closer to the Roaring Fork River.
The ten settlements, or stipulations, in both cases are essentially the same for each opposing party, but there are some slight differences. The settlement with Pitkin County in the Maroon Creek Reservoir case is representative.
Under all of the agreements, the city could store either up to 8,500 acre-feet from Castle Creek or up to 8,500 acre-feet from both streams, with a maximum of 4,567 acre-feet coming from Maroon Creek.
The city has at least now obtained a conditional water right to store 8,500 acre-feet from Castle Creek, albeit no longer in the originally proposed location, 2 miles below Ashcroft, and for which it still needs further water court approvals to move the water right to a new location, or locations.
Regarding the remaining issue in the Maroon Creek case, which revolves around the precise wording of a no-precedent clause, Boyd said, “It strikes me there is probably a reasonably decent possibility this issue will go away with a little further negotiation.”
The judge’s announcement during the case-management conference Wednesday regarding his readiness to approve the city’s two diligence applications was made to elicit any further concerns that the water attorneys in the cases may still have.
Hearing no concerns — apart from the no-precedent language issue between Larsen Family LP and the city in the Maroon Creek case — Boyd gave Larsen and the city a month to work things out. In the meantime, he said he would proceed to issue a new decree in the Castle Creek case.
“It’s nice to get at least one of them done,” said the city’s water attorney, Cynthia Covell.
Once the Maroon Creek decree is issued, which Covell does expect to occur, the city plans to prepare an application to water court to move its conditional storage rights to the new potential locations: the city golf course; the Maroon Creek Club golf course, which is partially on city-owned open space; the city’s Cozy Point open space, near the bottom of Brush Creek Road; the Woody Creek gravel pit, operated by Elam Construction; and an undeveloped, 63-acre parcel of land next to the gravel pit, which the city bought for $2.68 million in February 2018 for water-storage purposes.
“I’m sure the city will be undertaking further investigations about the suitability of those sites and what they finally are going to land on,” Covell said. “I’m not really expecting they are going to try to build a reservoir at every single one of those sites, but they will be doing the necessary fieldwork and other kinds of things to determine what makes the most sense for them.”
Covell said there will be “many, many opportunities for the community to be involved in this planning process.”
Under the decrees, the city will have until May 2025 to file a change-of-location application.
But Covell said she would advise that the city do so “sooner rather than later.”
The city in 1965 first filed for water-storage rights tied to potential dams and reservoirs on upper Castle and Maroon creeks. Since then, the city has periodically applied for, and received, findings of diligence from the water court.
The city filed its most recent diligent applications in October 2016. Ten parties filed statements of opposition, and the city reached agreements, or stipulations, with all parties in October 2018. A key provision was that the city had to try to move the water rights out of the high valleys, and if it failed in that effort, it could not return to the two valleys.
Pitkin County, the U.S. Forest Service, American Rivers, Western Resource Advocates, Colorado Trout Unlimited and Wilderness Workshop were opposers in both cases, and each case also included two private-property owners.
Aspen Journalism covers rivers and water in collaboration with The Aspen Times. The Times published a version of this story on Friday, May 10. This updated version reflects the issuance of the signed Castle Creek decree at 11:30 a.m. on May 10.
The question of whether the City of Aspen has valid conditional water-storage rights tied to the potential Castle and Maroon creek reservoirs — rights the city now wishes to move to other locations — remains unresolved before state water court.
The latest activity in the two water-court cases about the Castle and Maroon water rights took place April 19, when water attorneys for the city responded to a judge’s request to provide more information about two key legal questions: whether the city has been diligent in its efforts to develop the reservoirs and whether it has a legitimate need for the amount of water it is claiming.
It’s not yet clear whether the information the city submitted to the court April 19 will be enough to satisfy Judge James Boyd, who is overseeing both cases — one involving the Castle Creek Reservoir water right and the other involving the Maroon Creek Reservoir water right — in Division 5 water court in Glenwood Springs.
A case-management conference call in the case was slated for Thursday morning — and that may have provided some insight into how the judge viewed the city’s latest information — but another ongoing trial required the judge to reschedule the conference call about the Castle and Maroon water rights for May 8.
Boyd in November told the city’s water attorney, Cynthia Covell of Alperstein and Covell, that he needed more information on both diligence and need.
“I don’t know if I have any information, really, in the record for me to make the finding that as part of a diligence decree, or diligence burden of proof, of a substantial probability that the project will ultimately reach fruition, so it seems to me I may need some additional actual record to support that conclusion,” Boyd said in November.
Regarding the city’s stated need for up to 13,000 acre-feet of water between the two potential reservoirs, he also said, “There is nothing in the record to really explain why that’s an appropriate number for the court to approve, and I think I may need some record to support that.”
The city is seeking a ruling from the judge that it has been diligent in developing the two potential reservoirs.
The city has told the court that, after obtaining a positive diligence finding, it intends to try to transfer the location of the conditional water-storage rights, which carry a 1971 adjudication date and 1965 appropriation date, from the original locations in upper Castle and Maroon creeks to locations closer to the Roaring Fork River.
The locations include the city’s golf course, the Maroon Creek Club golf course, the Cozy Point open space, the Woody Creek gravel pit operated by Elam Construction and an empty parcel of land next to the gravel pit now owned by the city.
In the information submitted to the court April 19, in both cases, Covell made the city’s case in succinct fashion, submitting a six-page, revised proposed decree and a four-page supplement to an earlier motion to approve the proposed decree.
The city has previously told the court that it has been diligent in its efforts to develop the reservoirs and that it does, in fact, need the water to meet future demands, especially given climate change.
And it said so again April 19 — but without adding much, if any, new information to the existing court record.
“Aspen needs the Maroon Creek Reservoir water right,” the city said in the April 19 filing. The city also told the court that it “has exercised reasonable diligence in the development of the Maroon Creek Reservoir water right.”
It made similar statements regarding the water right tied to a potential Castle Creek Reservoir.
Under Colorado water law, decisions about whether an applicant has been reasonably diligent in pursuing the development of a given water project are made by a judge on a case-by-case basis.
The court cases began when the city filed a diligence application with the water court in October 2016 seeking to maintain its conditional water-storage rights for both reservoirs, which the city first filed for in 1965.
Ten parties — Pitkin County, the U.S. Forest Service, American Rivers, Wilderness Workshop, Colorado Trout Unlimited, Western Resource Advocates and four private property owners — filed statements of opposition in response to the city’s 2016 diligence applications.
Two years later, in October 2018, the city announced it had reached agreements with all of the opposing parties in the two cases and submitted those agreements to the court, along with a request that the court issue a new decree finding that the city has been diligent and that the conditional water-storage rights are valid for at least another six years.
The new decree also incorporates the terms of the agreements reached with the opposing parties.
The agreements say the city will not build the Maroon and Castle creek reservoirs in their decreed locations and, instead, will seek to move the location of the conditional water storage rights out of the two pristine valleys.
The city also is now limited to storing no more than 8,500 acre-feet of water in the new locations, instead of potentially storing more than 13,000 acre-feet under the original decrees. The water for the 8,500 acre-feet of storage could come from both Castle and Maroon creeks under the agreements.
Today, the city’s water supply comes primarily from Castle Creek, but the supply is supplemented with water from Maroon Creek. The city has senior water rights for those diversions that are not tied to the conditional water storage rights.
The opposing parties also agreed not to challenge the city’s anticipated request to change the location of the conditional storage rights, but other outside parties may still do so.
Notably, in the latest information submitted by the city, there is a sentence in each case that seems to contradict the city’s agreed-upon position that it no longer intends to build either the Castle or Maroon creek reservoirs.
A sentence in the supplement to an earlier motion in the Maroon Creek case says, “Aspen intends to construct the Maroon Creek Reservoir to provide a legal, reliable water supply to its customers.”
In the Castle Creek case, a similar sentence says, “Aspen intends to construct the Castle Creek Reservoir … .”
Asked about the sentence in the Maroon Creek Reservoir case, which seems at face value to indicate that Aspen still intends to build a big dam within view of the iconic Maroon Bells, Covell said, “They intend to construct the reservoir. They intend to construct it at a different location.”
Aspen Journalism covers rivers and water in collaboration with The Aspen Times and other Swift Communication newspapers. The Aspen Times published this story on Friday, April 26, 2019.
Two projects to increase snowmaking on Aspen Mountain and the Snowmass Ski Area have received initial approvals from the U.S. Forest Service, but any potential effects of drawing more water from the local watershed for the additional snowmaking remain unclear.
Aspen Skiing Co. is planning to use an additional 82 acre-feet — 26.7 million gallons — of water per season as part of its two snowmaking expansion projects, with most of the water coming out of Castle, Maroon, Snowmass and East Snowmass creeks.
Aspen Mountain will use an additional 57 acre-feet of water per season for new snowmaking infrastructure on 53 acres near the summit to create reliable and consistent snow coverage, according to a hydrology report that Glenwood Springs-based Resource Engineering prepared for the U.S. Forest Service.
Snowmass will use an additional 25 acre-feet of water per season to cover 33 acres of terrain on the Lodgepole, Lunkerville and Adams Avenue trails, according to an environmental assessment by the Forest Service.
The additional 82 acre-feet of water combined from both the Aspen Mountain and Snowmass expansions will be on top of the 821 acre-feet that Skico currently uses on average each season across its four ski areas, bringing the total seasonal average to 903 acre-feet, according to Rich Burkley, Skico’s senior vice president of strategy and business development.
To put that much water into perspective, Wildcat Reservoir, visible from the Snowmass Ski Area, holds 1,100 acre-feet of water.
Burkley said snowmaking has historically been used to connect natural snowfall to the lifts and base areas. The company’s snowmaking philosophy, he said, is to limit it to the bare minimum needed to open the trails, host events and reach the end of the season. Mountain managers hope increased snowmaking will help avoid a repeat of the bare, rocky slopes of the early 2017-18 season.
“We don’t want to increase snowmaking, but we have to,” Burkley said. “Our snowmaking doesn’t go to the top of any of our mountains and we’ve always relied on natural snowfall to open the mountains. Bringing snowmaking to the summit of Aspen will help ensure a Thanksgiving opening. In a year like this, it wouldn’t be necessary, but it would have helped a bunch last season.”
Although there are fewer other water users pulling from local streams — outdoor irrigation season is over — when Skico fires up its snowmaking operations in November and December, it is using water during a time of year when streamflows are at some of their lowest points of the year. Despite a close read of two recent Forest Service environmental assessments on the snowmaking expansions, it is still not easy to determine exactly what might be the impact of drawing more water from Castle, Maroon, Snowmass and East Snowmass creeks, the four streams that provide most of the water for snowmaking at Skico’s four ski areas.
In June, Pitkin County submitted to the Forest Service a comment encouraging the agency to consider the impacts of increased snowmaking on stream health and the overall watershed, including the potential violation of state minimum instream-flow requirements on Castle and Maroon creeks.
“Ultimately, we’ve found that the range of change for peak flows and watershed yields associated with the snowmaking SkiCo is proposing are within the natural annual variability of water yield and peak flow,” he said.
But those assurances from the Forest Service may not be enough for some local river advocates, especially after a hot, dry year that saw some streamflows in the Roaring Fork basin plummet to all-time lows and the city of Aspen implement Stage 2 water restrictions for the first time in history.
Ken Neubecker, associate director of American Rivers’ Colorado Basin Program and a member of the Pitkin County Healthy Rivers Board, has concerns about taking more water out of the streams in winter. Although most of the snowpack makes it back into the river as spring runoff, that doesn’t help the winter aquatic environment, he said. Also, while snowmaking may not require as much water as other consumptive uses such as irrigation, those relatively small depletions add up.
“Twenty-five additional acre-feet taken out over the whole season is not much water, but again, what are the cumulative impacts?” Neubecker said, referring to the Snowmass project. “When are we going to reach the straw that breaks the camel’s back, especially in a dry year when there may only be 2 (cubic feet per second) running in the stream?”
Kate Hudson, a Pitkin County resident and professional environmental advocate focused on water, agrees. Hudson, who is also a member of the county’s streams board, said that because the two projects are being considered separately, it’s hard to measure what the overall impacts might be to the Roaring Fork watershed.
“It’s just one more cut of many, but one of the many that may ultimately tip the balance,” she said. “What we are seeing now globally and locally in our environment with water is death by 1,000 cuts.”
The Forest Service review did consider the total depletions of water in the Roaring Fork River watershed from the additional snowmaking, but found they were anticipated, and covered by, an environmental review previously conducted by the U.S. Fish and Wildlife Service on potential future diversions upstream of a key reach of the Colorado River near Grand Junction. The Roaring Fork flows into the Colorado in Glenwood Springs.
Aspen Mountain began making snow this season Nov. 1. Its primary snowmaking pump station, located at the base of the mountain, draws water from the city of Aspen’s treated municipal supply, which originates in Castle and Maroon creeks.
According to Burkley, Aspen Mountain uses an average of 199 acre-feet of water per season for snowmaking.
The new project would add about 57 acre-feet of diversions each season, for a total of 256 acre-feet, or 83 million gallons used for snowmaking on Aspen Mountain, according to figures supplied by Burkley.
While Skico has water rights for snowmaking uses from springs on the upper mountain, the hydrology reports says it is “expected that the water supply necessary to support the proposed snowmaking will also be provided by the city.”
In terms of overall impact, it’s important to note that not all of the water used for snowmaking is taken out of the watershed permanently. The snow acts as an on-mountain, frozen reservoir.
According to the hydrology report, about 74 percent of Aspen Mountain’s water used for snowmaking makes it back into the Roaring Fork River as spring runoff. The other 26 percent is lost to evaporation or sublimation or is sucked up by thirsty plants.
The environmental assessment from the Forest Service also warns about instream flows, which are water rights owned by the Colorado Water Conservation Board, and are designed to keep water in the river to preserve natural ecosystems and fish health. The conservation board has 12 cfs of instream flow rights on the segment of Castle Creek where the City of Aspen’s diversion is located. The conservation board has 14 cfs of instream flow rights downstream from the city’s diversion on Maroon Creek.
Although streamflows in Maroon and Castle creeks are predicted to more than satisfy the three demands — snowmaking, municipal uses and instream flows — the study warns that snowmaking shortages are possible during drought conditions in the peak snowmaking month of December.
According to Margaret Medellin, utilities portfolio manager for the city of Aspen, the city will not divert if instream flows are threatened. The city has sensors on both its Maroon and Castle Creek headgates and employees manage them daily to preserve the minimum instream flows. For example, Medellin said the city shut down the Maroon Creek hydro facility last summer to protect the instream flows.
Streamflows, however, can be hard to verify. There is no public gauge on Castle Creek, and although there is a new U.S. Geological Survey gauge on Maroon Creek, the reading simply said “Ice” for several days in late December.
Snowmass currently uses an average of 383 acre-feet of water per season for snowmaking from the Snowmass Creek watershed.
The water is provided to Skico by the Snowmass Water and Sanitation District, which serves all of Snowmass Village and the ski area.
The district both diverts water from East Snowmass Creek, and also pumps water up from Snowmass Creek, to fill Zeigler Reservoir, which holds 252 acre-feet of water, according district manager to Kit Hamby.
The water is then sent to the ski area’s snowmaking system when it’s time to make snow. The reservoir, home to “Snomastadon,” was put into service in 2013 and provides a buffer from direct drawdowns from Snowmass Creek, where the conservation board also holds an instream flow right.
The ski area also uses another 46 acre-feet from a few ponds that start the season naturally charged.
Each season, the new project would draw an additional 25 acre-feet, or 8 million gallons, from the Snowmass Creek watershed.
As for Skico’s other two ski areas, Aspen Highlands 55 acre-feet a season on average from the city of Aspen’s municipal supply and Buttermilk uses an average of 184 acre-feet a season from Maroon Creek, according to Burkley. Including the new projects, the total seasonal-average use on all four mountains for snowmaking is expected to be 903 acre-feet of water.
Skico works hard to remain an industry leader in sustainability and the environment. Its “Give a Flake” campaign encourages skiers to take action on climate change.
Burkley admits any expansion of terrain or snowmaking contradicts the company’s sustainability message, but he adds that snowmaking is necessary. And last season’s dry and warm conditions brought to the forefront how crucial it is to have snowmaking at higher elevations.
“It definitely undercuts (the sustainability message),” Burkley said. “But we would not be in business without snowmaking so we try to minimize the impacts of it.”
Editor’s note: Aspen Journalism is covering rivers and water with The Aspen Times. The Times published this story on Wednesday, Jan. 2, 2018.
A water court judge last week said the city of Aspen needed to supply more information to the court before he could find the city has met the legal standards for “diligence” and “need” concerning its conditional water-storage rights tied to potential reservoirs on upper Castle and Maroon creeks.
The judge’s request for more substance in the court record could be a setback for the city in its two ongoing diligence cases, which began in 2016, and are now being heard together as one case.
If that were to occur, the city would next file a change application in water court to move the rights from Castle and Maroon creeks to five other potential locations. All opposing parties in the cases have agreed not to fight the city’s effort to do so.
The potential reservoir locations, where the city says it will store as much as 8,500 acre-feet of water, are the city-owned golf course, the Maroon Creek Club’s golf course, the Cozy Point open space, the gravel pit in Woody Creek and a city-owned vacant land by the gravel pit.
During a public case-management conference Thursday with most of the water attorneys in the case, Boyd said he had reviewed the record and had concerns about several issues, including fundamental questions of diligence and need.
Boyd told the city’s water attorney, Cynthia Covell of Alperstein & Covell, that there wasn’t sufficient evidence in the court record for him to conclude that there was a “substantial probability that the project will ultimately reach fruition.”
He asked Covell to file with the court “either a supplemental factual record, a legal brief or just a new proposed decree, or any combination of those” by Jan. 18, if possible.
Asked after the conference call what she thought of the judge’s request, she said “I think the judge is being thoughtful and conscientious about this. I think he’s saying, ‘These are a couple of things that I would like to see more in the record on in order to sign off on this decree.’”
Boyd also asked the city to provide the court with its current long-range water-supply plan.
“In terms of filling in that factual record, there is a reference in the applications to Aspen’s long-range plan to maintain a reliable water supply, which at least invites the possible conclusion that there is a single document that is the plan, and if there is, it seems to me, perhaps it should be part of the record in this case,” Boyd said. “Or perhaps it is something other than a single document.”
Covell said the city’s water plan is in a series of documents.
The city first filed for the conditional water rights in 1965, informing the state it intended to build a 155-foot-tall dam on Maroon Creek that would store 4,567 acre-feet of water, and a 170-foot-tall dam on Castle Creek that would store 9,062 acre-feet of water.
The city obtained conditional decrees for the two reservoirs in 1971. Since then, it has submitted to the state periodic diligence applications, saying each time that it “can and will” someday build the two reservoirs, if necessary.
In current proposed decrees now in front of Boyd, the city is seeking a right to store 8,500 acre-feet in Castle Creek Reservoir, down from 9,062 acre-feet.
It’s also seeking a right to store the original 4,567 acre-feet in Maroon Creek Reservoir, even as it plans on moving both those rights, according to the settlement agreements, and forever walking away from the original locations.
In the settlement agreements, the city also has said it will seek to store no more than 8,500 acre-feet of water, in some configuration, at one or more of the five new locations.
The 8,500 acre-feet of water could come from both Castle and Maroon creeks, in some combination, or it could all come from Castle Creek.
On Thursday, Judge Boyd said he had questions about the city’s estimated storage needs.
“In terms of the obligation to show a need for the water — at least as I review the record — I have an engineering report that contemplates a need of 8,500 acre-feet of storage, which is, of course, the exact size proposed for one of the reservoirs, but the two reservoirs in combination total over 13,000 acre-feet,” Boyd said, “and there is nothing in the record to really explain why that’s an appropriate number for the court to approve, and I think I may need some record to support that.”
He also said the proposed decrees “are completely silent about that contemplated relocation of these reservoirs, and there is really no information in the record about the ability, under the ‘can and will’ doctrine, to put these reservoirs in the new locations that are suggested as possible alternatives,” Boyd said. “So I don’t know if I have any information, really, in the record for me to make the finding that as part of a diligence decree, or diligence burden of proof, of a substantial probability that the project will ultimately reach fruition, so it seems to me I may need some additional actual record to support that conclusion.”
Boyd also said it’s the first time he has seen a request such as the city’s, which involves moving conditional rights out of their original location, but only after first obtaining a diligence finding for the water rights in their original locations.
“If it goes forward at all, it will be in a different location,” he said, “and I think that needs to be articulated more clearly in the decree and, as well, give me enough information to conclude it meets the standards for reasonable diligence.”
The Castle and Maroon creek decrees have nearly identical terms, other than size. In fact, they’re often referred to as one decree.
It’s not the first time in the case that the state has asked the city to provide more information.
In a January 2017 “summary of consultation” between the division engineer and the water court’s so-called “referee,” the state said the city must show “a specific plan is in place to develop the subject water rights,” must demonstrate “substantiated population growth in order to justify the continued need for these water rights,” and must show it is “not speculating with the subject water rights.”
The city responded, but not in a way that satisfied the referee.
In August, more than a year and a half after the summary of consultation, the referee, Susan Ryan, sent the city’s two cases to Boyd for him to resolve.
She had noted that outstanding issues in both cases “will require water judge adjudication of the facts and/or rulings of law.”
Editor’s note: Aspen Journalism covers rivers and water in collaboration with The Aspen Times. The Times published this story on Monday, Dec. 3, 2018.
Despite an unprecedented water restriction amid the ongoing drought affecting much of Colorado and the West, officials with the city of Aspen and Aspen Skiing Co. said the dry conditions should not impact the company’s ability to make snow at its four resorts…
SkiCo uses municipal water for snowmaking on Aspen Mountain and Aspen Highlands from the city’s 3-million-gallon reservoir up Castle Creek, water from Maroon Creek for Buttermilk, and water stored in Ziegler Reservoir for the Snowmass Ski Area. And communication between the city and the SkiCo is key, particularly now amid the drought.
Margaret Medellin, the city of Aspen’s portfolio utilities manager, said Friday that Thomas Reservoir doesn’t afford much storage for the city’s needs, and the municipality relies largely on direct flows from Maroon and Castle creeks. Still, “there are a lot of reasons why snowmaking is a water use that can be done even during this dry period,” she said.
That includes snowmaking mostly happening during November and early December, when water demand has lessened because of fewer residents, second-home owners and visitors; along with fewer times nowadays with temperatures suitable for making flakes.
In summertime, the largest use of city water, as much as 86 percent at times, goes to irrigation, but now “irrigation systems are starting to shut down, and we’re seeing the demand on the system dropping,” she said…
She also said that snowmaking overall is a pretty small use — annually less than 8 percent — of the city water supply.
“Having said that, we do constantly monitor our creeks,” Medellin said. “If SkiCo wanted to make snow, and it’s too close to in-stream flow [requirements], we’d communicate with them that they wouldn’t be able to make snow…
Katie Ertl, SkiCo’s senior vice president of mountain operations, said the drought and city water restrictions have “been on our minds,” and led to a recent, in-company meeting.
She agreed the health of the streams is paramount and echoed Medellin: “We’re putting snow on the hill when not a lot of water is being used.
“We recognize that we have a bit of time before now and then, and we’re hoping for the possibility of natural snow,” Ertl said. “We knew this conversation was going to come up with Stage 2 water restrictions. We’re paying attention to what the city requirements may be and will work in conjunction with them for Aspen Mountain and Highlands.”
She said SkiCo, being the valley’s largest employer and driver of tourism, will also consult with other businesses and interest groups about water use for snowmaking…
Ertl and Medellin both said that 70 to 80 percent of the man-made snow ends up back in the watershed during runoff, rather than being lost to evaporation.
American Rivers and Colorado Trout Unlimited are the latest of 10 opposing parties to sign agreements with the city of Aspen stating that the city will move its conditional water storage rights out of the upper Castle and Maroon creek valleys to five other locations.
“This is a significant victory for rivers in Colorado,” said Matt Rice, the Colorado River basin director for American Rivers, in a statement issued jointly with Colorado Trout Unlimited on Tuesday.
The alternative potential locations to store water from Castle and Maroon creeks include the city’s golf course, on open space near the Burlingame neighborhood, on open space at Cozy Point at the bottom of Brush Creek Road, on undeveloped land in Woody Creek next to the gravel pit and in the gravel pit itself.
David Nickum, the executive director of Colorado Trout Unlimited, said in the statement, “We appreciate the city of Aspen making this commitment to meet its water-supply needs while protecting these much-loved valleys and creeks, and the wild trout that call them home.”
City officials also expect to soon receive a signed agreement from Roaring Fork Land and Cattle Co., the owner of an estate in the lower Maroon Creek valley, according to Margeret Medellin, a utilities portfolio manager for the city of Aspen.
As of May 29, the city had reached earlier settlements with Pitkin County, Wilderness Workshop, Western Resource Advocates, Double R Cross Ltd and Asp Properties LLC in the two cases.
Medellin said Tuesday she understands the U.S. Forest Service also is prepared to sign an agreement and is working toward that end.
And at a June 26 status conference, Craig Corona, the attorney for Larsen Family LP, the last of the 10 opposing parties, told the court he and his client were making progress toward settlement with the city.
City officials have previously said none of the agreements are valid unless all 10 parties sign them.
Reached on Tuesday, Corona said he could not discuss the case.
A water court official has given the opposing parties who have not reached agreement with the city until July 10 to respond to the city’s latest proposal.
The city then has until Aug. 7 to get back to the opposers and the next status conference in the two water court cases is set for Aug. 21.
The city’s conditional water storage rights date back to 1965, when the city first filed maps with the state declaring its intent to build the two dams.
One water right is tied to a 155-foot-tall dam that would be located just below the confluence of East and West Maroon creeks, within view of the Maroon Bells, to hold back 4,567 acre-feet of water in the potential Maroon Creek Reservoir.
The other is tied to a 170-foot-tall dam on Castle Creek 2 miles below Ashcroft that could store 9,062 acre-feet in the potential Castle Creek Reservoir.
The city’s water rights carry a 1971 priority date and since then the city has periodically told the state it still intends to build the dams and reservoirs someday, when necessary.
In its latest periodic diligence filings with the state, in October 2016, the city again declared its intent and drew opposition from the 10 opposing parties.
Key issues raised during the process include whether the city has been diligently making progress toward building the dams and if the city needs the water.
However, sufficient diligence and need are in the eyes of a water court judge and remain unresolved questions.
In their statement issued Tuesday, American Rivers and Trout Unlimited pointed out that “Aspen’s own 2016 water availability report clearly stated that the city did not need the two dams for municipal water supply or climate resiliency.”
Since that 2016 report the city has conducted a “risk analysis” study that found it could perhaps need about 8,000 acre-feet of storage in a hotter and drier world.
And a recent engineering study that identified five alternative locations where the city could potentially store the water.
“We explored alternatives for water storage and we believe we’ve come up with the best solution for prudent water management that serves the needs of our water customers and speaks to our environmental values,” Aspen Mayor Steve Skadron said in March, when the city spent $2.68 million on 63 acres of vacant land as a potential water storage site.
Under the terms of the settlements being signed with the city, the opposing parties are conceding that the city has been diligent, or perhaps diligent enough, and are taking a neutral stance, at least with the court, on the question of whether the city needs that much water.
“American Rivers agreed to diligence for the City of Aspen because we thought this was the best opportunity to reach a settlement with the city that would permanently remove the water rights for the two dams from the Castle and Maroon Creek valleys, not because we believe the city needs more water storage or has been diligent in developing the projects,” Rice, of American Rivers, told Aspen Journalism. “Our priority has always been the health and protection of Castle and Maroon Creeks. “
The signed agreements to date say that the parties will not oppose a forthcoming application from the city to relocate up to 8,500 acre-feet of its 13,629 acre-feet of conditional water storage rights to potential storage facilities at the five locations outside of the high valleys.
Other parties, not in the Castle and Maroon creek cases, can still oppose the city’s efforts in water court to move the water rights, and their 1971 decree date.
If it is unsuccessful in its efforts to move the rights, the city has said, in the agreements it has signed to date, that it will not seek to maintain the Castle and Maroon rights in their original locations.
The signed agreements to date say that the parties will not oppose a forthcoming application from the city to relocate up to 8,500 acre-feet of it’s 13,629 acre-feet of conditional water storage rights to potential storage facilities at the five locations outside of the high valleys.
Other parties, not in the Castle and Maroon creek cases, can still oppose the city’s efforts in water court to move the water rights, and their 1971 decree date.
If it is unsuccessful in its efforts to move the rights, the city has said, in the agreements it has signed to date, that it will not seek to maintain the Castle and Maroon rights in their original locations.
Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of rivers and water. The Times published this story on July 4, 2018.
The city of Aspen continues to make progress on reaching settlement agreements with 10 different parties over its water rights on Maroon and Castle creeks, and a water referee set deadlines that could lead to a resolution before the end of summer.
At a status conference [July 26, 2018], both the city and its opponents said progress is being made toward resolving the cases.
“I feel optimistic we are moving toward a settlement,” said Cindy Covell, a water attorney for the city who is with Alperstein and Covell in Denver.
So far, five of the 10 parties who oppose the city’s efforts in water court to maintain conditional storage rights tied to potential dams on Maroon and Castle creeks have signed settlement agreements. Still left to sign are American Rivers, Trout Unlimited, the U.S. Forest Service, Larsen Family Limited Partnership and Roaring Fork Land & Cattle Co.
Attorney Paul Noto, who represents American Rivers, Trout Unlimited and Roaring Fork Land and Cattle Co., said his clients will likely settle soon.
“I think we are all enthused about how it all ended up,” Noto said. “We are excited about the protections afforded to Castle and Maroon creeks.”
That leaves two other parties that are further away from settling, Larsen Family LP and the U.S. Forest Service.
Attorney Craig Corona of Aspen, who represents the Larsen family, told water court referee Susan Michelle Ryan on Tuesday that he and the city are “definitely” making progress toward finalizing a settlement. The U.S. Forest Service has been difficult to reach lately, according to Covell.
Ryan set a deadline of July 10 for the remaining opposing parties to respond to the city’s settlement proposal. The city must respond to those responses (if a response is necessary) by Aug. 7. The next status conference is scheduled for Aug. 21.
The cases are being heard in Division 5 Water Court in Glenwood Springs. The new deadlines mean the cases will extend past the 18-month deadline of disposition, but Ryan decided to keep them on her docket since progress toward a resolution is being made.
Since 1965, the city has owned conditional water rights for reservoirs on Maroon and Castle creeks. In October 2016, the city filed a diligence application to maintain the water rights, which are tied to potential dams.
The potential Maroon Creek Reservoir would hold 4,567 acre-feet of water and include a 155-foot-tall dam, which would flood part of the Maroon Bells-Snowmass Wilderness. The potential Castle Creek Reservoir would hold 9,062 acre-feet behind a 170-foot-tall dam 2 miles below Ashcroft.
The possibility of two new reservoirs and dams didn’t sit well with 10 parties, who filed statements of opposition to the two water rights cases in December 2016.
Under the agreements, the city will seek to transfer its conditional water storage rights to other potential reservoir sites, including a gravel pit near Woody Creek, with a maximum storage capacity of 8,500 acre-feet. As part of the deal, the opposing parties have agreed not to fight the city’s efforts to move the water rights to new locations for 20 years.
The five parties that have already signed the agreements include Pitkin County, Wilderness Workshop, Western Resource Advocates and two private property owners in Castle Creek Valley.