City of Aspen also signs flurry of contracts with water professionals to study reservoirs and Aspen’s water storage needs
GLENWOOD SPRINGS – After conferring on the city of Aspen’s applications to extend its conditional water rights tied to potential dams and reservoirs on Maroon and Castle creeks, the division engineer and the water court referee in Division 5 together have raised substantial questions about the two applications.
The two state officials, based in Glenwood Springs, said recently in two required summary of consultations that 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.”
It also said the city needs to show that it “will complete the appropriations within a reasonable time,” that the city has to show that “a specific plan is in place to develop the subject water rights” and that it is “not speculating with the subject water rights.”
Alan Martellaro, the division engineer in Division 5, signed the two summary of consultations on Jan. 23, one regarding Maroon Creek Reservoir and one regarding Castle Creek Reservoir. They are identical save for the names of the reservoirs and differing case numbers.
Martellaro wrote in both reports, “I cannot recommend approval of this application” until the concerns cited in the reports are addressed.
And the reports say that the “state and division engineers ask that the issues discussed in this consultation be addressed prior to granting any findings of diligence” for either the Maroon Creek or Castle Creek reservoirs.
The city filed two “due diligence” applications on Oct. 31, one for Maroon Creek Reservoir and one for Castle Creek Reservoir. Aspen is seeking to extend the conditional water storage rights for another six years. The rights were appropriated in 1965 and adjudicated in 1971.
The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.
The conditional rights, as currently decreed, cannot be made absolute unless the city builds a dam 155 feet tall and an estimated 1,280 feet wide across Maroon Creek, within view of the Maroon Bells, and a dam 170 feet tall and an estimated 1,220 feet wide across upper Castle Creek two miles below Ashcroft.
The Maroon Creek Reservoir would hold 4,567 acre-feet of water and flood 85 acres of land, and the Castle Creek Reservoir would hold 9,062 acre-feet of water and flood 120 acres of land. Water in both reservoirs would flood some land within the wilderness boundary.
Members of the City Council indicated this fall said they are loath to actually build the dams, but still want to maintain the water rights for future potential use.
However, the language in the applications the city filed with water court in October indicates the city intends to build the dams some day.
The city told the court the two reservoirs are “part of Aspen’s integrated water supply system” and are “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”
The city also said it has “steadily applied effort to complete the appropriation” of the water rights for the reservoirs and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”
But the consultation reports in the two cases show that state water officials are skeptical about the city’s claims.
Aspen “is not entitled to an exemption from the anti-speculation doctrine” and “it cannot assert issue or claim preclusion to avoid the ‘can and will’ and the ‘anti-speculation’ doctrines,” the reports say.
The reports also observe that the city lists “other beneficial uses, both consumptive and non consumptive” in its water right application, in addition to storage. And as such, the city “must explain what these ‘other’ uses are or they should be cancelled by the court as speculative.”
Many of the points raised in the consultation reports were also raised by some of the 10 opponents to the city’s applications in their statements of opposition.
The United States of America, on behalf of the U.S. Forest Service, and Pitkin County are among the 10 parties that have filed statements of opposition in the two cases.
In addition to the two governments, four environmental organizations and four private-property owners also filed statements of opposition in the cases.
Attorneys at the U.S. Justice Department told the court the city “cannot show that it can and will” complete the two reservoirs “within a reasonable time” because both potential reservoirs would flood portions of the Maroon Bells-Snowmass Wilderness.
And Pitkin County told the court the city “appears to be speculating with no reasonable demonstration of need” for the reservoirs.
It is standard procedure in Division 5 water court for applicants to eventually file a “response to the summary of consultation.”
Relevance of consultations
Under Colorado law, the water court referee and the division engineer are required to review all applications to water court.
The law says the officials are to “make such investigations as are necessary to determine whether or not the statements in the application and statements of opposition are true and to become fully advised with respect to the subject matter of the applications and statements of opposition.”
The law then requires that the “engineer consulted shall file a report” within 35 days.
But it is sometimes hard to discern how much weight such a report carries in the water court process.
Holly Strablizky, who recently stepped down from her position as water court referee in Division 5 after almost seven years, said last week during a presentation at the Colorado Water Congress that as water referee she “really tried hard and I know our division engineer tried really hard as well … to use the consultation process to get a better product out there.”
Strablizky, who is now an assistant county attorney for Eagle County, said the engineer and the referee also need to look at a given application from a statewide perspective.
“The constitution really says that we as the water court need to think not only of the parties that are in the cases, but the people of Colorado,” Strablizky said.
She also praised the use of the water court referee process, where parties are encouraged to settle their differences.
“I think it relieves pressure of hard deadlines and it allows for thoughtful and creative settlement discussions,” Strablizky said of the referee period, which usually lasts 12 to 18 months. “And it creates that opportunity for concise, and understandable, proposed decrees.”
The parties in Aspen’s two conditional water rights cases are set to have a joint initial telephone conference with the new water court referee, Susan Ryan, on Feb. 9.
Community water planning
In addition to participating in the two water rights cases regarding due diligence, the city is also launching a community-based water planning effort, and has signed a flurry of contracts to study its storage needs and better understand at least the potential Castle Creek Reservoir location.
It also not retreating from its call to build a new dam somewhere in the future.
In a memo about a Jan. 31 work session, city staff wrote, “Without water storage, Aspen’s water supply for households and businesses will be threatened.”
To move its new water-planning process forward the city has entered into a contract with the Consensus Building Institute of Cambridge, Mass., to develop a “convening assessment” that will lead to a “collaborative process,” according to the staff memo.
“It is critical to use an effective community-based approach in order to leverage the expertise in the community and develop a long-term water supply plan with the greatest chance of success to secure Aspen’s water future,” the city’s memo states.
The convening assessment is expected to take two months and then a collaborative process will begin by summer.
According to the memo for the work session, which was written by Margaret Medellin, the city’s utilities portfolio manager, Aspen has also entered into a contract with Headwaters Inc. in South Jordan, Utah, to perform a “preliminary review of risks in Aspen’s demand and supply” of water through 2065.
The city has also signed a contract with Sopris Engineering of Carbondale “to update surveying for Castle Creek Reservoir” and it has “met with dam and reservoir expert, Terry Arnold, to review certain existing geological data.”
A series of test bores in 1971 by the Bureau of Reclamation found 142 feet of loose rock and sand under the proposed Castle Creek dam site and that it was also on an unstable fault zone.
The city also signed a contract in January with Deere and Ault Consultants of Longmont for a feasibility study on the use of storing water underground, including in old mine shafts, which are plentiful under downtown Aspen.
The consulting firm says on its website that it is “a specialized civil engineering firm focused on water resources, geotechnical, dam, slurry wall, tunnel, and mine reclamation projects.”
And the city memo notes that “on January 26, 2017, consultants Don Deere and Victor DeWolf met with staff and performed on site investigative tour of local mines.”
The city also signed a contract with Carollo Engineers, a national engineering firm focused on water projects, to help it gain approval from the Colorado Dept. of Public Health and Environment to use treated effluent from the Aspen sewage treatment plant.
The city has been working on this reuse project for several years and plans to pump water up from the treatment plant for a number of uses, including watering the city golf course and for snowmaking.
The Jan. 27 staff memo closed by saying “staff is developing a project specific budget that will include estimates of the costs of community facilitation” as well “identified supporting engineering consultant and expert services, legal expenses and staffing.”
The budget details are to be presented at a follow-up work session.
Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published a version of this story on Monday, Jan. 30, 2017.
ASPEN – The United States of America and Pitkin County are among the 10 parties that have filed statements of opposition in two conditional water rights cases being pursued by the city of Aspen in water court for Maroon Creek Reservoir and Castle Creek Reservoir.
In addition to the two governments, four environmental organizations and four private-property owners filed statements in the cases by the Dec. 31 deadline.
Such statements of opposition are typically short and generic, and simply give notice of formal entry into a case. But the statements filed by the U.S. and Pitkin County offer some insight into their concerns about the city’s water rights applications.
Attorneys at the U.S. Justice Department acting on behalf of the U.S. Forest Service told the court the city “cannot show that it can and will” complete the two reservoirs “within a reasonable time” because both potential reservoirs would flood portions of the Maroon Bells-Snowmass Wilderness.
And Pitkin County told the court the city “appears to be speculating with no reasonable demonstration of need” for the reservoirs.
The city filed two applications in Division 5 water court in Glenwood Springs on Oct. 31, one for Maroon Creek Reservoir (16CW3128) and one for Castle Creek Reservoir (16CW3129). Aspen is seeking to extend the conditional water storage rights for another six years. The rights were appropriated in 1965 and adjudicated in 1971.
The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.
The conditional rights, as currently decreed, cannot be made absolute unless the city builds a dam 155 feet tall and an estimated 1,280 feet wide across Maroon Creek, within view of the Maroon Bells, and a dam 170 feet tall and an estimated 1,220 feet wide across upper Castle Creek.
The Maroon Creek Reservoir would hold 4,567 acre-feet of water and flood 85 acres of land, and the Castle Creek Reservoir would hold 9,062 acre-feet of water and flood 120 acres of land. Water in both reservoirs would flood some land within the wilderness boundary.
The federal case
The two statements of opposition from the federal government are nearly identical, save for the name of the potential reservoirs in each case. Both begin by saying the reservoir would require a Forest Service permit, and then they raise the wilderness issue.
“Maroon Creek Reservoir would impound water that would inundate lands within the Maroon Bells – Snowmass Wilderness Area,” the statement in the Maroon Creek case said. “Development of Maroon Creek Reservoir is not authorized by [federal law] or any existing special use permit or land use authorization.
“Under the Wilderness Act of 1964, the U.S. Forest Service cannot authorize any new development of conditional water rights, including the conditional water right requested in Case No. 16CW3128 in the Maroon Bells–Snowmass Wilderness Area,” it continued.
“Because the applicant [the city] does not hold a valid right to use or occupy national forest system lands, and the U.S. Forest Service lacks authority to authorize development of Maroon Creek Reservoir within the Maroon Bells–Snowmass Wilderness Area, the applicant cannot show that it can and will complete the claimed appropriation within a reasonable time,” the statement of opposition said.
The statements of opposition from the U.S. were signed by John Cruden, the assistant attorney general at the Environment and Natural Resources Division in the Department of Justice in Washington, D.C., and James DuBois, a trial attorney with the department, who is based in Denver.
In September, the acting district ranger in the Aspen-Sopris Ranger District, Kevin Warner, told the Aspen City Council it would take a presidential exemption to the Wilderness Act to allow the Forest Service to issue a permit for the reservoirs.
“Based on our understanding of the Wilderness Act, and the fact that there was no exception built into the designation for the Maroon Bells wilderness area … it would need to go to the president,” Warner said.
The city has not filed for a Forest Service permit for either reservoir.
Pitkin County’s view
Staff attorneys for Pitkin County told the court that the city should be held to “strict proof” to its claims, including its “ownership of or enforceable property interest” in the dam and reservoir sites.
“This water right is located within a designated wilderness area and the applicant’s ability to obtain the property interest necessary to construct the structure, as decreed, within this wilderness area is unproven,” the county told the court.
The county also told that court the city’s 2016 water supply study “demonstrates that this water right is unnecessary to meet current and future demand within a reasonable planning period using normal population growth assumptions.”
It also said recent statements by Aspen’s mayor and city council members “indicate that (the city) does not intend to effectuate these water rights in a reasonable time period,” and that the city “appears to be speculating with no reasonable demonstration of need.”
In all, 16 statements of opposition were filed in the two water court cases by 10 different parties.
In addition to the two governments, U.S. and Pitkin County, four environmental organizations filed statements in both cases: Colorado Trout Unlimited, American Rivers, Wilderness Workshop and Western Resource Advocates.
As such, there is a common set of six parties in each case – the two governments and the four environmental groups – and they’ve filed 12 statements between them, six in each case.
There are also four different property owners, two in each case, and they each filed one statement. That adds four statements to the list of 12, for a mind-numbing total of 16.
Making it somewhat easier to track, the list does break out into eight parties in each case: two governments, four environmental organizations, and a unique pair of property owners.
The differing pairs of property owners in each case brings to 10 the total number of parties across the two cases.
The two property owners who filed in the Maroon Creek case are Roaring Fork Land and Cattle Co. and Larsen Family LP.
Roaring Fork Land and Cattle is an entity controlled by Thomas and Margot Pritzker. The Pritzkers, who are on the Forbes billionaires list, own property near T-Lazy-7 Ranch in the Maroon Creek valley.
Marcella Larsen of Aspen is the co-manager of the Larsen Family LP, based in Boca Raton, Fla., and she signed the statement of opposition. The Larsen family owns residential property in the lower Maroon Creek valley.
The two property owners who filed in the Castle Creek case are Double R Creek Ltd. and Asp Properties LLC. Double R Creek is controlled by Robert Y.C. Ho, a member of a prominent Hong Kong family, while Asp Properties is controlled by Charles Somers, the CEO of a company based in California.
The properties owned by Ho and Somers are located under the potential dam site of Castle Creek Reservoir, two miles below Ashcroft.
The statements of opposition filed by the four environmental groups do not offer much insight as to why they are in the cases, but they issued press releases about their filings.
“Aspen does not need these dams for municipal water supply, climate resiliency, or for stream protection – now or at any time in the foreseeable future,” a Dec. 28 from om American Rivers quoted Matt Rice, its director of programs in the Colorado River basin, as saying.
The same release also quoted David Nickum, the executive director of Colorado Trout Unlimited, as saying, “Building dams on free-flowing streams in one of Colorado’s most iconic wilderness areas is the last approach we should be taking to meet water needs in the 21st Century.”
Wilderness Workshop of Carbondale, which is collaborating with Western Resource Advocates of Boulder, released both a press release on Dec. 21 and an article about the water court cases from its newsletter.
“Both dams would inundate portions of the Maroon Bells-Snowmass Wilderness and cause significant environmental damage: severing the streams in two, flooding important riparian habitat, and reducing the ecologically critical spring peak flows,” Wilderness Workshop’s newsletter said.
“The city council met three times this fall to discuss water rights, but those meetings focused almost exclusively on the impact of population growth and climate change to Aspen’s future water supply,” Wilderness Workshop members were told. “They were silent on the ecological impacts of the dams, the regulatory obstacles, financial costs and dubious assertion that these rights actually protect the streams. Over a dozen concerned citizens spoke, unanimously asking the city to abandon their water rights.
“Despite this outcry, the city is moving ahead. All five council members justified their vote on the basis that we might need to store water in the future despite their recent study concluding just the opposite,” the organization said.
In its press release, the Wilderness Workshop quoted Will Roush, its conservation director, as saying: “We’re filing for two reasons: first, to have a seat at the table with the city and other parties to find common ground and second, to make sure that dams are never built on Castle or Maroon Creeks.”
David Hornbacher, the city’s director of utilities and environmental initiatives, declined to comment on the statements of opposition.
A resolution unanimously approved by the city council on Oct. 10 said, “the city is obligated and intends to provide a legal and reliable water supply and to that end can and will develop all necessary water rights, including but not limited to, Maroon Creek Reservoir and Castle Creek Reservoir.”
In its diligence applications, the city told the court the two reservoirs are “part of Aspen’s integrated water supply system” and “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”
Further, the city said it has “steadily applied effort to complete the appropriation” of the water rights for the reservoirs and it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”
However, in its Oct. 10 resolution, the city council also directed its staff to “enhance and increase the city’s efforts to investigate alternative locations and sizing requirements of the Maroon Creek Reservoir and/or Castle Creek Reservoir, and to report its findings back to City Council for further consideration and action as appropriate.”
Typically in water court cases, opposing parties are given a year to try and work out their differences under the guise of a water court referee. The discussions among parties in this phase of the process are private.
If parties cannot reach agreement within a year, they can ask for another six months. And then dates are eventually set for a trial in front of a judge.
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Monday, Jan. 2, 2017.
Editor’s note: The following is the fourth and final part in a series exploring the city of Aspen’s historic intent in filing for and maintaining conditional water rights for storage reservoirs on Castle and Maroon creeks.
ASPEN – The city of Aspen has said for decades that legislation approving the Fryingpan-Arkansas Project gives a certain status to the potential Castle Creek and Maroon Creek reservoirs.
However, it’s hard to discern just what that status is, and federal and regional water officials are dismissive of the city’s claims.
Built in the 1960s and early 1970s, the Fry-Ark Project is one of the larger transmountain diversion systems in Colorado. It diverts water from the headwaters of the Roaring Fork River, including Hunter, Midway, and No Name creeks, along with large amounts of water from the many tributaries in the headwaters of the Fryingpan River.
In all, the project includes 16 diversion structures that direct an average of 57,000 acre-feet of water a year to the Boustead Tunnel, which runs under the Continental Divide. The gathered water then flows to Turquoise Reservoir near Leadville and into the Arkansas River basin, serving both Front Range cities and agriculture on the eastern plains.
A key component of the Fry-Ark Project is Ruedi Reservoir above Basalt, which was built in the early 1960s as “compensatory storage” for Western Slope water users. Water collected in Ruedi does not flow to the East Slope.
Plans to divert water from the Fryingpan River date back to the 1930s, but the Fry-Ark Project as largely configured today was the result of intensive planning efforts and discussions that took place throughout the 1950s and early 1960s.
Aspenites in the 1950s were well aware of the looming Fry-Ark Project, especially as the Twin Lakes-Independence Pass project, built in the 1930s, was already diverting large amounts of water off the top of the Roaring Fork River.
For example, in the 1954 Winterskol parade, local musician, letter-to-the-editor writer and junkyard operator Freddie Fisher created a witty float about the looming “rape of the Roaring Fork” that featured himself sitting in a bathtub-boat on skis while pondering the question, “Who pulled the plug?”
In the legislation
As the city is often quick to point out, the federal Fry-Ark legislation does in fact state that a feasibility report on a reservoir on a “tributary of the Roaring Fork River” should be prepared by the Department of the Interior; and if such a reservoir made economic sense, then the feasibility report should be submitted to Congress for review.
“The secretary [of Interior] shall investigate and prepare a report on the feasibility of a replacement reservoir at or near the Ashcroft site on Castle Creek, a tributary of the Roaring Fork River above its confluence with the Fryingpan River with a capacity of approximately 5,000 acre-feet,” the authorizing legislation states, “but construction thereof shall not be commenced unless said report, which shall be submitted to the president and the Congress, demonstrates the feasibility of said reservoir and is approved by Congress.”
The city maintains that the language, “at or near the Ashcroft site on Castle Creek,” still pertains to the potential Castle Creek Reservoir two miles below Ashcroft.
The operating principles for the Fry-Ark Project, which were hashed out by both entities on both sides of the Continental Divide, also address Ashcroft Reservoir.
“The Ruedi Reservoir shall be constructed and maintained on the Fryingpan River above the town of Basalt with an active capacity of not less than 100,00 acre-feet,” the principles state. “In addition thereto and in order to offset adverse streamflow conditions on the Roaring Fork River above the town of Aspen which might occur as a result of the project enlargement of the Twin Lakes Reservoir, the Ashcroft Reservoir on Castle Creek, or some reservoir in lieu thereof, shall be constructed on the Roaring Fork drainage above Aspen to a capacity of approximately 5,000 acre-feet: Providing, however, That the Ashcroft Reservoir shall be constructed only if the Secretary of the Interior after appropriate study shall determine that its benefits exceed the costs … ”
It also further defines Ashcroft Reservoir by stating that “‘Ashcroft Reservoir’ means not only the reservoir contemplated for construction on Castle Creek, a tributary of the Roaring Fork River, but also, unless the context requires otherwise, any other reservoir that may be constructed in the Roaring Fork Basin above the town of Aspen in lieu of that reservoir.”
To better understand the city’s claim, it’s instructive to view the potential Castle Creek Reservoir as “son-of” Ashcroft Reservoir, which in turn is “son-of” Aspen Reservoir.
For much of the long planning stage of the Fry-Ark Project, it included an “Aspen Reservoir,” which would have stored 28,000 acre-feet of water behind a tall dam at the bottom of the North Star-Stillwater section of the Roaring Fork River, just east of Aspen.
However, opposition to the Aspen Reservoir, primarily from James H. Smith Jr., owner of the North Star Ranch in Aspen, eventually caused Ruedi Reservoir above Basalt to be built instead of Aspen Reservoir.
One of the reasons Aspen Reservoir was attractive to water planners at the time was that it could be used to fill in low flows in the Roaring Fork River below the Salvation Ditch, a large irrigation ditch that diverts water at Stillwater Drive, near the entrance to Mountain Valley.
The combination of the Salvation Ditch, the Independence Pass diversions from the 1930s, and the coming Fry-Ark diversions meant the Fork through Aspen would be often dropped to exceedingly low levels, which is often the case today. And so it was felt that a compensatory reservoir east of Aspen, above the Salvation Ditch, would help keep more water, and fish, in the river.
But opposition by Smith, who was well connected in Washington, D.C., having served as assistant secretary of the Navy for aviation, helped kill the idea of Aspen Reservoir.
In the wake of the decision to abandon Aspen Reservoir, local, state, and federal water officials agreed to include a mention of another potential reservoir, Ashcroft Reservoir, or an alternate nearby reservoir, in the authorizing legislation for the Fry-Ark Project, as something of a consolation prize for Aspen.
Ashcroft Reservoir was once envisioned to be formed by a 140-foot-tall dam near the Elk Mountain Lodge property that would back up 9,056.7 acre-feet of water behind it.
The water right tied to Ashcroft Reservoir was eventually cancelled for lack of adequate due diligence in the 1970s, but today the city of Aspen still considers Castle Creek Reservoir, which is designed to hold 9,062 acre feet, to be the legitimate offspring, at least in the context of the Fry-Ark Project, of Ashcroft Reservoir.
But officials at the Bureau of Reclamation, the Colorado River Water Conservation District, and the Southeastern Water Conservancy District all say that the language in the Fry-Ark approvals has no direct bearing today on either of the two potential reservoirs that Aspen says it still intends to build someday when necessary.
An ‘unmet obligation’
Officials at the city of Aspen, speaking on background, have characterized the tie to Fry-Ark Project as an “unmet obligation” to the city. The obligation, as the city sees it, is to at least prepare a feasibility study of a reservoir on a tributary of the Roaring Fork River.
That “obligation” has been referenced a number of different ways over the years by the city, including most recently on Oct. 10, 2016, when Aspen City Council unanimously approved a resolution declaring their intent to file a diligence application this year for the conditional water rights it holds tied to potential reservoirs on Castle and Maroon creeks.
“Whereas, when these water rights were appropriated, this reservoir storage was an important component of Aspen’s long term water supply plan, particularly since the Fryingpan-Arkansas project was proceeding without the originally planned compensatory storage reservoir on the upper Roaring Fork River,” the council’s 2016 resolution stated.
The city filed two diligence applications on Oct. 31, one for Castle Creek Reservoir and one for Maroon Creek Reservoir. As of Wednesday afternoon, three environmental groups and three private landowners had filed statements of opposition in the cases, and Pitkin County, the U.S. Forest Service, and Trout Unlimited are expected to file statements by the end of the week.
American Rivers, Wilderness Workshop, and Western Resource Advocates have filed statements in both cases. In the Maroon Creek case, Roaring Fork Land and Cattle Co., which is controlled by billionaires Tom and Margot Pritzker, filed a statement. And in the Castle Creek case, Double R Creek Ltd and Asp Properties LLC filed statements. Double R Creek is controlled by Robert Y.C. Ho of Hong Kong and Asp Properties is controlled by Charles Somers, the CEO of SBM, a building services company located in McClellan, Calif.
Here’s how the city described the Fry-Ark relationship to the Division 5 Water Court in 2010, during the most recent diligence review of the water rights for the potential Castle Creek and Maroon Creek reservoirs:
“The Frying Pan-Arkansas Project, authorized by legislation dated August 16, 1962, authorized construction, operation and maintenance of a replacement reservoir on Castle Creek to furnish water required for protection of western Colorado water users,” states a proposed decree from the city’s water attorneys. “This reservoir was contemplated to have a capacity of 5,000 acre-feet, but this reservoir was never built.”
But not everyone agrees that the Fry-Ark legislation “authorized construction, operation and maintenance” of a reservoir on Castle Creek.
The city in 2010 also told the state there was a direct link between the Fry-Ark Project and its potential Castle Creek and Maroon Creek reservoirs.
“In 1965, taking precautions to ensure that its water rights were protected in the event the Frying Pan-Arkansas Project reservoir was in fact never built on Castle Creek, the city of Aspen filed applications seeking its own conditional water rights for storage on Castle Creek and Maroon Creek, i.e., the Castle Creek Reservoir and Maroon Creek Reservoir water rights for which diligence is sought herein,” the city’s 2010 diligence filing stated.
And in a 1990 water management plan, the city stated that “the authorizing act and operating principles of the Fryingpan-Arkansas Project require the Bureau of Reclamation to prepare a feasibility study on a reservoir of up to 5,000 acre feet, in order to offset adverse streamflow conditions in the Roaring Fork River above Aspen.”
But while a feasibility study may be called for in the Fry-Ark legislation, it is difficult to find anyone outside of the city of Aspen who thinks the call is still relevant.
Sterling Rech, a public affairs manager with the Bureau of Reclamation, recently said, in response to questions about the city’s claim, that the Fry-Ark legislation “requested an investigation but explicitly did not authorize Ashcroft Reservoir unless the report demonstrated feasibility and subsequently, Congress approved it. There is no record of that approval in Reclamation law.”
Rech was asked to double-check with senior Reclamation officials on the point, and after doing so, stood by his statement that the Fry-Ark Project “did not authorize” a reservoir in the Castle Creek valley.
Given that officials at Reclamation would be the ones within the Interior Department to prepare a feasibility study on Castle Creek Reservoir, this would seem to be relevant to the city’s position.
Jim Pokrandt, director of community affairs for the Colorado River District, said the mention of the Ashcroft Reservoir in the Fry-Ark legislation, or a nearby reservoir in lieu of it, “is ancient history versus current events.”
The River District played a key role in developing the operating principles that still guide the Fry-Ark Project. And it’s the entity that originally filed for the conditional water rights on Ashcroft Reservoir in 1959.
“Being mentioned and studied in the context of the Fry-Ark does not bestow anything special at this point in time,” Pokrandt said of the city’s claim.
Chris Woodka, the issues manager for the Southeastern Water Conservancy District, had a similar take. Southeastern was created explicitly to manage the water diverted by the Fry-Ark Project and was instrumental in shaping its authorizing documents.
But Woodka also dismissed any link between the potential Castle Creek Reservoir and the Fry-Ark Project.
“It really doesn’t have a direct connection anymore to the Fryingpan-Arkansas Project,” Woodka said.
However, city officials still beg to differ.
Feds still obligated?
Officials at the city say, on background, that it is clear that a reservoir on a tributary of the Roaring Fork — somewhere above Aspen — was included in the Fry-Ark authorizing legislation, and it was done so by none other than legendary West Slope Congressman Wayne Aspinall, who served in the U.S. House of Representatives from 1949-1973.
And the city says that the obligation still remains for the Department of the Interior to conduct a feasibility study on such a reservoir.
City officials also point to a 2007 letter in regard to potential federal approval of new reservoirs in the Arkansas River basin to hold water diverted from the Fry-Ark project.
In that letter, the city and Pitkin County told the federal government that if it was going to study new reservoirs on the East Slope, it should also study reservoirs on the Western Slope, and by implication, the Ashcroft Reservoir or its successor, Castle Creek Reservoir.
“It is important that the Western Slope’s present and future water supply and storage requirements (for both consumptive and non-consumptive uses) be placed on a par with those of the Eastern Slope and included in all discussions on H.R. 1833,” the city and Pitkin County wrote in a letter to Congressman John Salazar in 2007 regarding pending legislation for the PSOP project, or Preferred Storage Options Plan. “Any feasibility study resulting from H.R. 1833 must address Western Colorado’s present and future regional water needs, not just investigate ways to mitigate impacts from an increase in trans-mountain diversions.”
According to city officials, the city felt it had leverage to ask for such a study because of the language regarding Ashcroft Reservoir in the Fry-Ark legislation. And that a study of Western Slope storage would have had to look at reservoirs such as Castle Creek Reservoir.
Be that as it may, the city’s claim of a lingering obligation in the Fry-Ark project is still out there, but with no clear resolution of how much standing it gives, or might someday give, the Castle and Maroon creek reservoirs.
One reason it is uncertain is that the city has never directly asked the Department of the Interior to produce a feasibility study on the Ashcroft Reservoir, or a successor, based on the obligation claimed by the city in the Fry-Ark legislation.
As such, the “unmet obligation,” if it exists, is still outstanding. And city officials say they’ll see what value it has at some point in the future.
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of water and rivers. The Daily News published this story on Thursday, Dec. 29, 2016.
Editor’s note: The following is the third part in a series exploring the city of Aspen’s historic intent in filing for and maintaining conditional water rights for storage reservoirs on Castle and Maroon creeks.
ASPEN – The city of Aspen has never conducted and then made public a detailed and comprehensive feasibility study of either the potential Maroon Creek Reservoir or the Castle Creek Reservoir.
But in 1971, the Bureau of Reclamation drilled three out of five planned test holes at the Castle Creek dam site, two miles below Ashcroft. What they found in the first few test borings — 142 feet of loose rock and sand — prompted officials at Reclamation to abandon the last two planned bores.
The findings caused the federal agency to write a letter to Aspen’s city manager, telling him that to keep drilling would not be a “wise investment.”
The 1971 drill tests by Reclamation appear to be the high-water mark of investigation into the physical feasibility of either reservoir.
The city filed maps with the state in December 1965 for the two potential reservoirs, but it did very little work on the projects between 1965 and 1970, disregarding suggestions from its consulting engineer, Dale Rea, to conduct feasibility studies on the reservoirs.
But on May 11, 1970, according to city council minutes, the members of the council met with the head of the Colorado River Water Conservation District to discuss the Castle Creek Reservoir.
The minutes note that Rollie Fischer, the “secretary engineer” of the River District, was in Aspen “to discuss with council their cooperation on the reservoir for Castle Creek or the Ashcroft area.”
“Mr. Fischer gave the background and responsibilities of the Water Conservation District and discussed those items that the city and board co-operate on, i.e., proposed dam on Castle Creek,” the Aspen City Council minutes state. “The status of which the Bureau of Reclamation is presently doing preliminary studies as [to] the proposed location of the dam.”
It’s not yet clear just how serious officials at the Colorado River District and the U.S. Bureau of Reclamation were about constructing the Castle Creek Reservoir in cooperation with the city of Aspen, but in the fall of 1970, the Bureau decided to drill some test bores into the ground that would serve as the foundation of the proposed dam. Fischer went up to take a look at the work on Oct. 5, 1970.
“The Bureau of Reclamation has been taking cores at Aspen’s proposed Castle Creek Reservoir site,” Fischer wrote in a quarterly report to the River District Board on Oct. 10. “I visited the site of the coring work with a Bureau of Reclamation geologist. The first cores indicate that valley alluvium is approximately 142 feet deep and the dam site is in a fault zone.”
Word of Reclamation’s findings apparently soon reached Aspen officials.
“Aspen’s proposed dam”
On Oct. 28, 1970, Rea sent a letter to J.W. Robins, a project manager at Reclamation’s office in Grand Junction.
“On several occasions I have had discussions with Mr. Leon A. Wurl, city manager, Aspen, Colorado, concerning any progress you have made with respect to Aspen’s proposed dam on Castle Creek,” Rea wrote to Robins. “We understand you did test drill our proposed dam site but have no further information. If you have made any progress at all in this matter, I would appreciate hearing from you, along with a copy to Mr. Wurl.”
On Nov 4, Rea heard back.
“This letter is in response to your inquiry of Oct. 28, 1970, regarding the status of our work at the Castle Creek dam site,” Robins wrote. “The dam axis we are considering is located about 1,400 feet upstream from the one originally contemplated. The purpose of this change is to place the dam embankment so as to reduce seepage loss through the alluvial fan on the right embankment.
“Our drill crew is presently working on a program of five test holes; to date two holes have been completed. The first hole was located adjacent to the creek channel and found 142 feet of pervious sand and gravel over bedrock of aplite, an igneous intrusive rock. The second hole was drilled on the alluvial fan on the east side of the creek and found 115 feet of overburden over aplite.
“Work is now beginning on a test hole on the right (east) abutment. Other items of work which we have completed at the site include plane table surveys of topography of the damsite and the digging of five test pits to explore for earth materials for dam embankment.
“The rather deep deposit of pervious sand and gravel at this site will present a special design problem to minimize seepage loss,” Robins wrote. “If we can provide further information, please let us know.”
The November 1970 letter was cc’d to Wurl at the city of Aspen.
The “rather deep deposits of pervious sand and gravel” at the Castle Creek dam site were, at a minimum, going to make the Castle Creek Reservoir more expensive.
The following spring, on May 8, 1971, Wurl wrote a letter to Rea.
“It was suggested by the Bureau of Reclamation that perhaps we obtain a cost estimate from a private concern to determine the estimated amount of seepage that would be lost in the bottom of the dam,” Wurl wrote.
A deeper report
And on May 11, 1971 Wurl got a more formal report from Robins at Reclamation about the agency’s drill tests. The report was copied to Fischer at the River District, and it referenced a recent meeting where Wurl had asked Reclamation officials about the Castle Creek drilling tests.
“As explained at this meeting the Bureau drilled three deep holes at the Castle Creek site during the fall and early winter of last year,” Robins wrote.
“The first hole was located adjacent to the present channel of Castle Creek to determine the depth to bedrock and the character of the overburden. The hole found 142 feet of pervious sand and gravel over bedrock. The bedrock was also quite broken and believed to represent a possibly dangerous fault zone.
“The second hole was drilled on the alluvial fan near the base of the right abutment and found 125 feet of sand, gravel, and cobbles over bedrock,” Robins wrote. “Percolations tests showed this material to be unacceptably pervious.
“Although the exact quantity of water that would be lost through this material if a dam were to be constructed at this site without a cutoff trench would be impossible to estimate without detailed tests, the results of the percolation tests we performed indicate the seepage losses would be excessive to acceptable standards for Reclamation design as the resulting piping may dangerously weaken the foundation of the dam.”
This could not have been good news for Aspen city officials, especially the part about how “the seepage losses would be excessive to acceptable standards for Reclamation.”
“The third hole was located at about dam crest elevation on the right abutment,” Robins continued in his letter to the city. “Igneous rock was found but the rock was badly broken to a depth of 142 feet where drilling was stopped. Percolation tests in this hole also showed the rock to be very pervious and an expensive grouting program would be necessary to properly seal this foundation material.
“The fourth hole, planned on the left abutment, was not drilled because of the unsatisfactory geological conditions encountered at the other three holes.
“The results of this drilling indicate that an excessive amount of seepage loss could be expected through the sand and gravel in the canyon bottom unless a cutoff trench or some type of special treatment was performed. The great depth (as much as 142 feet) and the distance of about 900 feet across the bottom area would make such treatment unjustifiably expensive.
“Because of the poor conditions found at the three exploratory holes drilled by the Bureau, we do not believe this additional work would be a wise investment for the district or the city of Aspen,” Robins concluded.
In 1971, Reclamation was still in the business of funding and building large reservoirs in Colorado, but Robins had just dismissed the idea of building one on the city’s proposed site on Castle Creek.
In 2012, Aspen Journalism posed a number of questions in writing to city officials about the two reservoirs, including one about the Bureau’s 1971 report.
“Any construction at these sites would require extensive permitting as well as consideration of environmental values and community priorities at the time,” city officials replied at the time. “Construction is very expensive. The Castle Creek site, in particular, will likely require costly mitigation of soil conditions, such as grouting and lining.”
But it’s not clear how expensive such a “grouting and lining” effort would be.
In its Oct. 31 application for finding of reasonable diligence in Division 5 Water Court, the city made a reference to the “significant cost of permitting, design and construction” for the reservoirs, but it has yet to make public a detailed and updated estimate of those costs.
When asked recently if it had produced a recent estimate, David Hornbacher, the city’s director of utilities and environmental initiatives, said the city had “nothing to share at this time.”
A public record search has not provided any evidence of Aspen’s response to the Bureau’s advice that additional work on the Castle Creek dam site would be an unwise investment.
Rights decreed, despite drill tests
But on Nov. 5, 1971, the slowly turning wheels of justice produced an official water court decree for Aspen’s conditional water rights for both reservoirs. The decree came as part of Civil Action W-5884 and gave Maroon Creek Reservoir a priority number of 806 and Castle Creek Reservoir a priority number of 805.
The priority numbers represent the water right’s place in the state’s prior appropriation system, which is predicated on the idea of “first in time, first in right.”
The 1971 date marks the adjudication for the conditional water rights, while the appropriation date, when the “first step” was taken on the water rights, is July 19, 1965, the date on which the Aspen City Council gave direction to Rea to survey the dams and prepare maps to file with the state.
In April 1971, city officials were apparently still discussing the Castle Creek Reservoir with officials at the Bureau of Reclamation and the Colorado River District.
Wurl sent a letter to Rea on April 15, 1971, inviting him to a meeting in Aspen.
“On April 27 at 11:00 there will be a meeting here with the Bureau of Reclamation and the Colorado River Conservation District people relating to the proposed dam site on Castle Creek,” Wurl wrote. “I thought perhaps you would like to attend this meeting.”
About a year later, on May 31, 1972, the city filed its first finding for reasonable diligence with the water court to extend the conditional water rights for the two reservoirs.
The diligence report was prepared by the law firm of Delaney and Balcomb in Glenwood Springs, a leading local water law firm.
In its effort to convince the court it was making progress on building the two dams, the city said it conducted “Geologic core drilling on Castle Creek dam site in November of 1970.”
It did not, however, tell the court of the results of that core drilling, which the city had learned about a year-and-half earlier, November 1970.
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published a version of this story on Wednesday, Dec. 28, 2016. This version includes the correct year – 1971 – of a letter referenced in the last section.
Here’s a guest column from American Rivers and Trout Unlimited about filing for objector status in the Aspen Maroon Creek and Castle Creek dam diligence case, via The Glenwood Springs Post Independent:
American Rivers and Trout Unlimited have joined the chorus of opposition against the city’s application to extend its conditional water rights to build dams on Castle and Maroon creeks.
The two lobbyist organizations announced Wednesday they entered a statement of opposition in Colorado Water Court, where the city made its filing Oct. 31.
The city secured its conditional water rights to build reservoirs on Maroon and Castle creeks in 1965. It is required to renew those rights every six years.
Castle and Maroon creeks supply Aspen’s drinking water. The city has maintained it must preserve the rights to build the dams in order to be prepared for population growth and climate-induced droughts depleting the water supply. The City Council approved the extension application Oct. 5. The proposed dams would be 150 feet tall on Maroon Creek and 175 feet tall on Castle Creek.
The statement from American Rivers and Trout Unlimited emphasized that the conditional water rights the city wants to renew hinge on damming the two streams.
“Conditional is the crucial word here,” the statement said. “According to the Colorado Standards for Due Diligence and Colorado Water Law, the City of Aspen can only possess these rights on the condition they develop the dams. That is what the water right was granted for in 1965. If the city does not renew these rights they simply vanish. No one else can claim these water rights.”
Filing an opposition allows American Rivers and Trout Unlimited to participate in water court proceedings regarding the city’s application. Pitkin County and Carbondale-based conservation group Wilderness Workshop also have filed statements of opposition, which are due no later than Saturday.
“We hope that Aspen will take this opportunity to work with stakeholders on better solutions for its water future,” said Dave Nickum, the executive director of Colorado Trout Unlimited, in a statement. “Building dams on free-flowing streams in one of Colorado’s most iconic wilderness areas is the last approach we should be taking to meet water needs in the 21st century. It is time to look forward toward new strategies, instead of relying on flawed ideas from the past.”
Matt Rice, director of the Colorado River Basin Program for American Rivers, said: “Aspen does not need these dams for municipal water supply, climate resiliency or for stream protection — now or at any time in the foreseeable future. Why not come up with a solution that does not involve dams? If the city were to determine sometime in the future that new storage is needed, reservoirs that flood wilderness on Castle and Maroon creeks would be the last place in the valley they would consider. We believe the best time to get bad projects off the books is as early as possible and this diligence filing is that opportunity for the city to do so.”
The city has countered that it is simply preserving its rights in the event of a worst-case scenario that severely impacts Aspen’s water supply.
“The science confirms that Aspen’s climate is already changing and will continue to do so,” Ashley Perl, the city’s climate-action manager, said in a city-issued statement released Dec. 20 in advance of the county commissioners’ decision to file opposition. “Aspen now sees 23 days less of winter than in the years before 1980. This trend is projected to continue and Aspen’s current water storage — our snowpack — will diminish.”
Editor’s note: The following is the second part in a series exploring the city of Aspen’s historic intent in filing for and maintaining conditional water rights for storage reservoirs on Castle and Maroon creeks. The series, which began Monday, continues tomorrow.
ASPEN – In December 1965, an engineer working for the city of Aspen filed maps of two dams and reservoirs with the state engineer’s office, indicating the city intended to build a 170-foot-tall dam on upper Castle Creek and a 155-foot-tall dam on upper Maroon Creek.
And by June 16, 1966, Aspen’s claim for storage was formalized in a proposed water-rights decree labeled as Civil Action 5884, which indicates the city of Aspen was serious about building both reservoirs.
Under the heading of “Maroon Creek Reservoir,” for example, the court document says, “The claimant of said reservoir is the city of Aspen.”
“The purposes for which the water stored in said reservoir will be used are industrial, irrigation, domestic, municipal and other beneficial uses, both consumptive and non-consumptive,” the decree application states. “The capacity of said reservoir is 4,567 acre-feet.”
“The appropriation date hereby awarded said structure is the 19th day of July 1965,” the court document continues.
That’s the date on which Aspen City Council directed its consulting engineer, Darrell “Dale” Rea, to prepare maps of both reservoirs.
The court document closes by noting that the conditional water right was “granted on condition that the dam and other structures necessary to store water in said reservoir shall be completed and that the water stored in said reservoir shall be applied to beneficial use with due diligence and within a reasonable length of time.”
In other words, Aspen could have its conditional rights to store water, as long as the city actually built the dams at the center of their claim “within a reasonable length of time.”
That was half a century ago.
On to water court
After the city filed to have its water rights approved, a hearing in water court was held on Nov. 29, 1966, so a water court judge could make a decision about the city’s proposed rights. Rea, the city’s consulting engineer who originally surveyed the Castle Creek and Maroon Creek reservoirs, testified.
An attorney representing Aspen, Janet Gaylord, walked Rea through a series of questions meant to inform the court of Aspen’s intent to store water from the creeks.
Rea said in court that he started working for Aspen as a consulting engineer in July 1956, when the city was trying to acquire and develop a municipal water system.
“At that time we made a feasibility report for the development of surface rights for the city … which included proposed rights on Hunter Creek, Castle Creek and Maroon Creek,” Rea said. “We made the estimated cost for construction of a filter plant and diversion structure necessary to deliver and bring this water to the city of Aspen.”
One key component of the city’s new water system was to rebuild a diversion dam on lower Castle Creek, not far below Midnight Mine Road, and another was to install a 30-inch pipe that could bring 25 cubic feet per second (cfs) of water from the diversion dam to a new water-treatment plant on a knoll above Aspen Valley Hospital between Castle and Maroon creeks.
Water for Aspen
Rea said during these projects he also looked into the supply of, and projected demand for, water in Aspen.
“Our studies of projection show that Castle Creek and Maroon Creek had low flows in the summer that would not be sufficient to sustain the city more than a few years,” Rea testified. “This meant that they would have to store water in either or both of these creeks.”
And so Rea had surveyed two dams that were to sit astride upper Castle and Maroon creeks. Stored water was then to be released to run several miles down the streams to the city’s diversion dams, which would direct the water into pipelines to the city’s water-treatment plant.
Rea identified for the court the November 1964 water plan he prepared for the city, which included charts of flow levels on the creeks, as recorded by the state engineer from 1913 to 1917.
Based on those four years of records, Rea projected that low flows in some dry years could drop to 24 cfs in Castle Creek and 16 cfs in Maroon Creek.
He said such low flows “would not yield enough water unless storage supplemented the flow in the dry years,” and that “these flows would not suffice the city at the presently projected growth for more than, I think, five years.”
“Somewhere between ’70 and ’75,” Rea said, “the city would need supplemental flows either from Maroon Creek, which it is not now presently using, or the construction of storage on Castle Creek.”
Then, reviewing his “proposed steps of development,” Rea said that within “the next five or 10 years” Aspen would need to build a reservoir on Castle Creek and later a reservoir on Maroon Creek.
He added, “That will take care of the city of Aspen for the foreseeable future.”
Locals and visitors
Gaylord, the attorney for the city, asked Rea about his population projections.
Rea said his estimates took into account “transit population,” referring to the growing number of visitors coming to Aspen in both winter and summer, as well as “permanent residents.”
He estimated that the combination of visitors and locals equaled 7,000 people in 1965, and the combination would rise to 30,000 people in 1990.
“We have found that it is necessary for Aspen to have storage on these streams in order to meet this population,” he told the court.
In his 1964 plan, Rea at one point had estimated that as many as 66,000 people might someday live in the greater Aspen area, but in his court testimony, he spoke of a more modest population estimate.
Rea’s estimate of a population of 30,000 people was fairly accurate, although time would prove that Aspen’s municipal water system would be able to serve 30,000 people without having to build a reservoir.
By 2008, for example, Aspen’s year-round resident population was about 6,400. And data from the Aspen Consolidated Sanitation District showed that another 8,000 people or so were also in town each day, bringing the town’s average daily population to about 15,000.
But peak days such as the Fourth of July and Christmas could attract about 30,000 people to Aspen.
“In 2007, the average daily flow of sewage to the treatment plant, which is next to the river below the Aspen Business Center, was about 1.5 million gallons, which means there were an average of 14,362 people in town each day,” the Aspen Daily News reported in 2008. “The plant can handle 3 million gallons a day, which is enough capacity for about 31,000 people.”
Timing and feasibility
During his 1966 appearance in water court, the judge asked Rea when the city proposed to complete the two dams for which it held water rights.
“Well, they have three alternatives,” Rea replied of the city. “I would say between ’70 and ’75 one of these will need to be constructed in order to [supplement] the direct flow.”
He also said that while the city might build both dams at once, “from the actual demand they would build this one first and the other one later.”
“It is proposed that they drill the two reservoir sites for the geological surveys, and depending upon that result they will select either the Maroon Creek Reservoir or Castle Creek Reservoir, and it will be constructed and there is no time schedule for the second reservoir,” Rea said, speaking in November 1966. “I would assume that all of these facilities would be needed within the next 35 years.”
On May 5, 1967, Rea sent a letter to Leon Wurl, Aspen’s city manager, proposing to conduct a feasibility study for the two reservoirs.
“We would recommend the preparation of an interim report during the 1967-68 winter season,” Rea said. “The purpose of this report would be to form the basis of a continuance with the district court on the reservoir and pipeline decrees.”
The reference to “the basis of a continuance” is to the expected diligence review that would be required for the proposed reservoirs.
“A final report could be performed only after geological studies and field surveys have been completed along with investigations for financing the project,” Rea wrote. “Geological studies could start in 1968 or 1969. The engineering cost of such a report should await discussions with the council on the actual scope of such a report.
“The interim report would set forth problems that would have to be evaluated before construction could start on the dams,” Rea also wrote.
He provided an outline of information that today still seems relevant. And much of the information he proposed the city investigate has apparently never been done. Or if it has, the city has yet to make it public following a request under the Colorado Open Records Act.
Rea’s outline included investigating and compiling information about water rights, hydrologic data, and geologic data.
It also included producing surveys, maps and “data” on the proposed dams, including “choice of materials for constructing dam” and “final location of dam.”
The city was slow to respond to Rea’s suggestion of an investigation into the dams, so Rea sent a follow-up letter.
In the Jan. 12, 1968, missive to Aspen’s Wurl, Rea presented costs for “engineering, aerial [photography] and geological in the eight items of our letter and outline of May 5, 1967.
“The report as presented should firm up the location, capacity and cost of the two reservoirs,” Rea said. “It will also show how much water is needed, where it will be used, and the cost of treating and transmitting the water to the areas of use. Methods of financing the total construction costs will be also presented.”
In November 1968, Rea checked one of the items off his list for additional study when he submitted a preliminary report to the city on “stream gauging, hydrology and water supply.”
“The purpose of this preliminary report is to collect data that will supplement the water filings made with the state engineer in December 1965 for reservoirs on Castle and Maroon creeks,” he wrote. “This report is limited to stream gauging, hydrology and water supply because they offer a good beginning that is highly desirable and lays the foundation for collection of further needed data in order to adequately design the two dams.”
On March 3, 1969, Rea wrote yet another proposal letter to the city, which included a detailed budget for an investigation into the reservoirs.
“We would recommend the entire preliminary report be started in 1969 and completed in 1969 or 1970,” Rea wrote.
Under the heading “Final Report – Phase II” he wrote, “This final report may be completed on both dams at the same time or at separate times. There will be some savings in field investigations if the two dams are investigated at the same time.”
He went on to write that for “the purpose of a capital improvement program, we would recommend that $22,500 be set up for 1971 and $22,500 in 1972 to cover pre-design information on the two dams. This can always be deferred if financially necessary, provided the attorney feels that the criteria of ‘due diligence’ has been met.”
As 1969 drew to a close, it appears the city had yet to act on Rea’s suggestion to conduct a detailed feasibility study of the dams. But while the city was apparently sitting on its hands, the Bureau of Reclamation conducted its own investigation, which did not bode well for the Castle Creek dam site.
Next in our series: The Bureau of Reclamation finds serious flaws at the Castle Creek Reservoir site.
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published this story on Tuesday, Dec. 27, 2016.
Editor’s note: The following is the first part in a series exploring the city of Aspen’s historic intent in filing for and maintaining conditional water rights for storage reservoirs on Castle and Maroon creeks.
ASPEN – Thursday will mark the date 51 years ago when two maps were filed with the state of Colorado by the city of Aspen, signaling the city’s intent to someday build two large dams and reservoirs on upper Maroon and Castle creeks.
It was on Dec. 29, 1965, that the maps pinpointing the location of the two potential dams, their height, and the size of the resulting reservoirs were filed with the state water engineer’s office. Aspen’s mayor at the time, Harald Pabst, signed both maps.
One map, in its notes section, described a 155-foot-tall dam within view of the Maroon Bells that would create a reservoir holding 4,567 acre-feet of water. The other map described a 170-foot-tall dam two miles below Ashcroft that would hold 9,062 acre-feet.
On Oct. 31 of this year, the city filed applications with the state to extend the conditional water rights for the two potential dams and reservoirs for another six years.
It was the ninth time the city has filed for diligence on the reservoirs since 1972. This was the first time the reservoirs were separated out into two applications, one for Maroon Creek Reservoir and one for Castle Creek Reservoir.
Pitkin County, American Rivers, and the U.S. Forest Service have all stated publicly they intend to file statements of opposition in the cases, which are being processed in Division 5 water court in Glenwood Springs, before the Dec. 31 deadline. Wilderness Workshop, Western Resource Advocates, and a property owner on whose land the Castle Creek dam would be built filed statements of opposition last week.
During deliberations this fall by Aspen City Council about the conditional water rights tied to the two dams, it sometimes sounded as if the current council members viewed the old water rights as orphans once left on the doorstep of city hall by distant strangers.
“As far as where the 150-foot-dam picture comes from, was that us, or someone else?” said Aspen City Councilman Adam Frisch during a Sept. 20 work session on the water rights. “All I know is 150 feet keeps on getting talked about in print from some very smart and well-meaning organizations, so I’m assuming it came from somewhere.”
David Hornbacher, the city’s director of utilities and environmental initiatives, confirmed for Frisch that the heights of the two dams — 155 feet tall at Maroon Creek Reservoir and 170 feet tall at Castle Creek Reservoir — came from the two maps signed by Aspen’s mayor in 1965 and filed with the Colorado state engineer’s office by the city’s consulting engineer.
“In 1965, maps were prepared,” Hornbacher said. “And those maps showed physically where these conditional water rights would be. It would show the depth. Based on the depth, what the volume of water is. So the height is directly off of that information that was filed back in 1965.”
And the rights have been nurtured ever since, although with a parenting philosophy that could be described as “benign neglect.” The city has never done a feasibility study for either dam and reservoir project. And yet, it has consistently told the state it intends to build both dams when needed.
Now at 51 years of age, it’s still not clear if the water rights will ever mature to fruition. But the city announced on Halloween it is still willing to care for them. And in so doing, the city once again told the state the dams are vital components of its integrated water system and that it will build the dams if it needs to, especially in light of climate change.
The date of Dec. 29, 1965, is relevant because that’s the day the city filed official maps with the state engineer’s office in Glenwood Springs for the dams on Castle and Maroon creeks. The maps are clear and compelling, and include both the mayor of Aspen’s signature and that of Dale Rea, the city’s consulting engineer.
While the maps were filed in December 1965, the water right itself carries an earlier appropriation date of July 19, 1965. That’s the day on which the Aspen City Council confirmed staff’s initiative to have Rea locate the two dam sites and prepare maps to file with the state. That direction from the council is viewed as the first step taken under Colorado water law to create the water rights for the two dams.
John Kerrigan was the city manager, or administrator, in 1965 and he obtained the council’s consent for Rea to proceed, according to minutes from a regular city council meeting held on July 19.
Under a heading in the minutes of “Reservoir,” there is only a cryptic, and singular, note on the water storage projects. It says “Mr. Kerrigan said Dale Rea is preparing land filings on the reservoir.”
A district court judge would eventually make the rights official on Nov. 5, 1971, giving the conditional water rights their adjudication date. The process to adjudicate water rights often took years because the water court slowly reviewed large bundles of applications.
The Castle Creek Reservor, decreed in Civil Action 5884, was given Structure No. 589 and Priority No. 805. The Maroon Creek Reservoir, also decreed in CA 5884, was given Structure No. 590 and Priority No. 806.
Civil Action 5884 is a 242-page decree that earmarked priority numbers for a long list of other potential local reservoirs, including Ashcroft Reservoir, Pabst Reservoir, Snowmass Reservoir, and the Paepcke Forebay Reservoir on the main stem of the Roaring Fork River.
The rights to the Castle and Maroon reservoirs are the only significant conditional storage water rights decreed in CA 5884, in what could be considered “the class of 1971,” that are still being maintained today.
Rea, the consulting engineer for the city of Aspen, was from Littleton and he had spent 12 years with U.S. Bureau of Reclamation, mostly in Denver, before going out on his own to design and develop water systems for a number of growing Colorado cities.
In 1956 he was contacted by the city, which had just purchased a large portfolio of senior water rights on Castle and Maroon creeks from the Holy Cross Electric Association.
The rights were originally used to produce hydropower in the 1890s, with the water diverted from the two creeks and sent down wooden flumes to a knob of land on the hillside between the two creeks.
The 1956 water plan
By the mid-1950s, the city was also in the process of acquiring the assets of the Aspen Water Co., a private water company that had been struggling for years to provide the citizens of Aspen with a reliably clean supply of water.
Rea submitted a water plan on Aug. 17, 1956, that was designed to provide for the city’s water needs from 1957 to 1977.
“The report included requirements, supply, treatment, distribution, operation, maintenance, finance and revenue of a complete system,” the Aspen Times reported about Rea’s 1956 water plan. “It incorporates an estimated 1,700 to 3,500 permanent residents with provisions for transient populations of 5,000.”
Rea recommended that the city build a new water system using its senior water rights on Castle and Maroon creeks.
Rea’s 1956 report made no mention, though, of dams being necessary on either upper Castle and Maroon creeks, even up to 1977, to supply the city with adequate water.
Instead, Rea said there was “sufficient water” available from Castle Creek “without storage.”
“The city’s best water right is out of Castle Creek with priority No. 136a in the water district for 60 cubic feet per second (for) irrigation and domestic supply,” Rea wrote. “Therefore the city would have no problem on Castle Creek with respect to water rights or adequately [sic] of supply, as low flow records on Castle Creek indicate that the supply is more than double the future requirements of the city.”
Under the heading of “surface supply,” Rea declared, “Surface water supply in Aspen should be no problem, as Pitkin County probably has a greater run-off per acre than any county in Colorado.”
And under the heading of “reliability,” he noted that “in some communities severe drought conditions and underground pumping of individual development will gradually diminish the surface flow to a point where it is dangerous for a city to rely strictly on surface water flow. Fortunately this is not the case in Aspen, as the large drainage basin of each of the streams under study are sufficient to yield a continuous flow at all times.”
Urgent water need
On March 5, 1959, Rea attended a special joint meeting of the Aspen City Council and the city’s new “utility advisory board,” which was to oversee the city’s new water and electric utility departments.
According to the Aspen Times the main agenda item was “how to get a safe water system in the quickest possible time in the most efficient way.”
Rea, the Times wrote, “told the assembled officials that the only logical source of water at the present time was Castle Creek. This is the only source on which the city owns adequate water rights.
“Following Rea’s report and a general discussion it was decided to take his recommendations drawing up the plans necessary to develop a state-approved system using Castle Creek as a source of water,” the Times reported.
Today, Castle Creek remains the city’s primary source of water.
On Oct. 12, 1959, Rea attended another meeting in Aspen, as city officials were wavering on their earlier decision to build their new system based on a supply of water from Castle Creek, and instead were thinking of using water from Hunter Creek.
“At Monday’s meeting, and at several previous meetings, engineer Dale Rea informed officials that additional water rights would be needed before Hunter Creek could be considered,” the Times reported. “The city already owns more than enough rights on Castle Creek to enable it to use that stream as the primary source for its system.”
The city owned, and still does own, two large water rights on Castle Creek, one dating from 1885 for 60 cfs and an 1889 right to 100 cfs. And it owns a right from 1892 for 65 cfs from Maroon Creek. On Colorado’s Western Slope, these are large, and senior, water rights and make the city the dominant rights holder on the creeks, and especially so on Castle Creek.
The water council
In 1963 Harald Pabst ran for mayor of Aspen on top of a “clean sweep” ticket, and Aspen’s water rights and water delivery system was a campaign issue.
Pabst was the grandson of the founder of Pabst Brewery. He came to the Aspen area in the 1950s and bought a large swath of ranch land in the lower Snowmass and Capitol Creek valleys.
According to the Times, Pabst was “well known to Aspenites for his duties as administrative vice president of the Aspen Institute and director of the Aspen Skiing Corp.,” which was then a public company.
Each of the council candidates in 1963 laid out their campaign platforms in a front-page feature in the Times in October, and each of them addressed water.
In his candidate statement, Pabst said, “although the subject of Aspen’s water supply has probably received more attention than any other problem, there is still much dissatisfaction and uncertainty expressed by Aspenites.
“We feel that a thorough, factual re-evaluation of the water problem should be made, based on an inventory and analysis (volume, purity, etc.) of existing adjudicated water rights and related existing structures, cost of required improvements and new facilities, as well as operating costs.”
The balance of the 1963 “clean sweep” ticket in Aspen included Werner Kuster, the owner of the Red Onion bar and restaurant, Dr. Robert Barnard, who would go on to serve as Aspen mayor, Bill McEachern, and Dave Stapleton.
Risk of losing rights
Robert “Bugsy” Barnard, in his statement printed in the Times, said it was “difficult to understand how a city such as Aspen can be surrounded by four rivers and still be plagued with an insufficient water supply that requires rationing during the summer months and is frequently found to be contaminated by disease-producing micro-organisms. And all this in the face of extremely high water costs to the consumer.
“A further difficulty in the water situation lies in the fact that by ceasing to use any of the city’s surface water rights in the Roaring Fork River, Castle Creek or Maroon Creek, Aspen faces the serious risk of losing these water rights through non-use,” Barnard wrote, citing a concern that still exists in City Hall today.
The clean-sweep ticket did just that on Nov. 5, 1963, when 411 votes were cast, a record turnout for Aspen at the time. And so a new Aspen City Council was soon seated, and it had water on its agenda.
Updated water plan
In March 1964 the water-focused city council directed Rea “to investigate and draw up plans and specifications for a long range water plan,” according to the Times, and the next month Rea signed a new contract with the city to develop the plan.
In December 1964, nearly six years after his first water plan for the city, Rea submitted a “water supply and development feasibility study,” and this time he declared that water storage would be necessary to meet future needs.
“The ultimate density of the entire Aspen valley from the lower end of the airport to the originally proposed Aspen Dam on the Roaring Fork is 65,980 people,” Rea wrote. “The water use for this population is estimated at 28 million gallons per day; to supply this water it will be necessary to construct dams on both Castle Creek and Maroon Creek and possibly Hunter Creek.”
Today, the peak-population day of about 35,000 people in the city’s water service area typically comes on July 4, and the city’s water treatment plant has a current capacity of 20 million gallons per day.
“It is estimated that this population could be reached in about 40 to 50 years which is not too long to plan a water system,” Rea added. “At that time, the total estimated flows of Castle Creek and Maroon Creek will be needed to supply Aspen’s need of about 28 million gallons per day.”
Rea then recommended to the council “that dam and reservoir sites be selected on Castle Creek and Maroon Creek and filings for their use be made with the state engineer.”
“In order to expand the supply in these two creeks, large storage reservoirs can be constructed, one on each creek,” Rea also wrote.
These are apparently the first calls in a city plan for reservoirs on Castle and Maroon Creek, and they appear to be based on an overly large population forecast.
Even Rea acknowledged in his 1964 report that his population projection was “on the optimistic side and ‘good times’ will have to remain if the projection is to be realized.”
Rea also wrote that one of the purposes of the report was to “project the growth of the community to require the full development of the city’s water rights.”
And he recommended, “any surplus water rights from the proposed development of these sites be sold to prospective downstream users,” suggesting there would, in fact, be “surplus water” from the reservoirs.
Rae’s 1964 report, and its recommendations to build reservoirs, resonated with the city council led by Mayor Pabst.
Rea would later testify that his report to the council “resulted in the making of claims of the city to the state engineer for reservoirs … to supply the city of Aspen in the foreseeable future.”
Council takes the plunge
On July 22, 1965, Rea sent a letter to city administrator Kerrigan laying out a scope of work to begin investigating aspects of Aspen’s long-range water supply system, including the two reservoirs.
The letter laid out plans for locating a “large storage reservoir” on both Castle and Maroon creeks.
“Field work for preliminary filing could be done before snow falls if authorized at once,” Rea wrote, and noted, “This project has been discussed with the state engineer and it meets with his approval.”
And Rea wrote two of the more intriguing sentences in the available historical record about the value of filing for the storage rights.
“We believe these filings will greatly enhance your water rights,” Rea told Aspen’s Kerrigan. “Further, in the case of Castle Creek, the need may not be too far in the future.”
The city council of 1965 would affirmatively vote on their intent to file for water rights on the dam sites at a council meeting on Aug. 2, 1965.
On Sept. 1 Rea began working in the field to survey the locations for the two reservoirs. And it appears from the historic public record that it was Rea, and Rea alone, who determined where the two potential dams should be built and how big they should be.
On Dec. 6, with Rea’s work in the field complete, the city council was informed that the required maps for the upcoming water rights filing would be signed by Mayor Pabst.
The minutes of the meeting state: “Filings on Maroon and Castle Creek: Mr. Kerrigan referred to filings on Maroon and Castle Creek – maps to be signed by mayor and city clerk and sent to Dale Rea to be filed with state engineer.”
And sometime before Dec. 29, when the maps for the two reservoirs were were duly filed with the state engineer’s office, both Rea and Mayor Pabst signed the maps.
The 1965 map for the Maroon Creek Reservoir shows a dam across Maroon Creek, just below the confluence of East and West Maroon creeks. The note on the map says the height of the planned dam is 155 feet, the resulting reservoir’s capacity is 4,567 acre feet and the estimated cost of the project was $770,000.
The map for the Castle Creek Reservoir shows a dam across Castle Creek, between Fall and Sandy creeks. The notes on the map say the height of the dam is 170 feet, the capacity 9,062 acre-feet and the cost is $790,000.
Dam the Fork?
Before Aspen filed for the maps describing the scope and scale of the dams and reservoirs on Castle and Maroon, it also investigated the idea of building a large dam across the main stem of the Roaring Fork River.
In March 1963, the city council directed staff to continue investigating the feasibility of building a dam on the main stem of the Roaring Fork River, at a deep and narrow part of the river between the airport and Shale Bluffs. The location, notably, was below the confluences of both Castle and Maroon creeks.
The council discussion was labeled in the minutes from March 18, 1963, as “feasibility – water rights use.”
“Discussed – water rights – and council directed that the city administrator continue the investigation of the feasibility of using the water rights owned by the city of Aspen from Hunter Creek, Maroon Creek, Castle Creek, the Roaring Fork River and other tributary sources, at a point on the Roaring Fork River … ,” the minutes state.
And in September 1963, the council took another step toward a potential dam on the Roaring Fork.
The minutes of a regular council meeting, under the heading, “Water – utilization program,” state, “[City] Attorney Stewart and council discussed plans for definite utilization of water and water rights. Point of diversion this side of Shale Bluffs. Dam for power, irrigation, flood control and recreation. A feasibility report is to be considered this fall, and the engineer should establish 2 to 3 damsites, and prepare plans.”
The council then voted unanimously on a motion to “conduct investigation to determine the places of potential damsites on the mainstem of the Roaring Fork River below Aspen” and to file a map and claim statement with the state engineer.
Three years later, in April 1966, the Colorado River District, not the city of Aspen, filed a map with the state that included a 150-foot-tall dam across the Fork.
The potential dam was now part of the Snowmass Project, and the resulting reservoir, which could hold 4,760 acre-feet of water, was called the Paepcke Forebay.
A pipeline, called the Gerbaz Conduit, was to run from the Paepcke Forebay to Watson Divide and Snowmass Creek. Water was to then to be sent down the creek and collected again in the Pabst Reservoir, which was to hold 73,645 acre-feet of water behind a 290-foot dam on lower Snowmass Creek. By comparison, Ruedi Reservoir holds about 102,000 acre-feet of water.
Water from the Pabst Reservoir was then to run down the last part of the creek to a hydropower plant at the confluence with the Roaring Fork, in what is now Old Snowmass.
The conditional water rights for the Snowmass Project would go on to be cancelled by a water court judge for lack of diligence in 1979, mainly because the Paepcke Forebay on the Roaring Fork would have flooded the site of the wastewater treatment plant operated by the Aspen Consolidated Sanitation District, and the project stalled.
So as it turned out, the city of Aspen’s efforts to build a dam across the main stem of the Roaring Fork would not result in concrete ever being poured. And perhaps the councils of the early 1960s sensed such a plan might never come to fruition.
Next up in the series: The city of Aspen defends the conditional water rights in court as its consulting engineer calls for more study of the dams and reservoirs.
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Monday, Dec. 26, 2016.