From Aspen Journalism (Heather Sackett):

With the clock ticking on moving its conditional water-storage rights, the city of Aspen is taking steps toward developing a water integrated resource plan, or IRP.

City Council last month approved spending $81,674 to hire Broomfield-based Carollo Engineers as a consultant for the first phase of the IRP. A main goal of the plan will be to decide where to move the city’s conditional water-storage rights after a water court judge in June approved the city’s settlement with opposing parties in two water court cases. The decrees issued by the judge in those cases rule out the possibility of the city building dams or reservoirs on upper Castle or Maroon creeks.

The city has six years to finalize a plan to move the water rights and associated storage to new locations. That and the increasing effects of a hotter, drier climate, which means less water in streams, have the city feeling a sense of urgency when it comes to figuring out its water supply.

“We do have a sense of urgency, but we also recognize we are only going to get one chance to make such a large change to our system,” said Margaret Medellin, Aspen’s utilities resource manager. “We want to do it right.”

Conditional water rights

All 10 parties who settled with the city in water court, one of which was environmental group American Rivers, agreed not to oppose the city’s efforts to change its conditional water-storage rights to different sites.

Instead of flooding two pristine valleys to create reservoirs, the city has identified five other locations to where it could possibly store water. Those sites are the city golf course; the Maroon Creek Club golf course; the city’s Cozy Point open space; the Woody Creek gravel pit; and a 63-acre parcel of land next to the gravel pit, which the city bought in 2018.

“We don’t have any issue with Aspen’s plan to move forward with those conditional water rights,” said Matt Rice, director of American Rivers’ Colorado Basin Program. “That’s a decision for them and local stakeholders to make.”

Carollo Engineers was one of five firms that responded to the city’s summer request for proposals. The more than $81,000 that the City Council approved will pay for Carollo to complete only Phase 1 of the IRP, which will define goals and develop a detailed scope of work. Phase 2 would create the IRP using community input.

“Normally, when we do an IRP, we are looking at what the future looks like in terms of water needs and trying to characterize those and predict them out several decades,” said John Rehring, senior project manager and vice president of Carollo Engineers.

Storage needed?

City officials maintain that a lack of reservoir storage is a problem.

Medellin said the lack of water-storage facilities is a big weakness in the city’s water system and that it is controversial to build dams and reservoirs “because every valley up here is beautiful.”

But, Medellin said, climate change may increase the need for water storage.

“We’ve acknowledged these storage rights are very important to the future of Aspen, especially as we start to see climate-change implications,” she said.

Carollo Engineers agrees with that assessment.

“Clearly, the city of Aspen’s system lacks the water storage it needs to reliably meet demands through a range of supply-and-demand conditions even now — before the impacts of climate change have fully taken hold,” the proposal reads.

The issue of storage came to the forefront in the Aspen community in 2012 when news broke that the city was contemplating using its conditional water-storage rights to build dams and reservoirs in Castle and Maroon valleys.

Consultants have come to different conclusions about how much water storage the city actually needs. A 2017 report by Deere and Ault Consultants, which was based on conclusions in a risk analysis by Headwaters Corporation, said Aspen needs 8,500 acre-feet of water storage. But a 2016 study by Wilson Water concluded Aspen does not need any storage.

Two other areas that the IRP will address is the vulnerability of Aspen’s water supply to natural disasters such as 2018’s Lake Christine Fire and last winter’s historic avalanches in Castle and Maroon valleys, as well as how to decrease customers’ demand for water. Even though Aspen has taken steps to reduce the use of water for outdoor irrigation through a landscape ordinance, those gains could be wiped out because in a warmer future, there will be less water flowing in local streams.

“It’s almost like you are playing this game where you, on one hand, lower the level of demand but, on the other side of the equation, climate change is decreasing our supply,” Medellin said.

Aspen Journalism collaborates with The Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story appeared in the Nov. 26 edition of The Aspen Times.

From Aspen Journalism (Brent Gardner-Smith):

When Div. 5 Water Court Judge James Boyd issued a final water-rights decree at 7:23 a.m. Tuesday in the Maroon Creek Reservoir case, he removed the prospect of the city of Aspen ever building a 155-foot-tall dam on Maroon Creek or a 170-foot-tall dam on Castle Creek below Ashcroft.

Although the city had reached agreement in October with 10 opposing parties in two water-court cases over the city’s conditional water rights, the agreements were not in effect until the court’s decree was issued in the Maroon Creek Reservoir case.

So now they are.

“It means the city will not build reservoirs at Maroon or Castle,” said Margaret Medellin, a utilities-portfolio manager for the city. “The decree was the last piece we needed to finalize all our negotiations. So until that was in place, Maroon Creek Reservoir was still a possibility.”

In issuing Aspen’s proposed decree for its conditional rights for the Maroon Creek Reservoir, the judge found that the city had been sufficiently diligent and could maintain its conditional water rights for another six years, but in doing so, he also enshrined the city’s commitment to move the rights out of the Maroon Creek valley. He did the same for the Castle Creek rights last month when he issued a decree for the conditional rights tied to the potential Castle Creek Reservoir.

“The judge’s final decree ensures that the Maroon and Castle dams are dead,” said Matt Rice, Colorado River Basin director for American Rivers, which opposed the city’s efforts to maintain its water rights in the Castle and Maroon creek valleys. “This is a big day for Colorado, the city of Aspen, and for all people that appreciate free-flowing rivers. This collaborative outcome demonstrates that Coloradan’s can protect rivers while planning for a water scarce future.”

The city first filed for the conditional water rights to the two potential reservoirs in 1965, and the decreed rights carry a priority date of 1971. (Please see timeline).

The Maroon Creek Reservoir would have held 4,567 acre-feet of water just below the confluence of West Maroon and East Maroon creeks, in a pristine location in view of the Maroon Bells. The reservoir would have flooded 85 acres of U.S. Forest Service land, including some in the Maroon Bells-Snowmass Wilderness.

The Castle Creek Reservoir would have held 9,062 acre-feet of water behind a dam on the creek two miles below Ashcroft. The reservoir would have flooded 120 acres on both private and USFS lands, including a small area in the wilderness.

Since first claiming the rights, the city periodically filed little-noticed diligence applications to maintain them. Outside of the diligence filings, however, the city did not take any active steps to develop the two dams, although they were mentioned in various city water-planning documents over the decades.

But the city’s last diligence filing, in October 2016, brought statements of opposition from 10 parties: the USFS, Pitkin County, American Rivers, Western Resource Advocates, Trout Unlimited, Wilderness Workshop and four private-property owners — two who owned land in the Maroon Creek valley and two who own land in the Castle Creek valley.

During the resulting water-court process, the city reached a deal with the opposing parties, agreeing to try and move the conditional water-storage rights out of the two pristine valleys to five identified locations in the Roaring Fork River valley.

The locations are the city golf course; the Maroon Creek Club golf course; the city’s Cozy Point open space; the Woody Creek gravel pit; and a 63-acre parcel of land next to the gravel pit, which the city bought in 2018.

“We worked a long time, and all the parties involved really were thoughtful and creative in trying to come up with a solution that the city got the storage that they desperately need, and we protect our environment,” Medellin said. “So I think it’s a real success story.”

In a joint press release issued Tuesday, representatives from American Rivers, Western Resource Advocates, and Wilderness Workshop praised the deal.

“The judge’s final decree cements over two years of collaborative work to find a win-win solution that both protects Castle and Maroon Creeks in two of the regions most beloved Valleys, and ensures a sustainable future water supply for the City of Aspen,” said Will Roush, executive director of the Wilderness Workshop. “Water can be one of the most contentious issues in the west and I’m proud of our community for coming together to find a solution that benefits both people and place. Our wilderness and public lands deserve to be kept largely free of damaging developments like dams and I’m grateful to the City of Aspen for their work and commitment not only to providing water but also to protecting our environment and public lands.”

And Jon Goldin-Dubois, the president of Western Resource Advocates, said “this final decree marks the beginning of a new era of collaboration to safeguard the Maroon Bells Wilderness and Maroon and Castle creeks. The city of Aspen should be commended for its efforts to pursue water supply alternatives that will ensure future demands are met without sacrificing our rivers and cherished natural landscapes. As growing cities across the West seek sustainable and affordable ways to provide water in the face of climate change, we encourage them to follow Aspen’s lead.”

The city now plans to hire consultants to help it prepare an “integrated water-resource plan,” which it has not done since 1990, and then to file two “change cases” in water court seeking to modify the rights, which remain in place, with significant restrictions, for another six years.

All of the parties who settled with the city have agreed not to oppose the city in its upcoming change cases, which must be filed by June 2025, but other parties may do so.

Whatever the outcome of the city’s future efforts in water court, the agreements in the Maroon Creek case say, “Aspen agrees that after final entry of the final decree, it will not seek to retain any portion of the Maroon Creek Reservoir storage right at its original location.” Agreements in the Castle Creek case have similar language.

Paul Noto, a water attorney with the Aspen-based law firm of Patrick, Miller, Noto, represented American Rivers and Trout Unlimited in the cases, as well as Roaring Fork Land and Cattle Co., a property owner in Maroon Creek.

Noto said he was pleased with the outcome of the water-court process.

“For American Rivers and Trout Unlimited, it’s a really good outcome because you had the specter of dams being constructed near the base of the Maroon Bells and that specter has been removed from the table,” Noto said. “We could argue about how likely that was going to be. It was very unlikely, perhaps impossible. But, regardless, that is completely off the table now. And I think that it was commendable that Aspen agreed to that.”

Medellin, however, said climate change means the reservoirs were becoming more likely, not less.

“Obviously, no one had a big appetite for it because we value our watersheds and the city was trying everything it could to avoid that eventuality,” Medellin said. “But when we look at what climate change is doing in our valley and in our world, there was going to be a future that we wouldn’t have been able to operate without that.”

She also said the city made a big concession in walking away from the two reservoirs, as they would have stored water above the city’s diversion structures on lower Castle and Maroon creeks.

“What we traded was the benefits of having a gravity-fed system with protecting those valleys,” Medellin said. “And that was a trade-off that we all felt was appropriate. But we know that by not having a gravity-fed system, it’s going take some creativity and potentially a pipeline.”

It’s an open question for some whether the really city needs as much as 8,500 acre-feet of stored water to meet its future needs.

A study done for the city by Headwaters Corp. concluded that the city would need 8,500 acre-feet in a much drier future, but that’s including all of the city’s current municipal indoor and outdoor needs, its current irrigation levels on the two golf courses that use city water, and enough water to keep Castle and Maroon creeks above a minimum flow level.

“I understand their desire to plan on the high side,” Noto said. “But I don’t think they proved it and I don’t think they needed to. It was just basically a number that came from horse trading.”

Noto also says it is possible the upcoming water-court process may end up reducing the city’s claim.

“It’s too soon to say if they will take a haircut,” Noto said. “We have to wait and see what the proposal is. I don’t think the city has identified their fill sources and points of diversion, and that’s where the rubber meets the road in terms of the effect on nearby water rights.”

Medellin said she expects the city to now engage with the community in a transparent discussion about the city’s future water needs.

“People have probably lost interest in it to a certain extent, but I think now — as we move into the next phase of the project, where we talk about where are we going to store the water — I imagine that the community is going to get re-engaged,” she said.

Aspen Journalism covers water and rivers in collaboration with The Aspen Times. The Times published this story on June 12, 2019.

From Aspen Journalism (Brent Gardner-Smith):

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.

From Aspen Journalism (Brent Gardner-Smith):

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.

Briefly

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.

From Aspen Journalism (Brent Gardner-Smith):

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.

Evolving rights

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.”

Unusual request

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.

From The High Country News (Jessic Kutz):

This story is a part of the ongoing Back 40 series, where HCN reporters look at national trends and their impacts close to home.

Following a dry winter, Colorado’s already low snowpack is rapidly dwindling and extreme drought has been declared in a third of the state. Many communities, not only in Colorado, but also in other parts of the West, are wondering about their future water security.

For the city of Aspen, located in the headwaters of the Upper Colorado River Basin, planning for a warmer climate is no longer about the distant future. The 6,500-population municipality relies on pulling water from creeks fed by the snowpack, which sat at just eight percent of its median as of June 11, according to snow monitoring data. And the future doesn’t look any better: Recent research suggests climate change will further disrupt the snowpack in the coming years.

In Aspen, the need for water security is being met with a search for alternative storage solutions that have less damaging environmental impacts than the big dams of yesteryear. Over the past two years the city has begun testing several potential water storage sites, including beneath the municipal golf course, as a means to deal with future water shortages. “We are at that point now were it is time to start putting those (storage) plans into action,” said Margaret Medellin, the city’s utilities manager.

While Aspen pulls its water from nearby Crystal and Maroon creeks, the city doesn’t have any storage capacity. Currently, the city can stockpile just a day’s worth of water, something Medellin said could be a problem this year. “People right now are conserving water and we could still be in a real hardship at the end of the summer because we have no way to store that water,” she said. “When talking about other communities in Colorado and the West that is a level of vulnerability that is not really acceptable as a water management practice.”

This vulnerability is part of the reason why, since 1965, the city has quietly renewed a filing in Colorado’s water court that kept alive the possibility of building two dams on Castle and Maroon creeks. In 2016, when area environmental groups including the Wilderness Workshop and Western Resource Advocates got wind of the renewal, they announced their opposition to the filing, urging the City of Aspen to relinquish its storage rights. If developed, those rights would have flooded some of the state’s most pristine landscape.

In May the city agreed to forego its conditional water storage rights in these wilderness areas, marking the end of Aspen’s ties to the era of large federal dams like Hoover and Glen Canyon. As part of the agreement, the city is now entering a new period for water storage and conservation policy. One option includes storing water under the city’s municipal golf course. The water could either be injected into the underlying aquifer, or would reach it through a basin specifically designed to draw water underground, Medellin said. This would allow the city to store up to 1,200 acre-feet, or about enough to supply 2,400 households for one year, and would eliminate evaporation, a problem that worsens with rising temperatures. “As a concept it really does help you preserve a lot of the water with minimal loss,” Medellin said.

The groups also identified a former gravel pit, and land adjacent to it, that could accommodate up to 8,000 acre-feet of water, which could be diverted from the Roaring Fork River, if the city transfers its water rights. Seen as a win-win by environmentalists, retrofitting old gravel pits has been used successfully on Colorado’s Front Range since the 1980s. The key would be diverting water from the river at the right time, which, according to Ken Neubacker, Colorado projects director at American Rivers, is right after the river reaches its peak flows. “It all depends on how they do it,” he said.

Aspen’s water management plans include irrigating with reused water and introducing a net metering system, which would help the city’s residents track — and reduce — water use. In collaboration with environmental groups, the city is also looking at a program which would allow farmers to temporarily lease some of their water rights during dry periods, letting the municipality use them instead.

For Aspen, much like other communities across the West, storage will increasingly become a part of water planning strategy, but at least now environmental groups are part of the discussion. “Coming to the table and talking these problems through will be essential,” said Robert Harris, an attorney with Western Resource Advocates. As climate change reduces available water, “we can’t depend on the past being any guarantee of the future.”

Jessica Kutz is an editorial intern at High Country News. This article was first published online at The High Country News on June 19, 2018.

From Aspen Journalism (Brent Gardner-Smith):

Timeline from 1881 to pre-May 2018.

May 8, 2018, a status conference is held in the two cases in front of the water court referee. The city must respond to opposer’s settlement proposals by June 1. The next status conference is set for June 29. Meanwhile, the City of Aspen’s two due diligence applications remain before the water court referee, in a quasi-administrative, non-trial-track status.

May 9, 2018, Aspen Journalism and The Aspen Times report that city has reached agreement with one of the opposing parties in the dam cases.

May 24, 2018, A staff memo regarding stipulation agreements on the water rights is published by the city. The packet for a May 29 staff meeting also includes a proposed resolution.

The title of the resolution is “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY’S ATTORNEYS TO EXECUTE STIPULATIONS WITH OPPOSERS TO THE DILIGENCE CASES FOR CONDITIONAL WATER STORAGE RIGHTS ON CASTLE AND MAROON CREEKS ON BEHALF OF THE CITY OF ASPEN, COLORADO.”

The Aspen Daily News reports on the city council’s pending vote related to moving its move water rights out of Castle and Maroon creek valleys, as does The Aspen Times, Aspen Journalism, and Aspen Public Radio. APR’s story was headlined “Aspen agrees to never build dams on Castle and Maroon.”

May 29, 2018, The Aspen city council votes unanimously to approve agreements with five opposing parties in the Castle and Maroon creek cases. Agreements have yet to be reached with the other five opposing parties.

The Aspen Times and the Aspen Daily News each publish stories about the vote.

The city issues a press release with the headline, “City Council Votes to Support Moving Conditional Water Rights off Wilderness Areas.”

As of May 29 there were stipulation agreements signed by five parties. Three of those parties are in both the Castle and Maroon creek cases. Below is a list, with links to the agreements signed to date, and made public by the city.

There is also a draft degree included as Exhibit A to the agreements for both the Castle Creek stipulations and the Maroon Creek stipulations.

The Pitkin County stipulation is listed at the top, as it is the most restrictive of the stipulation agreements yet signed. It eliminates the use of the county-owned Moore Open Space as a potential storage site, while the earlier agreements with other parties include it.

Pitkin County – Maroon Creek Reservoir
Pitkin County – Castle Creek Reservoir

Wilderness Workshop – Maroon Creek Reservoir
Wilderness Workshop – Castle Creek Reservoir

Western Resource Advocates – Maroon Creek Reservoir
Western Resource Advocates – Castle Creek Reservoir

Double R Cross Ltd – Castle Creek Reservoir

ASP Properties, LLC – Castle Creek Reservoir

Agreements were not signed by May 29 with five other opposing parties, three of whom are in both cases:

USFS – Maroon Creek Reservoir
USFS – Castle Creek Reservoir

American Rivers – Maroon Creek Reservoir
American Rivers – Castle Creek Reservoir

Trout Unlimited – Maroon Creek Reservoir
Trout Unlimited – Castle Creek Reservoir

Larsen Family LP – Maroon Creek Reservoir

Roaring Fork Land and Cattle Co. – Maroon Creek Reservoir

May 30, 2018, Western Resource Advocates issues a press release about the city’s vote, with the headline, “Conservationists reach settlement with Aspen to permanently move water rights for dams out of Maroon & Castle Creeks.”

WRA is also encouraging people to sign a thank you card to the city of Aspen, saying “We’re celebrating a landmark agreement two years in the making: the City of Aspen has agreed not to build dams on Maroon and Castle Creeks!”

From Aspen Journalism (Brent Gardner-Smith):

The city of Aspen now has signed settlement agreements from five of the 10 parties opposing its efforts in water court to maintain conditional water storage rights tied to large potential dams on Maroon and Castle creeks, including Pitkin County, Wilderness Workshop, Western Resource Advocates, and two private-property owners in the Castle Creek valley.

“Aspen agrees that it will forego the right to store water pursuant to these water rights at the original decreed locations,” a May 24 staff memo from the city states.

The five parties that have yet to sign agreements include the U.S. Forest Service, American Rivers, Trout Unlimited, and two property owners in the Maroon Creek valley.

According to a draft resolution that the city council is expected to approve at a regular meeting on Tuesday, city staffers and the city attorney “have diligently negotiated with the remaining opposers to seek settlement in regarding their opposition and staff and its attorney believe that stipulations substantially similar to the attached stipulations will be entered with the remaining opposers.”

The city has said that none of the agreements are binding unless all 10 parties agree to the settlement terms.

As the city works through settlement negotiations with the parties, the resulting agreements can become more restrictive, but not less so, which is a common approach to settling water court cases.

For example, the agreement signed by an attorney for Pitkin County regarding Maroon Creek Reservoir does not include the county-owned Moore Open Space as one of the sites where the city may move its storage right, as did an earlier version of the agreement signed by Wilderness Workshop.

Other potential water-storage sites include the current Woody Creek gravel pit site, a piece of vacant land next to the gravel pit recently purchased by the city for potential water storage, the city-owned Zoline open space between the Maroon Creek Club and the Burlingame housing project, the city-owned Cozy Point Open Space at the bottom of Brush Creek Road, and the city’s municipal golf course.

Under the agreements, the city will seek to transfer its conditional water storage rights from the upper Castle and Maroon creek valleys to these other potential reservoir sites, with a maximum storage capacity of 8,500 acre-feet.

1971 decree

The city has held the conditional water rights for the Castle and Maroon creek reservoirs since 1965 and they carry a 1971 decree date, which the city hopes to carry to the other potential locations.

The potential Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam on USFS property within view of the Maroon Bells. It would also flood a portion of the Maroon Bells-Snowmass Wilderness.

The potential Castle Creek Reservoir would hold 9,062 acre-feet behind a 170-foot-tall dam, mainly on private property, two miles below Ashcroft.

Western Resource Advocates and Wilderness Workshop issued a press release about their agreements with the city on Thursday afternoon.

The release was sent out after the city of Aspen posted the meeting packet for a scheduled May 29 Aspen City Council meeting.

Aspen Public Radio posted a story on Thursday afternoon with the headline, “Aspen agrees to never build dams on Castle and Maroon.”

The Aspen Times and the Aspen Daily News also wrote stories Thursday evening about the city’s progress in reaching settlements with opposing parties.

As part of the deal with the five parties who have signed agreements, or stipulations as they are called in water court, the opposing parties have agreed not to oppose the city’s efforts to change the water rights to the new locations for 20 years.

Six of the 10 parties who filed statements of opposition in December 2016, in response to the city’s due-diligence filing in October 2016, filed in both the Maroon and Castle creek cases.

But the two pairs of private-property owners filed in only one case each.

Double R Creek Limited, and ASP Properties, which control property in the Castle Creek valley where the potential dam would have been built, only filed in the Castle Creek case. They have both signed settlement agreements.

However, Larsen Family LP and Roaring Fork Land and Cattle Co., which own land in the Maroon Creek valley, have yet to sign agreements with the city.

The cases are being processed in Division 5 Water Court in Glenwood Springs. The next status conference in the case is scheduled for June 26, and the 18-month mark in the case is June 30.

From The Aspen Times (Carolyn Sackariason):

Two of the opposers, Wilderness Workshop and Western Resource Advocates, announced the settlement Thursday evening.

Will Roush, conservation director at Wilderness Workshop, commended the city for finding another way to store its water other than in a designated wilderness area.

“It’s a big deal. … Everybody came to a consensus that these were not the right places for dams,” he said.

Roush’s organization, along with nine other parties, sued the city after it applied to the state to extend existing conditional water rights for the two potential reservoirs. The city first applied for those rights in 1965.

Since 2016, city officials have maintained that adequate water storage is needed in anticipation of climate change impacts like drought, fire and changes in runoff.

“City Councils over the decades have worked to preserve Aspen water customers’ water supply, including storage options now and into the future,” Aspen Mayor Steve Skadron said in a statement. “We are pleased that we could achieve a solution with Wilderness Workshop and Western Resource Advocates, and hopefully all the parties invested in a mutually successful outcome, that protects pristine areas of wilderness while still prioritizing Aspen’s water needs for the coming decades.”

In 2017, the city announced its intention to move the conditional storage rights out of both valleys. It has been in negotiations with the opposing entities since then.

Stipulations with the five parties — which Aspen City Council is set to approve Tuesday — would result in the government relocating its water storage rights to six other potential locations in the Roaring Fork Valley…

Roush said he has spoken to representatives of some of those parties and there are no substantial differences in the stipulations. He said he expects those agreements to be signed off on, but in the meantime there is no time like the present to advance his organization’s goal to keep water storage out of the valleys…

“It’s a great day for Castle and Maroon creek valleys, and that those streams will remain free-flowing,” Roush said.

From Aspen Journalism (Brent Gardner-Smith)

The city of Aspen told the state [in late December, 2017] it will need 8,500 acre-feet of water storage in order to meet water demands in a hotter and drier world.

The disclosure of how much water storage the city thinks it will need to store in 2065 came as part of a response the city provided Friday to state officials in water court, who were seeking a “substantive” written response by Dec. 29 from the city to issues raised about the potential Maroon Creek and Castle Creek reservoirs.

As part of its response, the city included a Dec. 7 letter from its engineering consultants, Deere and Ault of Longmont, who concluded “the required storage capacity for the city of Aspen is approximately 8,500 acre-feet.”

To help put that into context, Lost Man Reservoir holds 100 acre-feet of water; Grizzly Reservoir on Lincoln Creek holds 590 acre-feet; Wildcat Reservoir, visible from the Snowmass Ski Area, holds 1,100 acre-feet; Harvey Gap Reservoir, north of New Castle, holds 5,060 acre-feet; Paonia Reservoir, west of McClure Pass, holds 20,950 acre-feet; and Ruedi Reservoir on the Fryingpan River holds 102,369 acre-feet.

Engineers at Deere and Ault based their storage estimate on a Nov. 30 study done for the city by Headwaters Corp., titled “Aspen’s Water Future: Estimating the Number and Severity of Possible Future Water Shortages.”

The report, which also was submitted to the court, assumed that a warming climate means less water will be flowing down Castle and Maroon creeks, the city’s two main sources of water, and that the runoff will come earlier.

And, working toward a worst-case scenario, they assumed that the city will not increase water conservation efforts, that large irrigation diversions from Maroon and Castle creeks will not be decreased, and that the city will still try to maintain environmental flow levels on both creeks, which it is not legally obligated to do.

The Headwaters report found that water shortages of over 1,000 acre-feet a year could occur in five out of 100 years, with “shortage” defined to include current irrigation diversions and environmental flows on top of domestic uses.

Deere and Ault then used the Headwaters risk-analysis study to come up with a necessary water storage amount of 8,500 acre-feet to offset the potential water shortages, although its two-page Dec. 7 letter does not describe in detail how it reached its conclusion based on the Headwaters report.

The conclusion from Deere and Ault is different than one made for the city by Wilson Water Group in 2016, which concluded in a report — adopted by the city — that the city would not need new water storage if it took other steps, such as increasing conservation, installing ground wells and using “reuse” water to irrigate its golf course.

Storage rights

The city has been maintaining conditional water storage rights since 1965 for the two potential reservoirs on Castle and Maroon creeks.

The Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam across upper Maroon Creek, within view of the Maroon Bells, and the Castle Creek Reservoir would hold, as currently decreed, 9,062 acre-feet behind a 170-foot-tall dam across Castle Creek, 2 miles below Ashcroft.

The conditional storage rights, which hold a 1971 decree, are distinct from the city’s absolute diversion rights on Castle and Maroon, which are senior rights and adequately supply the city’s water system today.

In July, the city announced its intention to try to transfer the conditional storage rights out of the Castle and Maroon creek valleys, and it has put a parcel of land next to the gravel pit in Woody Creek under contract and directed staff to begin developing a reservoir there.

A study done by Deere and Ault in September concluded the city could store up to 8,000 acre-feet of water on the Woody Creek site. The city has said it is also looking at other places to potentially store water, including the city’s golf course and the Cozy Point open space at the intersection of Brush Creek Road and Highway 82.

The city has also put forth a settlement proposal to the 10 parties opposing its efforts to maintain its water rights, and the proposal is predicated upon the city transferring its storage rights out of the Castle and Maroon creek valleys.

But no settlement has yet been reached and the city is still officially on the record with the state of Colorado, through its two applications in water court, saying it fully intends to build both the Castle and Maroon creek reservoirs, someday, when necessary.

Outstanding questions

After reviewing the two due diligence applications filed by the city in October 2016 seeking to maintain the conditional storage rights, the division engineer and water court referee in Divison 5 in Glenwood Springs raised a set of threshold issues they wanted the city to address.

The officials asked on Jan. 23 for the city to demonstrate it could secure permits and land-use approvals to build the dams and reservoirs, that it could do so in a reasonable time, that it has a specific plan to build them, and that there was sufficient population growth in Aspen’s water service area to justify storing the water.

The city’s water attorney, Cynthia Covell of Alperstein and Covell in Denver, has been reluctant to respond in detail to the court’s request, which came in the form of a summary of consultation.

In her Dec. 29 letter to the court, Covell suggested it was outside of the court’s purview to ask the city to do so at this point in the proceedings.

“Aspen maintains that much of this concern is based on the division engineer’s view of applicable law, and is beyond the proper scope of a consultation report, but nevertheless, responds as follows …” Covell said in her letter.

Covell then reiterated several points that city officials have been making over the past year, including that the city today does not have any “meaningful storage facilities” and that climate change projections “demonstrate the need for storage.”

And while she did not make a detailed case to the court that the city of Aspen could build the Castle Creek Reservoir or the Maroon Creek Reservoir, she did say Aspen could get the necessary permits and arrange financing for reservoirs.

“As a financially stable municipality, Aspen has available to it a number of financing options and therefore will be able to construct a reservoir sufficient to store 8,500 acre-feet,” Covell told the court in her letter in the Castle Creek case. “The decreed location of the Castle Creek Reservoir is primarily on private land. Aspen is able to acquire private land by purchase, lease or eminent domain. Legal procedures and mechanisms exist to obtain land-use approvals and permits on federal land, if necessary, including special-use permit, Congressional authorization and presidential authorization.”

On the other hand, Covell included language that alludes to the city’s stated intent to try to transfer the Castle and Maroon rights out of Castle Creek to another location, such as Woody Creek, and then fill that new reservoir with water from both Castle and Maroon creeks.

“Aspen will develop both the Castle Creek Reservoir storage right (to the extent of 8,500 acre-feet) [and] the companion Maroon Creek Reservoir storage right … in order to provide two sources to meet this storage need,” Covell wrote, without specifically mentioning a reservoir outside of the Castle or Maroon creek valleys. “The total amount of storage will be 8,500 acre-feet from both sources, with no more than 8,500 acre-feet to be diverted annually from Castle Creek. Aspen will relinquish the remaining 562 acre-feet decreed to the Castle Creek Reservoir.”

It’s not clear why the city is willing to relinquish 562 acre-feet from the potential Castle Creek Reservoir right, which is now decreed at 9,062 acre-feet, but it may be a reflection of two earlier agreements with adjoining land owners to reduce the size of the reservoir so as not to flood their properties.

In a separate letter to the court regarding Maroon Creek, Covell took a similar stance, saying the city “will be able to construct a reservoir sufficient to store the 4,567 acre-feet per year to be diverted from Maroon Creek,” but didn’t say where that reservoir might be located.

A status conference in the two water court cases is set for Jan. 4. The parties could agree to keep the case on a quasi-administrative track in front of a water court referee, or the case could be set on a trial track in front of a water court judge.

Editor’s note: Aspen Journalism is collaborating on coverage of rivers and water with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily, and the Summit Daily News. The Aspen Times published this story in its print edition on Tuesday, Jan. 2, 2017 and the Post Independent published it on Jan. 3.

From Aspen Journalism (Brent Gardner-Smith):

The city of Aspen has put forward a proposal that would move its conditional water-storage rights, and with it two potential dams and reservoirs, out of the Castle Creek and Maroon Creek valleys and spread a proposed 8,500 acre-feet of water storage among as much as six locations between Aspen and Woody Creek.

That deal was well-received Thursday by opposing parties in two water-court cases tied to the potential Castle and Maroon reservoirs during a brief water court status conference. The city circulated a settlement proposal Dec. 8 to the 10 parties opposing the city’s efforts to maintain a conditional right to store 4,567 acre-feet of water in a potential Maroon Creek Reservoir and 9,062 acre-feet in a potential Castle Creek Reservoir.

In its proposal, according to sources close to the negotiations, the city said it will seek to transfer its conditional storage rights from the two reservoirs to other potential reservoirs on a range of other sites that could hold as much as a combined 8,500 acre-feet of water from Maroon and Castle creeks.

The reservoirs, either surface or underground “in-situ,” would be built on a range of potential locations including the city’s golf course, the Moore, Burlingame, and Cozy Point open space parcels, the gravel pit in Woody Creek operated by Elam Construction, and a parcel of vacant land next to the gravel pit the city now has under contract.

Under the deal, the city would make a firm commitment to move its potential reservoirs out of the Maroon Creek and Castle Creek valleys, and the opposing parties would refrain from fighting the city’s future efforts in water court to transfer its conditional storage rights, and its 1971 decree dates, to the new locations.

“Based on what I’ve heard today it sounds like … there is some consensus that the cases are moving toward settlement,” Division 5 water court referee Susan Ryan said Thursday after each of the attorneys in the two cases stated their view of the ongoing settlement negotiations.

Ryan set another status conference in the two cases for Feb. 15.

The city filed two periodic applications with the court Oct. 31, 2016, to show it’s been diligent in developing its conditional storage rights for the Maroon and Castle creek reservoirs, which it first filed in 1965. The recent applications drew opposition from the U.S. Forest Service, Pitkin County, American Rivers, Colorado Trout Unlimited, Western Resource Advocates, Wilderness Workshop, and four private landowners, two in each valley.

James DuBois, an attorney with the U.S. Justice Department in Denver, told the referee during Thursday’s status conference that “as far as the United States’ objections, I think it’s likely we’ll be able to reach settlement.”

Craig Corona, a water attorney representing the Larsen family, which owns property in Maroon Creek, also was bullish on the city’s proposal to move the water rights out of the valleys.

“Larsen Family LP feels like we’re making substantial progress in negotiating toward a settlement,” Corona told the water court referee. “And we’re happy to stay on the referee’s docket at least for another 45 days to try to finalize the settlement agreement.”

Any party in a water court case has the option at any time to re-refer a case away from a settlement track under the purview of a water court referee and put the case on a trial track in front of a water court judge.

Paul Noto, a water attorney representing American Rivers, Colorado Trout Unlimited, and another Maroon Creek landowner, told the court, “My broad view of the status is that we are making some headway toward settlement and I’d prefer, for one, to avoid trial-track deadlines and focus on settlement issues.”

Rob Harris, a staff attorney at Western Resource Advocates, who also is representing Wilderness Workshop, said, “I agree that we’ve made significant progress toward settlement and I think we’d benefit from at least another couple months or so to pursue settlement.”

Attorneys for Pitkin County and the two property owners in Castle Creek said they did not object to the case staying in front of the referee.

Aspen’s water attorney, Cynthia Covell, told the court that the city has only just recently received a number of written comments to its proposal from the opposing parties, and that the city would like about a month to review them and further discuss its proposal with the parties.

Storage options

Aspen officials have been reviewing alternative water storage sites for about a year with the help of Deere and Ault, an engineering firm in Longmont.

A study done in September by Deere and Ault identified a range of in-situ and surface reservoirs that could be built, in differing combinations, on the Woody Creek gravel pit site and the neighboring parcel of land the city intends to buy.

The options include a 320 acre-foot in-situ, or underground, reservoir and five options for surface reservoirs in various configurations that would hold between 700 acre-feet and 8,000 acre-feet of water. The Woody Creek reservoirs range in cost from $48 million to $81 million and would require about 6.5 miles of pipeline to reach the city’s water treatment plant.

Deere and Ault has also found, in a screening study of various sites, that the city could store water in a number of potential in-situ reservoirs on other sites upvalley from Woody Creek.

In-situ reservoirs require deep trenches dug 50 to 100 feet down to bedrock, depending on the site. The trenches form the walls of the storage vessel, or bucket, while the bedrock, and sometimes a geosynthetic liner, forms the bottom of the bucket.

The rocks and dirt on the site are not excavated, but left in place between water-tight slurry walls poured into the surrounding trenches. Water is then poured into the bucket and pumped out for later use.

Deere and Ault found that an in-situ reservoir could be built on the city-owned Moore open space, across Maroon Creek Road from the Aspen Chapel, to hold 550 acre-feet of water, at a cost of $26.9 million. The water could then be pumped nearly a mile via a pipeline to the city’s water treatment plant, which is on a hill behind Aspen Valley Hospital.

The city’s golf course could hold two in-situ reservoirs, one holding 650 acre-feet and another holding 760 acre-feet, for a total of 1400 acre-feet, at a combined cost of $71.3 million.

The Burlingame, or Zoline, open space, which is 1.9 miles from the water treatment plant and owned by the city, could accommodate a 650-acre-foot in-situ reservoir, at an estimated project cost of $34 million.

The Cozy Point open space, also owned by the city, could hold two 100-acre-foot reservoirs for a combined 200 acre-feet of storage. The site is 5.6 miles from the water treatment plant and the estimated project cost for the reservoirs and pipeline system is $15.5 million.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily, and the Summit Daily on coverage of rivers and water. The Times published this story on Thursday, Jan. 5, 2017.

From Aspen Public Radio (Elizabeth Steart-Severy):

The city spent $89,000 [in 2017] on legal work to keep their rights to build reservoirs on Castle and Maroon creeks. The city faces opposition in water court from environmental groups, property owners and other government agencies.

One of the biggest concerns is that reservoirs on those scenic creeks would flood wilderness areas. That legal work will continue into 2018.

Next year, the budget for attorneys fees and other legal issues related to water rights grows to $330,000.

As the city works to keep the rights on Castle and Maroon creeks, staff has also hired consultants to find alternative locations to store water. So far, those studies have cost more than $300,000.

From The Aspen Daily News (Curtis Wackerle):

A preliminary feasibility study of water storage options using a Woody Creek parcel the city of Aspen is under contract to purchase contemplates first building a smaller reservoir at what’s now an adjacent gravel pit, followed by a phased expansion onto the land the city plans to acquire.

That is one of four scenarios subject to a geologic review and engineering analysis conducted this summer for the city by Deere and Ault Consultants. The options studied range in cost from an estimated $48 million to $81 million and could store between 320 and 8,000 acre-feet of water.

Aspen voters in November will decide whether to approve $3 million worth of general obligation bonds to finance the city’s purchase of the site, located on a bench above Upper River Road and owned currently by an entity called the Woody Creek Development Co., registered to a Fort Collins address.

The city in July announced it is under contract to purchase the main 56-acre parcel, located west of the Elam gravel pit, and a 1.9-acre plot closer to Upper River Road, for $2.65 million.

If voters reject the bonding question, a memo from the municipal utilities apartment recommends the city go forward with the purchase anyway, using another financing option…

The city is eyeing the land purchase as part of a potential solution to the vexing question of what to do about extensive water storage rights it has held for over 50 years on the upper reaches of Castle and Maroon creeks. The city’s application to extend those conditional water rights is pending in water court and is opposed by a host of other government agencies, environmental groups and private citizens. Settlement talks in the case are ongoing.

“These rights are located in alpine valleys and their development would involve difficult and expensive construction and likely cause significant environmental impacts,” says a memo from Margaret Medellin, the utilities portfolio manager, to city council in advance of a Tuesday work session on the topic. The memo asserts that “[the location] of the site allows for the legal movement of storage rights from Maroon and Castle creeks to a diversion point near the Woody Creek parcel.”

The Maroon and Castle reservoirs, which would involve dams over 100 feet tall in areas renowned for their scenic qualities, would create around 14,000 total acre-feet of water storage.

Some opposers in the water court case have questioned whether the city needs any water storage; it currently has none besides a small holding pond above the treatment plan, with all required water drawn directly from the creeks. City officials, on the other hand, say that if climate significantly alters snowpack patterns, storage could be needed in the future to keep up with demand. Exactly how much storage would be optimal is being studied by another city-hired consultant.

Deere and Ault contractors drilled four test borings and dug five test pits at the Woody Creek site; the work went forward without a permit, but after the fact and following up on a citizen complaint, Pitkin County, which has jurisdiction on the site, required the contractor to get a retroactive permit and file a revegetation plan.

The city of Aspen has told opposing parties in two water court cases it is willing to remove the prospect of a potential Maroon Creek Reservoir from the Maroon Creek valley, if the way is made clear for it to apply to transfer the conditional water rights for the reservoir to other sites in the Roaring Fork River valley.

The city’s proposal requires the parties to let the city’s periodic diligence applications proceed unopposed, and to also agree not to challenge the city’s efforts to transfer the water rights in new cases, according to several attorneys for opposing parties who attended a city-hosted settlement meeting Wednesday.

And, the city said, even if it’s not successful in those cases, it won’t return and try to store water in the current location of the potential Maroon Creek Reservoir.

“We had a great meeting with the city yesterday and we’re very encouraged that we’ll be able to settle the Larsen family’s opposition on the Maroon Creek Reservoir by the end of the year,” said Craig Corona, a water attorney in Aspen representing Larsen Family LP, which is only in the Maroon Creek case in water court.

Aspen City Attorney Jim True said Thursday that “potential resolutions of the cases were discussed” at the meeting. He was there along with other Aspen officials, including City Manager Steve Barwick, Mayor Steve Skadron and Aspen City Councilwoman Ann Mullins.

Representatives or attorneys from nine of the 10 opposing parties were at the closed-door meeting.

The city of Aspen told the opposing parties it wants to transfer the full 4,567 acre-foot conditional storage right in the Maroon Creek Reservoir to other potential sites, including the Aspen golf course, Cozy Point Ranch at Brush Creek Road, an approximately 60-acre site next to the gravel pit in Woody Creek operated by Elam Construction Inc., or the already-excavated gravel pit. (Barwick, during a July 19 press conference, described the city’s general intent to try and transfer the water rights).

Paul Noto is a water attorney representing American Rivers, Colorado Trout Unlimited and the Roaring Fork Land and Cattle Co. in the Maroon Creek case, and the two environmental groups in the Castle Creek case. He said they were “getting closer” to a settlement.

“The proposal on Maroon Creek, we are a lot closer on, because as I understand it, the city is committing to move their water storage right, and therefore the potential to dam the creek, out of Maroon Creek valley forever and always,” he said. “And that’s a good thing.”

Castle Creek proposal

The city’s proposal regarding the 9,062-acre-foot Castle Creek Reservoir is more complex than its proposal for the Maroon Creek Reservoir.

The city said it would be willing to reduce the size of the Castle Creek Reservoir so it does not flood very small portions of the wilderness, as it does under its current decree. It would then move those portions of the water rights out of the Castle Creek valley.

(Since 2010 the city has signed agreements with two other private property owners whose lands would be flooded by the Castle Creek Reservoir. The city agreed not to flood portions of land owned by Simon Pinniger and by Mark and Karen Hedstrom, on the upstream edge of the potential reservoir. “It is expected that this commitment by Aspen will result in a reduction in the volume and surface area of the Castle Creek Reservoir, and Aspen has contracted for a preliminary investigation of the anticipated revised size and volume of the Castle Creek Reservoir,” the city’s due diligence application from Oct. 31 states. As such, it already be the case that the potential reservoir would not encroach on the wilderness).

The city also said it might further reduce the size of the reservoir if that’s consistent with the size of the city’s future water needs, which are not yet determined. It also might move the resulting reservoir off the private land where it is now sited to another unspecified location or locations.

“The city is just not willing yet to make the commitment to move the water right out of the Castle Creek valley forever and always,” Noto said. “They have more work to do and studies to do to be able to be comfortable in making that commitment.”

But the negotiations over Castle Creek could slow down an agreement on Maroon Creek.

“At this point they aren’t willing to commit to settling the Maroon Creek case separately from the Castle Creek case, so there is a bit of a timing issue because we have more work to do on Castle Creek,” Noto said.

Since 1965

As currently decreed, the Maroon Creek Reservoir would be formed by a 155-foot-tall dam that would back up water over 85 acres of USFS land about 2 miles below Maroon Lake and would flood a portion of the Maroon Bells-Snowmass Wilderness.

The Castle Creek Reservoir would require a 170-foot-tall dam across Castle Creek two miles below Ashcroft, mainly on private land, but with some USFS and wilderness land flooded. The surface area of the reservoir would cover 120 acres of land.

The conditional storage rights for the two reservoirs carry a 1971 decree date and were filed by the city in 1965. Since then the city has periodically told the state it still intends to build the two reservoirs someday, if necessary.

In October, the city submitted two due diligence applications for the potential reservoirs in water court. The applications drew opposition from 10 parties, including four landowners, four environmental groups, Pitkin County and the U.S. Forest Service.

“I think the city has done a lot of work in a short time frame since the last meeting, but there is still a lot more work for all the parties to do,” said Rob Harris, an attorney with Western Resource Advocates who is representing WRA and Wilderness Workshop in the two cases. “Frankly, for both of these water rights, neither one is moved out until they are moved out. We can talk about potential alternative solutions, but we’re not through the woods until both water rights are out of these valleys.”

When asked about the city’s proposal on Castle Creek, Harris said WRA was “committed to protecting” both valleys.

“We do genuinely believe that the city’s goal is to protect these valleys and to avoid building dams in them,” Harris also said. “But their goal is also to hang on to as much of their water right as they can feel comfortable hanging on to. And we have to work really hard to make those goals compatible.”

Aspen Journalism is collaborating with The Aspen Times on coverage of water. The Times published this story on Friday, August 4, 2017.

From Aspen Journalism (Brent Gardner-Smith):

The city of Aspen has rejected an initial settlement offer made in the unfolding water court cases about conditional water rights tied to two large potential dams on Castle and Maroon creeks.

On May 23 the city’s water attorney, Cynthia Covell, sent a letter to the water attorney for the Larsen Family Limited Partnership, rejecting its settlement proposals made on May 8 and 11.

“Aspen cannot accept your client’s settlement offer,” Covell told Larsen Family attorney, Craig Corona.

The Larsen’s proposal required the city to stay, or put on hold, it’s two current applications to the court to extend its conditional storage rights for another six years.

Then the city could file a new request with the water court to change those conditional water rights to another location and size outside of the Castle and Maroon creek valleys and somewhere within the city limits.

“Our offer was quite clear that there were terms that could be negotiated, and the basic concept was that we would support (along with the other opposers) Aspen’s relocation of its dam rights, in a location and amount to be determined through negotiation,” Marcella Larsen of Larsen Family LP said.

In his May 11 letter, attorney Corona told the city, “If there’s no objection and the change is decreed, dams won’t be built in the wilderness and the city will retain its water rights – a win-win.”

But establishing new water storage rights within city limits, with a 1971 priority date, without opposition, may be hard to do, even with the opposing parties in the current cases sitting on the sidelines.

The current water court review was triggered when the Aspen filed two applications in October to maintain its conditional water storage rights, which were decreed in 1971.

Larsen Family LP is one of ten opposing parties in the resulting “due diligence” cases now before the Division 5 water court referee in Glenwood Springs.

The other parties include the U.S. Forest Service, Pitkin County, four environmental organizations, and three owners of high-end residential property in the Castle and Maroon creek valleys.

Corona told the city there was a “general consensus” among the other parties in the case in support of the Larsen Family proposal, which technically only pertained to the Maroon Creek Reservoir case.

But the city decided to sit on its cards.

On May 22, the council held an executive session to discuss, in part, the water court cases.

On May 23, Covell sent Corona the city’s rejection letter.

Corona then sent the letter to the other opposing parties.

“A new application to change the location (of) the Maroon Creek Reservoir conditional storage right would require that a new location be specified,” the city’s May 23 letter said, according to an attorney in the case. “Aspen must complete its supply/demand study and identify an alternative location or locations for the Maroon Creek Reservoir storage right in order to be able to file a change application to move that right, or some portion thereof, to another location.”

Asked about the rejection of the settlement offer, Aspen City Manager Steve Barwick would only say last week via email that ”the City of Aspen is still working with all parties in the water case with the hope of reaching a mutually agreeable settlement. We are still trying to refine water supply and demand estimates and study alternative storage locations.”

A second closed-door and facilitated settlement meeting hosted by the city for the opposing parties is being set up for the first week of August. The first such meeting was held in March.

1965 filing

The city’s conditional storage rights on Castle and Maroon creeks date back to 1965, when the first told the water court it intended to build two reservoirs to meet forecasted demands.

In October 2016, the city again told the state it still intends to build the reservoirs, someday, if necessary.

But since October the city has also has been openly studying alternatives to the two reservoirs, and doing so with the knowledge that it’s possible, in some water court cases, to move and adjust conditional storage rights.

As currently decreed the Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam just below the confluence of East and West Maroon creeks, within view of the Maroon Bells.

And the Castle Creek Reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam across Castle Creek two miles below Ashcroft.

Both dams would flood some portion of the Maroon Bells –Snowmass Wilderness.

The city has done little work on the reservoirs since the mid-1960s. But since 2012 when the rights came into public view, city staffers have increased their warnings to the city council about the city’s lack of storage, save for nine acre-feet at the water treatment plant.

A staff memo for the May 15 work session, for example, said “the Aspen community will face significant challenges maintaining its water supply as we experience changing precipitation and runoff patterns, and possible increased fire, drought, change in runoff timing and lower snowpack levels due to climate change.”

But a raw water availability study prepared by Wilson Water Group in June 2016 indicated the city would not need any storage in the future, although it may need to curtail some irrigation if it wants to maintain minimum flow levels on Castle and Maroon creeks.

And while the council adopted the Wilson Water study as a formal planning document last year, it also recently contracted with an economist at Headwaters Corp. to develop new scenarios illustrating a range of needs and varying levels of risk in a hotter and drier future.

Margaret Medellin, a utilities portfolio manager with the city, told the city council on May 15 that the work from Headwaters will not be complete until the end of summer. And more studies may then be necessary.

That’s been a frustration to Corona.

“Instead of engaging in meaningful settlement discussions, the city engaged a myriad of consultants at great expense to study its ‘needs’ when it already has a demand study,” Corona told the city on May 11. “This work should have been done before filing the application, not after.”

Corona’s May 11 settlement letter also contained a number of other messages for city.

“The City is concerned with giving up the current locations for the dams,” Corona wrote. “But, the City can’t build the reservoirs there, anyway. It would take twenty to forty million dollars (at least) to condemn private property for the Castle Creek dam. The City would need a special use permit to inundate Forest Service property, and private legislation from Congress to inundate wilderness – highly improbable, if not impossible. So, if the City transfers the rights to a new location that has challenges, the City will be no worse off than they are now.”

“The City’s claims are weak,” he also told the city. “In almost fifty years, the City has done almost nothing to develop these rights. The City has no need for storage, especially not a sixty-year supply, according to the City’s engineers. Unless the City settles, it will not come out of these cases with its water rights intact.”

“The delay for the City’s studies is unnecessary and is self-inflicted. With no need for storage, it should be simple to determine a reasonable supply amount and risk,” he also wrote. “The 1,200 acre feet we originally offered would give the City a five-year supply. Is the City concerned that Castle Creek and Maroon Creek will be completely dry for more than five years? If that happens, 1965 reservoir rights are not going to help.”

And he told the city it can expect ongoing opposition from Larsen Family LP.

“Larsen Family LP will never stipulate to diligence for dams in the wilderness,” Corona wrote. “It seems it should be easy for the City to say it will never dam the Maroon Bells. But, apparently, that’s not the case.”

How much water?

There is also a question about how much storage the city thinks is really necessary.

The combined storage of the two potential reservoirs in Castle and Maroon creeks, is 13,629 acre feet, or almost 14,000 acre-feet. Ruedi Reservoir, by comparison, holds 100,000 acre feet.

Aspen city council member Bert Myrin said on May 15 he did not think that the city would ever need more than about ten percent of the conditional 14,000 acre-feet described in the city’s conditional rights.

Myrin said council members should know the size of the need before studying various alternatives, such as an “in-situ” reservoir under the city’s golf course, which could hold about 1,200 acre feet.

“I think it would help us to have a better idea of the problem we’re trying to solve before we try and solve the problem,” he said.

But Scott Miller, Aspen’s public works director, said the result of the Headwaters Corp. study will not be a single number.

“We’ll have a range of risks,” Miller told the council members. “A range of need, and a range of risk. Then you guys are going to lead the discussion about where we go from here.”

Marcella Larsen, of Larsen Family LP, Larsen also responded to questions in writing from on Aspen Journalism on May 31 about the settlement proposal:

Larsen is a retired attorney and served for four years as the assistant Pitkin County attorney from 1997 to 2001. Her remarks, as perhaps the most aggressive of the opposing parties in the two cases, are notable.

AJ: In a May 23 letter, the city informed your attorney that it could not accept your settlement offer because it had not developed an alternative location for the Maroon Creek Reservoir storage right. First, to clarify, your settlement offer was for both the Maroon and Castle creek reservoirs, correct?

ML: The Larsen LP is a party only in the Maroon Creek case, but it was our understanding that the other opposers, including Pitkin County, the U.S. Forest Service, the multiple environmental non-profits, and other private property owners whose properties would be inundated by Aspen’s dams were all generally open to pursuing the offer further. The offer was a concept that would be worked out among the parties, and could have included the Castle Creek side, but unfortunately Aspen rejected it out of hand.

AJ: Next, the city says it is still defining how much storage it needs. Do you yet understand whether that means the city needs something less than a combined nearly 14,000 acre feet of storage?

ML: The City hasn’t said they need less than the 14,000 acre feet claimed and, at their latest work session, they maintained the possibility they will need all 14,000 acre feet. However, Aspen’s own 2016 Wilson Water Group Water Supply Availability report shows that Aspen has no need for any water storage, much less giant dams in wilderness areas. As in zero need. That study concludes that Aspen will only need 231 acre feet per year in 2064.

Wilderness Workshop and Western Resource Advocates recently shared their analysis of how Aspen might simply conserve water to avoid dams in wilderness areas. Instead of trying to justify 14,000 acre feet of storage that would provide sixty-five years of unneeded storage, we wish Aspen would identify a realistic storage amount and location. As evident from our settlement offer, we will support Aspen storage in locations other than the White River National Forest and wilderness areas—and that’s even if Aspen choses to build storage it does not need.

AJ: Your settlement offer included a condition that the storage be located within the city of Aspen. Was that a firm condition? If so, why was it included?

ML: Our offer was quite clear that there were terms that could be negotiated, and the basic concept was that we would support (along with the other opposers) Aspen’s relocation of its dam rights, in a location and amount to be determined through negotiation. Again, that offer was rejected by Aspen. The reason we included a condition that the relocated water storage be located in Aspen (and let’s be clear about what we are talking about here, which would be industrial-scale development, similar to other extractive industries), is because we believe Aspen should not externalize the impacts of its growth and force others (Pitkin County, the Forest Service, private property owners, and the public) to bear the burden of Aspen’s failure to adequately plan for and control its own growth. (Again, this assumes that storage is actually needed, or will be built by Aspen regardless of need.)

AJ: What do you expect from the city’s supply/demand study from Headwaters?

ML: The credible and credentialed expert Aspen hired in 2016 to prepare Aspen’s Water Supply Availability report concluded that Aspen “can always provide sufficient potable and raw water supplies” without dams/reservoirs. When Aspen realized that the Wilson Water Group’s finding conflicted with their desire to continue with dam rights up Castle and Maroon Creek, they hired an economist (not a scientist) to prepare a new report.

We expect this new “study” from Headwaters will do what Aspen wants it to do: prove up an extreme “Mad Max” scenario where both Castle and Maroon Creeks are obstructed for a long period of time, wildfires burning, land sliding, and water short. Also, expect huge projected population increases, where many in this dystopian “Mad Max” world decide to make Aspen their full-time home. In short, we expect this new “study” will attempt to demonstrate the “need” for storage Aspen’s prior experts, the Wilson Water Group, did not support.

AJ: Have you heard a credible explanation why the Wilson Water study is somehow incomplete?

ML: No. Wilson Water Group provided the type of demand analysis typical for municipal planning, and prior to Aspen’s water court filing, there was no indication Aspen believed it was “somehow incomplete.”

AJ: You’ve reserved the right to re-refer the case to the water judge at the July status conference. Do you think you will do that at that time?

ML: We reserved the right to re-refer the case at any time between the last status conference on May 9 and the next one on August 10. The City wants to have a settlement conference in late July or early August. We are looking for some indication from Aspen that they will commit to moving the dams out of wilderness areas, along the lines we already offered. If Aspen continues to advocate for wilderness dams without any offer of settlement, then, yes, of course we will re-refer the case. Aspen’s wilderness area dams, in the iconic Maroon Bells, should be opposed by everyone, except for perhaps the Trump Organization. We will do our part to further that cause, as I’m sure the other opposers will do as well, because Aspen’s dams in national forest and wilderness areas is fundamentally bad public policy and contrary to the values of our environmentally-conscious, nature-respecting, slow-growth community.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily and the Summit Daily on coverage of water and rivers in the upper Colorado River basin. The Times published a shorter version of this story on June 13, 2017.