Aspen officials hesitant to respond to court-raised issues about potential dams

The site of the potential Maroon Creek Reservoir, just below the confluence of East and West Maroon creeks.

A water court referee has advised the city of Aspen it must provide “substantive” responses to issues raised by the division engineer and the court before she issues a ruling in two water court cases tied to the potential Maroon and Castle creek dams and reservoirs.

The issues raised include whether the city can get a permit for the dams, if it can build the dams in reasonable time, if it has a specific plan to build them, and if it needs the water.

The referee, Susan Ryan, wants the city’s responses to those outstanding questions, even if the city reaches a settlement agreement with the 10 parties currently opposing the city’s applications.

“Regarding the response to the summary of consultation, I think it would be useful to see a substantive response prior to the next status conference in this case,” Ryan said at the start of an Aug. 10 status conference on the two cases.

But Cindy Covell, the water attorney for the city, said the city does not want to make its case to the court at this stage of the proceedings.

“Obviously the reason this case is so highly opposed, among other reasons, is that there is a lot of people who think we can’t meet the burden of proof, and that would be the subject of the trial,” Covell said in response to Ryan. “And to the extent that we are putting our case out there ahead of time, it just may make it that much harder to reach a settlement from Aspen’s standpoint, because we know it is a difficult case.”

On July 19 the city issued a statement saying it was seeking “a way to transfer decreed storage rights to locations other than the decreed locations on Castle Creek and Maroon Creek.”

Maroon Creek Reservoir would hold 4,567 acre-feet of water on 85 acres of land, all owned by the USFS. It also would encroach on portions of the Maroon Bells-Snowmass Wilderness. Castle Creek Reservoir, as currently decreed, would hold 9,062 acre-feet on 120 acres of mostly private, high-end residential property, but also flood some USFS land and cross the wilderness boundary.

The city has maintained conditional water-storage rights for both reservoirs since 1965.

“To the extent that you feel that the summary of consultation is asking you to lay out all your evidence, I don’t really see that it is,” Ryan told Covell during the status conference. “I think it is more asking to make sure we have something in the record to support that you’ve met your burden of proof here, before any ruling is entered.”

As water court referee, Ryan’s also charged with investigating the factual and legal aspects of water rights applications before making a ruling.

The issues facing the city were raised in two summaries of consultation that Alan Martellaro, the division engineer, filed with the water court in January after consulting with Ryan about the city’s applications.

Both summaries of consultation filed in response to the Castle and Maroon applications said the city “must demonstrate that it will secure permits and land-use approvals that are necessary to apply the subject water rights to beneficial use.”

They said the city must show that it “will complete the appropriations within a reasonable time” and that “a specific plan is in place to develop the subject water rights.”

They also said the city “must demonstrate substantiated population growth in order to justify the continued need for these water rights” and that it must show it is “not speculating with the subject water rights.”

The U.S. Forest Service, one of 10 parties opposing the city in water court, has told the court it cannot issue a permit for the reservoirs, and so the city cannot complete the reservoirs in a reasonable time. Pitkin County, another opposer, told the court the city has not demonstrated it needs the water and that the city appears to be speculating.

The summaries of consultation required a response from the city to the court, and on July 10, the city submitted only a limited response.

During the Aug. 10 status conference, Ryan told Covell she did not find Aspen’s answers in July to the summaries of consultation “substantive.”

“We’re not trying to play hide the ball here,” Covell then told Ryan, “but a lot of those questions were legal questions, basically asking the city to put out the evidence it is going to use to prove its case at trial, and we just don’t think that’s an appropriate use of the summary of consultation process.”

But Ryan, the water court referee, disagreed.

“I think the purpose of the summary of consultation is to make sure the applicant can support any ruling that is entered in this case. And here the issues raised in the summary of consultation were ‘can and will’ — can the applicant develop this water right within a reasonable amount of time?” Ryan said. “And I do think that is something that needs to be in the record before I can enter any ruling in this case.”

If Ryan is dissatisfied with the city’s responses, she could issue a ruling denying the city’s applications. And the city could then appeal her ruling and take the case to trial before a water court judge. Ryan also can accept the city’s responses and issue a ruling that would maintain the city’s water rights for another six years.

During the Aug. 10 status conference, Ryan agreed to give the city more time (90 days) to respond to the issues raised in the summaries of consultation. The next status conference is set for Nov. 9.

Sometime after that, the city will need to file a substantive response, Ryan said.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of water and rivers. The Times published this story online on Wednesday, Aug. 23, 2017.

Aspen puts forward settlement proposals for Maroon and Castle creek dams

This meadow, about two miles below Maroon Lake, would be covered by the potential Maroon Creek Reservoir. The 85-acre reservoir would also flood portions of the Maroon Bells -Snowmass Wilderness.

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.”

A map showing the potential Castle Creek Reservoir. The City of Aspen has agreed not to flood property owned by Simon Pinniger and Mark and Karen Hedstrom, and so the reservoir is expected to be smaller than shown.

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.

A view, looking toward Aspen, of the gravel pit in Woody Creek operated by Elam Construction Inc. The city has put the sage-covered property next to the gravel pit, to the right in the photo, under contract as a potential reservoir site.

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.

Aspen puts forward proposals to avoid dams on Maroon, Castle creeks — @AspenJournalism

A map provided by the city of Aspen showing the two parcels in Woody Creek it has under contract. The city is investigating the possibility of building a reservoir on the site, as well as looking at the possibility of a reservoir in the neighboring Elam gravel pit.

From Aspen Journalism (Brent Gardner-Smith) via The Aspen Times:

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.

Aspen plans to transfer Castle and Maroon creeks conditional water rights to other locations — @AspenJournalism

The property next to the Elam gravel pit and the Woody Creek raceway that the City of Aspen has put under contract. The city is investigating the site as a place for potential water storage, either underground or above ground.

From Aspen Journalism (Brent Gardner-Smith):

Aspen city officials said Wednesday they plan to seek water court approval to transfer the city’s two conditional water rights to store a combined 13,629 acre-feet of water in upper Castle and Maroon creeks to other potential storage locations in the Roaring Fork River valley.

Those locations include 63 acres of land it has under contract to purchase for $2.65 million on Raceway Drive in Woody Creek, a neighboring gravel pit operated by Elam Construction Inc., the city’s golf course, portions of the Maroon Creek Club golf course owned by the city, and Cozy Point Ranch.

Aspen City Manager Steve Barwick said at a news conference the city is not walking away from its conditional water rights tied to the potential dams and reservoirs on Castle and Maroon creeks, but instead is holding on to those rights while seeking to transfer them, and their 1971 decree date, to new locations.

“We’re going to attempt to transfer the water rights down to these sites,” Barwick said. “There would not be any abandoning of water rights. It would be moving the water rights from one site to another.”

To do so, the city would have to file a new water rights application in water court and it would be up to a water court judge to determine how much of the current water rights could be transferred, and if the city can keep the 1971 decree date.

In October, the city filed two due-diligence applications for its conditional rights on Castle and Maroon creeks and is now being opposed by 10 parties.

The potential Castle Creek Reservoir would store 9,062 acre-feet of water behind a 170-foot-tall dam and the Maroon Creek Reservoir would store 4,567 acre-feet behind a 155-foot-tall dam within view of the Maroon Bells.

The city expects to put forward a settlement offer to the opposing parties next week, with the potential Woody Creek storage sites at the heart of the offer, Barwick said. A settlement meeting is slated for Aug. 2.

Paul Noto, a water attorney representing American Rivers, Colorado Trout Unlimited, and the Roaring Fork Land and Cattle Co. in the two water court cases, said Wednesday a “main issue” for his clients is whether the city will commit to “never damming” Castle and Maroon creeks.

A news release issued Wednesday by the city quoted Aspen Mayor Steve Skadron as saying the pending Woody Creek land purchase “is a way to both protect the community and preserve Castle and Maroon valley wild lands.”

Both of the dams, which the city has told the state since 1965 it intends to build someday, if necessary, would inundate portions of the Maroon Bells-Snowmass Wilderness.

“While the Castle and Maroon Creek reservoirs may have seemed like a good idea (in the 1960s), we congratulate the city for this win-win alternative that protects our iconic landscape and provides for the city’s water needs,” said Sloan Shoemaker, the executive director of Wilderness Workshop, in a press release.

(Above is audio of a press conference held at Aspen city hall on Wednesday, July 19, 2017. The audio was recorded by Elizabeth Stewart-Severy of Aspen Public Radio. The main speaker is Aspen City Manager Steve Barwick. Also present at the press conference were Curtis Wackerle, editor of the Aspen Daily News, David Krauss, editor of The Aspen Times, Elizabeth Stewart-Severy, environment reporter at Aspen Public Radio, and city staff members David Hornbacher, Margaret Medellin and Mitzi Rapkin. Aspen city council member Bert Myrin was also in the room, but did not speak. Brent Gardner-Smith of Aspen Journalism can be heard asking questions via a phone on the table in the room.).

A map provided by the city of Aspen showing the two parcels in Woody Creek it has under contract. The city is investigating the possibility of building a reservoir on the site, as well as looking at the possibility of a reservoir in the neighboring Elam gravel pit.

Woody Creek options

The two Woody Creek parcels now under contract by the city include a 61-acre parcel and a 1.8-acre parcel. Both are owned by Woody Creek Development Co. of Fort Collins.

The undeveloped 61-acre parcel is valued at $2.3 million by the county assessor and the 1.8-acre parcel, also undeveloped, is valued at $100,000.

The city does not have an option to purchase the Elam gravel pit, which is visible from Highway 82, but is in discussions with the company about opportunities.

“We are interested in working with the city on its water storage project,” Russell Larsen, the chief operating officer of Elam, was quoted as saying in the news release. “There are benefits for both entities. The city can assist us with reclamation of the property into the future and we are eager to explore ways we can support Aspen’s water storage needs.”

The city also said it is researching “the environmental, hydrologic and geologic nature” of the two Woody Creek parcels, and Barwick said he expects the City Council to make a decision to purchase the land within 90 days.

The city will be studying the 63 acres for the potential to develop both above-ground storage and in-situ, or underground, storage. And Barwick said the gravel pit may present the best potential to build an above-ground reservoir, “since there is already a pit there.”

If reservoirs were developed in any of the potential locations, the stored water – if used to meet municipal water demands – would have to be pumped back up to the city’s water treatment plant, which sits on a hill behind Aspen Valley Hospital.

“Worst-case scenario, you pump water into them and then pump water back up,” Barwick said. “We would prefer someday to create a gravity-fed storage system.”

He also said the Aspen City Council must figure out how much water the city may need to store in the future. A second work session on the topic has been set for Monday evening.

A portion of the gravel pit in Woody Creek operated by Elam Construction. It’s hard to capture the scale of the gravel pit, but the little yellow speck in the back edge of the pit is a large dump truck.

Praise from opponents

Officials from Western Resource Advocates also praised the city’s announcement.

“We’re pretty encouraged,” said Rob Harris, a senior staff attorney at Western Resource Advocates. “We’re not at the destination yet, but if you want to reach a different destination, the first concept is to change course, and it seems like the city has done that today.”

But in a news release Western Resource Advocates also included a cautionary note.

“The city’s announcement does not, in itself, end the pending water court cases considering the city’s conditional water rights,” the release said. “The city’s press release makes clear that its willingness to entirely drop the Maroon and Castle creeks dams from its water rights portfolio has preconditions.”

Noto, the water attorney for three clients in the cases, said the city’s announcement was “potentially a step in the right direction. I appreciate the fact that they are looking hard at alternatives.”

When asked about the city’s intention to try to transfer the 1971 decree date of the Castle and Maroon rights, Noto pointed out if they were successful, those rights would then be senior to the instream flow rights held on the Roaring Fork River by the Colorado Water Conservation Board and the recreational in-channel diversion rights held by Pitkin County in its new kayak park in Basalt.

“They would be jumping ahead, essentially, of two large water rights, and I’m sure that will be cause for concern,” he said.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of rivers and water. The Times published this story online on July 19 and published it in its printed edition on July 20, 2017.

City of Aspen eyes storing water under golf course in lieu of dams, reservoirs

A view of the Aspen municipal golf course from Red Butte. A consulting engineer for the city of Aspen has found that an 'in-situ' reservoir could likely be built to store water under the golf course, which sits on about 75 feet of glacially-deposited rock and gravel. A trench filled in with a clay-like material could be dug around the perimeter of the golf course and water could be poured into the open space in the remaining gravel, and pumped back out as necessary.

ASPEN – In their ongoing search for alternatives to building dams and reservoirs on Maroon and Castle creeks, Aspen officials continue to explore other options, including an underground reservoir that would store water below the city’s golf course.

Aspen City Council reacted favorably to a presentation in May about an “in-situ” or underground reservoir beneath the Aspen Golf Club, with one council member saying it was a “great introductory lesson.”

Aspen City Manager Steve Barwick said last week there is plenty more work to be done.

“City Council had a lot of questions regarding the viability, impact and cost of in-situ storage,” Barwick said, “and they have not yet even begun their review of the storage needs.”

Barwick also said recently that the city does not know exactly how much water it needs to store to meet future needs, but the council is set to hear a presentation on the subject at a July 11 work session.

“All of this, this whole notion of how much water do we need and how much water do we need to store, and all of that, has been based upon very preliminary analysis,” Barwick told the Pitkin County Healthy Rivers and Streams Board on March 16. “And now it’s time to tighten up the whole analysis and do a rational set of studies so we can have a rational discussion with the entire valley about what are we going to do here. How much storage do we need, and where do we want to put it?”

Loose rock and gravel on the edge of the Aspen golf course, showing a glimpse of what might lie below the surface of the course.

Feasible

Don Deere, a geotechnical engineer who has worked on a long list of water storage projects in Colorado, said during his presentation to the council in May that the city’s golf course has the right combination of bedrock and “terraced gravels” required for an in-situ reservoir, in which claylike walls are built in trenches around a rock-filled area to hold water.

“Engineering-wise, it’s feasible,” Deere confirmed this week in a phone interview. “You’ve got to drill it to know for sure if the site’s going to work, but there are some favorable aspects to that site, for sure.”

The 148-acre public golf course is located between lower Castle and Maroon creeks and sits on top of about 75 feet of gravel and river rock left by retreating Ice Age glaciers, said Deere, who is chairman of the civil engineering firm Deere and Ault Consultants, Inc. in Longmont.

An in-situ reservoir under the golf course could hold about 1,200 acre-feet of water, Deere said, which the city could then pump back up to its water-treatment plant if needed.

By comparison, the city has a 10 acre-foot reservoir at its water-treatment plant, which it says amounts to about a day’s use of water for the city’s water system. For comparison, Ruedi Reservoir holds about 100,000 acre-feet of water. Deere called a 1,200 acre-foot reservoir “a small reservoir.”

A potential 170-foot tall dam near Ashcroft on Castle Creek would create a reservoir that holds 9,062 acre-feet of water; a 155-foot dam on Maroon Creek near the Bells would hold 4,567 acre-feet.

The city applied to Division 5 water court in October to maintain its conditional water rights for the two reservoirs on Maroon and Castle creeks, and is facing opposition from 10 parties, including the U.S. Forest Service and Pitkin County.

Much of the opposition is because of the locations of the potential dams and reservoirs, both of which would inundate portions of the Maroon Bells-Snowmass Wilderness. Some opposers also are questioning whether the city really needs to store nearly 14,000 acre-feet of water.

And as the city tries to answer the “how much” question, they’ve also been looking at the “where” and “how” questions.

A graphic from Wilderness Workshop that shows how the potential Maroon Creek Reservoir would behind a 155-foot-tall dam just below the confluence of East and West Maroon creeks.

Exploring options

A study of the idea of storing water in old silver mines around Aspen was also presented at the May 15 work session by another Deere and Ault engineer, Victor deWolfe III.

He said it likely would be expensive and complicated for the city to use the old mines, especially as it would be difficult to maintain control of the water in the complex maze of old shafts and tunnels.

The in-situ option, by comparison, sounded more feasible.

Deere looked at two potential locations for an in-situ reservoir, both on city-owned property, the golf course and the city’s Cozy Point Ranch property at the intersection of Brush Creek Road and Highway 82.

The Cozy Point has a better combination of gravel and bedrock for an in-situ reservoir than the golf course, Deere said, but most of the focus at the work session was on the golf course site, in part because the city currently delivers water from Castle and Maroon creeks to irrigate the golf course.

A graphic from a paper authored by Don Deere shows how the walls of an in-situ reservoir are formed. The paper is called 'Gravel Pit Reservoirs, Colorado's Water Storage Solution.'

A trench, filled in

Deere told the council a reservoir under the golf course could be built by using a long-armed excavator to dig a 3-foot-wide trench around the course through the estimated 75 feet of gravel and river rock down to a solid layer of bedrock.

The trench, which would encircle the golf course, would be filled in with a claylike substance (a soil-bentonite mix) that would hold water. Deere said under the right conditions, such a deep trench, sometimes called a slurry wall, can be dug and filled back in with the claylike material at the rate of about 100 feet a day.

“In a couple of months, on a typical site, I can have a completely lined vessel,” he said.

City-owned water from Castle and Maroon creeks could then be delivered to new and existing ponds on the golf course and allowed to slowly infiltrate into the spaces between the loose rock left in the vessel.

If the city needed to during a drought, it could then pump the water from the new underground reservoir to its water treatment-plant located on a hill behind Aspen Valley Hospital. It’s about a mile from the center of the golf course to the treatment plant.

Water hazards

Councilwoman Anne Mullins asked Deere if the golf course would look the same after an in-situ reservoir was installed.

“I think we’d need to add some ponds, so there would be more water hazards when we’re done,” Deere said, but other than that, “it’s out of sight, out of mind.” And he said this week that after revegetation, no one would even know the in-situ reservoir was there.

As a general rule, Deere said it costs about $10,000 per acre-foot-of water stored to build an in-situ reservoir ­— if favorable soil conditions allow for the standard use of an excavator. But if conditions such as deeper gravel or harder bedrock require a crane and a platform to be used instead, the cost can go up by a multiple of five or six, he said.

Conceptually then, the construction costs of a 1,200 acre-foot in-situ reservoir could range from $12 million to $72 million, according to Deere.

“But we haven’t done a site specific cost estimate for the golf course,” Deere said this week.

He said it would require drilling test holes to know more about the feasibility and potential cost, as it would reveal the true depth of the gravel and the condition of the underlying bedrock.

In May, city officials told the parties in the water court cases that it expected to finish its study of in-situ storage by July. The next settlement conference in the cases is set for the first week of August.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily and the Summit Daily on the coverage of water and rivers. The Times published this story on Monday, July 3, 2017.

City of Aspen rejects settlement proposal in Castle and Maroon dam cases — @AspenJournalism

Wild berries in the meadow near the Maroon Bells that would be flooded by a Maroon Creek Reservoir. Photo credit Brent Gardner-Smith.

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.

A map showing the location of the potential Maroon Creek Reservoir.

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.”

The location of the potential Maroon Creek Reservoir.

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.

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

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

From Aspen Journalism (Brent Gardner-Smith):

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

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

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

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

The resulting transcript has been edited for clarity.

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

CT: Correct.

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

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

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

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

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

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

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

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

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

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

CT: Right.

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

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

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

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

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

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

BGS: Have studied moving it, for example?

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

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

CT: No.

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

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

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

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

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

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

CT: Yes.

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

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

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

CT: Yes.

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

CT: Colorado water law prohibits speculation.

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

CT: Yes, right.

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

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

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

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

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

CT: I don’t know that.

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

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

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

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

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

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

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

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

CT: Yes.

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

CT: That’s up to the water judge.

BGS: There is no clear standard?

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

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

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

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

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

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

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

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

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

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

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

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

CT: Yes. You will.

BGS: Not now?

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

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

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

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

CT: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CT: Impossible.

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

CT: Correct.

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

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

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

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

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

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

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

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

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

CT: Essentially right.

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

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

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

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

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

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

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

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

BGS: Well, I keep asking.

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

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

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

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

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

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

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

BGS: So there’s generally limited flexibility?

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

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

CT: Well, we’ve never been asked.

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

CT: No. Aspen has not asked for help.

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

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

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

CT: We have not looked at them.

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

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

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

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

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

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

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

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

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

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

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

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

CT: We haven’t looked at it.

BGS: Again, with respect, why not?

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

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

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

BGS: I guess so.

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

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

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