FromAspen Public Radio (Elizabeth Stewart-Severy):
Healthy Rivers and Streams board members recently took a field trip to the construction zone on the Roaring Fork River, where backhoes are digging up the riverbed. By February, this should be a man-made whitewater park with two waves for boaters to surf.
Board chair Lisa Tasker said the ultimate goal of this project is to keep water in the river during low flow years, using a water right designated for recreation.
“When you get a recreational in-channel diversion water right, you have to put structures in, and then you have to prove that people are recreating in there,” Tasker said.
With a price-tag of nearly $800,000, the whitewater park is the biggest project the Healthy Rivers and Streams fund has tackled…
Now it is turning its attention to the City of Aspen, which wants to reserve the right to build reservoirs on Castle and Maroon creeks. The municipality filed last month with the state to keep its conditional water storage right.
“We’re a healthy rivers board, and we’re going to respond in favor of a healthy river and a healthy ecosystem,” Tasker said. “So, we’re going to come out probably fairly strongly, because that is our mission.”
At a meeting in late October, the river board agreed to urge Pitkin County Commissioners to formally file in opposition to the City of Aspen in water court. Commissioner Rachel Richards is not warm to the idea.
“Just forcing the city to relinquish those water rights actually does nothing to protect the long-term health of the Castle Creek or the Maroon Creek,” Richards said.
Richards said she’d like to see the city maintain the rights while researching alternatives, like digging into a deeper aquifer or working to change Colorado water law entirely.
If nothing else, Richards and Tasker agree, the issue has opened a new conversation and interest in local water issues.
“I think it’s going to cause people to become a lot more creative and a lot more imaginative as to how they’re going to handle a shortage of water in the future,” Tasker said.
The county has until Dec. 31 to file in opposition to the city.
FromThe Grand Junction Daily Sentinel (Dennis Webb):
City officials [assure residents and others that], while there’s no proposal to actually build the reservoirs at this time, it would be irresponsible not to continue seeking to preserve the water rights for what may be one of many approaches for meeting future needs.
“Despite the notion that the city is poised to dam Maroon Valley, in reality this filing is an action demanded by state law to protect our rights to your drinking water,” Mayor Steve Skadron wrote in a recent letter to the editor to the Aspen Daily News.
“Without knowing more about viable alternatives for water storage, it would not be prudent water management on our part to give up these water rights. After all, climate and other changes in this region are uncertain and what our needs will look like in 2066 is not something we are poised to gamble away by letting this storage right go.”
Acting on unanimous direction from City Council, the city last week applied to keep for another six years conditional water rights it has held since 1965. Its action has riled up not just local residents but conservation groups including the Carbondale-based Wilderness Workshop, American Rivers and Western Resource Advocates.
“I think if we need to find other places to get water, there’s probably other places to do that than the base of the Maroon Bells,” said Will Roush, Wilderness Workshop’s conservation director.
The shapely Maroon Bells are two of the most famous of Colorado’s 50-plus Fourteeners, or peaks over 14,000 feet high. Endless photos depict the twin, red-rock, snow-fringed peaks presiding in the back of a green-forested valley, their images reflected by Maroon Lake in the foreground. So many people visit the lake for that view that vehicle access in summer is mostly restricted to buses.
Castle Creek is similarly stunning, providing access to another Fourteener, Castle Peak, as well as the ghost town of Ashcroft, the popular Conundrum Hot Springs and other attractions.
Beyond issues such as aesthetics, the Maroon Bells reservoir would lie largely within the Maroon Bells-Snowmass Wilderness Area, and a small part of the Castle Creek one would be in wilderness. That has attracted the interest of the U.S. Forest Service, which expects to file an opposition letter to Aspen’s filing in water court pointing out that it doesn’t have the authority to allow a reservoir in wilderness.
“Actually, the president of the United States does,” said Scott Fitzwilliams, supervisor of the White River National Forest.
He said he believes the president would have to approve such an action, or sign an act of Congress redrawing the wilderness area lines to exclude such a reservoir.
Fitzwilliams said he’s aware of situations where wilderness areas have been created with a specific exemption allowing for a reservoir. But this situation would be different. Roush said while it’s possible to petition a president for an exception for a new reservoir in an existing wilderness area, this provision of the Wilderness Act has never been used, and he fears that Aspen could set a damaging precedent.
David Hornbacher, Aspen’s director of utilities and environmental initiatives, said that when the city’s water rights moved forward in 1965, the acreage envisioned for the two reservoirs didn’t overlie wilderness. That changed in 1980 when the wilderness area was expanded. Regardless, the Wilderness Act provides a presidential path forward for building reservoirs in wilderness, he said.
That issue wouldn’t be the only one on the Forest Service’s mind if the city proceeded with trying to build the reservoirs.
“Certainly, flooding the Maroon Valley, we would have a host of issues that we would bring to their attention. It’s a pretty popular spot,” Fitzgerald said, chuckling at his understatement.
But while the Forest Service could hold the city responsible for mitigating effects such as flooding wetlands, it would have to let the city exercise its legal rights to store water, within reason, he said.
“There’s a limited amount of authority we can exercise when it comes to a water right,” he said.
The Maroon and Castle creek reservoir dams are envisioned as being 150 and 175 feet high, respectively, enough to swamp more than 200 acres between them.
Roush finds the city’s position on the water rights incongruous with its good record of environmental stewardship on climate change and other issues.
“Maintaining the right to put dams on these two creeks just seems a little bit out of sync with both the City Council itself but also the character of the community,” he said.
But Hornbacher said climate change is a big factor forcing the city’s hand.
“Aspen’s water supply is snow and that is changing,” he said.
The city largely relies on the snowpack-induced river flows from the two valleys now. But with a warmer climate, reflected by an average of 23 more frost-free days in Aspen today than in 1980, that snowpack’s future reliability is in question.
“Essentially what water you do have tends to be melting or leaving the valley earlier (each year) than it has in the past,” he said.
Reservoir storage would not only bolster water supplies each year, but prove valuable in cases of back-to-back drought years.
While the city has had success in implementing water conservation measures, it also is looking to more demand as a result of a growing population, its transition from a winter resort to a more year-round one, and the possibility that second-home owners could use those homes more or convert them to their primary homes, Hornbacher said.
He said it’s important for the city to make decisions today to address the uncertainties and risks of providing a safe, secure and legal water supply in the future.
Conservationists contend the city’s own water supply study this year shows the reservoirs wouldn’t be necessary. Harrison doesn’t think the city’s population ever will grow enough to warrant their construction. She’s unnerved by the due-diligence language in the city’s water rights filing that it “can and will” build the dams. That makes her think the city is leaning toward building them.
“If that’s the case it’s like, are you kidding me?” Harrison said. “There are a lot of people that are outraged.”
Hornbacher hopes that with interest in the issue being high right now, the public can be enlisted to get involved in working with the city on evaluating existing water-supply alternatives and identifying new ones. Council directed city staff to initiate such a collaborative process when it decided to have the city proceed with filing to keep the water rights.
Among the options for consideration are rethinking the size and location of the envisioned reservoirs within the two valleys, as well as how water rights might be affected if the city looked to build them in another valley.
Roush said the Wilderness Workshop would love to work with the city on studying storage, and whether it could be accomplished in other ways, such as in tanks, underground aquifers or through water-sharing with other entities.
“There’s certainly a role for stored water but in places like (Maroon and Castle creeks), they’re certainly inappropriate,” he said of the reservoirs.
ASPEN – The city of Aspen filed two applications Monday in Division 5 Water Court for “finding of reasonable diligence” on the conditional water rights it has maintained since 1965 for the potential storage reservoirs on upper Castle and Maroon creeks.
The city told the court it has “steadily applied effort to complete the appropriation” of the conditional water rights for both of the reservoirs over the last six years, and that it has done so “in a reasonably expedient and efficient manner under all facts and circumstances.”
It then asks the court to issue conditional decrees for both reservoirs for six more years.
The “appropriation” of the current conditional water rights would mean completing the construction of the dams and the storage of water as described in the decrees, which call for a 170-foot-tall dam on upper Castle Creek to hold 9,062 acre-feet of water and a 155-foot-tall dam on upper Maroon Creek to hold 4,567 acre-feet.
The city did not cite any specific actions it has taken in the last six years in regard to investigating, designing, constructing, or financing the actual dams and reservoirs, outside of reaching agreement with two landowners in the Castle Creek Valley not to flood their property if the Castle Creek Reservoir is built.
Instead, both applications filed Monday say the reservoirs are “part of Aspen’s integrated water supply system” and are “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”
The city’s diligence applications say it spent in excess of $6 million on its water system since 2010 and point to Colorado’s Water Right Determination and Administration Act of 1969 as to how that can help its case.
The law states that “when a project or integrated system is comprised of several features, work on one feature of the project or system shall be considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire project or system.”
The same law also says, however, that “the measure of reasonable diligence is the steady application of effort to complete the appropriation in a reasonably expedient and efficient manner under all the facts and circumstance.”
Directed to file
Aspen City Council unanimously passed a resolution on Oct. 10 directing staff to file the diligence applications, which were due on Oct. 31.
The last diligence decree was awarded on Oct. 11, 2010, which set the clock ticking on the last six-year diligence period.
In all previous filings, the city has filed one application covering both reservoirs, but on Monday it filed separate applications for each potential reservoir.
By Tuesday afternoon, both of the applications from the city had been processed by the water court clerk. The case number for the Maroon Creek Reservoir application is 16CW3128. The case number for the Castle Creek Reservoir application is 16CW3129.
The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.
The required time between diligence filings changed from every four years to every six years in 1990, which accounts for the differing time spans between filings before and after that date.
When a water rights application is filed in water court, interested parties have two months to file a statement of opposition in the case.
And with the filing date for both of the city’s applications coming on Halloween, the deadline for statements of opposition to be filed has been set for New Year’s Eve, Dec. 31, 2016.
Any citizen, regardless of whether they own water rights, or might be injured by a water right claim, is allowed to file a statement of opposition in water court, although the court requires opposers to honor the court’s process, which can be time-consuming.
The opposition to come
The U.S. Forest Service informed the city in October it intends to file a statement of opposition, especially as the Maroon Creek Reservoir is wholly on U.S.F.S. land and would inundate portions of the Maroon Bells–Snowmass Wilderness.
Matt Rice, director of the Colorado River Basin Program for American Rivers, confirmed Tuesday that the national nonprofit organization also still intends to oppose the city’s diligence applications.
“We don’t believe that new water storage dams on Castle Creek and Maroon Creek are appropriate now or anytime in the future,” Rice said.
In a press release issued Tuesday by American Rivers, Rice said, “Constructing these dams would likely cost hundreds of millions of dollars, but the price would pale in comparison to the massive environmental impacts. American Rivers and our members urge the Aspen City Council to reconsider this decision.”
Rice said that Trout Unlimited, Western Resource Advocates, Wilderness Workshop and several private landowners are “seriously considering” filing statements of opposition.
Will Roush, conservation director for Wilderness Workshop, said Tuesday his organization has yet to decide if it will oppose the city in water court.
Wilderness Workshop sent out a press release on Tuesday, however, with a quote from Roush.
“The city of Aspen’s pursuit of dams on Castle and Maroon creeks could not be more out of step with the community’s values,” he said in the release. “These two iconic creeks, universally treasured by our community, have far too many social and ecological values to build unneeded reservoirs on them.”
And the Pitkin County Healthy Rivers and Streams Board unanimously agreed on Oct. 20 to direct staff to prepare a letter or resolution urging the Pitkin County commissioners to file a statement of opposition in the diligence cases.
“We’ve always felt that reservoirs were against the mission of the Healthy Rivers and Streams Board,” said Bill Jochems of Redstone, who has served on the river board for the last seven years.
He said reservoirs deprive rivers of necessary high spring runoff and “have highly undesirable aspects from an aesthetic point of view.”
Mayor proud to file
Steve Skadron, the mayor of Aspen, sent a letter to the editor Tuesday saying he was “proud” of the city for filing the diligence applications.
“Without knowing more about viable alternatives for water storage, it simply would not be prudent water management on our part to give up these water rights,” Skadron wrote. “After all, climate and other changes in this region are uncertain and what our needs will look like in 2066 is not something we are poised to gamble away by letting this storage right go.”
Aspen’s applications say “the city continues to investigate and develop more refined tools for planning its future water needs.”
Skadron also pointed out that the council directed staff on Oct. 10 to “undertake a collaborative effort to work with the community and stakeholders to find other water storage solutions.”
Reservoir size to be ‘revised’
The size of the Castle Creek Reservoir is expected to be reduced after agreements the city reached with Mark and Karen Hedstrom in May of 2010 and with Simon Pinniger sometime after mid-2012. Both the Hedtroms and Pinniger own land at the upper edge of the potential reservoir.
However, the city did not cite the size of the potentially reduced Castle Creek Reservoir in its diligence application.
“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 application states.
David Hornbacher, the city’s director of utilities and environmental initiatives, said on Tuesday that the city contracted for that “preliminary investigation” on Oct. 18, 2016.
The applications also include a sentence that seems to overstate how the reservoirs are referenced in the 2015 Colorado Water Plan.
“The city also participated in the development of Colorado’s State Water Plan, which resulted in the Colorado River Basin Implementation Plan, which identified the continued due diligence for the preservation of the Castle Creek and Maroon Creek storage rights as important projects for securing safe drinking water,” the city stated.
However, the two reservoirs were not identified in the basin implementation plan as “important projects” and they were specifically rejected from being included among the top three priority projects in the Roaring Fork River basin by roundtable members.
Instead, they are referenced in a broader context of “identified projects” in a chart under the theme of “secure safe drinking water.”
Under “methods,” the chart says, “Investigate the development of storage reservoirs on both Maroon and Castle creeks if no better alternative is discovered.”
And under “identified projects,” it states “Continue due diligence for the preservation of the 1972 storage rights on Maroon and Castle creeks by giving true consideration to all other potential options.”
(The rights were originally filed for in 1965 and decreed in 1971, not 1972.)
In both applications the city submitted Monday, it also says “the significant cost of permitting, design and construction” for both reservoirs “dictates that other long range plans be implemented first.”
The city did not provide estimates of costs for the dams and reservoirs in its applications.
It did say, however, that the city has spent $600,000 on water attorney fees since 2010, primarily to defend its water rights, and that expenditure should be considered as part of a finding of reasonable diligence. Those expenditures are included in the city’s overall spending figure of “in excess of $6 million” that it has spent on its water supply system in the last six years.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Wednesday, Nov. 2, 2016.
ASPEN – The Aspen City Council unanimously voted Monday night to tell the state of Colorado this month that it “can and will” build a 155-foot-tall dam on Maroon Creek within view of the Maroon Bells and a 170-foot-tall dam on Castle Creek two miles below Ashcroft.
The council passed a resolution directing staff to file a diligence application in Division 5 water court in Glenwood Springs by Oct. 31 that seeks to maintain the conditional water rights from 1965 that are tied to the potential dams.
“File and pursue an application for finding of reasonable diligence in the development of the Castle and Maroon creek conditional water rights on or before Oct. 31, 2016,” the resolution states.
It also says that “the city is obligated and intends to provide a legal and reliable water supply and to that end can and will develop all necessary water rights, including but not limited to, Maroon Creek Reservoir and Castle Creek Reservoir.”
Despite the language in the resolution stating Aspen’s apparent intent to someday build the two dams, Aspen Mayor Steve Skadron stressed that Monday’s decision to file a diligence application in water court was about maintaining water rights, and was not the same as deciding to build the dams.
He said an article in Monday’s Aspen Daily News by Aspen Journalism made it sound “as if the bulldozers are at the roundabout ready for this vote to come and they are going to go up tomorrow.”
“The question is not to build or not to build dams,” Skadron said. “That’s a false premise. The issue is whether to keep water rights alive by the can-and-will due-diligence measures the state has imposed on us, as opposed to letting these water rights become available and appropriated by others. That’s the challenge.
“And so without knowing more about viable alternatives, it simply would not be prudent water management and planning on our part to give these water rights up,” he said.
However, Paul Noto, an experienced Aspen water attorney now representing the national advocacy group American Rivers, told the council Monday night that it was a misperception on their part to think that there was room in Colorado water law to tell the state that the city “can and will” build the dams if the city really just wants to keep its options open to perhaps do so in the future.
“I want to clarify again that in order to keep these rights you have to prove that you actually will build these dams within a reasonable period of time, and that’s typically looked at within a 50-year horizon,” he said. “So this notion that we are going to file to keep our options open doesn’t really jibe with the legal standard that we have to prove in a court of law that we will build these dams within 50 years.”
Noto also said that there was still an apparent misunderstanding of what might happen if the city were to abandon the water rights.
“The rights simply go away,” he said. “No one can take them. No one can buy them. If you didn’t file, the rights simply go away. They no longer exist, and if someone came in and wanted to file for new water rights for that amount of water in that location, it would be under a 2016 or later priority date, not 1965.”
He also said it would be “legally impossible” under the Colorado River Compact of 1922 for some downstream entity, such as Los Angeles or Las Vegas, to somehow come in and control the water in Castle and Maroon creeks.
American Rivers has stated publicly that it intends to oppose Aspen’s efforts in water court to maintain the conditional water rights for another six-year period, as has the U.S. Forest Service.
At some point?
Since 1971, the city has consistently told the state, through required periodic diligence filings, that it intends, at some point, to build a dam on upper Maroon Creek, just below the confluence of East and West Maroon creeks, to store 4,567 acre-feet of water; and that it intends to build a dam on upper Castle Creek, not far below Fall Creek, that would hold 9,062 acre-feet.
In its most recent diligence filing in 2009 the city told the state “it has steadily applied efforts to complete” the dams and reservoirs “in a reasonably expedient and efficient manner.”
In 1966, an engineer working for the city told a water court judge during a hearing on the proposed rights that at least one of the dams would be needed by 2000 to meet the demands of the then-projected population of 30,000 residents in Aspen. Today, the city’s population is under 7,000.
And a recent study commissioned by the city concluded the municipality had enough water, without the reservoirs, to meet expected water demands for the next 50 years, even in the face of climate change.
The city today also has senior water rights on Castle and Maroon creeks that provide adequate water to the municipal water system.
But most City Council members on Monday said that giving up the water rights tied to the potential dams, despite their locations in pristine alpine valleys, might be doing a disservice to the city in the distant future, which could be much drier.
“I have no more interest in building dams on Castle and Maroon creeks than anybody else in this room or anyone else in this community,” said Art Daily, a council member and a veteran attorney with Holland and Hart. “At the same time, we are facing serious unknowns at the present time regarding our future water supply and storage capacity, and I can’t in good conscience cancel out an eventual water-storage resource.”
Daily added that further study of the city’s long-term storage needs in the face of climate change, including both location and amount, would be a good next step in the process.
“It is simply not in the best interest of our community to give up these conditional rights … until we know with far greater certainty than we have now that they are not going to be essential to our future water needs,” Daily said.
The resolution passed Monday night calls for city staff to “investigate alternative locations and sizing requirements” for the two reservoirs and to report back to the council.
And it says, “if appropriate,” the city could “seek water court approval for modification of one or both conditional decrees.”
Will Roush, the conservation director for Wilderness Workshop, told the council Monday before their vote that his organization wants the city to abandon the rights.
But barring that, he requested the city conduct a comprehensive study as to whether the city actually needs water storage, and if so, where a dam might best be located.
“If you were starting from scratch, I can almost bet that nobody would say ‘Let’s look at the Maroon Bells,’” he said. “So find out if those are the right places, if in fact storage is needed.”
Once the city files its diligence application in water court, parties will have 60 days to file a statement of opposition in the case. Then, typically, a water court referee works with the parties in a case to see if a settlement can be reached before going to trial in front of a water court judge.
Eliminating the city’s future possibility to build reservoirs that would inundate portions of the Maroon Bells-Snowmass Wilderness would be irresponsible, given the uncertainties presented by climate change, Aspen City Council members said on Tuesday.
The board was unanimous in its direction to file a diligence application that would maintain the city’s water rights, first decreed in 1971, to build dams that would create the reservoirs on upper Maroon and Castle creeks.
“I have no more interest in building these dams than anyone else in this room,” councilman Art Daily said in the work session attended by about a dozen members of the public, most of whom wanted the city to abandon the water rights.
Yet Daily, like the rest of his council colleagues, said he would need more information about how the city could meet future water supply challenges without the dams, before he could agree to sign away a later council’s ability to pursue their development.
“I can’t in good conscious say we are going to drop these rights without knowing what the viable alternatives are,” Daily said, while acknowledging that a future where they would be necessary feels like an “almost unforeseeable possibility.”
Ann Mullins said she cannot predict what will happen in 50 years, and officials in the city utilities department have noted that the snow pack around Aspen could look very different under some climate projection scenarios.
“I think it’s the unpredictable part of climate change that is probably the scariest,” she said…
Council members were clear that the city will continue to study alternative water management strategies that will hopefully preclude the need to ever build the dams. This includes increasing conservation and pursuing other supply and storage initiatives.
Within the next year or two, for example, the city hopes to pump treated wastewater from the Aspen Consolidated Sanitation District up hill from the treatment plant near the Aspen Business Center to irrigate the municipal golf course. The city is also exploring developing water supply from deep-underground wells…
Numerous parties, including environmental groups, stream-side property owners and the U.S. Forest Service have indicated they will file statements of opposition to the diligence application should it go forward.
Will Roush, conservation director at Wilderness Workshop, made the case at Tuesday’s meeting that the Maroon Bells are too important a resource to keep the possibility of the dams alive. The regulatory hurdles the city would encounter if it ever tried to develop the reservoirs would be too extreme, and would require an exemption signed by the president to federal wilderness area rules, Roush has said previously.
Paul Noto, a local attorney who is working on behalf of the conservation group American Rivers, said that once the application is before a water court judge, the discussion will enter a new phase. A judge would approve any amendment to the water rights that was mutually agreeable to the city and opposing parties, Noto said.
That means changes to the size and placement of the dams and reservoirs would be on the table. Noto, who argued Tuesday that the city doesn’t need the water that would be stored behind these dams, said there’s a strong possibility that the size of the would-be reservoirs is in for a “substantial haircut” in the water-court process.
ASPEN – A representative of the U.S. Forest Service told Aspen City Council Tuesday that the federal agency is likely to oppose the city if it files to extend conditional water rights it holds for dams on upper Maroon and Castle creeks.
The city has until Oct. 31 to submit a due diligence filing in Division 5 water court in Glenwood Springs to keep its conditional water rights alive for another six years, and the council held a work session Tuesday where it took public comment on the issue.
Kevin Warner, who is serving as the acting district ranger in the Aspen-Sopris Ranger District, said legal counsel for the Forest Service at the regional level had advised him that the federal agency would likely submit a statement of opposition if the city filed to extend its conditional water rights.
He said that given the city’s ongoing exploration of whether or not it should seek to renew its conditional water rights, the Forest Service also took an “in-depth” look at the rights.
“In this instance, we’ve taken a little more time, looked into it,” Warner told the council. “And based on advice from our counsel, we are considering filing a statement of opposition to this diligence filing.”
If built as currently described by the conditional water rights, the Maroon Creek Reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam, just below the confluence of East Maroon and West Maroon creeks.
The Maroon Creek Reservoir would cover 85 acres of Forest Service land about a mile and a half below Maroon Lake. The reservoir would also inundate portions of the Maroon Bells-Snowmass Wilderness.
The potential Castle Creek Reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the ghost town of Ashcroft.
The reservoir, inundating 120 acres, would affect mostly private land but would also flood some Forest Service land within the wilderness.
The city originally filed for the water rights in 1965, citing an expectation that it would need to build at least one of the reservoirs by 1970 to meet demands for water.
In its last diligence filing in 2009, the city told the water court “it has steadily applied effort to complete the appropriation of this water right in a reasonably expedient and efficient manner.”
On Tuesday, the city’s director of utilities and environmental initiatives, David Hornbacher, told the city council there could be a gap in the future between the city’s water supply and demand, especially given climate change, but he did not cite the specific size of the perceived gap, or how the potential reservoirs would be used to meet it.
He did, however, recommend that the city file an application in water court to maintain its conditional water rights and then look at alternatives.
A draft resolution put forward by city staff says “the city should also continue to further investigate alternative locations and sizing requirements of the Maroon Creek Reservoir and/or Castle Creek Reservoir, and, if appropriate, seek water court approval for modification of one or both conditional decrees, with their existing appropriation dates.”
Not compatible with USFS management plan
Art Daily, a member of the Aspen City Council and a veteran attorney with Holland and Hart in Aspen, asked Warner during Tuesday’s work session whether the Forest Service viewed filing a statement of opposition in water court as an “opportunity” or a “responsibility.”
Statements of opposition in water court cases do not always reflect a party’s intent in the case. A statement could be simply a way to monitor court proceedings, or it could signal intent to litigate against a proposed water right.
In response to Daily’s question, Warner said the agency saw it as a responsibility to oppose the city, rather than an opportunity.
Warner said the Forest Service’s opposition to the city’s water rights was based on the fact that the reservoirs would inundate portions of the Maroon Bells-Snowmass Wilderness.
“Based on our understanding of the Wilderness Act, and the fact that there was no exception built into the designation for the Maroon-Bells Wilderness Area … it would need to go to the president” in order for the reservoirs to be approved, Warner said.
Without such an authorization, the Forest Service could not support the city’s conditional water rights.
“It is nothing against this particular one, it’s just a legal thing,” Warner told the council. “It is kind of our opportunity in the court system to say, ‘You guys would have to get this done,’ and therefore it is kind out of our control.”
Will Roush, conservation director at Wilderness Workshop in Carbondale, told the city council in an Aug. 19 letter that no president has granted such an exemption to the Wilderness Act since it was approved 52 years ago.
Roush wrote, “the city would have to convince the president of the Unites States that the ability of Aspen residents and second homeowners to water their lawns in late summer was of a greater national interest than the internationally recognized ecological and scenic values of the Maroon Bells-Snowmass Wilderness.”
He also urged the city, on behalf of Wilderness Workshop, to abandon its conditional water rights.
This is not the first time the Forest Service has warned the city of Aspen that its proposed dams and reservoirs conflict with federal policy.
In 2009, the last time the city filed to extend its conditional water rights, White River National Forest Supervisor Scott Fitzwilliams sent the city a letter about its conditional water rights, but did not file a statement of opposition.
“As currently decreed, the locations of the Castle Creek and Maroon Creek reservoirs would not comply with the goals and objectives of the White River National Forest’s land and resource management plans for these areas,” Fitzwilliams wrote. “For example, the Maroon Creek Reservoir, as currently sited, would not be compatible with the specific management of the highly visited area for the protection of its high scenic value. Both proposed structures would conflict with our management objective to maintain or improve long-term riparian ecosystem conditions on the forest.”
County in question
In addition to the likely pushback from the Forest Service, American Rivers has also stated it will oppose the city in water court.
“American Rivers strongly encourages the city of Aspen to not file to maintain its conditional water rights for new dams on Castle and Maroon creeks,” wrote Matt Rice, the director of the Colorado River basin program for American Rivers on Aug. 17. “Aspen does not need these dams for municipal water supply, climate resiliency, or for stream protection now or at any time in the foreseeable future.”
Last month, Rice also said in an interview that American Rivers would oppose the city in water court if it filed to extend the conditional water rights.
The Roaring Fork Conservancy also weighed in with an Aug. 25 letter to the council, arguing that based on relevant studies, the city “appears to have sufficient water supply to meet its forecasted demand” without the reservoirs, which would “result in needless, drastic alteration of the natural landscape of two of our state’s most scenic places.”
“Rather than prolonging this debate for another six-year diligence cycle, Roaring Fork Conservancy believes now is the appropriate time to cancel these conditional water rights and tfor the city to pursue any other water demand and supply initiatives,” says the letter signed by director Rick Lofaro.
The city council also heard Tuesday from Lisa Tasker, the chair of Pitkin County’s Healthy Rivers and Streams Board, which recently sent a letter to the city saying the board “does not support new construction of impoundments on Maroon and Castle creeks.”
Tasker also suggested that Pitkin County might oppose the city’s diligence filing.
But Laura Makar, an attorney with the county who specializes in water issues, said Wednesday that the board of county commissioners “has not taken any position on any possible permutation of a diligence application the city of Aspen might file and I expect the [commissioners] will not have any position until any application is filed.”
Opposition in Maroon Creek Valley
The city also received a letter from an attorney representing the Larsen Family Limited Partnership, which owns water rights on Maroon Creek.
Craig Corona, a water attorney in Aspen who represents the Larsen family, wrote a letter on Aug. 17 to the city saying, “The city has not demonstrated that it will have a water supply shortfall in the future raising questions as to the need for these water rights. Even if such a supply issue arises, the city has other far less damaging options to meet its needs, including improving conservation and efficiency, developing additional groundwater sources (which the city is currently doing), and developing multiple smaller storage structures in more appropriate locations.”
Corona also told the city that it “should not file for diligence on its Castle Creek and Maroon Creek Reservoir water rights and should allow them to be canceled.”
Marcella Larsen of Aspen is co-manager of the Larsen Family Limited Partnership. She’s also a member of the Maroon Creek Caucus, which advises Pitkin County on land use in the Maroon Creek Valley.
Larsen recently sent a comment letter to the city from the Maroon Creek Caucus, opposing the Maroon Creek Reservoir, noting, “The city has made several statements to the public that it has no plans to build the reservoir and merely seeks to keep its options open by maintain the water rights. But when it files in court, the city will have to prove that it ‘can and will’ build the reservoir. Put differently, the city must prove that the project is essentially a foregone conclusion, not just a potential pursuit.”
The caucus concluded, “We think the only reasonable decision is for the city of Aspen to choose to not maintain its Maroon Creek Reservoir water right.”
The city council next plans to meet in a closed-door executive session with its water attorney on Monday about its conditional water rights, and then hold another public work session on Tuesday.
It also plans to vote on Oct. 10 whether or not to file to maintain the conditional water rights.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Thursday, Sept. 22, 2016.
ASPEN – After holding both private and public meetings last week about its conditional water rights for dams and reservoirs on upper Maroon and Castle creeks, the city of Aspen is likely facing opposition in water court if it files a request to extend the water rights for another six years.
“If their diligence filing is consistent with the current project configuration, I do think we will file a statement of opposition,” said Matt Rice, Colorado basin director for American Rivers, a national river conservation organization.
The city has until the end of October to file a due diligence report in Division 5 water court in Glenwood Springs. Such filings are required every six years.
In its September 2009 diligence filing, which was approved in 2010, the city told the water court “it has steadily applied efforts to complete” the dams and reservoirs “in a reasonably expedient and efficient manner.” The city first filed for the conditional water right in 1965 and the conditional rights were formally decreed in 1971.
At a public meeting Thursday a consultant working for the city, Larissa Reed of Common Ground Environmental Consulting LLC, told the gathering of about 35 people that the city’s pending due diligence filing was “routine.”
“City council is not proposing to build water storage reservoirs at this time,” Reed said. “What they are doing is thinking about the conditional water storage rights and whether or not they should be filed for again in October for another six years.“
A work session with city council on the question is to be held in September or October.
Reed then explained some aspects of conditional water rights, including the “can and will” test for proposed water supply projects.
“The phrase ‘can and will’ suggests, in the law, that you have to be making progress towards developing this water supply in order to re-up every six years in your diligence filing,” Reed said. “The idea is that applicants have to show that they are making progress on those water rights, that they’re not just sitting on them doing nothing.”
Can and will?
Since 1965, the city has consistently told the state it intends – at some point – to build a 155-foot-tall dam at the confluence of East and West Maroon creeks that would store 4,567 acre-feet of water behind it and build a 170-foot-tall dam on Castle Creek that would back-up 9,062 acre-feet of water.
The city has not undertaken feasibility or cost studies of the dams and reservoirs since filing for the water rights, although the Bureau of Reclamation did conduct limited test drilling on the Castle Creek dam site in 1970.
Nor has the city determined how much water storage it actually might need in the future, or what other storage locations might be feasible, according to David Hornbacher, the city’s director of utilities and environmental initiatives.
On Wednesday, the city held a private stakeholders meeting about the conditional water rights with representatives from American Rivers, Wilderness Workshop, Roaring Fork Conservancy, Aspen Center for Environmental Studies, the Colorado River District, U.S. Forest Service, and Colorado Parks and Wildlife.
The formats of both the private stakeholders meeting and Thursday’s public meetings were the same, with remarks from the consultant and Hornbacher, limited time for questions, and then facilitated small-group discussions focused on questions crafted by the city.
“I’m hopeful that they will take this public input and present it to the council in an unbiased and accurate fashion,” said Rice of American Rivers, who attended Wednesday’s stakeholder meeting, “but if the city moves forward with due diligence for a reservoir on Maroon Creek and a reservoir on Castle Creek, we intend to stand up for those rivers and those wild places and oppose.”
When asked if American Rivers was prepared to take its opposition to a level of active litigation in water court, which typically comes after a lengthy period of time when parties are asked by the court to work out their differences in private meetings, Rice said he hoped it wouldn’t go that far.
“I would hope that it would give the city an opportunity to investigate real alternatives to this project to meet their future water supply needs,” he said of discussions during the initial phase of the process. “One thing that a statement of opposition in a diligence filing does is that inspires those discussions at a quicker pace than would happen otherwise.”
American Rivers filed a statement of opposition in response to a diligence filing in 2011 from the Colorado River Water Conservation District and the West Divide Water Conservancy District for conditional water rights for two large dams on the Crystal River.
The River District and the West Divide District agreed to abandon those water rights in 2013.
Pitkin County also filed a statement of opposition against the Crystal River conditional water rights and took an active role in the proceedings.
After Thursday’s public meeting on the rights on Maroon and Castle creeks, Laura Makar, an assistant county attorney for Pitkin County, said the county had not yet decided if it would oppose a diligence filing by the city.
“We don’t have a position at this point in time,” Makar said. “The diligence filing is not due until October. Any statement of opposition would not be due until December. We’re in August right now, so I anticipate we’ll have a position at some point.”
Pitkin County Commissioner Rachel Richards, a former mayor of Aspen, attended Thursday’s meeting. She said during the small-group discussions that she thought it was “premature” for the city to abandon its conditional rights for the dams and reservoirs.
Will Roush, a conservation advocate for Wilderness Workshop, attended both the private stakeholders meeting and the public meeting.
When asked Friday if Wilderness Workshop intended to oppose the diligence filing, Roush said, “We’ll make that decision once they decide whether or not to file a diligence filing,” but also said his organization wants Aspen to abandon the water rights.
Paul Noto, a water attorney at Patrick, Miller, Noto who fought the city’s proposed hydropower plant on lower Castle Creek on behalf of a group of local clients, was asked if he expected someone to file a statement of opposition if the city filed.
“It’s not a question of someone, it is a question of how many,” Noto said. “There is going to be a lot of opposition to this project. The reason is Aspenites, and others, hold Castle and Maroon creek valleys near and dear to their hearts and I think a lot of people passionately believe, rightly so, that there shouldn’t be dams in those valleys.”
Rob Harris, the senior staff attorney at Western Resource Advocates of Boulder, also was at Thursday’s meeting. Afterward, he was critical of the city’s dueling messages about its intentions for the dams and reservoirs.
“The city can’t and shouldn’t say different things to the public that it says to the water court,” Harris said. “The city shouldn’t come in here, to this public meeting, and say, ‘We don’t really have any plans to build these dams’ and then go into the water court and say, ‘We can and will build these reservoirs.’ Those are two different, inconsistent, statements.”
He also challenged the way the city made it sound that climate change made the dams necessary.
Ashley Perl, the director of the city’s Canary Initiative, had presented climate projections at the meeting that showed less water would likely be in Aspen-area rivers in a hotter future. She said that Aspen doesn’t have any water storage facilities, which made it vulnerable, and that the community needed to have a conversation about storage.
But Harris said, “It is important to note that nothing we saw tonight connected any of those water availability scenarios under those climate models to actual water needs that the city of Aspen has. There was nothing presented tonight that showed that in any of those scenarios that Aspen would in fact be short of water.”
Harris added, “If the city does identify a water need, they have lots of other alternatives” than the dams and reservoirs.
The city has set up an email address for citizens to send comments and questions about the conditional water rights, at email@example.com, until Aug. 19.
Regional reservoirs and dams, ranked by normal storage capacity
During a public meeting on Aug. 4, 2016, the city of Aspen presented a graphic comparing the surface area of various regional reservoirs with the surface area of the proposed Castle and Maroon creek reservoirs.
We’ve expanded the list, added more criteria, ranked it by storage capacity, and used data from the Colorado Dept. of Dam Safety, including their term of “normal storage” for the storage capacity amount.
For Castle and Maroon, which the city labeled in their presentation as “proposed,” we’ve simply used “storage capacity.”
AF means “acre feet.” There are 325,851 gallons of water in an acre-foot.
Normal storage: 102,369 AF
Dam height: 291 feet
Dam length: 1,060 feet
Surface area: 998 acres
Normal storage: 42,900 AF
Dam height: 231 feet
Dam length: 1,996 feet
Surface area: 333 acres
Normal storage: 20,950 AF
Dam height: 199 feet
Dam length: 770 feet
Surface area: 334 acres
Rifle Gap Reservoir
Normal storage: 13,602 AF
Dam height: 124 feet
Dam length: 1,450 feet
Surface area: 359 acres
Proposed Castle Creek Reservoir
Storage capacity: 9,062 AF
Dam height: 170 feet
Dam length: Approx. 1,000 feet
Surface area: 112 acres
Proposed Maroon Creek Reservoir
Storage capacity: 4,567 AF
Dam height: 155 feet
Dam length: Approx. 1,500 feet
Surface area: 80 acres
Spring Park Reservoir
Normal storage: 1,732 AF
Dam height: 20 feet
Dam length: 1,645 feet
Surface area: 258 acres
Normal storage: 1,100 AF
Dam height: 75 feet
Dam length: 1,100 feet
Surface area: 50 acres
Normal storage: 752 AF
Dam height: 16 feet
Dam length: 270 feet
Surface area: 82 acres
Normal storage: 590 AF
Dam height: 56 feet
Dam length: 792 feet
Surface area: 44 acres
Normal storage: 460 AF
Dam height: 40 feet
Dam length: 580 feet
Surface area: 20 acres
Normal storage: 248 AF
Dam height: 28 feet
Dam length: 500 feet
Surface area: 16 acres
Normal storage: 100 acre feet
Dam height: 37 feet
Dam length: 160 feet
Surface area: 10 acres
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Monday, August 8, 2016.