State grants flowing into Colorado, Roaring Fork, and Eagle rivers — @AspenJournalism

The Colorado River, flowing west at the wave in Glenwood Springs. The river, from Dotsero at the upper edge of Glenwood Canyon to DeBeque Canyon, is being studied as part of an integrated water management plan being prepared by the Middle Colorado Watershed Council. Photo credit: Brent Gardner-Smith

From Aspen Journalism (Heather Sackett):

Five water plans or projects concerning the Roaring Fork, Colorado and Eagle rivers are on track to receive $337,000 in state funds to study water users’ needs, plan for future water use and restore river ecosystems.

The efforts include a web-based information system about the Roaring Fork River watershed, restoration work on the Crystal River near Carbondale, an agricultural-water study in Garfield County and funding for two integrated water management plans for the Eagle River basin and a section of the Colorado River.

All five of the projects are part of a bigger effort toward stream management planning and list that goal in their grant applications. An objective of the 2015 Colorado Water Plan is to cover 80 percent of rivers with stream management plans.

Such plans already exist, or are in process, for the Poudre River, the Crystal River, the North Fork of the Gunnison, the Upper Gunnison Basin and the San Miguel River and have been proposed on the Eagle, Yampa, Upper San Juan and Middle Colorado rivers.

Looking upstream toward the confluence of the Roaring Fork River, left, and the Crystal River, right, just below Carbondale. More information about these and other rivers will be made available to the public with the help of a recent $37,000 state grant to the Roaring Fork Conservancy. Photo credit: Brent Gardner-Smith

Roaring info, Crystal headgate

Last month the Colorado River basin roundtable, which meets in Glenwood Springs and reviews and votes on water-project grant requests before sending them to the Colorado Water Conservation Board, approved a $37,000 request from the Roaring Fork Conservancy to create a $50,000 public interactive map and information system.

Anyone from school kids to scientists would be able to access, search and sort data about the Roaring Fork. The project will organize the information contained in the 145-page Roaring Fork Watershed Plan so it’s easier for the public to find and understand.

In March, the CWCB approved a $20,700 grant from the town of Carbondale to restore and enhance a half-mile stretch of the Crystal River near the state fish hatchery, as well as make improvements to the town-owned Weaver Ditch headgate and diversion structure.

The project aims to restore ecological health by reconnecting the river with its flood plain, improve river channel stability and enhance a riverfront park with signs and trails. The project, at a total cost of $200,000, also is being funded by the town, Great Outdoors Colorado, and Aspen Skiing Co.’s environmental fund.

The CWCB also approved grants last month to the Eagle River Watershed Council and the Middle Colorado Watershed Council. Both groups received funding for their respective stream management plans, which emphasize collaboration among water users. Eagle received approval for $75,000 and the Middle Colorado for $103,800.

A rafter on the Colorado River looking upstream toward Glenwood Springs. The Middle Colorado Watershed Council has recently received a $104,000 state grant for its $415,000 integrated water management plan for the Colorado River between Dotsero and DeBeque. It will look at recreational and environmental flows, as well as consumptive use of water by ag and cities. Photo credit: Brent Gardner-Smith

The Middle reach

The Middle Colorado stream management plan will cover the main stem of the Colorado River from Dotsero to DeBeque. It will identify water needs for non-consumptive uses, like the environment and recreation, which depend on sufficient water left in a river or stream.

The state funding will be used to evaluate ecosystem health and water quality, and to develop hydrologic flow models.

“The question is if we see any issues that are flow-related and what additional flows do we need to attain a healthier ecosystem,” said Laurie Rink, executive director of the Middle Colorado Watershed Council.

Rink will soon be moving into a project management position so she can devote more time to developing the stream management plan, and the watershed council will hire a new executive director.

In addition to $103,800 from the state, the council is seeking funding from Garfield County, Rifle, Glenwood Springs, the Colorado River District, and the Tamarisk Coalition for a project total of about $415,000.

An irrigation ditch south of Silt, and the Colorado River, moves water toward a field. The state of irrigated agriculture in Garfield County is expected to get a closer look as part of an integrated water management plan being prepared by the Middle Colorado Watershed Council. Photo credit: Brent Gardner-Smith

Ag water

A key to understanding the Middle Colorado River and its tributaries is also understanding agriculture’s use of water from the river system. But the ag community has historically been hesitant to participate in studies that focus on recreation and environmental concerns. This study aims to bring them into the fold of stream management planning.

To help get consumptive users involved, three regional conservation districts, the Bookcliff, South Side and Mount Sopris districts, have teamed up to do their own study of ag’s use of water.

“We really want to understand for our watershed both the consumptive and non-consumptive uses we have and what gaps exist,” Rink said.

At its March meeting the Colorado basin roundtable approved a $100,000 grant request for the three conservation districts to create an “agriculture water plan” for Garfield County that will inform the stream management plan being done by the Middle Colorado council.

That grant request now goes to the CWCB in May.

“The dry year is the immediate impetus, and the future of our water rights,” said Liz Chandler, program coordinator of the ag-water study. “With the looming prospect of a compact call, the agriculture community needed to get much more involved with a planning process to make sure agriculture’s voice is heard loudly and clearly.”

The ag-water study would focus on ag lands between Glenwood Springs and DeBeque, and aims to determine the current irrigated acreage and to conduct an inventory of irrigation ditches.

The study also would determine water needs for the crops and develop a plan to protect agriculture water.

A sprinkler irrigating a pasture north of New Castle. Three conservation districts have secured a $100,000 grant from the Colorado River basin roundtable to study consumptive use of water by ag, and cities, between Glenwood and DeBeque. Photo credit: Brent Gardner-Smith

“100 percent public”

In 2016, the Eagle County Conservation District completed a similar irrigation asset inventory, the results of which officials said should remain private, although the study was paid for with public funds.

But unlike that study, Chandler said the results of the Garfield County study will be “100 percent public information.”

“The end goal of our project is very different from Eagle,” Chandler said. “They wanted to get shovel-ready projects for their diverters. We want to create an integrated water plan. And we have so much more agriculture down here than Eagle does.”

The dam in the Eagle River headwaters that forms Homestake Reservoir, which diverts water to the Front Range. The Eagle River Watershed Council was granted $75,000 from the CWCB last month toward an integrated water management plan for the Eagle River basin, which faces more transmountain diversions. Photo credit Brent Gardner-Smith

Eagle River Watershed

A few miles upstream, the Eagle River Watershed Council is developing its own stream-management plan.

Its plan aims to develop water management recommendations based on three factors the watershed will face in the coming years: increased municipal demand for water that comes from population growth, climate change, and still-to-be-developed projects related to the “Eagle River MOU” project, which could include new or expanded reservoirs and transmountain diversions to the Front Range.

“Collaboration is absolutely critical to this plan,” said Holly Loff, executive director of the Eagle River Watershed Council. “In creating the scope of work, we reached out to all the people we thought should be participating as a stakeholder and clumped them together in six different groups: local government, agriculture, recreation, conservation, federal and state agencies, East Slope water interests and West Slope water interests.”

Loff said she expects the entire stream-management planning process will take three years to complete.

In addition to the $75,000 from the state, the Eagle River Watershed Council also expects to receive money and in-kind donations from Vail Resorts, Homestake Water Project Partners (Aurora and Colorado Springs), the towns of Avon, Gypsum, Vail and Minturn, Eagle Park Reservoir Company, Climax Mine, Eagle County, and the Colorado River District for a combined total project cost of nearly $390,000.

Editor’s note: Aspen Journalism is collaborating on coverage of rivers and water with the Vail Daily, the Summit Daily, the Glenwood Springs Post Independent, and The Aspen Times. The Times and the Post Independent published this story on Monday, April 9, 2018.

The latest “Water Matters” newsletter is hot off the presses from the @COWaterTrust

Rancher Bill Fales stands next to his headgate on the Crystal River.

Click here to read the newsletter. Here’s an excerpt:

Crystal River Project

We are thrilled to announce a pilot agreement between Cold Mountain Ranch and Colorado Water Trust designed to increase flows in the Crystal River during drier years.

Cold Mountain Ranch owners, Bill Fales and Marj Perry, will voluntarily retime their irrigation practices in exchange for compensation to leave water in the Crystal River when the river needs it most. The project provides a model that could be replicated on other rivers in need.

Thanks to a very long list of partners, this three-year agreement came out of the Crystal River Management Plan. It is designed to improve the health of the Crystal River in partnership with agriculture, as we work to keep farms and ranches productive while restoring water to thirsty rivers. To quote our Board Member, Dave Taussig, “We want green fields and blue waters.” Let’s make it happen!

Map of the Roaring Fork River watershed via the Roaring Fork Conservancy

Rancher on Crystal River agrees to change diversions to benefit river — @AspenJournalism @COWaterTrust

Rancher Bill Fales stands next to his headgate on the Crystal River.

From Aspen Journalism (Sarah Tory):

There is a new way to put water back in Colorado’s parched rivers.

After more than a year of back and forth with Pitkin County officials, the nonprofit Colorado Water Trust announced Tuesday a pilot agreement with a Carbondale rancher to increase streamflows in the Crystal River during dry years.

The three-year agreement will compensate Bill Fales and Marj Perry, who own the 600-acre Cold Mountain Ranch just west of Carbondale, for retiming their irrigation practices to leave water in the Crystal River when it needs a boost.

Although the Water Trust has spearheaded water leasing arrangements to benefit other rivers in Colorado, the Cold Mountain Ranch deal is the first to involve the timing of irrigation diversions.

For Zach Smith, a staff attorney for the environmental nonprofit Water Trust, the pilot agreement is an important test for whether this type of conservation program can work for ranchers and rivers.

“That’s great for the Crystal itself,” Smith said, “and it’s also great for the Water Trust as we try to figure out how to design projects for working ranches.”

Under the terms of the agreement, the Water Trust will monitor flows in the river and, if flows fall to 40 cubic feet per second (cfs), the ranch may voluntarily shift its diversion scheduling. The Water Trust will then measure the changes in the ranch’s irrigation practices and pay Fales and Perry $175 per cfs per day to encourage that shift. Once streamflows reach 55 cfs, the payments would cease.

The pilot agreement can restore as many as 6 cfs per day in the Crystal River for a maximum of 20 days in August and September (no other months are included), offering a maximum payout of $21,000 per year to Cold Mountain Ranch.

The new deal is the culmination of a multi-year effort to help boost streamflows in the Crystal River, which runs from the Elk Mountains above Marble to its confluence with the Roaring Fork River at Carbondale.

During the drought of 2012, demand for water outpaced supply and the Crystal went dry, prompting the Water Trust to look for new sources of water for the river’s benefit.

Although the Colorado Water Conservation Board has an environmental instream flow right on the Crystal, the water right dates from 1975, far lower in priority than the major agricultural water rights on the Crystal — and thus is of little to no use when the river most needs water.

The Water Trust began consulting with local ranchers and farmers whose senior water rights could be useful during times of drought, asking whether they would be willing to lease some of their irrigation water for the Crystal’s benefit. And many were.

However, most of them, including Fales, were wary of arrangements that involved too much bureaucracy. So the Water Trust devised a more flexible deal, requiring no filings in water court.

Fales was the first to volunteer. He offered to let some of his water rights from the Helms Ditch, which dates from 1899, for the Crystal’s benefit and assumed Pitkin County would be on board, as well. (The county co-owns a conservation easement on Cold Mountain Ranch and had to approve the deal with the Water Trust.)

Instead, the rancher found himself embroiled in a frustrating disagreement with Pitkin County officials who insisted that Fales’ willingness to forgo some of his water when the river needed a boost would put his water rights at risk.

For John Ely, the Pitkin County attorney, the biggest problem was that if Fales kept producing the same amount of alfalfa with less water, his water rights could one day be diminished in water court under the “use it or lose it” principle. This was especially concerning to Ely because the county had paid $7.5 million for the conservation easement on Cold Mountain Ranch.

“If you’re preserving agricultural property, you’re not preserving much if you don’t have the water that goes with it,” Ely said.

The new arrangement addresses the county’s concerns. Instead of reducing his annual water use, Fales will simply shift the timing of his diversions to align with the Crystal’s needs.

The end result, Smith said, will bring the same environmental benefits for the river without affecting Cold Mountain Ranch’s water rights.

What’s more, the pilot agreement marks the first step toward implementing the Crystal River Stream Management Plan, released in 2016, which helped quantify the ecological needs of the river. And it means Pitkin County can finally fulfill its long-stated goal of putting more water in local rivers through the Healthy Rivers and Streams program.

For Smith, the process of working out this kind of arrangement also has broader lessons for other water conservation efforts involving conservation easements. Back in 2012, the Water Trust thought it had a leasing agreement that could be rolled out in different river basins throughout Colorado. Now, Smith said, he’s learned that what works in one community might not work for another.

“We need to be flexible,” he said.

Editor’s note: Aspen Journalism is covering rivers and water in collaboration with The Aspen Times, Glenwood Springs Post Independent, Vail Daily and Summit Daily News. The Times and the Post Independent published this story on Wednesday, Jan. 24, 2017.

Here’s the background from Sarah Tory writing for Aspen Journalism:

Bill Fales is a self-described “sucker for experiments.”

The soft-spoken, unassuming 64-year-old grows alfalfa on his 600-acre ranch just west of Carbondale. For 45 years, Fales has irrigated the fields of Cold Mountain Ranch with water from the Crystal River, which flows 35 miles from its headwaters in the Elk Mountains to the Roaring Fork River.

In spring 2016, the Colorado Water Trust, a Denver-based nonprofit devoted to improving river health, announced a new water conservation initiative to ranchers in the Crystal River valley. Fales was eager to jump on board.

It sounded simple enough: The Water Trust would compensate any ranchers willing to leave some of their irrigation water in the Crystal River to boost flows during dry times. In 2013, Colorado had passed a law protecting water rights registered in conservation programs, and Fales assumed his interest would be met with approval.

Instead, the rancher found himself embroiled in a bewildering disagreement with Pitkin County officials who insisted that Fales’ willingness to forgo some of his water when the river needed a boost would put his water rights at risk.

Why, Fales wondered, was it so hard to do something he thought was good?

Bill Fales pictured on his ranch overlooking the Crystal River. His property is one of the last handful of true operating ranches in Pitkin County.

Wary of bureaucracy

Cold Mountain Ranch is one of the few remaining working ranches in Pitkin County, and Fales always felt protective of the land’s open space and agricultural value. To protect his property from development, he sold a conservation easement on the entire ranch in 2009 to Pitkin County and the Colorado Cattlemen’s Agricultural Land Trust. Under the terms of the easement, the water rights that came with the ranch could not be sold separately from the land.

When it came to water conservation initiatives, however, the West’s system of private water rights often clashed with environmental priorities. That was true of the Crystal River valley, as well. When the Colorado Water Trust first put out the call to local farmers and ranchers in 2012 — a dry year — asking if they would be willing to lease some of their water for the river’s benefit, most of them, including Fales, were wary of the bureaucracy involved in the arrangement.

“It took away your whole ability to make decisions — they’d come and shut off your headgate at one of two predetermined dates,” he said.

Still, Fales knew that ranchers and farmers — and their senior water rights — had an important role to play in helping the Crystal, especially during times of drought.

The Colorado Water Conservation Board (CWCB) has an environmental instream flow right on the Crystal for 100 cubic feet per second from May 1 to Sept. 30 and for 60 cfs from Oct. 1 to April 30. The water right dates from 1975, far lower in priority than the major agricultural water rights on the Crystal — and thus of little to no benefit. During drier years, the river regularly drops well below 100 cfs.

Since most ranchers in the Crystal River valley were uninterested in a formal water-leasing arrangement offered by the state, the Water Trust devised another more flexible option, requiring no filings in water court. The arrangement allowed irrigators to let water flow past their headgates to benefit the Crystal’s flows during dry periods.

When the Water Trust advertised the program to ranchers in the Crystal River valley in spring 2016, Fales was the first to volunteer. They settled on a target flow of 40 cfs, which the recently completed stream management plan showed was an important indicator for river health and also a realistic goal for ranchers.

Fales planned to use his water right on the Helms Ditch, which includes an original right for 2.93 cfs with an appropriation date of 1899 and an enlargement right for 3.07 cfs dating to 1924. He irrigates about 100 acres with the water right.

If the river fell below 40 cfs, Fales would decide if he could turn off the headgate for a short period of time and in exchange, the Water Trust would pay him $175 per cfs of water left in the river per day.

Fales isn’t sure how much water he would be able to leave in the river, as it depends on the time of year and his irrigation demands.

However, an application for “approval of a water conservation program” prepared in December 2016 in anticipation of it being submitted to the Colorado River District, which has the ability to approve such programs, did set parameters on the effort. It said Fales could choose to leave up to 6 cubic feet per second of water in the river at a time, for up to 45 days between July 1 and Sept.30, and up to 535 acre-feet a year overall.

The application says “the exact amount of water in any year to be conserved will vary based on Cold Mountain Ranch’s discretion, river calls, and hydrologic conditions.”

The draft application, which was never formally submitted to the River District, has a footnote observing that “the River District recognizes the precise quantification of water savings may be difficult or impossible” and that “estimates and a description of the method of estimation are sufficient.”

Whatever amount of water is left in the river would flow downstream for at least two miles without a chance of it being diverted by another structure.

And Fales hopes that after a week or two of his not diverting water, other irrigators might step up and turn down their headgates, too, so that collectively they could help the river without causing undue burden on any one rancher.

For Fales, volunteering for the program felt important in another way, as well.

“Putting our head in the sand is not a solution,” he said. “If we don’t come up with something ourselves, the state will tell us what to do or the Front Range will come knocking.”

One of three irrigation ditches that delivers water from the Crystal River to Bill Fales’ Cold Mountain Ranch. Fales owns some of the most senior water rights on the river, which he hopes he can use to help improve its flow during dry periods.

A map provided as part of an application for the water conservation program at Cold Mountain Ranch to the Colorado River District, from December 2016. Source: Colorado Water Trust

Confusing signs from county

In fall 2016, Fales presented his proposal to reduce his water for the purpose of boosting flows in the Crystal River to the Colorado Cattlemen’s Agricultural Land Trust and Pitkin County officials, who both have a stake in the conservation easement on his ranch. The land trust offered a few amendments, but was otherwise on board. Pitkin County, however, was less enthusiastic.

“I thought they’d give me a big kiss and a hug,” Fales said. “They have their Healthy Rivers and Streams program whose goal was to put water back in the river — which they’ve never done — and now we’d finally be able do that.”

Unbeknownst to Fales, the county had become increasingly protective of agricultural water rights on properties with conservation easements — especially the county attorney, John Ely, the architect of Pitkin County water policy.

He saw all sorts of interests pulling at the Western Slope’s water, from climate change to dramatic growth along the Front Range to Colorado’s legal obligations to deliver a certain amount of water from the Colorado River to other states like Arizona and California. There also was Colorado’s own water laws, which encourage water to be used — anywhere. Already, water from Pitkin and Garfield counties’ Roaring Fork River was diverted hundreds of miles across the mountains to Aurora and Colorado Springs.

“We clearly recognize that if water rights disappear from here then our land has a real possibility of drying up and the water will be used somewhere else,” Ely said.

For Ely, senior agricultural water rights protected much of the county’s water from getting diverted over the Continental Divide. The flip side, of course, is that the agricultural diversions are drying up sections of these rivers.

Still, when it came to water rights, Ely did not want to take any risks — even small ones. Although the conservation easement on the Cold Mountain Ranch allows the owner to temporarily reduce their water for the purpose of maintaining or improving streamflows, Fales’ proposal with the Water Trust was too informal for Ely’s taste.

Under state water law, only the CWCB has the authority to keep water destined for the environment in the river, but Fales and the Water Trust had bypassed the state in crafting their agreement.

Ely feared that another water user would claim the water Fales left in the Crystal. And he worried, too, that if Fales kept producing the same amount of alfalfa with less water, his water rights could one day be diminished in water court under the “use it or lose it” principle. This was especially concerning to Ely because the county had paid $7.5 million for the conservation easement on Cold Mountain Ranch.

“One of our central concerns was once the water was in the river there was no mechanism to keep it there,” Ely said. “If you’re preserving agricultural property, you’re not preserving much if you don’t have the water that goes with it.”

In response to Ely’s concerns, Fales and Zach Smith, the Water Trust lawyer who put together the Cold Mountain Ranch proposal, solicited the input of various environmental organizations and water policy experts to find out if the water Fales left in the Crystal would help the river.

And crucially, was Fales imperiling the Cold Mountain Ranch water rights that Pitkin County had invested in?

Smith and Fales received responses from Trout Unlimited, the Aspen Valley Land Trust, and the Colorado Division of Water Resources.

All of those contacted were in favor of the proposal and saw no problem with regard to Fales’ water rights and his making an application to the River District seeking approval for it.

“Once approved by the River District the plan will protect the Helms Ditch right from abandonment, diminution of historical consumptive use, and any assertion of waste,” Alan Martellaro, the Division 5 engineer at the Colorado Division of Water Resources, wrote in an email to Ely on January 11, 2017. “I believe the application is a simple, good first step toward balancing agricultural and ecological river needs in the Crystal River valley desired by the Water Trust and Bill Fales.”

Meanwhile, Fales, Smith, and Pitkin County officials began meeting to try to resolve their disagreements over the proposal. John Currier, the chief engineer at the Colorado River District, attended one of the meetings.

“I don’t think it’s risky at all from a water-rights protection perspective,” Currier later said. He conceded, however, that someone could, in the future, argue that Fales had been wasting his water if he continued to grow the same amount of alfalfa with less water. The risk, he said, was remote.

The whole ordeal has left Fales feeling frustrated and confused.

“We’re supposed to be one of the most environmentally minded counties, so to say to farmers that they should maximize their diversions is really bizarre,” he said.

In search of a new arrangement

Fales, the Water Trust, and Pitkin County officials continued to meet in the hopes of resolving their differences about the Cold Mountain Ranch proposal. After all, they wanted the same thing: more water in the river.

Although they’re still sorting out the details, Fales, Ely, and the Water Trust are optimistic the new arrangement will satisfy both parties: Instead of reducing his water use, the Water Trust will pay Fales to coordinate the timing of his irrigation diversions with the river’s needs so that he turns down his headgate when the Crystal is running low and back on again when the river is flowing well.

Dale Will believes a successful agreement could ripple throughout the area. Will is acquisition and special projects director at the Pitkin County Open Space and Trails program, and the program’s former director.

“That’s why everyone is focused on Cold Mountain Ranch,” Will said. “Not because Bill [Fales] by himself can solve the problem, but because if they can make his proposal work, they can expand it to our other agricultural land.”

Editor’s note: Aspen Journalism is covering rivers and water in collaboration with the Glenwood Springs Post Independent, The Aspen Times, the Vail Daily, and the Summit Daily News. The story was published on Tuesday, Jan. 2, 2017 by the Post Independent and The Times.

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.

City of Aspen to fund ‘community-based’ study of water demands and storage options

A view of the Maroon Bells from near potential damsite of the Maroon Creek Reservoir.
A view of the Maroon Bells from near potential damsite of the Maroon Creek Reservoir.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – The city of Aspen is embarking on a new “community-based” planning effort to find out how much water the city may need in the future and how best to meet that demand.

The process is also to include a review of water storage options in lieu of moving forward with the potential Maroon and Castle reservoirs, for which the city holds conditional water rights.

“We know there is a lot of expertise in the community,” Margaret Medellin, the city’s utilities portfolio manager told the Aspen City Council on Tuesday during a work session. “We want Aspen to know we are listening. We want to engage.”

Local water stakeholders are expected to be interviewed in the coming weeks by consultants hired by the city from Consensus Building Institute in Cambridge, Mass.

Aspen City Manager Steve Barwick advised council members that the overall water-planning effort could cost “several hundred thousand dollars.”

While the city has already signed a number of contracts with various firms for its new planning efforts, it has not yet hired a consultant to specifically determine future water storage needs and to find out whether it might ever really need to build large dams on Castle and Maroon creeks, as it has recently again told the state it intends to do if necessary.

It’s also not clear why officials feel the need to go beyond a “water supply availability” study completed for the city in June 2016 by Wilson Water Group. That study did not identify a clear need for additional storage facilities.

That study found that “the results of this analysis indicate the City can always provide sufficient potable and raw water supplies under these modeled demand and hydrology scenarios. Existing water supply infrastructure and water rights portfolio developed and managed by the City do not appear to be limiting factors in this evaluation.”

It also said “the results of this study indicate that under historical hydrology conditions, water demands through the next 50 years can be met. However, under specific dry climate change scenarios, the City would be required to implement several tools to curtail water demands in order to fulfill the objectives of providing a reliable water supply for potable, raw, and ISF (insteam flow) purposes. All of the water supply alternatives … are either in place currently or the City is actively working towards bringing them online.”

Those “water supply alternatives” in the report include a new water reuse facility and a deep well, but not either of the two large potential reservoirs on Castle and Maroon creeks.

The study concludes by noting that “for the 50-year planning window, under the largest growth and driest climate scenario an average monthly ISF deficit of 3.5 cfs is possible, and could be satisfied by increased well pumping.”

After this week’s work session both David Hornbacher, the city’s director of utilities, and council member Art Daily, said that the new water planning effort would seek to find out how much water storage Aspen might actually need in the future.

“We’re going for a community-based approach and that approach includes looking at the future demands and looking at supply alternatives,” Hornbacher 
said. “What is different from the previous report is that we’re engaging a lot of the members in the community and other interested parties to have a lot of input into some of the ideas.”

Daily, who is also a senior partner at the Holland and Hart law firm in Aspen, said the question of “What do we need?” is “the first thing we’re looking at. Definitely.”

“We don’t know what the future is going to require of us, but let’s make some reasonable assumptions about what we might realistically need in the way of storage,” Daily said. “And what alternatives are there to those two reservoirs?”

“That’s just smart planning and thinking,” Daily also said. “We know that the reservoir options are there. But are there better alternatives that have less impact on critical valleys, critical landscapes, private lands and county lands? I don’t know that we’ve in the past ever really closely analyzed what those options are.”

The city has filed two applications in Division 5 water court to extend its conditional water rights tied to the potential Castle and Maroon creek reservoirs, and 10 parties have filed statements of opposition in the two cases, including Pitkin County.

The water rights date to 1965 and the city has yet to undertake a comprehensive and detailed feasibility study of either potential reservoir.

A view from where a dam would stand to form the potential Maroon Creek Reservoir.
A view from where a dam would stand to form the potential Maroon Creek Reservoir.

‘Not a very desirable location’

“That was pretty creative thinking 40 years ago,” Daily said, referring to the city’s filing for water rights on Castle and Maroon creeks, during an on-the-record interview in council chambers after Tuesday’s work session.

“We know today it is not a very desirable location to flood – Maroon Creek and that whole drainage,” Daily said. “And the lake and the mountains around it. We would hate to touch any of that. There is no question. And I don’t think anybody in the community feels differently about that.

“But I’m glad we still have those conditional rights,” Daily continued. “Let’s not give those up until we develop an alternative strategy.

“This is hard stuff. I don’t know exactly how you go about it. I’m no engineer. But I’m glad we’re embarked on the evaluation, the study. We are going to develop a lot of knowledge we don’t have today. And I’m not saying this is easy or inexpensive or anything but it’s critical to the long-term future of our community.”

One of many wetland areas that would be inundated by the potential Castle Creek Reservoir, for which the city holds conditional water rights. A new water planning effort by the city involves studying aspects of the potential reservoir.
One of many wetland areas that would be inundated by the potential Castle Creek Reservoir, for which the city holds conditional water rights. A new water planning effort by the city involves studying aspects of the potential reservoir.

Considering climate

During Tuesday’s work session, the council members were told by Ashley Perl, the director of the city’s climate-change program, that “Our lack of [water] storage makes us extremely vulnerable to a changing climate.”

After the meeting, Daily said the city still needs more information to determine how vulnerable it may actually be.

“Part of the study is, what are the realistic climate considerations for us?” Daily said. “None of us have the answers. And none of us want to be excitable or over-reactive. I just want to learn all we can.

“The information we have developed to date, it’s thin. It’s not persuasive yet. I think some of our assumptions are becoming more and more supported by what we’re learning.

“If climate change continues, as it seems to be moving, and I don’t buy Trump’s argument that there is no such thing, then we need to prepare a future where we may have less water. It’s that simple. And I think it is our job to prepare for that as best we can.

“The first thing we’re looking at is how much may we need. And making certain assumptions about the climate and what are our water resources going to look like 30, 40 years from now.

“If we don’t plan for it now, as best we can, with whatever how many years it is going to be, we won’t get it done. And we may not get it done in time. So let’s get on it.

“I think that’s what, really, the whole community is supportive of. It’s a question of exactly how you do it and what are we trying to accomplish and what do we need to know? Those are all good questions.”

A map of the potential Maroon Creek Reservoir, based on the city's conditional decree.
A map of the potential Maroon Creek Reservoir, based on the city’s conditional decree.

Listening to opposers

Daily also said he expected the city to listen to the parties who’ve filed statements of opposition in the Castle and Maroon creek water rights cases.

“If they’ve got anything to offer us, I want to hear that too,” Daily said. “And collaboration is critically important in something like this that has such a community impact. You know, we need all the input we can get. We need all the expertise that’s out there. And then we need to develop new expertise.

“It’s a tough process. [But] what I like is, the city – the proponents, and the opponents – they are going to collaborate because they all know that the best possible solution is if everybody’s intellect gets involved at the same time. And ultimately they may continue to oppose and never settle, but let’s find out.

“We’re going to have to work together. And these guys all want a realistic solution and they all want to know, what’s the real assessment of the potential problem?”

A map of the Castle Creek Reservoir, as currently decreed.
A map of the Castle Creek Reservoir, as currently decreed.

Hiring consultants

According to a Jan. 27 staff memo from Medellin, the city has recently entered into a contract with Sopris Engineering of Carbondale to “update surveying for Castle Creek Reservoir.”

It also notes that city staff “met with dam and reservoir expert, Terry Arnold, to review existing geological data.”

The memo does not discuss further study of or surveying the potential Maroon Creek Reservoir, which would be built in view of the Maroon Bells.

The city has also entered into a contract with Headwaters Inc. of Utah “to perform a preliminary review of risks in Aspen’s demand and supply through 2065.”

The city has also hired Deere and Ault Consultants to study the feasibility of storing water in old mines in the Aspen area.

The city staff memo said, “consultants Don Deere and Victor DeWolf met with staff and performed [an] on site investigative tour of local mines” on Jan. 26.

On Tuesday staff included several photos of the consultants walking in a dark local mine as part of their presentation to council.

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of water and rivers. The Daily News published a shorter version of this story on Feb. 3, 2017.

@GlenwoodPI: Striving to head off water bankruptcy

Map of the Roaring Fork River watershed via the Roaring Fork Conservancy
Map of the Roaring Fork River watershed via the Roaring Fork Conservancy

Here’s a guest opinion (Eric Kuhn, Jim Light, Rick Lofaro, Louis Meyer) running in the Glenwood Springs Post-Independent:

In the Roaring Fork Valley, water is everyone’s business. Winter and summer, it fuels our economy and our fun.

The Roaring Fork, Crystal and Fryingpan rivers feed the Colorado River. Today, the Colorado River system supplies drinking water, irrigation, snowmaking, recreation and economic activity to 38 million Americans. It irrigates 4 million acres of rich farm and ranchlands and provides power to seven states. These rivers are everyone’s business.

And that system is in trouble. For 16 years, the Colorado River basin has seen dramatic drought. That, and overallocation of the river’s water, means that, since 2003, the demand for Colorado River water has consistently exceeded available supply. The few exceptional years, such as 2011, have saved the system – so far. Storage in lakes Powell and Mead has dropped to levels that threaten hydroelectric-power production and dramatic cuts in water deliveries to Arizona and Nevada by the end of 2017.

Simply put, if water in the West were a small business, we would be heading for bankruptcy.

And, yes, these challenges impact life here in the valley. Interstate agreements dictate Colorado can keep only a third of the water originating in our headwaters. Additionally, water rights owned by Denver Water and other Front Range water providers allow 30 diversions to send water from the Roaring Fork and other rivers through the Continental Divide to satisfy the Front Range thirst. Fill a glass of water in Denver and roughly half of the water started as snow on the Western Slope. In Colorado Springs it’s closer to 80 percent.

Our water future is challenged, a challenge we must address as a community, as a state and with our downstream neighbors. We must be water smart, and we have to do more with less.

That means being at the table where water decisions are being made. We need a Roaring Fork voice – and business is key to our voice. Why? Because when business talks, politicians and policymakers listen. Our Colorado River system supports a $26 billion recreation economy, with $3.8 million in local revenues from fishing on the Fryingpan alone. Elected officials and water managers from Aspen to Aurora to Anaheim need to know that.

That is why we sponsored the Business of Water summit here in the Roaring Fork Valley, gathering more than 50 business, nonprofit and community leaders to advance engagement on sustainable water practices and policies, and healthy rivers. We believe any plan to get the Colorado River out of the red must rely first on conservation, efficiencies and the full participation of the business community.

These facts are not lost on Gov. John Hickenlooper and the Colorado Water Conservation Board, who crafted our first state water plan highlighting the community and economic importance of our rivers and the need to invest in them. The Colorado Water Plan outlines projected shortfalls in water supply in the state by 2050 and how to address them, including a conservation goal of saving 130 billion gallons of water a year from municipal and industrial efficiencies (the equivalent of just 1 percent per year).

We can do this. Alpine Bank, with 36 West Slope locations, cut water use by 18 percent, while saving money. Denver Water customers use the same amount of water today as they did in 1973.

Finally, implementation of the Water Plan and safeguarding our water future will require money. Current state funding for critical water and stream restoration programs is limited by declining severance tax revenues. New funding mechanisms must be found.

Our Business of Water summit was the first step, and we will keep going — working with chambers of commerce and business leaders to host sessions on water education and engagement, linking businesses to share water-saving innovations and technologies, educating those who travel here on what a precious resource water is in the West.

If you own or operate a business and would like join us, please contact: louism@sgm-inc.com.

Eric Kuhn is general manager of the Colorado River District; Jim Light is chairman of Chaffin Light Management; Rick Lofaro is executive director of the Roaring Fork Conservancy; and Louis Meyer is co-founder of SGM.

Keeping water in the Crystal River

A section of the lower Crystal River in late summer 2012. Irrigators and other water users in the Crystal River valley are working toward ways to leave water in the river during moderate droughts.
A section of the lower Crystal River in late summer 2012. Irrigators and other water users in the Crystal River valley are working toward ways to leave water in the river during moderate droughts.

CARBONDALE — In an effort to leave more water in the lower Crystal River in dry years, a growing number of irrigators in the watershed are considering entering into non-diversion agreements and are reviewing ways to deliver water to their crops more efficiently.

The agreements would be a product of discussions surrounding the recently released Crystal River Management Plan, which sets a goal of adding 10 to 25 cubic feet per second of water into the river during moderate and severe drought years.

The additional water could come from paying irrigators to reduce their diversions by 5 to 18 percent, depending on conditions, and by helping irrigators improve irrigation ditches and installing sprinkler systems.

The plan also calls on the town of Carbondale to fix the leaky irrigation ditches it uses to move water from the Crystal River through town and for the town to find ways to get its customers to use less raw water in dry years.

And apparently there is progress quietly being made on the plan’s recommendations.

“We’re really hopeful about this approach and it has had a pretty good response from the folks that we’ve had the opportunity to speak about it with in the agricultural community,” said Seth Mason, the principal hydrologist at Lotic Hydrological in Carbondale, who was the primary consultant on the river management plan.

The plan also cites the potential benefits of a 3,000-acre-foot reservoir at the confluence of Yank Creek and North Thompson Creek, although it notes such a reservoir would cost $9.75 million and it’s not clear who would pay for it.

Today there are 25 water diversions on the main stem and tributaries of the Crystal River and together they can pull up to 433 cfs of water from the river system.

In really dry years, the diversions can leave a section of the lower Crystal disturbingly dry, even if the water is being used to keep fields near Carbondale refreshingly green.

Just how many ranchers and farmers in the Crystal River Valley are now actively weighing their water options is uncertain, as the process to develop the river management plan in concert with local irrigators has largely been conducted in private.

But the acknowledgement section of the Crystal River Management Plan released Thursday does list 12 irrigation ditches among the organizations that “informed and advised” the team that developed the new river management plan.

“A long list of individuals and organizations informed and advised the Project Team throughout the planning process,” the plan states, including “Crystal River water rights holders and agricultural producers, including representatives from the Sweet Jessup Canal, East Mesa Ditch, Lowline Ditch, Ella Ditch, Helms Ditch, Pioneer Ditch, Bowles and Holland Ditch, Rockford Ditch, Carbondale Ditch, Weaver and Leonhardy Ditch, Kaiser and Sievers Ditch, and Southard and Cavanaugh Ditch … ”

No names of any individual ranchers, farmers or ditch company shareholders are included in the plan, but the ditches that are acknowledged account for the majority of diversions from the lower Crystal.

Bill McKee, a rancher and irrigator on the Crystal, has been actively involved in talking with local ranchers about the river management plan and he voiced his support for the plan’s recommendations at Thursday’s public presentation at the Carbondale library meeting room.

“In all our discussions, it’s seen as a good time to strike while the iron is hot,” McKee said.

A slide from Lotic Hydrological as presented to the Colorado River District on May 23, 2016. The slide summarizes key points in the new Crystal River Management Plan.
A slide from Lotic Hydrological as presented to the Colorado River District on May 23, 2016. The slide summarizes key points in the new Crystal River Management Plan.

Drought sparked plan

The planning process for the Crystal River Management Plan started after the drought of 2012 left a section of the Crystal River between Thompson Creek and the state’s fish hatchery, just upvalley of Carbondale proper, with only 1 cubic foot per second of water flowing in it below several diversion structures. That year represented at least a one-in-20-year drought.

(On Saturday, May 28 at 10 a.m. the Crystal was flowing at 851 cfs near the fish hatchery).

“It is a fairly large river channel,” Mason said Thursday. “You can imagine that a channel that size is a pretty astounding sight when there is no water in it.”

During 2012 staffers at the Roaring Fork Conservancy and Colorado Water Trust began talking with ranchers about ways to leave more water in the river.

The Trust eventually reached short-term agreements with seven irrigators to leave water in the river in 2013, which was shaping up to be another drought year. Late-season rains negated the need for the agreements, but the work of the Trust helped provide a foundation for ongoing discussions that shaped the current plan.

The Conservancy then contracted with Mason to develop a technical study of the Crystal River and eventually brought in CDR Associates of Boulder to work with stakeholders. Public Counsel of the Rockies, an Aspen-based nonprofit, also joined the planning process and helped raise funds to pay for the plan.

The process has taken two-and-a-half years and cost over $300,000, said Rick Lofaro, the executive 
director of Roaring Fork Conservancy.

Before the plan was unveiled Thursday it was vetted by some irrigators, a number of whom are now in active discussions with the Colorado Water Trust about non-diversion agreements, according to Mason.

“There are ongoing conversations that I can’t say too much about,” said Mason, who was able to characterize the conversations both among irrigators and the town as “positive.”

A non-diversion agreement is a tool the Water Trust uses to give irrigators and other water users the option to leave water in rivers under certain conditions and terms, without going through a water court process to change an existing water right.

“Such agreements, which used to present risk to water users under Colorado water law,​ are now protected by ​[state] Sen. Gail Schwartz’s bill that passed in the 2013 legislative session, ​Senate Bill 19,” said Amy Beatie, executive director of the Water Trust.

(Please see a related story, “City considers 10-year agreement to 
leave more water in the Roaring Fork.”)

A slide from a recent presentation by Lotic Hydrological to the Colorado basin roundtable. The graphic illustrates the drying up of the Crystal in 2012 and four threshold questions posed by stakeholders during a recent river management planning process.
A slide from a recent presentation by Lotic Hydrological to the Colorado basin roundtable. The graphic illustrates the drying up of the Crystal in 2012 and four threshold questions posed by stakeholders during a recent river management planning process.

Private process

Mason helped clarify the situation for many local ranchers with a graphic that illustrates extremely low flows on the lower Crystal in late summer of 2012 in relation to various irrigation ditches.

He also developed a detailed scientific study of the Crystal River watershed and a model that could show what would happen in the river under various scenarios.

During the planning process, it became clear to Mason and other project team members that many local ranchers were not comfortable attending public meetings that included a bevy of professionals from various organizations.

“We did have other folks in the room at a couple points and that did not go the way we wanted it to,” Mason said. “We had some negative reactions to that and we’re very protective of the process. We wanted to make sure that the agricultural community knew that this process wasn’t a process run by folks who didn’t care about their livelihoods or their importance to the local community.”

The project team also learned that there were some threshold questions that needed to be answered.

One question was whether the periodic lack of water in the Crystal was really “the largest constraint on the ecological function,” as Mason put it.

By studying many different aspects of the river, including sediment flows, Mason concluded that yes, having enough water in the lower Crystal River is a key factor in its ecological health.

Another important question posed by stakeholders was, “How much water is enough to make a difference?”

In answering that question, Mason found that using the state’s instream flow right of 100 cfs in summer on the Crystal below Avalanche Creek as a planning goal was unacceptable to local ranchers.

“The agriculture community was not interested in talking about the state’s instream flow as the benchmark for ecosystem health,” Mason said.

He explained that the 100 cfs figure, which the state adopted in 1975 as the amount of water needed to protect the environment of the Crystal “to a reasonable degree,” was tied to average conditions, not drought conditions, and was therefore unlikely to be met in a really dry year.

What was acceptable to water users was working toward a “moderate,” but not “optimal,” level of flow between between Thompson Creek and the fish hatchery during one-in-five-year and one-in-ten-year droughts.

They also, notably, did not set a goal of reaching moderate flows in a one-in-20-year drought, such as 2012.

Mason concluded that during a severe one-in-10-year drought, an “optimal” flow level in the targeted stretch of river was 55 cfs, and a “moderate” flow level was 44 to 55 cfs.

During a one-in-five-year drought, he found the optimal flow level was 58 and moderate flow level ranged from 46 to 51 cfs.

To fill the expected gap between low river levels and the targeted moderate flow levels, the plan calls for 25 cfs to be left in the river from non-diversion agreements in a 1-in-10-year drought, and for 10 to 15 cfs to be left in the river in a one-in-five-year drought.

The plan states that stakeholders “indicated tolerance for moderate ecosystem risk under average to moderate drought conditions.”

A slide from Lotic Hydrological that illustrates the targeted flow rates for dealing with moderate and severe droughts on the lower Crystal River.
A slide from Lotic Hydrological that illustrates the targeted flow rates for dealing with moderate and severe droughts on the lower Crystal River.

Range of options

After developing a solid scientific foundation and a model to help answer “what if” questions, Mason then developed options for each major irrigator on the Crystal.

These ditch-by-ditch options are not included in the plan, but Mason has been working with willing irrigators to help them understand how a non-diversion agreement might work for them, especially if they are joined by other water users.

The plan also calls on the town of Carbondale to take steps to reduce its diversions from the river, along with the agricultural community.

“Carbondale does have a few big ditches that move quite a bit of water from the river,” Mason said. “That water supports all the lovely large trees that we see down here that wouldn’t be here normally.”

Those steps include lining more of the town’s irrigation ditches to prevent leaking of water and using market forces to curtail use of raw water in dry years.

The new Crystal River Management Plan could be a potential model that could be used to develop other stream management plans, as the state’s recently released Colorado Water Plans calls for such plans on 80 percent of the state’s rivers.

James Eklund, the director of the Colorado Water Conservation Board, which produced the state water plan, complimented the planning process in the Crystal River valley.

“Our quick read says that this plan is based on sound science, examined viable alternatives, and engaged many stakeholders,” Eklund said Friday when asked for comment. “Continued collaboration with water users is required in order to implement effective solutions, but the Crystal River is headed in the right direction.”

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 Sunday, May 29, 2016.