Editor’s note: The following is the fourth and final part in a series exploring the city of Aspen’s historic intent in filing for and maintaining conditional water rights for storage reservoirs on Castle and Maroon creeks.
By Brent Gardner-Smith, Aspen Journalism
ASPEN – The city of Aspen has said for decades that legislation approving the Fryingpan-Arkansas Project gives a certain status to the potential Castle Creek and Maroon Creek reservoirs.
However, it’s hard to discern just what that status is, and federal and regional water officials are dismissive of the city’s claims.
Built in the 1960s and early 1970s, the Fry-Ark Project is one of the larger transmountain diversion systems in Colorado. It diverts water from the headwaters of the Roaring Fork River, including Hunter, Midway, and No Name creeks, along with large amounts of water from the many tributaries in the headwaters of the Fryingpan River.
In all, the project includes 16 diversion structures that direct an average of 57,000 acre-feet of water a year to the Boustead Tunnel, which runs under the Continental Divide. The gathered water then flows to Turquoise Reservoir near Leadville and into the Arkansas River basin, serving both Front Range cities and agriculture on the eastern plains.
A key component of the Fry-Ark Project is Ruedi Reservoir above Basalt, which was built in the early 1960s as “compensatory storage” for Western Slope water users. Water collected in Ruedi does not flow to the East Slope.
Plans to divert water from the Fryingpan River date back to the 1930s, but the Fry-Ark Project as largely configured today was the result of intensive planning efforts and discussions that took place throughout the 1950s and early 1960s.
Aspenites in the 1950s were well aware of the looming Fry-Ark Project, especially as the Twin Lakes-Independence Pass project, built in the 1930s, was already diverting large amounts of water off the top of the Roaring Fork River.
For example, in the 1954 Winterskol parade, local musician, letter-to-the-editor writer and junkyard operator Freddie Fisher created a witty float about the looming “rape of the Roaring Fork” that featured himself sitting in a bathtub-boat on skis while pondering the question, “Who pulled the plug?”
In the legislation
As the city is often quick to point out, the federal Fry-Ark legislation does in fact state that a feasibility report on a reservoir on a “tributary of the Roaring Fork River” should be prepared by the Department of the Interior; and if such a reservoir made economic sense, then the feasibility report should be submitted to Congress for review.
“The secretary [of Interior] shall investigate and prepare a report on the feasibility of a replacement reservoir at or near the Ashcroft site on Castle Creek, a tributary of the Roaring Fork River above its confluence with the Fryingpan River with a capacity of approximately 5,000 acre-feet,” the authorizing legislation states, “but construction thereof shall not be commenced unless said report, which shall be submitted to the president and the Congress, demonstrates the feasibility of said reservoir and is approved by Congress.”
The city maintains that the language, “at or near the Ashcroft site on Castle Creek,” still pertains to the potential Castle Creek Reservoir two miles below Ashcroft.
The operating principles for the Fry-Ark Project, which were hashed out by both entities on both sides of the Continental Divide, also address Ashcroft Reservoir.
“The Ruedi Reservoir shall be constructed and maintained on the Fryingpan River above the town of Basalt with an active capacity of not less than 100,00 acre-feet,” the principles state. “In addition thereto and in order to offset adverse streamflow conditions on the Roaring Fork River above the town of Aspen which might occur as a result of the project enlargement of the Twin Lakes Reservoir, the Ashcroft Reservoir on Castle Creek, or some reservoir in lieu thereof, shall be constructed on the Roaring Fork drainage above Aspen to a capacity of approximately 5,000 acre-feet: Providing, however, That the Ashcroft Reservoir shall be constructed only if the Secretary of the Interior after appropriate study shall determine that its benefits exceed the costs … ”
It also further defines Ashcroft Reservoir by stating that “‘Ashcroft Reservoir’ means not only the reservoir contemplated for construction on Castle Creek, a tributary of the Roaring Fork River, but also, unless the context requires otherwise, any other reservoir that may be constructed in the Roaring Fork Basin above the town of Aspen in lieu of that reservoir.”
To better understand the city’s claim, it’s instructive to view the potential Castle Creek Reservoir as “son-of” Ashcroft Reservoir, which in turn is “son-of” Aspen Reservoir.
For much of the long planning stage of the Fry-Ark Project, it included an “Aspen Reservoir,” which would have stored 28,000 acre-feet of water behind a tall dam at the bottom of the North Star-Stillwater section of the Roaring Fork River, just east of Aspen.
However, opposition to the Aspen Reservoir, primarily from James H. Smith Jr., owner of the North Star Ranch in Aspen, eventually caused Ruedi Reservoir above Basalt to be built instead of Aspen Reservoir.
One of the reasons Aspen Reservoir was attractive to water planners at the time was that it could be used to fill in low flows in the Roaring Fork River below the Salvation Ditch, a large irrigation ditch that diverts water at Stillwater Drive, near the entrance to Mountain Valley.
The combination of the Salvation Ditch, the Independence Pass diversions from the 1930s, and the coming Fry-Ark diversions meant the Fork through Aspen would be often dropped to exceedingly low levels, which is often the case today. And so it was felt that a compensatory reservoir east of Aspen, above the Salvation Ditch, would help keep more water, and fish, in the river.
But opposition by Smith, who was well connected in Washington, D.C., having served as assistant secretary of the Navy for aviation, helped kill the idea of Aspen Reservoir.
In the wake of the decision to abandon Aspen Reservoir, local, state, and federal water officials agreed to include a mention of another potential reservoir, Ashcroft Reservoir, or an alternate nearby reservoir, in the authorizing legislation for the Fry-Ark Project, as something of a consolation prize for Aspen.
Ashcroft Reservoir was once envisioned to be formed by a 140-foot-tall dam near the Elk Mountain Lodge property that would back up 9,056.7 acre-feet of water behind it.
The water right tied to Ashcroft Reservoir was eventually cancelled for lack of adequate due diligence in the 1970s, but today the city of Aspen still considers Castle Creek Reservoir, which is designed to hold 9,062 acre feet, to be the legitimate offspring, at least in the context of the Fry-Ark Project, of Ashcroft Reservoir.
But officials at the Bureau of Reclamation, the Colorado River Water Conservation District, and the Southeastern Water Conservancy District all say that the language in the Fry-Ark approvals has no direct bearing today on either of the two potential reservoirs that Aspen says it still intends to build someday when necessary.
An ‘unmet obligation’
Officials at the city of Aspen, speaking on background, have characterized the tie to Fry-Ark Project as an “unmet obligation” to the city. The obligation, as the city sees it, is to at least prepare a feasibility study of a reservoir on a tributary of the Roaring Fork River.
That “obligation” has been referenced a number of different ways over the years by the city, including most recently on Oct. 10, 2016, when Aspen City Council unanimously approved a resolution declaring their intent to file a diligence application this year for the conditional water rights it holds tied to potential reservoirs on Castle and Maroon creeks.
“Whereas, when these water rights were appropriated, this reservoir storage was an important component of Aspen’s long term water supply plan, particularly since the Fryingpan-Arkansas project was proceeding without the originally planned compensatory storage reservoir on the upper Roaring Fork River,” the council’s 2016 resolution stated.
The city filed two diligence applications on Oct. 31, one for Castle Creek Reservoir and one for Maroon Creek Reservoir. As of Wednesday afternoon, three environmental groups and three private landowners had filed statements of opposition in the cases, and Pitkin County, the U.S. Forest Service, and Trout Unlimited are expected to file statements by the end of the week.
American Rivers, Wilderness Workshop, and Western Resource Advocates have filed statements in both cases. In the Maroon Creek case, Roaring Fork Land and Cattle Co., which is controlled by billionaires Tom and Margot Pritzker, filed a statement. And in the Castle Creek case, Double R Creek Ltd and Asp Properties LLC filed statements. Double R Creek is controlled by Robert Y.C. Ho of Hong Kong and Asp Properties is controlled by Charles Somers, the CEO of SBM, a building services company located in McClellan, Calif.
Here’s how the city described the Fry-Ark relationship to the Division 5 Water Court in 2010, during the most recent diligence review of the water rights for the potential Castle Creek and Maroon Creek reservoirs:
“The Frying Pan-Arkansas Project, authorized by legislation dated August 16, 1962, authorized construction, operation and maintenance of a replacement reservoir on Castle Creek to furnish water required for protection of western Colorado water users,” states a proposed decree from the city’s water attorneys. “This reservoir was contemplated to have a capacity of 5,000 acre-feet, but this reservoir was never built.”
But not everyone agrees that the Fry-Ark legislation “authorized construction, operation and maintenance” of a reservoir on Castle Creek.
The city in 2010 also told the state there was a direct link between the Fry-Ark Project and its potential Castle Creek and Maroon Creek reservoirs.
“In 1965, taking precautions to ensure that its water rights were protected in the event the Frying Pan-Arkansas Project reservoir was in fact never built on Castle Creek, the city of Aspen filed applications seeking its own conditional water rights for storage on Castle Creek and Maroon Creek, i.e., the Castle Creek Reservoir and Maroon Creek Reservoir water rights for which diligence is sought herein,” the city’s 2010 diligence filing stated.
And in a 1990 water management plan, the city stated that “the authorizing act and operating principles of the Fryingpan-Arkansas Project require the Bureau of Reclamation to prepare a feasibility study on a reservoir of up to 5,000 acre feet, in order to offset adverse streamflow conditions in the Roaring Fork River above Aspen.”
But while a feasibility study may be called for in the Fry-Ark legislation, it is difficult to find anyone outside of the city of Aspen who thinks the call is still relevant.
Sterling Rech, a public affairs manager with the Bureau of Reclamation, recently said, in response to questions about the city’s claim, that the Fry-Ark legislation “requested an investigation but explicitly did not authorize Ashcroft Reservoir unless the report demonstrated feasibility and subsequently, Congress approved it. There is no record of that approval in Reclamation law.”
Rech was asked to double-check with senior Reclamation officials on the point, and after doing so, stood by his statement that the Fry-Ark Project “did not authorize” a reservoir in the Castle Creek valley.
Given that officials at Reclamation would be the ones within the Interior Department to prepare a feasibility study on Castle Creek Reservoir, this would seem to be relevant to the city’s position.
Jim Pokrandt, director of community affairs for the Colorado River District, said the mention of the Ashcroft Reservoir in the Fry-Ark legislation, or a nearby reservoir in lieu of it, “is ancient history versus current events.”
The River District played a key role in developing the operating principles that still guide the Fry-Ark Project. And it’s the entity that originally filed for the conditional water rights on Ashcroft Reservoir in 1959.
“Being mentioned and studied in the context of the Fry-Ark does not bestow anything special at this point in time,” Pokrandt said of the city’s claim.
Chris Woodka, the issues manager for the Southeastern Water Conservancy District, had a similar take. Southeastern was created explicitly to manage the water diverted by the Fry-Ark Project and was instrumental in shaping its authorizing documents.
But Woodka also dismissed any link between the potential Castle Creek Reservoir and the Fry-Ark Project.
“It really doesn’t have a direct connection anymore to the Fryingpan-Arkansas Project,” Woodka said.
However, city officials still beg to differ.
Feds still obligated?
Officials at the city say, on background, that it is clear that a reservoir on a tributary of the Roaring Fork — somewhere above Aspen — was included in the Fry-Ark authorizing legislation, and it was done so by none other than legendary West Slope Congressman Wayne Aspinall, who served in the U.S. House of Representatives from 1949-1973.
And the city says that the obligation still remains for the Department of the Interior to conduct a feasibility study on such a reservoir.
City officials also point to a 2007 letter in regard to potential federal approval of new reservoirs in the Arkansas River basin to hold water diverted from the Fry-Ark project.
In that letter, the city and Pitkin County told the federal government that if it was going to study new reservoirs on the East Slope, it should also study reservoirs on the Western Slope, and by implication, the Ashcroft Reservoir or its successor, Castle Creek Reservoir.
“It is important that the Western Slope’s present and future water supply and storage requirements (for both consumptive and non-consumptive uses) be placed on a par with those of the Eastern Slope and included in all discussions on H.R. 1833,” the city and Pitkin County wrote in a letter to Congressman John Salazar in 2007 regarding pending legislation for the PSOP project, or Preferred Storage Options Plan. “Any feasibility study resulting from H.R. 1833 must address Western Colorado’s present and future regional water needs, not just investigate ways to mitigate impacts from an increase in trans-mountain diversions.”
According to city officials, the city felt it had leverage to ask for such a study because of the language regarding Ashcroft Reservoir in the Fry-Ark legislation. And that a study of Western Slope storage would have had to look at reservoirs such as Castle Creek Reservoir.
Be that as it may, the city’s claim of a lingering obligation in the Fry-Ark project is still out there, but with no clear resolution of how much standing it gives, or might someday give, the Castle and Maroon creek reservoirs.
One reason it is uncertain is that the city has never directly asked the Department of the Interior to produce a feasibility study on the Ashcroft Reservoir, or a successor, based on the obligation claimed by the city in the Fry-Ark legislation.
As such, the “unmet obligation,” if it exists, is still outstanding. And city officials say they’ll see what value it has at some point in the future.
Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of water and rivers. The Daily News published this story on Thursday, Dec. 29, 2016.