Aspen increases spending on water rights for 2018

Site of proposed maroon creek reservoir via Aspen Journalism.

From Aspen Public Radio (Elizabeth Steart-Severy):

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

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

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

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

Aspen working to use reclaimed water on its golf course

The turf on the city of Aspen's golf course requires 190-acre feet, or 62 million gallons, of water a year to irrigate, and the city would like to use treated water from the regional sanitation plant to meet some of that demand.

By Brent Gardner-Smith and Allen Best, Aspen Journalism

ASPEN – City of Aspen officials hope to begin using water reclaimed from treated effluent at the Aspen Consolidated Sanitation District to irrigate the city-owned golf course in 2018, but first the city and the district have to obtain a permit from the state.

The city wants to use as many as 1 million gallons a day of reclaimed, or reused, water from the sanitation district to irrigate the course, freeing up more water from Castle Creek to meet other needs of customers in the city water department’s service area.

“It does take some of the pressure off the system, giving us some flexibility in maybe using that water elsewhere,” said Margaret Medellin, utilities portfolio manager for the city of Aspen. But she also said, “This doesn’t eliminate the need for water storage.”

It takes 62 million gallons, or 190 acre-feet, of water a year from Castle Creek to irrigate the 109 acres of turf on the city’s golf course, according to Steve Aitken, the city’s director of golf.

Aspen filed for a water right from the state of Colorado for its reuse project in 2005. The conditional water right was granted in 2011.

The water right allows the city to pump 3 cubic feet per second of treated municipal effluent from the sanitation district’s treatment pond 2 miles up to a 19-acre-foot lined pond on the city’s golf course.

The water right allows for irrigation of 132 acres on the city’s golf course, 80 acres on the Maroon Creek Club’s golf course, 21 acres of open space at the Burlingame housing complex and 12 acres along Highway 82. It also allows use for snowmaking on 156 acres of terrain at the Buttermilk ski area.

But while the city has the water right in hand, and has constructed most of the pipeline to the golf course, it lacks a required permit from Colorado Department of Public Health and Environment (CDPHE).

Medellin is confident the city will obtain the permit, as is a consultant for the city on the project, John P. Rehring, an engineer at Carollo Engineers, a large firm specializing in water projects.

“The engineering for this system is relatively simple, and I think there is still time to implement and begin reuse in 2018,” Medellin said. “The pieces that are more complex are the regulatory requirements and arrangements between the city of Aspen and the Aspen Consolidated Sanitation District to operate the system. The CDPHE has remained hopeful that we can complete regulatory requirements in 2018.”

Bruce Matherly, the manager of the Aspen Consolidated Sanitation District, along with the city’s Aitken, filed a letter of intent to use reclaimed water and a user plan to comply with CDPHE in March 2016 for Aspen’s reuse system.

Matherly and Aitken told the state that the city and the sanitation district “would like to investigate the possibility of using reclaimed wastewater produced by [the district] to irrigate the landscape associated with the [city’s] municipal golf course.”

They also told the state “the small amount of nutrients in the reclaimed water would benefit the turf grass at the golf course” and “the reclaimed water supplied would offset the water that would otherwise be taken from side streams from the Roaring Fork River.”

Today, the city irrigates its golf course with water diverted from Castle Creek via the Holden and Marolt irrigation ditches.

The city of Aspen is still working on plans to pump water from this pond at the Aspen Consolidated Sanitation District treatment plant up to its golf course to use for irrigation. The water treatment plant is located on the banks of the Roaring Fork River below the Aspen Business Center.

State concerns

Officials at CDPHE raised some areas of concern in response to the application from the city and the district and asked for additional information.

Maureen Egan, an environmental protection specialist at CDPHE, asked Matherly to clarify how state water-quality standards would be met and measured at the golf course pond.

“It would be important for you to provide information demonstrating your ability to meet the E.coli limit,” Egan, wrote in an email to Matherly in April 2016.

Egan also asked, in another email, “is the impoundment at the golf course a water hazard or are there other instances where golfers or other members of the public may have contact with water in the impoundment?”

“The golf course pond is a water hazard as well as a private fishery,” Matherly told Egan, noting the city would like to retain both uses.

Egan also told Matherly that reuse might pose a challenge to the status of the golf course as a “certified Audubon sanctuary.”

“Reclaimed water, depending on nutrient content, may contribute to growth of blue green algae, which may in some instances produce toxins,” Egan wrote. “It is really difficult to predict what, if any, impact this could have on the bird population.”

In August 2016, the city and the district pulled their application.

“Still working on details of proposed reuse plan,” Matherly wrote in a notice of withdrawal of permit application filed with the state.

The city of Aspen is hoping to store treated water in a pond on its municipal golf course that has been pumped up from the Aspen Consolidated Sanitation District, but has yet to secure a necessary state permit. There are a number of ponds on the golf course, and the biggest would be used to store reused water.

Next steps

In December 2016, the city signed an $8,000 contract with Carollo so that engineers there could study Aspen’s reuse project and prepare a new application to the state. The city is working on details for an additional contract with Carollo along with CH2M, an engineering firm.

In May 2017, consultants with Carollo and city staff met with CDPHE officials “to discuss the next steps for securing a permit for applying reuse water on the golf course.”

A new application is being developed, Medellin reported. Asked if there is doubt as to whether the sanitation district’s level of treatment for E. coli is sufficient to meet state standards, she did not respond. However, she did suggest that regulatory requirements of reuse are challenging.

“Rightly so, the regulatory agencies are being thorough and robust in their reviews,” she wrote. “Additionally, as experience with reuse grows, many of the regulations and interpretations of regulations are changing.”

Editor’s note: Aspen Journalism is collaborating on coverage of rivers and water with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily, and the Summit Daily News. The Times published this story on Tuesday, Dec. 26, 2017.

State gives Aspen officials until Dec. 29 to answer dam questions

The location of the potential Maroon Creek Reservoir, just below the confluence of East and West Maroon creeks, where a beaver dam now backs up water. The Maroon Bells are well within view from the dam site.

By Brent Gardner-Smith, Aspen Journalism

The city of Aspen now has until Dec. 29 to provide a “substantive” response to central questions raised by state officials in water court regarding the city’s efforts to develop dams and reservoirs on upper Maroon and Castle creeks.

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

After a status conference on Nov. 9 in water court in Glenwood Springs regarding two due diligence applications the city filed in December 2016 for the two potential dam-and-reservoir projects, a water court referee said, for the second time since August, that the city must provide a substantive response to key issues raised by the state.

Susan Ryan, the referee in Division 5 water court, said the city must do so whether or not it is able to reach settlement agreements with the 10 opposing parties in the two cases.

“It is going to require a written response to that summary of consultation regardless of whether or not settlement is reached with all the opposers in the case,” Ryan said during the status conference. “And so I just wanted to clarify that that is what I typically require in every water case and that is what I will require here.”

A summary of consultation in water court can be a routine review of a water rights application by two state officials, the division engineer, who administers water rights, and the water court referee, who functions as an administrative judge and seeks to resolve cases, if possible, before they are sent to a water court judge.

But the twin summaries of consultation released on Jan. 23 concerning the city’s diligence applications for the Castle and Maroon creek reservoirs raised threshold questions.

They said the city “must demonstrate that it will secure permits and land-use approvals that are necessary to apply the subject water rights to beneficial use” and the city must show it “will complete the appropriations within a reasonable time.”

They also said “a specific plan is in place to develop the subject water rights,” that the city “must demonstrate substantiated population growth in order to justify the continued need for these water rights” and that the city is “not speculating with the subject water rights.”

Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam and encroach on portions of the Maroon Bells-Snowmass Wilderness. Castle Creek Reservoir, as currently decreed, would hold 9,062 acre-feet of water behind a 170-foot-tall dam, and would also flood some land in the wilderness boundary.

In two diligence applications filed on Oct. 31, 2016, the city told the court it has “steadily applied effort to complete the appropriation” of the conditional water rights for both of the reservoirs over the past six years, and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”

In July, the city said it was seeking a way to transfer decreed storage rights to locations other than the decreed locations on Castle Creek and Maroon Creek.

On Nov. 7, city of Aspen voters rejected a ballot question that would have given the city the go-ahead to issue $5.5 million in general obligation bonds to purchase a 60-acre parcel in Woody Creek to use for water storage, in conjunction with the gravel pit operated by Elam Construction.

But city officials, before the vote, had stated they intended to buy the Woody Creek parcel whether the ballot question was approved or not. A recent study for the city found that between 1,000 acre-feet and 8,000 acre-feet of water could be stored using varying combinations of the land the city intends to buy and the gravel pit.

Also in July, the city filed brief responses to the summaries of consultation. But in August the water court referee said the city’s effort fell short.

A wetland that would be flooded under the potential Castle Creek Reservoir. The reservoir would stand across the main channel of Castle Creek, about two miles below Ashcroft.

City not eager to file response

During the Nov. 9 status conference, the city’s water attorney, Cynthia Covell of Alperstein and Covell, told Ryan the city would still prefer not to lay out its case in a substantive response at this stage of the proceedings.

“Since the last status conference the city has been working to finalize the reports that it has needed to assist in the settlement process, including its supply-and- demand risk assessment study, and its evaluation of one or more alternative storage sites that are not located in federal wilderness areas or on Castle Creek or Maroon Creek,” Covell said.

Covell said the city has only this week received responses from all 10 of the opposing parties to a Sept. 20 settlement proposal from the city, and that the City Council was scheduled meet in executive session Monday to discuss the responses.

“So at this point, Aspen would like to devote its time and resources to seeing if we can reach a settlement by the end of the year, we hope in both cases,” Covell said.

Attorneys in the cases said in August the main sticking point in the settlement negotiations was that the city wanted to keep open its options regarding transferring rights tied to the potential Castle Creek reservoir, while opposing parties want the rights for the potential reservoirs fully removed from both valleys.

During the status conference, after determining it was still the city’s position that it would prefer not to provide substantive answers at this time, Ryan asked the opposing attorneys what they thought.

“I frankly don’t buy the argument that it’s a hiccup or roadblock in terms of settlement,” attorney Paul Noto said. “I actually feel that it may lay some cards on the table that may in fact help settlement.”

Noto is representing American Rivers, Colorado Trout Unlimited, and the Roaring Fork Land and Cattle Co. in the Maroon Creek case, and the two environmental groups in the Castle Creek case.

Also opposing the city in the cases are Western Resource Advocates, Wilderness Workshop, Pitkin County, USFS, Larsen Family Limited Partnership in the Maroon Creek case, and Double R Creek Ltd. and Asp Properties LLC in the Castle Creek case.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of water and rivers. The Times published this story online on Wednesday, Nov. 15, 2017.

City of Aspen directs staff to develop reservoirs in Woody Creek

A map from a study done for the City of Aspen by Deere and Ault showing the two parcels of land in Woody Creek that the city sees as potential water storage sites. Both locations are a short walk from the Woody Creek Tavern and the Woody Creek post office.

By Brent Gardner-Smith, Aspen Journalism

The Aspen City Council has directed the city manager to buy a parcel of land in Woody Creek, regardless of the results of a current ballot question, and told staff via a resolution to “proceed with plans to develop the Woody Creek parcel for water storage.”

The parcel is 58 acres of land now owned by Woody Creek Development Co. (WCDC) that the city plans to buy for $3 million, even if city voters reject a $5.5 million bonding question to finance the purchase in next week’s election.

And the water storage includes a variety of potential reservoirs on the WCDC property and the neighboring gravel pit, which is operated by Elam Construction.

The biggest reservoir in the city’s options could top out at 8,000 acre-feet, would cost $81 million, and require “construction of a 5,000-foot-long dam, with a 60-foot maximum section,” according to a study completed in September for the city by Deere and Ault, an engineering firm in Longmont.

The study includes four alternatives, all of which are flexible and could be adjusted, city officials said.

The first option is to build a 1,000 acre-foot surface reservoir in the existing gravel pit. That could be built “relatively quickly, possibly within a few years,” the study says, while additional reservoirs on the WCDC site could then be completed within “the order of a decade.”

The city has no stated plans to buy the gravel pit, and the mine’s current reclamation plan, regulated by Pitkin County, does not mention turning the gravel pit into a reservoir. Nonetheless, the existing gravel pit and potential new pits on the neighboring WCDC parcel are at the center of the city’s water storage plans.

“The city and its consultant, Deere and Ault, have identified a property located in the Woody Creek area … as a high-value property for water storage,” states a resolution approved by Aspen City Council on Oct. 23. The resolution directs the city manager to buy the property and staff to move forward with developing the water storage.

The WCDC parcel and the neighboring gravel pit are a short walk up a hill behind the Woody Creek post office, on a level bench formed by 200 feet of cobble, gravel, and large boulders left behind by melting glaciers.

Margaret Medellin, a utilities portfolio manager in the city’s water department, said the reservoirs in Woody Creek, seen by the city as good options to potential reservoirs on Castle and Maroon creeks, will not be built anytime soon.

“Developing water storage is an effort that will take time to fully implement, as it involves property acquisition, studies, planning, permitting, engineering and design before any construction can begin,” Medellin said. “This is not an overnight process. Securing the property is the first step.”

Another step is clarifying the city’s demand for stored water.

A recent risk analysis done for the city by Headwaters Corporation suggests in a worst-case scenario in 2065, the city might see occasional shortages in the range of 2,000 acre-feet, but more work needs to be done to see how that translates into a specific water-storage need.

The Deere and Ault study recommends that the city should next “perform a water resources analysis to better understand how the [Woody Creek] site can be used to optimize the flexibility of the city’s water rights.”

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

Finance and water rights

Before voting to approve Resolution 139 at an Oct. 23 City Council meeting to buy the WCDC parcel, Councilman Adam Frisch described how he saw the ballot question, which is question 2C on the city of Aspen ballot.

“This is an election question [and] council’s direction is that this [is] going to be purchased, it’s just a matter of how,” Frisch said. “And it’s either going to be done with using general obligation bonds, if the voters give us approval, [or] with COPs, which will be slightly more expensive, but we’re planning on executing that path if the voters don’t support us.”

Certificates of participation (COPs) are an alternative method for the city to obtain project financing.

Aspen City Manager Steve Barwick then said, “We may not use COPs. COPs would be possible. But we could also do some internal financing and use cash. You’ve identified the key issue though. It’s about the financial method rather than whether or not you are going to buy it.”

And while the city has said it intends to develop reservoirs in Woody Creek as an alternative to the potential Castle and Maroon reservoirs, it is still officially pursuing approval in water court for two due-diligence applications that would allow it to maintain conditional water storage rights on Castle and Maroon.

The city issued a press release in July stating its intent to transfer a portion of its water storage rights out of the Castle and Maroon creek valleys to Woody Creek, but it has not done so to date. It also is in settlement talks with the 10 parties opposing its due-diligence applications, and a status conference is set for Nov. 9.

The city holds conditional water rights to the potential Castle Creek Reservoir, two miles below Ashcroft, and to the potential Maroon Creek Reservoir, about a mile below Maroon Lake.

An Oct. 13 staff memo from David Hornbacher, the city’s director of utilities and environmental initiatives said the city is working to transfer “some or all of its Maroon and/or Castle creek conditional water storage rights” to the Woody Creek parcel.

In his remarks last week, Frisch said “this is about a stage of protecting water rights and hopefully, possibly, moving our water storage plans from the upper Ashcroft and Maroon Creek down to the Woody Creek area.”

A view of the downvalley end of the existing gravel pit in Woody Creek. The first potential reservoir to be built by the city could be in this location.

Reservoir details

The potential reservoirs studied by Deere and Ault are not on either a creek or a river, but are “off-channel” reservoirs that would be filled “using a pipeline from existing ditch structures,” which are not specified.

Water in the reservoir would be released via an outlet pipe and a spillway to the Roaring Fork River, which is 150 feet below the reservoir sites.

The first alternative in the Deere and Ault study shows three reservoirs totaling 2,500 acre-feet of storage.

The first phase of the first alternative in the Deere and Ault study is to build a 1,000 acre-foot reservoir in the lower end of the existing gravel pit. The reservoir would require “low asphalt cored dams” to hold back the stored water.

The next phase is to excavate the lower end of the WCDC parcel to create a 700-acre-foot reservoir. It would require a 20-foot-high dam and a “geosynthetic liner” on the bottom of the excavated area.

A second reservoir could then be dug out and lined on the WCDC property to hold 800 acre-feet of water.

Building the two reservoirs on the WCDC site would require mining 3 million cubic yards, or 4.5 million tons, of material, according to Deere and Ault.

Combined, the three reservoirs — two on the WCDC site, one in the existing gravel pit — would hold 2,500 acre-feet and would cost $73 million to build ($29,000 an acre-foot of stored water).

The second alternative in the Deere and Ault study shows a potential 8,000-acre-foot reservoir, on both the gravel pit parcel and the WCDC parcel.

The next alternative “represents the maximum storage vessel that could be realized using both parcels,” according to Deere and Ault.

This reservoir requires a 5,000-foot-long dam wrapping around the downvalley end of the existing gravel pit and then along the west side of the WCDC parcel. It would store 8,000 acre-feet and cost $81 million ($10,000 per acre-foot).

It would also require excavating 11 million cubic yards, or 16.5 million tons, of gravel.

The third alternative in the Deere and Ault study shows a 1,000-acre-foot reservoir in the gravel pit and a 2,000-acre-foot reservoir on the WCDC parcel.

The third alternative describes a 1,000-acre-foot reservoir in the existing gravel pit and another 2,000-acre-foot reservoir on the WCDC parcel. These two reservoirs would together store 3,000 acre-feet and cost $74 million ($25,000 an acre-foot).

The fourth alternative is a small and expensive underground reservoir built on the WCDC parcel and would hold 320 acre-feet and cost $48 million ($150,000 an acre-foot).

Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily, and the Summit Daily on coverage of rivers and water. The Times published this story on Wednesday, Nov. 1, 2017

Study: Aspen looks at Woody Creek storage

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

From The Aspen Daily News (Curtis Wackerle):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But Ryan, the water court referee, disagreed.

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

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

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

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

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

Aspen puts forward settlement proposals for Maroon and Castle creek dams

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

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

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

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

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

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

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

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

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

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

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

Castle Creek proposal

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

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

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

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

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

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

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

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

Since 1965

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

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

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

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

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

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

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

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