Aspen moves ahead with integrated water plan and moving its conditional storage rights — @AspenJournalism

Aspen’s iconic Maroon Bells are visible from the site where the city of Aspen had proposed building a dam and reservoir. The city has hired an engineering firm to help figure out where to move its conditional water-storage rights after a water court judge in June ruled out the possibility of building dams or reservoirs on upper Maroon or Castle creek. Photo credit: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Heather Sackett):

With the clock ticking on moving its conditional water-storage rights, the city of Aspen is taking steps toward developing a water integrated resource plan, or IRP.

City Council last month approved spending $81,674 to hire Broomfield-based Carollo Engineers as a consultant for the first phase of the IRP. A main goal of the plan will be to decide where to move the city’s conditional water-storage rights after a water court judge in June approved the city’s settlement with opposing parties in two water court cases. The decrees issued by the judge in those cases rule out the possibility of the city building dams or reservoirs on upper Castle or Maroon creeks.

The city has six years to finalize a plan to move the water rights and associated storage to new locations. That and the increasing effects of a hotter, drier climate, which means less water in streams, have the city feeling a sense of urgency when it comes to figuring out its water supply.

“We do have a sense of urgency, but we also recognize we are only going to get one chance to make such a large change to our system,” said Margaret Medellin, Aspen’s utilities resource manager. “We want to do it right.”

The site on Maroon Creek where the city of Aspen had proposed building a dam and reservoir on a snowy day in spring 2019. The city has hired an engineering firm to help figure out where to move its conditional water-storage rights after a water court judge in June ruled out the possibility of building dams or reservoirs on upper Maroon or Castle creek. Photo credit: Brent Gardner-Smith/Aspen Journalism

Conditional water rights

All 10 parties who settled with the city in water court, one of which was environmental group American Rivers, agreed not to oppose the city’s efforts to change its conditional water-storage rights to different sites.

Instead of flooding two pristine valleys to create reservoirs, the city has identified five other locations to where it could possibly store water. Those sites are the city golf course; the Maroon Creek Club golf course; the city’s Cozy Point open space; the Woody Creek gravel pit; and a 63-acre parcel of land next to the gravel pit, which the city bought in 2018.

“We don’t have any issue with Aspen’s plan to move forward with those conditional water rights,” said Matt Rice, director of American Rivers’ Colorado Basin Program. “That’s a decision for them and local stakeholders to make.”

Carollo Engineers was one of five firms that responded to the city’s summer request for proposals. The more than $81,000 that the City Council approved will pay for Carollo to complete only Phase 1 of the IRP, which will define goals and develop a detailed scope of work. Phase 2 would create the IRP using community input.

“Normally, when we do an IRP, we are looking at what the future looks like in terms of water needs and trying to characterize those and predict them out several decades,” said John Rehring, senior project manager and vice president of Carollo Engineers.

The city of Aspen has identified this 63-acre parcel of land it bought in 2018 next to the gravel pit in Woody Creek as a potential site of water storage. The city has hired an engineering firm to help figure out where to move its conditional water-storage rights after a water court judge in June ruled out the possibility of building dams or reservoirs on upper Maroon or Castle creek. Photo credit: Brent Gardner-Smith/Aspen Journalism

Storage needed?

City officials maintain that a lack of reservoir storage is a problem.

Medellin said the lack of water-storage facilities is a big weakness in the city’s water system and that it is controversial to build dams and reservoirs “because every valley up here is beautiful.”

But, Medellin said, climate change may increase the need for water storage.

“We’ve acknowledged these storage rights are very important to the future of Aspen, especially as we start to see climate-change implications,” she said.

Carollo Engineers agrees with that assessment.

“Clearly, the city of Aspen’s system lacks the water storage it needs to reliably meet demands through a range of supply-and-demand conditions even now — before the impacts of climate change have fully taken hold,” the proposal reads.

The issue of storage came to the forefront in the Aspen community in 2012 when news broke that the city was contemplating using its conditional water-storage rights to build dams and reservoirs in Castle and Maroon valleys.

Consultants have come to different conclusions about how much water storage the city actually needs. A 2017 report by Deere and Ault Consultants, which was based on conclusions in a risk analysis by Headwaters Corporation, said Aspen needs 8,500 acre-feet of water storage. But a 2016 study by Wilson Water concluded Aspen does not need any storage.

Two other areas that the IRP will address is the vulnerability of Aspen’s water supply to natural disasters such as 2018’s Lake Christine Fire and last winter’s historic avalanches in Castle and Maroon valleys, as well as how to decrease customers’ demand for water. Even though Aspen has taken steps to reduce the use of water for outdoor irrigation through a landscape ordinance, those gains could be wiped out because in a warmer future, there will be less water flowing in local streams.

“It’s almost like you are playing this game where you, on one hand, lower the level of demand but, on the other side of the equation, climate change is decreasing our supply,” Medellin said.

Aspen Journalism collaborates with The Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story appeared in the Nov. 26 edition of The Aspen Times.

Monitoring will make sure Aspen snowmaking doesn’t harm creeks — @AspenJournalism

Aquatic ecologist Bill Miller, left, and chair of the Pitkin County Healthy Streams Board Andre Wille stand on the banks of Castle Creek as Miller prepares to take macro-invertebrate samples. The county hired Miller to collect baseline data to ensure increased snowmaking on Aspen Mountain won’t harm the health of the stream. Photo credit: Heather Sackett/Aspen Journalism

From Aspen Journalism (Heather Sackett):

On a recent snowy morning, aquatic ecologist Bill Miller dipped what’s known as a Hess sampler into the frigid waters of Castle Creek near Aspen.

Miller stirred up the streambed with his hands, funneling the rocks, sediment and leaves — along with macro-invertebrates such as insects and worms — into the collection container.

After putting the organic material into smaller jars and giving each one a squirt of alcohol as a preservative, heferried them to a lab in Fort Collins. Scientists there will count the number and types of bugs in each sample.

“By the different species that are there, you can get a good indication of stream and water quality, and overall ecological function,” Miller said.

Miller’s work is part of a program that will monitor the health of Castle and Maroon creeks, ensuring that Aspen Skiing Co.’s increased water use for snowmaking on Aspen Mountain won’t harm the aquatic environment of the creeks. The stream-monitoring program was set out in September as a condition of Pitkin County’s approval of Skico’s Aspen Mountain Ski Area Master Plan.

“I think the idea of this is we don’t want the snowmaking to cause significant harm to the creeks,” said Andre Wille, chairman of Pitkin County Healthy Rivers board.

Aquatic ecologist Bill Miller shows the bugs and worms from Castle Creek that he collected with a Hess sampler. Starting in the 2020-21 season, Aspen Mountain will use an additional 57 acre-feet of water from city supplies, which come from Castle and Maroon creeks, for snowmaking per season. Photo credit: Heather Sackett/Aspen Journalism

Aspen Mountain expansion

As part of its planned expansion, Aspen Mountain will use an additional 57 acre-feet of water per season, bringing the total average snowmaking water use to roughly 257 acre-feet. For context, Wildcat Reservoir, which is visible from the Snowmass Ski Area, holds about 1,100 acre-feet of water.

Skico is expanding its snowmaking for the 2020-21 season on 53 acres near the summit of Aspen Mountain, which will make it easier to have reliable and consistent snow coverage to ensure a Thanksgiving opening. Skico draws its water for snowmaking on Aspen Mountain from the city’s treated municipal supply, which is from Castle and Maroon creeks.

When Skico makes snow in November and December, the upside is there are fewer municipal water users pulling from local streams — outdoor irrigation season is over and holiday crowds have yet to arrive —but snowmaking uses water when natural streamflows are at some of their lowest points of the year.

“We were definitely concerned with the possibility of too much water being taken out in those early months of the winter,” Wille said.

Miller collected samples from above and below the city’s diversion dams on both lower Castle and Maroon creeks. His samples will act as a baseline against which the condition of the streams in future — and perhaps drier — years will be measured.

According to the resolution approving Aspen Mountain’s master plan, if the county’s aquatic ecologist determines, in future years, that the additional water usage is having a negative effect on stream health, the county could limit Skico’s water use to historical levels — about 200 acre-feet a year.

Aquatic ecologist Bill Miller, left, shows chair of Pitkin County Healthy Streams Board Andre Wille the three samples of macro-invertebrates he collected from Castle Creek. Some say the instream flow water rights held by the Colorado Water Conservation Board don’t necessarily go far enough to protect stream health. Photo credit: Heather Sackett/Aspen Journalism

Instream flows

There is another safeguard to keep water in the river, but some say it may not go far enough to ensure stream health.

The Colorado Water Conservation Board, a state agency, holds instream-flow water rights on both Castle and Maroon creeks. And the state has determined that it requires at least 12 cubic feet per second of flowing water to protect the environment to “a reasonable degree” on lower Castle Creek and 14 cfs on lower Maroon Creek.

“We don’t feel it’s advisable to look at what the CWCB may have decreed in the past for a minimum instream flow,” said John Ely, Pitkin County attorney. “That’s not necessarily indicative from a scientific point of view of what is actually needed to maintain a healthy stream.”

That’s why the county hired Miller — who also is the longtime consulting biologist for the city of Aspen — to do its own assessment of stream health.

Ely said stream samples may not need to be taken every year — just in dry years when snowmaking could exacerbate already low flows. He estimated the annual cost of the monitoring program at about $5,000 to $10,000.

Jeff Hanle, Skico’s vice president of communications, said the company is taking steps to increase the efficiency of its on-mountain storage for snowmaking, such as adding two new ponds on Gent’s Ridge, so it won’t need to pull as much water from the city’s supply during the early season.

Although Skico and Pitkin County still need to work out the details of the stream-monitoring program, Hanle said the company is on board with preserving the ecological health of Castle and Maroon creeks.

“We would not make snow if it’s harming the stream, even if it could shorten a season,” he said. “We aren’t going to damage our home.”

Aspen Journalism collaborates with The Aspen Times and other Swift Communications newspapers on coverage of rivers and water. This story ran in the Nov. 11 edition of The Aspen Times.

Aspen scores $186,356 from @CWCB_DNR for alternative water rights transfer methods

A view of the Wheeler Ditch headgate, looking upriver on the Roaring Fork River. Smith / Aspen Journalism

From The Aspen Daily News (Alycin Bektesh):

On Monday, the city announced that it is the recipient of $186,356, which will go toward establishing “alternative transfer methods” with area farmers. ATMs allow water-right holders to share a portion of their claims without giving them up entirely. The state has a goal to assist in 50,000 acre feet of water transfers through the use of ATMs by 2030.

The program allows creative solutions to water sharing in a way that was not previously accessible, according to Margaret Medellin, city of Aspen’s utilities portfolio manager.

“Traditionally in Colorado water law, if you don’t use your water right you’ll eventually lose it,” Medellin said, “so before this ATM concept came about you would want to use your water rights as much as you can at all times.”

This tactic is counterintuitive to what the state needs from its water holders, though. Colorado’s population growth projections show that the demand for water will increasingly outmatch the supply. By 2050, the state’s population is estimated to reach 10 million — double 2008’s figure — creating a water shortage for about 2.5 million families.

In attempting to preserve its own water rights on Castle and Maroon Creeks, the city found itself headed to state water court with 10 separate opponents last year. It was during those pretrial negotiations that the city decided to partner with two plaintiffs to explore the ATM solution locally.

“This project is one of a few good things that came out of that effort,” Medellin said. “It really is just us as different advocates for different parts of the community coming together to try and get creative.”

Wilderness Workshop and Western Resource Advocates have assisted the city in seeking out partners who would be willing to forfeit claims on diversions at different times. Over the last year, the city has held stakeholder meetings and consulted with experts, but they realized they would need assistance in identifying good partnerships.

“The thing we realized is that there was no clear project up here,” Medellin said.

The state grant allows the city to hire outside consultants who can continue the work of finding water-rights holders who would be willing to temporarily divert their claims to the city in exchange for fees.

Todd Doherty is the president of Western Water Partnership, the consultant who helped the city with the grant application and will continue to work on securing ATM agreements. He has identified 2,800 irrigated acres that use water diverted at or above the city. His team will be reaching out to farmers to explain the program and gauge interest.

Possibility of City of Aspen dams on Castle and Maroon creeks eliminated — @AspenJournalism

The location of the prospective Maroon Creek Reservoir, just below the confluence East and West Maroon creeks. Photo credit: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

When Div. 5 Water Court Judge James Boyd issued a final water-rights decree at 7:23 a.m. Tuesday in the Maroon Creek Reservoir case, he removed the prospect of the city of Aspen ever building a 155-foot-tall dam on Maroon Creek or a 170-foot-tall dam on Castle Creek below Ashcroft.

Although the city had reached agreement in October with 10 opposing parties in two water-court cases over the city’s conditional water rights, the agreements were not in effect until the court’s decree was issued in the Maroon Creek Reservoir case.

So now they are.

“It means the city will not build reservoirs at Maroon or Castle,” said Margaret Medellin, a utilities-portfolio manager for the city. “The decree was the last piece we needed to finalize all our negotiations. So until that was in place, Maroon Creek Reservoir was still a possibility.”

In issuing Aspen’s proposed decree for its conditional rights for the Maroon Creek Reservoir, the judge found that the city had been sufficiently diligent and could maintain its conditional water rights for another six years, but in doing so, he also enshrined the city’s commitment to move the rights out of the Maroon Creek valley. He did the same for the Castle Creek rights last month when he issued a decree for the conditional rights tied to the potential Castle Creek Reservoir.

“The judge’s final decree ensures that the Maroon and Castle dams are dead,” said Matt Rice, Colorado River Basin director for American Rivers, which opposed the city’s efforts to maintain its water rights in the Castle and Maroon creek valleys. “This is a big day for Colorado, the city of Aspen, and for all people that appreciate free-flowing rivers. This collaborative outcome demonstrates that Coloradan’s can protect rivers while planning for a water scarce future.”

The city first filed for the conditional water rights to the two potential reservoirs in 1965, and the decreed rights carry a priority date of 1971. (Please see timeline).

The Maroon Creek Reservoir would have held 4,567 acre-feet of water just below the confluence of West Maroon and East Maroon creeks, in a pristine location in view of the Maroon Bells. The reservoir would have flooded 85 acres of U.S. Forest Service land, including some in the Maroon Bells-Snowmass Wilderness.

The Castle Creek Reservoir would have held 9,062 acre-feet of water behind a dam on the creek two miles below Ashcroft. The reservoir would have flooded 120 acres on both private and USFS lands, including a small area in the wilderness.

Since first claiming the rights, the city periodically filed little-noticed diligence applications to maintain them. Outside of the diligence filings, however, the city did not take any active steps to develop the two dams, although they were mentioned in various city water-planning documents over the decades.

But the city’s last diligence filing, in October 2016, brought statements of opposition from 10 parties: the USFS, Pitkin County, American Rivers, Western Resource Advocates, Trout Unlimited, Wilderness Workshop and four private-property owners — two who owned land in the Maroon Creek valley and two who own land in the Castle Creek valley.

During the resulting water-court process, the city reached a deal with the opposing parties, agreeing to try and move the conditional water-storage rights out of the two pristine valleys to five identified locations in the Roaring Fork River valley.

The locations are the city golf course; the Maroon Creek Club golf course; the city’s Cozy Point open space; the Woody Creek gravel pit; and a 63-acre parcel of land next to the gravel pit, which the city bought in 2018.

“We worked a long time, and all the parties involved really were thoughtful and creative in trying to come up with a solution that the city got the storage that they desperately need, and we protect our environment,” Medellin said. “So I think it’s a real success story.”

In a joint press release issued Tuesday, representatives from American Rivers, Western Resource Advocates, and Wilderness Workshop praised the deal.

“The judge’s final decree cements over two years of collaborative work to find a win-win solution that both protects Castle and Maroon Creeks in two of the regions most beloved Valleys, and ensures a sustainable future water supply for the City of Aspen,” said Will Roush, executive director of the Wilderness Workshop. “Water can be one of the most contentious issues in the west and I’m proud of our community for coming together to find a solution that benefits both people and place. Our wilderness and public lands deserve to be kept largely free of damaging developments like dams and I’m grateful to the City of Aspen for their work and commitment not only to providing water but also to protecting our environment and public lands.”

And Jon Goldin-Dubois, the president of Western Resource Advocates, said “this final decree marks the beginning of a new era of collaboration to safeguard the Maroon Bells Wilderness and Maroon and Castle creeks. The city of Aspen should be commended for its efforts to pursue water supply alternatives that will ensure future demands are met without sacrificing our rivers and cherished natural landscapes. As growing cities across the West seek sustainable and affordable ways to provide water in the face of climate change, we encourage them to follow Aspen’s lead.”

The city now plans to hire consultants to help it prepare an “integrated water-resource plan,” which it has not done since 1990, and then to file two “change cases” in water court seeking to modify the rights, which remain in place, with significant restrictions, for another six years.

All of the parties who settled with the city have agreed not to oppose the city in its upcoming change cases, which must be filed by June 2025, but other parties may do so.

Whatever the outcome of the city’s future efforts in water court, the agreements in the Maroon Creek case say, “Aspen agrees that after final entry of the final decree, it will not seek to retain any portion of the Maroon Creek Reservoir storage right at its original location.” Agreements in the Castle Creek case have similar language.

Paul Noto, a water attorney with the Aspen-based law firm of Patrick, Miller, Noto, represented American Rivers and Trout Unlimited in the cases, as well as Roaring Fork Land and Cattle Co., a property owner in Maroon Creek.

Noto said he was pleased with the outcome of the water-court process.

“For American Rivers and Trout Unlimited, it’s a really good outcome because you had the specter of dams being constructed near the base of the Maroon Bells and that specter has been removed from the table,” Noto said. “We could argue about how likely that was going to be. It was very unlikely, perhaps impossible. But, regardless, that is completely off the table now. And I think that it was commendable that Aspen agreed to that.”

Medellin, however, said climate change means the reservoirs were becoming more likely, not less.

“Obviously, no one had a big appetite for it because we value our watersheds and the city was trying everything it could to avoid that eventuality,” Medellin said. “But when we look at what climate change is doing in our valley and in our world, there was going to be a future that we wouldn’t have been able to operate without that.”

She also said the city made a big concession in walking away from the two reservoirs, as they would have stored water above the city’s diversion structures on lower Castle and Maroon creeks.

“What we traded was the benefits of having a gravity-fed system with protecting those valleys,” Medellin said. “And that was a trade-off that we all felt was appropriate. But we know that by not having a gravity-fed system, it’s going take some creativity and potentially a pipeline.”

It’s an open question for some whether the really city needs as much as 8,500 acre-feet of stored water to meet its future needs.

A study done for the city by Headwaters Corp. concluded that the city would need 8,500 acre-feet in a much drier future, but that’s including all of the city’s current municipal indoor and outdoor needs, its current irrigation levels on the two golf courses that use city water, and enough water to keep Castle and Maroon creeks above a minimum flow level.

“I understand their desire to plan on the high side,” Noto said. “But I don’t think they proved it and I don’t think they needed to. It was just basically a number that came from horse trading.”

Noto also says it is possible the upcoming water-court process may end up reducing the city’s claim.

“It’s too soon to say if they will take a haircut,” Noto said. “We have to wait and see what the proposal is. I don’t think the city has identified their fill sources and points of diversion, and that’s where the rubber meets the road in terms of the effect on nearby water rights.”

Medellin said she expects the city to now engage with the community in a transparent discussion about the city’s future water needs.

“People have probably lost interest in it to a certain extent, but I think now — as we move into the next phase of the project, where we talk about where are we going to store the water — I imagine that the community is going to get re-engaged,” she said.

Aspen Journalism covers water and rivers in collaboration with The Aspen Times. The Times published this story on June 12, 2019.

Judge Issues Final Legal Ruling Ending the City of Aspen’s Water Storage Cases

The City of Aspen holds conditional water rights tied to a potential 155-foot-tall dam that would flood a scenic meadow with dramatic views of the Maroon Bells. The city is seeking a diligence ruling on those rights, which it then intends to transfer to other locations. Photo credit: Brent Gardner-Smith/Aspen Journalism

Here’s the release:

[On June 11, 2019], Wilderness Workshop, Western Resource Advocates, and American Rivers welcomed news that a water judge has issued a final decree in the Maroon Creek case, marking the end of the court cases considering Aspen’s rights for water storage. In October 2018, the conservation organizations celebrated the completion of agreements to permanently abandon Aspen’s plans to build dams on Maroon and Castle creeks. Under the agreements, Aspen will now pursue more sustainable water supply alternatives, while protecting important wildlife and recreation areas, including portions of the Maroon Bells-Snowmass Wilderness Area.

“This final decree marks the beginning of a new era of collaboration to safeguard the Maroon Bells Wilderness and Maroon and Castle creeks,” said Western Resource Advocates President Jon Goldin-Dubois. “The city of Aspen should be commended for its efforts to pursue water supply alternatives that will ensure future demands are met without sacrificing our rivers and cherished natural landscapes. As growing cities across the West seek sustainable and affordable ways to provide water in the face of climate change, we encourage them to follow Aspen’s lead.”

“The judge’s final decree cements over two years of collaborative work to find a win-win solution that both protects Castle and Maroon creeks in two of the regions most beloved Valleys, and ensures a sustainable future water supply for the City of Aspen,” said Will Roush, executive director of the Wilderness Workshop. “Water can be one of the most contentious issues in the west and I’m proud of our community for coming together to find a solution that benefits both people and place. Our wilderness and public lands deserve to be kept largely free of damaging developments like dams and I’m grateful to the City of Aspen for their work and commitment not only to providing water but also to protecting our environment and public lands.”

“The judge’s final decree ensures that the Maroon and Castle dams are dead. This is a big day for Colorado, the city of Aspen, and for all people that appreciate free-flowing rivers,” said Matt Rice, Colorado River Basin director for American Rivers. “This collaborative outcome demonstrates that Coloradans can protect rivers while planning for a water scarce future.”

Wilderness Workshop, Western Resource Advocates, American Rivers, Trout Unlimited, and several other parties, including Pitkin County and the U.S. Forest Service, opposed the city’s plans to dam Maroon and Castle creeks. After extensive negotiations, the conservation organizations, the city, and other opposers were all able to reach agreements requiring the city to relocate its water rights and permanently abandon plans to build reservoirs with dams on Castle and Maroon creeks, regardless of whether the city is successful in moving these rights to alternative locations. The city of Aspen played a critical role in helping find solutions to protect the two creeks while maintaining an important source of water for the community.

Water judge issues decree for Aspen’s Castle Creek water storage right, poised to issue Maroon Creek right — @AspenJournalism #ColoradoRiver #COriver

A wetland that would have been flooded under the potential Castle Creek Reservoir. The reservoir would have stood across the main channel of Castle Creek, about two miles below Ashcroft. Photo credit: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

The water court judge reviewing two applications from the city of Aspen to retain, but move, its conditional water-storage rights tied to two potential reservoirs on Castle and Maroon creeks has issued a new decree for the Castle Creek right.

And the judge said Wednesday he is ready to issue a new decree for the Maroon Creek right, once the city works out final language with one of the opposing parties in that case.

“Although perhaps a close call, I’m satisfied and am prepared to approve the conditional rights that have been requested,” District Court Judge James Boyd, who oversees Division 5 water court in Glenwood Springs, said during a case-management conference.

Boyd in November asked Aspen to submit additional information concerning its claims that it has been diligent in developing the dams and reservoirs and that it had a need for the water. The city filed updated information and a slightly revised proposed decree in April, which the judge said he has reviewed.

Under its negotiated settlements with the 10 opposing parties in the Castle and Maroon diligence cases, the city has agreed to store no more than 8,500 acre-feet of water from the two streams in five potential new locations, away from the high-mountain valleys and closer to the Roaring Fork River.

The ten settlements, or stipulations, in both cases are essentially the same for each opposing party, but there are some slight differences. The settlement with Pitkin County in the Maroon Creek Reservoir case is representative.

Under all of the agreements, the city could store either up to 8,500 acre-feet from Castle Creek or up to 8,500 acre-feet from both streams, with a maximum of 4,567 acre-feet coming from Maroon Creek.

The city has at least now obtained a conditional water right to store 8,500 acre-feet from Castle Creek, albeit no longer in the originally proposed location, 2 miles below Ashcroft, and for which it still needs further water court approvals to move the water right to a new location, or locations.

Regarding the remaining issue in the Maroon Creek case, which revolves around the precise wording of a no-precedent clause, Boyd said, “It strikes me there is probably a reasonably decent possibility this issue will go away with a little further negotiation.”

The judge’s announcement during the case-management conference Wednesday regarding his readiness to approve the city’s two diligence applications was made to elicit any further concerns that the water attorneys in the cases may still have.

Hearing no concerns — apart from the no-precedent language issue between Larsen Family LP and the city in the Maroon Creek case — Boyd gave Larsen and the city a month to work things out. In the meantime, he said he would proceed to issue a new decree in the Castle Creek case.

“It’s nice to get at least one of them done,” said the city’s water attorney, Cynthia Covell.

Once the Maroon Creek decree is issued, which Covell does expect to occur, the city plans to prepare an application to water court to move its conditional storage rights to the new potential locations: the city golf course; the Maroon Creek Club golf course, which is partially on city-owned open space; the city’s Cozy Point open space, near the bottom of Brush Creek Road; the Woody Creek gravel pit, operated by Elam Construction; and an undeveloped, 63-acre parcel of land next to the gravel pit, which the city bought for $2.68 million in February 2018 for water-storage purposes.

“I’m sure the city will be undertaking further investigations about the suitability of those sites and what they finally are going to land on,” Covell said. “I’m not really expecting they are going to try to build a reservoir at every single one of those sites, but they will be doing the necessary fieldwork and other kinds of things to determine what makes the most sense for them.”

Covell said there will be “many, many opportunities for the community to be involved in this planning process.”

Under the decrees, the city will have until May 2025 to file a change-of-location application.

But Covell said she would advise that the city do so “sooner rather than later.”

The city in 1965 first filed for water-storage rights tied to potential dams and reservoirs on upper Castle and Maroon creeks. Since then, the city has periodically applied for, and received, findings of diligence from the water court.

The city filed its most recent diligent applications in October 2016. Ten parties filed statements of opposition, and the city reached agreements, or stipulations, with all parties in October 2018. A key provision was that the city had to try to move the water rights out of the high valleys, and if it failed in that effort, it could not return to the two valleys.

Pitkin County, the U.S. Forest Service, American Rivers, Western Resource Advocates, Colorado Trout Unlimited and Wilderness Workshop were opposers in both cases, and each case also included two private-property owners.

Aspen Journalism covers rivers and water in collaboration with The Aspen Times. The Times published a version of this story on Friday, May 10. This updated version reflects the issuance of the signed Castle Creek decree at 11:30 a.m. on May 10.

#Aspen responds to judge’s request in Castle/Maroon dam cases — @AspenJournalism

The City of Aspen holds conditional water rights tied to a potential 155-foot-tall dam that would flood a scenic meadow with dramatic views of the Maroon Bells. The city is seeking a diligence ruling on those rights, which it then intends to transfer to other locations. Photo credit: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

The question of whether the City of Aspen has valid conditional water-storage rights tied to the potential Castle and Maroon creek reservoirs — rights the city now wishes to move to other locations — remains unresolved before state water court.

The latest activity in the two water-court cases about the Castle and Maroon water rights took place April 19, when water attorneys for the city responded to a judge’s request to provide more information about two key legal questions: whether the city has been diligent in its efforts to develop the reservoirs and whether it has a legitimate need for the amount of water it is claiming.

It’s not yet clear whether the information the city submitted to the court April 19 will be enough to satisfy Judge James Boyd, who is overseeing both cases — one involving the Castle Creek Reservoir water right and the other involving the Maroon Creek Reservoir water right — in Division 5 water court in Glenwood Springs.

A case-management conference call in the case was slated for Thursday morning — and that may have provided some insight into how the judge viewed the city’s latest information — but another ongoing trial required the judge to reschedule the conference call about the Castle and Maroon water rights for May 8.

Boyd in November told the city’s water attorney, Cynthia Covell of Alperstein and Covell, that he needed more information on both diligence and need.

“I don’t know if I have any information, really, in the record for me to make the finding that as part of a diligence decree, or diligence burden of proof, of a substantial probability that the project will ultimately reach fruition, so it seems to me I may need some additional actual record to support that conclusion,” Boyd said in November.

Regarding the city’s stated need for up to 13,000 acre-feet of water between the two potential reservoirs, he also said, “There is nothing in the record to really explain why that’s an appropriate number for the court to approve, and I think I may need some record to support that.”

The city is seeking a ruling from the judge that it has been diligent in developing the two potential reservoirs.

The city has told the court that, after obtaining a positive diligence finding, it intends to try to transfer the location of the conditional water-storage rights, which carry a 1971 adjudication date and 1965 appropriation date, from the original locations in upper Castle and Maroon creeks to locations closer to the Roaring Fork River.

The locations include the city’s golf course, the Maroon Creek Club golf course, the Cozy Point open space, the Woody Creek gravel pit operated by Elam Construction and an empty parcel of land next to the gravel pit now owned by the city.

A look into the deep hole in Woody Creek at the gravel pit operated by Elam Construction. The City of Aspen has included this location on its list of potential locations it might move the water rights from the Castle and Maroon creek reservoirs to, along with an undisturbed parcel next door to the gravel pit. Photo credit: Brent Gardner-Smith/Aspen Journalism

Briefly

In the information submitted to the court April 19, in both cases, Covell made the city’s case in succinct fashion, submitting a six-page, revised proposed decree and a four-page supplement to an earlier motion to approve the proposed decree.

The city has previously told the court that it has been diligent in its efforts to develop the reservoirs and that it does, in fact, need the water to meet future demands, especially given climate change.

And it said so again April 19 — but without adding much, if any, new information to the existing court record.

“Aspen needs the Maroon Creek Reservoir water right,” the city said in the April 19 filing. The city also told the court that it “has exercised reasonable diligence in the development of the Maroon Creek Reservoir water right.”

It made similar statements regarding the water right tied to a potential Castle Creek Reservoir.

Under Colorado water law, decisions about whether an applicant has been reasonably diligent in pursuing the development of a given water project are made by a judge on a case-by-case basis.

The court cases began when the city filed a diligence application with the water court in October 2016 seeking to maintain its conditional water-storage rights for both reservoirs, which the city first filed for in 1965.

Ten parties — Pitkin County, the U.S. Forest Service, American Rivers, Wilderness Workshop, Colorado Trout Unlimited, Western Resource Advocates and four private property owners — filed statements of opposition in response to the city’s 2016 diligence applications.

Two years later, in October 2018, the city announced it had reached agreements with all of the opposing parties in the two cases and submitted those agreements to the court, along with a request that the court issue a new decree finding that the city has been diligent and that the conditional water-storage rights are valid for at least another six years.

The new decree also incorporates the terms of the agreements reached with the opposing parties.

The agreements say the city will not build the Maroon and Castle creek reservoirs in their decreed locations and, instead, will seek to move the location of the conditional water storage rights out of the two pristine valleys.

The city also is now limited to storing no more than 8,500 acre-feet of water in the new locations, instead of potentially storing more than 13,000 acre-feet under the original decrees. The water for the 8,500 acre-feet of storage could come from both Castle and Maroon creeks under the agreements.

Today, the city’s water supply comes primarily from Castle Creek, but the supply is supplemented with water from Maroon Creek. The city has senior water rights for those diversions that are not tied to the conditional water storage rights.

The opposing parties also agreed not to challenge the city’s anticipated request to change the location of the conditional storage rights, but other outside parties may still do so.

Notably, in the latest information submitted by the city, there is a sentence in each case that seems to contradict the city’s agreed-upon position that it no longer intends to build either the Castle or Maroon creek reservoirs.

A sentence in the supplement to an earlier motion in the Maroon Creek case says, “Aspen intends to construct the Maroon Creek Reservoir to provide a legal, reliable water supply to its customers.”

In the Castle Creek case, a similar sentence says, “Aspen intends to construct the Castle Creek Reservoir … .”

Asked about the sentence in the Maroon Creek Reservoir case, which seems at face value to indicate that Aspen still intends to build a big dam within view of the iconic Maroon Bells, Covell said, “They intend to construct the reservoir. They intend to construct it at a different location.”

Aspen Journalism covers rivers and water in collaboration with The Aspen Times and other Swift Communication newspapers. The Aspen Times published this story on Friday, April 26, 2019.

After expansions, Skico will use about 900 AF of water a year for snowmaking — @AspenJournalism #ColoradoRiver #COriver #aridification

A snowmaking gun in action, shooting water into the air to make snow. Photo credit: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Heather Sackett):

Two projects to increase snowmaking on Aspen Mountain and the Snowmass Ski Area have received initial approvals from the U.S. Forest Service, but any potential effects of drawing more water from the local watershed for the additional snowmaking remain unclear.

Aspen Skiing Co. is planning to use an additional 82 acre-feet — 26.7 million gallons — of water per season as part of its two snowmaking expansion projects, with most of the water coming out of Castle, Maroon, Snowmass and East Snowmass creeks.

Aspen Mountain will use an additional 57 acre-feet of water per season for new snowmaking infrastructure on 53 acres near the summit to create reliable and consistent snow coverage, according to a hydrology report that Glenwood Springs-based Resource Engineering prepared for the U.S. Forest Service.

Snowmass will use an additional 25 acre-feet of water per season to cover 33 acres of terrain on the Lodgepole, Lunkerville and Adams Avenue trails, according to an environmental assessment by the Forest Service.

The additional 82 acre-feet of water combined from both the Aspen Mountain and Snowmass expansions will be on top of the 821 acre-feet that Skico currently uses on average each season across its four ski areas, bringing the total seasonal average to 903 acre-feet, according to Rich Burkley, Skico’s senior vice president of strategy and business development.

To put that much water into perspective, Wildcat Reservoir, visible from the Snowmass Ski Area, holds 1,100 acre-feet of water.

Burkley said snowmaking has historically been used to connect natural snowfall to the lifts and base areas. The company’s snowmaking philosophy, he said, is to limit it to the bare minimum needed to open the trails, host events and reach the end of the season. Mountain managers hope increased snowmaking will help avoid a repeat of the bare, rocky slopes of the early 2017-18 season.

“We don’t want to increase snowmaking, but we have to,” Burkley said. “Our snowmaking doesn’t go to the top of any of our mountains and we’ve always relied on natural snowfall to open the mountains. Bringing snowmaking to the summit of Aspen will help ensure a Thanksgiving opening. In a year like this, it wouldn’t be necessary, but it would have helped a bunch last season.”

Although there are fewer other water users pulling from local streams — outdoor irrigation season is over — when Skico fires up its snowmaking operations in November and December, it is using water during a time of year when streamflows are at some of their lowest points of the year. Despite a close read of two recent Forest Service environmental assessments on the snowmaking expansions, it is still not easy to determine exactly what might be the impact of drawing more water from Castle, Maroon, Snowmass and East Snowmass creeks, the four streams that provide most of the water for snowmaking at Skico’s four ski areas.

The diversion dam on Maroon Creek operated by the City of Aspen, which gets its water supply mainly from Castle Creek, but also from Maroon Creek. Below this diversion is another diversion, for the Stapleton Ditch, that SkiCo uses to divert water for the snowmaking system on Buttermilk Mountain. Photo credit: Brent Gardner-Smith/Aspen Journalism

Environmental Concerns

In June, Pitkin County submitted to the Forest Service a comment encouraging the agency to consider the impacts of increased snowmaking on stream health and the overall watershed, including the potential violation of state minimum instream-flow requirements on Castle and Maroon creeks.

“Ultimately, we’ve found that the range of change for peak flows and watershed yields associated with the snowmaking SkiCo is proposing are within the natural annual variability of water yield and peak flow,” he said.

The Forest Service issued a draft decision notice approving the Aspen Mountain project Nov. 28 and the Snowmass project Dec. 17. Both reviews were in the form of “environmental assessments,” and both projects are currently in their respective 45-day objection period.

But those assurances from the Forest Service may not be enough for some local river advocates, especially after a hot, dry year that saw some streamflows in the Roaring Fork basin plummet to all-time lows and the city of Aspen implement Stage 2 water restrictions for the first time in history.

Ken Neubecker, associate director of American Rivers’ Colorado Basin Program and a member of the Pitkin County Healthy Rivers Board, has concerns about taking more water out of the streams in winter. Although most of the snowpack makes it back into the river as spring runoff, that doesn’t help the winter aquatic environment, he said. Also, while snowmaking may not require as much water as other consumptive uses such as irrigation, those relatively small depletions add up.

“Twenty-five additional acre-feet taken out over the whole season is not much water, but again, what are the cumulative impacts?” Neubecker said, referring to the Snowmass project. “When are we going to reach the straw that breaks the camel’s back, especially in a dry year when there may only be 2 (cubic feet per second) running in the stream?”

Kate Hudson, a Pitkin County resident and professional environmental advocate focused on water, agrees. Hudson, who is also a member of the county’s streams board, said that because the two projects are being considered separately, it’s hard to measure what the overall impacts might be to the Roaring Fork watershed.

“It’s just one more cut of many, but one of the many that may ultimately tip the balance,” she said. “What we are seeing now globally and locally in our environment with water is death by 1,000 cuts.”

The Forest Service review did consider the total depletions of water in the Roaring Fork River watershed from the additional snowmaking, but found they were anticipated, and covered by, an environmental review previously conducted by the U.S. Fish and Wildlife Service on potential future diversions upstream of a key reach of the Colorado River near Grand Junction. The Roaring Fork flows into the Colorado in Glenwood Springs.

A snowcat smooths out a mixture of machine-made and natural snow at the base of Little Nell in December. Securing a good base on Little Nell is critical to Aspen Mountain operations, and machine-made snow is often critical to get the job done.

Aspen Mountain

Aspen Mountain began making snow this season Nov. 1. Its primary snowmaking pump station, located at the base of the mountain, draws water from the city of Aspen’s treated municipal supply, which originates in Castle and Maroon creeks.

According to Burkley, Aspen Mountain uses an average of 199 acre-feet of water per season for snowmaking.

The new project would add about 57 acre-feet of diversions each season, for a total of 256 acre-feet, or 83 million gallons used for snowmaking on Aspen Mountain, according to figures supplied by Burkley.

While Skico has water rights for snowmaking uses from springs on the upper mountain, the hydrology reports says it is “expected that the water supply necessary to support the proposed snowmaking will also be provided by the city.”

In terms of overall impact, it’s important to note that not all of the water used for snowmaking is taken out of the watershed permanently. The snow acts as an on-mountain, frozen reservoir.

According to the hydrology report, about 74 percent of Aspen Mountain’s water used for snowmaking makes it back into the Roaring Fork River as spring runoff. The other 26 percent is lost to evaporation or sublimation or is sucked up by thirsty plants.

The diversion dam on Maroon Creek operated by the City of Aspen, which gets its water supply mainly from Castle Creek, but also from Maroon Creek. Below this diversion is another diversion, for the Stapleton Ditch, that SkiCo uses to divert water for the snowmaking system on Buttermilk Mountain. Photo credit: Brent Gardner-Smith/Aspen Journalism

Instream flows

The environmental assessment from the Forest Service also warns about instream flows, which are water rights owned by the Colorado Water Conservation Board, and are designed to keep water in the river to preserve natural ecosystems and fish health. The conservation board has 12 cfs of instream flow rights on the segment of Castle Creek where the City of Aspen’s diversion is located. The conservation board has 14 cfs of instream flow rights downstream from the city’s diversion on Maroon Creek.

Although streamflows in Maroon and Castle creeks are predicted to more than satisfy the three demands — snowmaking, municipal uses and instream flows — the study warns that snowmaking shortages are possible during drought conditions in the peak snowmaking month of December.

According to Margaret Medellin, utilities portfolio manager for the city of Aspen, the city will not divert if instream flows are threatened. The city has sensors on both its Maroon and Castle Creek headgates and employees manage them daily to preserve the minimum instream flows. For example, Medellin said the city shut down the Maroon Creek hydro facility last summer to protect the instream flows.

Streamflows, however, can be hard to verify. There is no public gauge on Castle Creek, and although there is a new U.S. Geological Survey gauge on Maroon Creek, the reading simply said “Ice” for several days in late December.

Snowmaking guns sit on Aspen Mountain in late December, after much of their work was done for the season. The water that is forced through the guns to make snow on Aspen Mountain comes from Castle and Maroon creeks, often at their lowest levels in late fall and early winter, which is prime snowmaking season.

Snowmass

Snowmass currently uses an average of 383 acre-feet of water per season for snowmaking from the Snowmass Creek watershed.

The water is provided to Skico by the Snowmass Water and Sanitation District, which serves all of Snowmass Village and the ski area.

The district both diverts water from East Snowmass Creek, and also pumps water up from Snowmass Creek, to fill Zeigler Reservoir, which holds 252 acre-feet of water, according district manager to Kit Hamby.

The water is then sent to the ski area’s snowmaking system when it’s time to make snow. The reservoir, home to “Snomastadon,” was put into service in 2013 and provides a buffer from direct drawdowns from Snowmass Creek, where the conservation board also holds an instream flow right.

The ski area also uses another 46 acre-feet from a few ponds that start the season naturally charged.

Each season, the new project would draw an additional 25 acre-feet, or 8 million gallons, from the Snowmass Creek watershed.

As for Skico’s other two ski areas, Aspen Highlands 55 acre-feet a season on average from the city of Aspen’s municipal supply and Buttermilk uses an average of 184 acre-feet a season from Maroon Creek, according to Burkley. Including the new projects, the total seasonal-average use on all four mountains for snowmaking is expected to be 903 acre-feet of water.

Skico works hard to remain an industry leader in sustainability and the environment. Its “Give a Flake” campaign encourages skiers to take action on climate change.

Burkley admits any expansion of terrain or snowmaking contradicts the company’s sustainability message, but he adds that snowmaking is necessary. And last season’s dry and warm conditions brought to the forefront how crucial it is to have snowmaking at higher elevations.

“It definitely undercuts (the sustainability message),” Burkley said. “But we would not be in business without snowmaking so we try to minimize the impacts of it.”

Editor’s note: Aspen Journalism is covering rivers and water with The Aspen Times. The Times published this story on Wednesday, Jan. 2, 2018.

Judge wants more info from city of Aspen in Castle, Maroon dam cases — @AspenJournalism

The site of the potential Maroon Creek Reservoir, just below the confluence of East and West Maroon creeks. Photo: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

A water court judge last week said the city of Aspen needed to supply more information to the court before he could find the city has met the legal standards for “diligence” and “need” concerning its conditional water-storage rights tied to potential reservoirs on upper Castle and Maroon creeks.

The judge’s request for more substance in the court record could be a setback for the city in its two ongoing diligence cases, which began in 2016, and are now being heard together as one case.

If that were to occur, the city would next file a change application in water court to move the rights from Castle and Maroon creeks to five other potential locations. All opposing parties in the cases have agreed not to fight the city’s effort to do so.

The potential reservoir locations, where the city says it will store as much as 8,500 acre-feet of water, are the city-owned golf course, the Maroon Creek Club’s golf course, the Cozy Point open space, the gravel pit in Woody Creek and a city-owned vacant land by the gravel pit.

During a public case-management conference Thursday with most of the water attorneys in the case, Boyd said he had reviewed the record and had concerns about several issues, including fundamental questions of diligence and need.

Boyd told the city’s water attorney, Cynthia Covell of Alperstein & Covell, that there wasn’t sufficient evidence in the court record for him to conclude that there was a “substantial probability that the project will ultimately reach fruition.”

He asked Covell to file with the court “either a supplemental factual record, a legal brief or just a new proposed decree, or any combination of those” by Jan. 18, if possible.

Asked after the conference call what she thought of the judge’s request, she said “I think the judge is being thoughtful and conscientious about this. I think he’s saying, ‘These are a couple of things that I would like to see more in the record on in order to sign off on this decree.’”

Boyd also asked the city to provide the court with its current long-range water-supply plan.

“In terms of filling in that factual record, there is a reference in the applications to Aspen’s long-range plan to maintain a reliable water supply, which at least invites the possible conclusion that there is a single document that is the plan, and if there is, it seems to me, perhaps it should be part of the record in this case,” Boyd said. “Or perhaps it is something other than a single document.”

Covell said the city’s water plan is in a series of documents.

Berries in the meadow near the Maroon Bells that would be flooded by a Maroon Creek Reservoir. Photo credit: Brent Gardner-Smith/Aspen Journalism

Evolving rights

The city first filed for the conditional water rights in 1965, informing the state it intended to build a 155-foot-tall dam on Maroon Creek that would store 4,567 acre-feet of water, and a 170-foot-tall dam on Castle Creek that would store 9,062 acre-feet of water.

The city obtained conditional decrees for the two reservoirs in 1971. Since then, it has submitted to the state periodic diligence applications, saying each time that it “can and will” someday build the two reservoirs, if necessary.

In current proposed decrees now in front of Boyd, the city is seeking a right to store 8,500 acre-feet in Castle Creek Reservoir, down from 9,062 acre-feet.

It’s also seeking a right to store the original 4,567 acre-feet in Maroon Creek Reservoir, even as it plans on moving both those rights, according to the settlement agreements, and forever walking away from the original locations.

In the settlement agreements, the city also has said it will seek to store no more than 8,500 acre-feet of water, in some configuration, at one or more of the five new locations.

The 8,500 acre-feet of water could come from both Castle and Maroon creeks, in some combination, or it could all come from Castle Creek.

On Thursday, Judge Boyd said he had questions about the city’s estimated storage needs.

“In terms of the obligation to show a need for the water — at least as I review the record — I have an engineering report that contemplates a need of 8,500 acre-feet of storage, which is, of course, the exact size proposed for one of the reservoirs, but the two reservoirs in combination total over 13,000 acre-feet,” Boyd said, “and there is nothing in the record to really explain why that’s an appropriate number for the court to approve, and I think I may need some record to support that.”

He also said the proposed decrees “are completely silent about that contemplated relocation of these reservoirs, and there is really no information in the record about the ability, under the ‘can and will’ doctrine, to put these reservoirs in the new locations that are suggested as possible alternatives,” Boyd said. “So I don’t know if I have any information, really, in the record for me to make the finding that as part of a diligence decree, or diligence burden of proof, of a substantial probability that the project will ultimately reach fruition, so it seems to me I may need some additional actual record to support that conclusion.”

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

Unusual request

Boyd also said it’s the first time he has seen a request such as the city’s, which involves moving conditional rights out of their original location, but only after first obtaining a diligence finding for the water rights in their original locations.

“If it goes forward at all, it will be in a different location,” he said, “and I think that needs to be articulated more clearly in the decree and, as well, give me enough information to conclude it meets the standards for reasonable diligence.”

The Castle and Maroon creek decrees have nearly identical terms, other than size. In fact, they’re often referred to as one decree.

It’s not the first time in the case that the state has asked the city to provide more information.

In a January 2017 “summary of consultation” between the division engineer and the water court’s so-called “referee,” the state said the city must show “a specific plan is in place to develop the subject water rights,” must demonstrate “substantiated population growth in order to justify the continued need for these water rights,” and must show it is “not speculating with the subject water rights.”

The city responded, but not in a way that satisfied the referee.

In August, more than a year and a half after the summary of consultation, the referee, Susan Ryan, sent the city’s two cases to Boyd for him to resolve.

She had noted that outstanding issues in both cases “will require water judge adjudication of the facts and/or rulings of law.”

Editor’s note: Aspen Journalism covers rivers and water in collaboration with The Aspen Times. The Times published this story on Monday, Dec. 3, 2018.

Aspen Skiing Co. expects normal snowmaking operations this season despite #drought

Aspen

From The Aspen Daily News (Chad Abraham):

Despite an unprecedented water restriction amid the ongoing drought affecting much of Colorado and the West, officials with the city of Aspen and Aspen Skiing Co. said the dry conditions should not impact the company’s ability to make snow at its four resorts…

SkiCo uses municipal water for snowmaking on Aspen Mountain and Aspen Highlands from the city’s 3-million-gallon reservoir up Castle Creek, water from Maroon Creek for Buttermilk, and water stored in Ziegler Reservoir for the Snowmass Ski Area. And communication between the city and the SkiCo is key, particularly now amid the drought.

Margaret Medellin, the city of Aspen’s portfolio utilities manager, said Friday that Thomas Reservoir doesn’t afford much storage for the city’s needs, and the municipality relies largely on direct flows from Maroon and Castle creeks. Still, “there are a lot of reasons why snowmaking is a water use that can be done even during this dry period,” she said.

That includes snowmaking mostly happening during November and early December, when water demand has lessened because of fewer residents, second-home owners and visitors; along with fewer times nowadays with temperatures suitable for making flakes.

In summertime, the largest use of city water, as much as 86 percent at times, goes to irrigation, but now “irrigation systems are starting to shut down, and we’re seeing the demand on the system dropping,” she said…

She also said that snowmaking overall is a pretty small use — annually less than 8 percent — of the city water supply.

“Having said that, we do constantly monitor our creeks,” Medellin said. “If SkiCo wanted to make snow, and it’s too close to in-stream flow [requirements], we’d communicate with them that they wouldn’t be able to make snow…

Katie Ertl, SkiCo’s senior vice president of mountain operations, said the drought and city water restrictions have “been on our minds,” and led to a recent, in-company meeting.

She agreed the health of the streams is paramount and echoed Medellin: “We’re putting snow on the hill when not a lot of water is being used.

“We recognize that we have a bit of time before now and then, and we’re hoping for the possibility of natural snow,” Ertl said. “We knew this conversation was going to come up with Stage 2 water restrictions. We’re paying attention to what the city requirements may be and will work in conjunction with them for Aspen Mountain and Highlands.”

She said SkiCo, being the valley’s largest employer and driver of tourism, will also consult with other businesses and interest groups about water use for snowmaking…

Ertl and Medellin both said that 70 to 80 percent of the man-made snow ends up back in the watershed during runoff, rather than being lost to evaporation.

Aspen signs deals with @AmericanRivers, Trout Unlimited to move Castle/Maroon dam rights — @AspenJournalism

Berries in the meadow near the Maroon Bells that would be flooded by a Maroon Creek Reservoir. Photo credit: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

American Rivers and Colorado Trout Unlimited are the latest of 10 opposing parties to sign agreements with the city of Aspen stating that the city will move its conditional water storage rights out of the upper Castle and Maroon creek valleys to five other locations.

“This is a significant victory for rivers in Colorado,” said Matt Rice, the Colorado River basin director for American Rivers, in a statement issued jointly with Colorado Trout Unlimited on Tuesday.

The alternative potential locations to store water from Castle and Maroon creeks include the city’s golf course, on open space near the Burlingame neighborhood, on open space at Cozy Point at the bottom of Brush Creek Road, on undeveloped land in Woody Creek next to the gravel pit and in the gravel pit itself.

David Nickum, the executive director of Colorado Trout Unlimited, said in the statement, “We appreciate the city of Aspen making this commitment to meet its water-supply needs while protecting these much-loved valleys and creeks, and the wild trout that call them home.”

City officials also expect to soon receive a signed agreement from Roaring Fork Land and Cattle Co., the owner of an estate in the lower Maroon Creek valley, according to Margeret Medellin, a utilities portfolio manager for the city of Aspen.

As of May 29, the city had reached earlier settlements with Pitkin County, Wilderness Workshop, Western Resource Advocates, Double R Cross Ltd and Asp Properties LLC in the two cases.

Medellin said Tuesday she understands the U.S. Forest Service also is prepared to sign an agreement and is working toward that end.

And at a June 26 status conference, Craig Corona, the attorney for Larsen Family LP, the last of the 10 opposing parties, told the court he and his client were making progress toward settlement with the city.

City officials have previously said none of the agreements are valid unless all 10 parties sign them.

Reached on Tuesday, Corona said he could not discuss the case.

A water court official has given the opposing parties who have not reached agreement with the city until July 10 to respond to the city’s latest proposal.

The city then has until Aug. 7 to get back to the opposers and the next status conference in the two water court cases is set for Aug. 21.

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

1965 filing

The city’s conditional water storage rights date back to 1965, when the city first filed maps with the state declaring its intent to build the two dams.

One water right is tied to a 155-foot-tall dam that would be located just below the confluence of East and West Maroon creeks, within view of the Maroon Bells, to hold back 4,567 acre-feet of water in the potential Maroon Creek Reservoir.

The other is tied to a 170-foot-tall dam on Castle Creek 2 miles below Ashcroft that could store 9,062 acre-feet in the potential Castle Creek Reservoir.

The city’s water rights carry a 1971 priority date and since then the city has periodically told the state it still intends to build the dams and reservoirs someday, when necessary.

In its latest periodic diligence filings with the state, in October 2016, the city again declared its intent and drew opposition from the 10 opposing parties.

The dam site of the potential Maroon Creek Reservoir, in the Roaring Fork River basin. Photo: Brent Gardner-Smith/Aspen Journalism

Key issues raised during the process include whether the city has been diligently making progress toward building the dams and if the city needs the water.

However, sufficient diligence and need are in the eyes of a water court judge and remain unresolved questions.

In their statement issued Tuesday, American Rivers and Trout Unlimited pointed out that “Aspen’s own 2016 water availability report clearly stated that the city did not need the two dams for municipal water supply or climate resiliency.”

Since that 2016 report the city has conducted a “risk analysis” study that found it could perhaps need about 8,000 acre-feet of storage in a hotter and drier world.

And a recent engineering study that identified five alternative locations where the city could potentially store the water.

“We explored alternatives for water storage and we believe we’ve come up with the best solution for prudent water management that serves the needs of our water customers and speaks to our environmental values,” Aspen Mayor Steve Skadron said in March, when the city spent $2.68 million on 63 acres of vacant land as a potential water storage site.

Under the terms of the settlements being signed with the city, the opposing parties are conceding that the city has been diligent, or perhaps diligent enough, and are taking a neutral stance, at least with the court, on the question of whether the city needs that much water.

“American Rivers agreed to diligence for the City of Aspen because we thought this was the best opportunity to reach a settlement with the city that would permanently remove the water rights for the two dams from the Castle and Maroon Creek valleys, not because we believe the city needs more water storage or has been diligent in developing the projects,” Rice, of American Rivers, told Aspen Journalism. “Our priority has always been the health and protection of Castle and Maroon Creeks. “

The signed agreements to date say that the parties will not oppose a forthcoming application from the city to relocate up to 8,500 acre-feet of its 13,629 acre-feet of conditional water storage rights to potential storage facilities at the five locations outside of the high valleys.

Other parties, not in the Castle and Maroon creek cases, can still oppose the city’s efforts in water court to move the water rights, and their 1971 decree date.

If it is unsuccessful in its efforts to move the rights, the city has said, in the agreements it has signed to date, that it will not seek to maintain the Castle and Maroon rights in their original locations.

The signed agreements to date say that the parties will not oppose a forthcoming application from the city to relocate up to 8,500 acre-feet of it’s 13,629 acre-feet of conditional water storage rights to potential storage facilities at the five locations outside of the high valleys.

Other parties, not in the Castle and Maroon creek cases, can still oppose the city’s efforts in water court to move the water rights, and their 1971 decree date.

If it is unsuccessful in its efforts to move the rights, the city has said, in the agreements it has signed to date, that it will not seek to maintain the Castle and Maroon rights in their original locations.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of rivers and water. The Times published this story on July 4, 2018.

City of Aspen moves closer to settlements on Castle and Maroon creeks water rights cases — @AspenJournalism

The dam site of the potential Maroon Creek Reservoir. Photo: Brent Gardner-Smith/Aspen Journalism

From Aspen Journalism (Heather Sackett):

The city of Aspen continues to make progress on reaching settlement agreements with 10 different parties over its water rights on Maroon and Castle creeks, and a water referee set deadlines that could lead to a resolution before the end of summer.

At a status conference [July 26, 2018], both the city and its opponents said progress is being made toward resolving the cases.

“I feel optimistic we are moving toward a settlement,” said Cindy Covell, a water attorney for the city who is with Alperstein and Covell in Denver.

So far, five of the 10 parties who oppose the city’s efforts in water court to maintain conditional storage rights tied to potential dams on Maroon and Castle creeks have signed settlement agreements. Still left to sign are American Rivers, Trout Unlimited, the U.S. Forest Service, Larsen Family Limited Partnership and Roaring Fork Land & Cattle Co.

Attorney Paul Noto, who represents American Rivers, Trout Unlimited and Roaring Fork Land and Cattle Co., said his clients will likely settle soon.

“I think we are all enthused about how it all ended up,” Noto said. “We are excited about the protections afforded to Castle and Maroon creeks.”

That leaves two other parties that are further away from settling, Larsen Family LP and the U.S. Forest Service.

Attorney Craig Corona of Aspen, who represents the Larsen family, told water court referee Susan Michelle Ryan on Tuesday that he and the city are “definitely” making progress toward finalizing a settlement. The U.S. Forest Service has been difficult to reach lately, according to Covell.

Upper Castle Creek, about two miles below Ashcroft, where the city holds conditional water storage rights tied to the potential Castle Creek Reservoir, which would be formed by a 170-foot-tall dam. The city is moving closer to reaching settlement agreements with the ten parties opposing the city’s effort to hang on to the water rights, and the settlement includes moving the city’s rights out of the Castle and Maroon creek valleys.

Response deadlines

Ryan set a deadline of July 10 for the remaining opposing parties to respond to the city’s settlement proposal. The city must respond to those responses (if a response is necessary) by Aug. 7. The next status conference is scheduled for Aug. 21.

The cases are being heard in Division 5 Water Court in Glenwood Springs. The new deadlines mean the cases will extend past the 18-month deadline of disposition, but Ryan decided to keep them on her docket since progress toward a resolution is being made.

Potential reservoirs

Since 1965, the city has owned conditional water rights for reservoirs on Maroon and Castle creeks. In October 2016, the city filed a diligence application to maintain the water rights, which are tied to potential dams.

The potential Maroon Creek Reservoir would hold 4,567 acre-feet of water and include a 155-foot-tall dam, which would flood part of the Maroon Bells-Snowmass Wilderness. The potential Castle Creek Reservoir would hold 9,062 acre-feet behind a 170-foot-tall dam 2 miles below Ashcroft.

The possibility of two new reservoirs and dams didn’t sit well with 10 parties, who filed statements of opposition to the two water rights cases in December 2016.

Under the agreements, the city will seek to transfer its conditional water storage rights to other potential reservoir sites, including a gravel pit near Woody Creek, with a maximum storage capacity of 8,500 acre-feet. As part of the deal, the opposing parties have agreed not to fight the city’s efforts to move the water rights to new locations for 20 years.

The five parties that have already signed the agreements include Pitkin County, Wilderness Workshop, Western Resource Advocates and two private property owners in Castle Creek Valley.

#Aspen may stockpile water under its golf course — @HighCountryNews

From The High Country News (Jessic Kutz):

This story is a part of the ongoing Back 40 series, where HCN reporters look at national trends and their impacts close to home.

Following a dry winter, Colorado’s already low snowpack is rapidly dwindling and extreme drought has been declared in a third of the state. Many communities, not only in Colorado, but also in other parts of the West, are wondering about their future water security.

For the city of Aspen, located in the headwaters of the Upper Colorado River Basin, planning for a warmer climate is no longer about the distant future. The 6,500-population municipality relies on pulling water from creeks fed by the snowpack, which sat at just eight percent of its median as of June 11, according to snow monitoring data. And the future doesn’t look any better: Recent research suggests climate change will further disrupt the snowpack in the coming years.

In Aspen, the need for water security is being met with a search for alternative storage solutions that have less damaging environmental impacts than the big dams of yesteryear. Over the past two years the city has begun testing several potential water storage sites, including beneath the municipal golf course, as a means to deal with future water shortages. “We are at that point now were it is time to start putting those (storage) plans into action,” said Margaret Medellin, the city’s utilities manager.

The dam site of the potential Maroon Creek Reservoir. Photo: Brent Gardner-Smith/Aspen Journalism

While Aspen pulls its water from nearby Crystal and Maroon creeks, the city doesn’t have any storage capacity. Currently, the city can stockpile just a day’s worth of water, something Medellin said could be a problem this year. “People right now are conserving water and we could still be in a real hardship at the end of the summer because we have no way to store that water,” she said. “When talking about other communities in Colorado and the West that is a level of vulnerability that is not really acceptable as a water management practice.”

This vulnerability is part of the reason why, since 1965, the city has quietly renewed a filing in Colorado’s water court that kept alive the possibility of building two dams on Castle and Maroon creeks. In 2016, when area environmental groups including the Wilderness Workshop and Western Resource Advocates got wind of the renewal, they announced their opposition to the filing, urging the City of Aspen to relinquish its storage rights. If developed, those rights would have flooded some of the state’s most pristine landscape.

In May the city agreed to forego its conditional water storage rights in these wilderness areas, marking the end of Aspen’s ties to the era of large federal dams like Hoover and Glen Canyon. As part of the agreement, the city is now entering a new period for water storage and conservation policy. One option includes storing water under the city’s municipal golf course. The water could either be injected into the underlying aquifer, or would reach it through a basin specifically designed to draw water underground, Medellin said. This would allow the city to store up to 1,200 acre-feet, or about enough to supply 2,400 households for one year, and would eliminate evaporation, a problem that worsens with rising temperatures. “As a concept it really does help you preserve a lot of the water with minimal loss,” Medellin said.

The groups also identified a former gravel pit, and land adjacent to it, that could accommodate up to 8,000 acre-feet of water, which could be diverted from the Roaring Fork River, if the city transfers its water rights. Seen as a win-win by environmentalists, retrofitting old gravel pits has been used successfully on Colorado’s Front Range since the 1980s. The key would be diverting water from the river at the right time, which, according to Ken Neubacker, Colorado projects director at American Rivers, is right after the river reaches its peak flows. “It all depends on how they do it,” he said.

Aspen’s water management plans include irrigating with reused water and introducing a net metering system, which would help the city’s residents track — and reduce — water use. In collaboration with environmental groups, the city is also looking at a program which would allow farmers to temporarily lease some of their water rights during dry periods, letting the municipality use them instead.

For Aspen, much like other communities across the West, storage will increasingly become a part of water planning strategy, but at least now environmental groups are part of the discussion. “Coming to the table and talking these problems through will be essential,” said Robert Harris, an attorney with Western Resource Advocates. As climate change reduces available water, “we can’t depend on the past being any guarantee of the future.”

Jessica Kutz is an editorial intern at High Country News. This article was first published online at The High Country News on June 19, 2018.

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.

Updated timeline: the Maroon and Castle creek conditional water storage rights — @AspenJournalism

Will Roush, left, of Wilderness Workshop, and Ken Neubecker, right, of American Rivers, hold up tape on Sept. 7, 2016 showing where the base of a 155-foot-tall dam would be located on Maroon Creek if the City of Aspen were to build the potential Maroon Creek Reservoir.

From Aspen Journalism (Brent Gardner-Smith):

Timeline from 1881 to pre-May 2018.

May 8, 2018, a status conference is held in the two cases in front of the water court referee. The city must respond to opposer’s settlement proposals by June 1. The next status conference is set for June 29. Meanwhile, the City of Aspen’s two due diligence applications remain before the water court referee, in a quasi-administrative, non-trial-track status.

May 9, 2018, Aspen Journalism and The Aspen Times report that city has reached agreement with one of the opposing parties in the dam cases.

May 24, 2018, A staff memo regarding stipulation agreements on the water rights is published by the city. The packet for a May 29 staff meeting also includes a proposed resolution.

The title of the resolution is “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY’S ATTORNEYS TO EXECUTE STIPULATIONS WITH OPPOSERS TO THE DILIGENCE CASES FOR CONDITIONAL WATER STORAGE RIGHTS ON CASTLE AND MAROON CREEKS ON BEHALF OF THE CITY OF ASPEN, COLORADO.”

The Aspen Daily News reports on the city council’s pending vote related to moving its move water rights out of Castle and Maroon creek valleys, as does The Aspen Times, Aspen Journalism, and Aspen Public Radio. APR’s story was headlined “Aspen agrees to never build dams on Castle and Maroon.”

A map prepared for the City of Aspen that shows the five potential water-storage sites in the Roaring Fork River valley.

May 29, 2018, The Aspen city council votes unanimously to approve agreements with five opposing parties in the Castle and Maroon creek cases. Agreements have yet to be reached with the other five opposing parties.

The Aspen Times and the Aspen Daily News each publish stories about the vote.

The city issues a press release with the headline, “City Council Votes to Support Moving Conditional Water Rights off Wilderness Areas.”

As of May 29 there were stipulation agreements signed by five parties. Three of those parties are in both the Castle and Maroon creek cases. Below is a list, with links to the agreements signed to date, and made public by the city.

There is also a draft degree included as Exhibit A to the agreements for both the Castle Creek stipulations and the Maroon Creek stipulations.

The Pitkin County stipulation is listed at the top, as it is the most restrictive of the stipulation agreements yet signed. It eliminates the use of the county-owned Moore Open Space as a potential storage site, while the earlier agreements with other parties include it.

Pitkin County – Maroon Creek Reservoir
Pitkin County – Castle Creek Reservoir

Wilderness Workshop – Maroon Creek Reservoir
Wilderness Workshop – Castle Creek Reservoir

Western Resource Advocates – Maroon Creek Reservoir
Western Resource Advocates – Castle Creek Reservoir

Double R Cross Ltd – Castle Creek Reservoir

ASP Properties, LLC – Castle Creek Reservoir

Agreements were not signed by May 29 with five other opposing parties, three of whom are in both cases:

USFS – Maroon Creek Reservoir
USFS – Castle Creek Reservoir

American Rivers – Maroon Creek Reservoir
American Rivers – Castle Creek Reservoir

Trout Unlimited – Maroon Creek Reservoir
Trout Unlimited – Castle Creek Reservoir

Larsen Family LP – Maroon Creek Reservoir

Roaring Fork Land and Cattle Co. – Maroon Creek Reservoir

May 30, 2018, Western Resource Advocates issues a press release about the city’s vote, with the headline, “Conservationists reach settlement with Aspen to permanently move water rights for dams out of Maroon & Castle Creeks.”

WRA is also encouraging people to sign a thank you card to the city of Aspen, saying “We’re celebrating a landmark agreement two years in the making: the City of Aspen has agreed not to build dams on Maroon and Castle Creeks!”

City of Aspen reaches agreement with five parties on moving Maroon and Castle creek water rights — @AspenJournalism

An illustration of the potential Maroon Creek Reservoir, prepared by Wilderness Workshop. Source: Wilderness Workshop

From Aspen Journalism (Brent Gardner-Smith):

The city of Aspen now has signed settlement agreements from five of the 10 parties opposing its efforts in water court to maintain conditional water storage rights tied to large potential dams on Maroon and Castle creeks, including Pitkin County, Wilderness Workshop, Western Resource Advocates, and two private-property owners in the Castle Creek valley.

“Aspen agrees that it will forego the right to store water pursuant to these water rights at the original decreed locations,” a May 24 staff memo from the city states.

The five parties that have yet to sign agreements include the U.S. Forest Service, American Rivers, Trout Unlimited, and two property owners in the Maroon Creek valley.

According to a draft resolution that the city council is expected to approve at a regular meeting on Tuesday, city staffers and the city attorney “have diligently negotiated with the remaining opposers to seek settlement in regarding their opposition and staff and its attorney believe that stipulations substantially similar to the attached stipulations will be entered with the remaining opposers.”

The city has said that none of the agreements are binding unless all 10 parties agree to the settlement terms.

As the city works through settlement negotiations with the parties, the resulting agreements can become more restrictive, but not less so, which is a common approach to settling water court cases.

For example, the agreement signed by an attorney for Pitkin County regarding Maroon Creek Reservoir does not include the county-owned Moore Open Space as one of the sites where the city may move its storage right, as did an earlier version of the agreement signed by Wilderness Workshop.

Other potential water-storage sites include the current Woody Creek gravel pit site, a piece of vacant land next to the gravel pit recently purchased by the city for potential water storage, the city-owned Zoline open space between the Maroon Creek Club and the Burlingame housing project, the city-owned Cozy Point Open Space at the bottom of Brush Creek Road, and the city’s municipal golf course.

Under the agreements, the city will seek to transfer its conditional water storage rights from the upper Castle and Maroon creek valleys to these other potential reservoir sites, with a maximum storage capacity of 8,500 acre-feet.

A map prepared for the City of Aspen that shows the five potential water-storage sites in the Roaring Fork River valley.

1971 decree

The city has held the conditional water rights for the Castle and Maroon creek reservoirs since 1965 and they carry a 1971 decree date, which the city hopes to carry to the other potential locations.

The potential Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam on USFS property within view of the Maroon Bells. It would also flood a portion of the Maroon Bells-Snowmass Wilderness.

The potential Castle Creek Reservoir would hold 9,062 acre-feet behind a 170-foot-tall dam, mainly on private property, two miles below Ashcroft.

Western Resource Advocates and Wilderness Workshop issued a press release about their agreements with the city on Thursday afternoon.

The release was sent out after the city of Aspen posted the meeting packet for a scheduled May 29 Aspen City Council meeting.

Aspen Public Radio posted a story on Thursday afternoon with the headline, “Aspen agrees to never build dams on Castle and Maroon.”

The Aspen Times and the Aspen Daily News also wrote stories Thursday evening about the city’s progress in reaching settlements with opposing parties.

As part of the deal with the five parties who have signed agreements, or stipulations as they are called in water court, the opposing parties have agreed not to oppose the city’s efforts to change the water rights to the new locations for 20 years.

Six of the 10 parties who filed statements of opposition in December 2016, in response to the city’s due-diligence filing in October 2016, filed in both the Maroon and Castle creek cases.

But the two pairs of private-property owners filed in only one case each.

Double R Creek Limited, and ASP Properties, which control property in the Castle Creek valley where the potential dam would have been built, only filed in the Castle Creek case. They have both signed settlement agreements.

However, Larsen Family LP and Roaring Fork Land and Cattle Co., which own land in the Maroon Creek valley, have yet to sign agreements with the city.

The cases are being processed in Division 5 Water Court in Glenwood Springs. The next status conference in the case is scheduled for June 26, and the 18-month mark in the case is June 30.

From The Aspen Times (Carolyn Sackariason):

Two of the opposers, Wilderness Workshop and Western Resource Advocates, announced the settlement Thursday evening.

Will Roush, conservation director at Wilderness Workshop, commended the city for finding another way to store its water other than in a designated wilderness area.

“It’s a big deal. … Everybody came to a consensus that these were not the right places for dams,” he said.

Roush’s organization, along with nine other parties, sued the city after it applied to the state to extend existing conditional water rights for the two potential reservoirs. The city first applied for those rights in 1965.

Since 2016, city officials have maintained that adequate water storage is needed in anticipation of climate change impacts like drought, fire and changes in runoff.

“City Councils over the decades have worked to preserve Aspen water customers’ water supply, including storage options now and into the future,” Aspen Mayor Steve Skadron said in a statement. “We are pleased that we could achieve a solution with Wilderness Workshop and Western Resource Advocates, and hopefully all the parties invested in a mutually successful outcome, that protects pristine areas of wilderness while still prioritizing Aspen’s water needs for the coming decades.”

In 2017, the city announced its intention to move the conditional storage rights out of both valleys. It has been in negotiations with the opposing entities since then.

Stipulations with the five parties — which Aspen City Council is set to approve Tuesday — would result in the government relocating its water storage rights to six other potential locations in the Roaring Fork Valley…

Roush said he has spoken to representatives of some of those parties and there are no substantial differences in the stipulations. He said he expects those agreements to be signed off on, but in the meantime there is no time like the present to advance his organization’s goal to keep water storage out of the valleys…

“It’s a great day for Castle and Maroon creek valleys, and that those streams will remain free-flowing,” Roush said.

Aspen moves closer to settling Castle and Maroon creek dam cases

Under conditional water rights held by the city of Aspen since 1965, a 155-foot-tall dam would be built in this location on Maroon Creek to store 4,567 acre-feet of water. The city of Aspen is moving closer to reaching agreements with 10 opposing parties in water court to move the water rights to other locations.

By Brent Gardner-Smith, Aspen Journalism

City of Aspen officials are hoping to reach an agreement by May 29 with the 10 opposing parties in two water court cases over the city’s conditional water rights tied to potential dams on Maroon and Castle creeks.

While that timeline may be ambitious, one of the parties in the two cases, Double R Creek Ltd., which owns a residential property that would be flooded by the Castle Creek Reservoir, recently signed a settlement agreement with the city.

“My client has settled and feels that the settlement is a good one for my client since it eliminates the threat of the development of that reservoir anywhere in the Castle Creek valley,” said Kevin Patrick, a water attorney with Patrick, Miller and Noto who represents Double R Creek Ltd. “We’re pleased.”

The potential Castle Creek Reservoir, which would store 9,062 acre-feet of water behind a 170-foot-tall dam 2 miles below Ashcroft, would flood portions of the residential property owned by Double R Creek Ltd.

It also would flood residential property across Castle Creek owned by Asp Properties LLC, which also is opposing the city in water court.

The Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam, located just below the confluence of East and West Maroon creeks on U.S. Forest Service property, within view of the Maroon Bells.

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

Other locations

Under similar settlement proposals sent to all the parties in the cases, the city would agree to move its conditional storage rights out of the Maroon and Castle creek valleys to six other potential locations in the Roaring Fork River valley, according to sources close to the court cases.

If the change in location of the water-storage rights is approved in water court, the city could retain the right to transfer as much as 8,500 acre-feet of water storage across those locations, down from the potential combined total of 13,629 acre-feet in Castle and Maroon creeks, but only in those six new locations.

The locations include the existing gravel pit in Woody Creek on land the city recently purchased for water storage next to the gravel pit, on the city’s golf course, on the Moore Open Space near the roundabout, on land near the Burlingame housing development and on the Cozy Point Open Space at the bottom of Brush Creek Road.

On May 29, city staff plans to present the signed agreement with Double R Creek Ltd. to the City Council in a regular public meeting for its final review and approval. They also are working to present signed agreements, or stipulations, with the other nine opposing parties in the cases, as well.

“We’re hopeful that when we come to council we’re going to have stipulations from all the parties,” said Margaret Medellin, utilities portfolio manager for the city. “And if we don’t, we will take what we have and continue to work toward a point of settlement.”

Outstanding areas of agreement among some of the opposing parties and the city revolve around assurances that the city won’t try and move its conditional rights, fail in its attempt, and then return to seeking to maintain its conditional rights in the Castle and Maroon valleys.

Patrick said the agreement he signed on behalf of his client includes those assurances.

An illustration prepared by Wilderness Workshop of the potential Castle Creek Reservoir, based on plans filed by the city of Aspen with the state in 1965 to create water rights for the reservoir. The city is now moving closer to reaching agreement with parties opposing the city’s 2016 due-diligence application to maintain the rights.

Ongoing process

The other parties in the two cases include two property owners in Maroon Creek, Larsen Family LP and Roaring Fork Land and Cattle Co., Pitkin County, the U.S. Forest Service, Wilderness Workshop, Western Resource Advocates, American Rivers, and Trout Unlimited.

The city first applied for the conditional water storage rights for the two potential reservoirs in 1965 and the decree for the rights carries a 1971 priority date. (See timeline.)

In October 2016, the city submitted two due-diligence applications for the reservoirs and the cases attracted opposition from 10 parties across the two cases.

In July 2017, the city announced its intention to move the conditional storage rights out of both valleys and has been in negotiations with the opposing parties in the case since then.

On Tuesday, the city’s water attorney, Andrea Benson of Alperstein and Covell in Denver, updated the Division 5 water court referee, Susan Michelle Ryan, on the city’s settlement efforts.

“Since the last status conference, I believe we’ve made some good progress toward settlement with all of the opposers,” Benson said.

Benson said in addition to having a signed stipulation with Double R Creek Ltd., the city has also reached a “settlement in concept” with both Western Resource Advocates and Wilderness Workshop. (See “minute order” on status conference from the water court referee.)

Will Roush, the conservation director at Wilderness Workshop, said his organization’s main goal in the cases has been “protecting those two creeks and ensuring that there wasn’t the possibility of building dams on either creek. Dams obviously fragment streams and the riparian habitat. So our goal has always been to protect the ecosystems of those two valleys.”

Paul Noto, a water attorney also with Patrick, Miller and Noto, is representing American Rivers, Trout Unlimited, and the Roaring Fork Land and Cattle Co. in the cases.

“We’ve been working with the city toward settlement, and it seems like we’re making progress, and we hope to have the case wrapped up shortly,” Noto said Tuesday.

Medellin, who declined to discuss the specifics of the proposed settlements, said city staff has been “negotiating with council’s direction.”

She also said the city’s position is that all of the parties in the case need to agree to settle for the final deal to be struck.

“We think we’ve been able to come to a place where we are all going to get what we want, or close to it,” she said.

Aspen Journalism is covering water and rivers in collaboration with The Aspen Times. The Times published this story on Wednesday, May 9, 2018.

Aspen officials say city needs to store 8,500 acre-feet of water as backup — @AspenJournalism

Site of proposed maroon creek reservoir via Aspen Journalism.

From Aspen Journalism (Brent Gardner-Smith)

The city of Aspen told the state [in late December, 2017] it will need 8,500 acre-feet of water storage in order to meet water demands in a hotter and drier world.

The disclosure of how much water storage the city thinks it will need to store in 2065 came as part of a response the city provided Friday to state officials in water court, who were seeking a “substantive” written response by Dec. 29 from the city to issues raised about the potential Maroon Creek and Castle Creek reservoirs.

As part of its response, the city included a Dec. 7 letter from its engineering consultants, Deere and Ault of Longmont, who concluded “the required storage capacity for the city of Aspen is approximately 8,500 acre-feet.”

To help put that into context, Lost Man Reservoir holds 100 acre-feet of water; Grizzly Reservoir on Lincoln Creek holds 590 acre-feet; Wildcat Reservoir, visible from the Snowmass Ski Area, holds 1,100 acre-feet; Harvey Gap Reservoir, north of New Castle, holds 5,060 acre-feet; Paonia Reservoir, west of McClure Pass, holds 20,950 acre-feet; and Ruedi Reservoir on the Fryingpan River holds 102,369 acre-feet.

Engineers at Deere and Ault based their storage estimate on a Nov. 30 study done for the city by Headwaters Corp., titled “Aspen’s Water Future: Estimating the Number and Severity of Possible Future Water Shortages.”

The report, which also was submitted to the court, assumed that a warming climate means less water will be flowing down Castle and Maroon creeks, the city’s two main sources of water, and that the runoff will come earlier.

And, working toward a worst-case scenario, they assumed that the city will not increase water conservation efforts, that large irrigation diversions from Maroon and Castle creeks will not be decreased, and that the city will still try to maintain environmental flow levels on both creeks, which it is not legally obligated to do.

The Headwaters report found that water shortages of over 1,000 acre-feet a year could occur in five out of 100 years, with “shortage” defined to include current irrigation diversions and environmental flows on top of domestic uses.

Deere and Ault then used the Headwaters risk-analysis study to come up with a necessary water storage amount of 8,500 acre-feet to offset the potential water shortages, although its two-page Dec. 7 letter does not describe in detail how it reached its conclusion based on the Headwaters report.

The conclusion from Deere and Ault is different than one made for the city by Wilson Water Group in 2016, which concluded in a report — adopted by the city — that the city would not need new water storage if it took other steps, such as increasing conservation, installing ground wells and using “reuse” water to irrigate its golf course.

In 1965, an engineer working for the city of Aspen selected this location, just below the confluence of East and West Maroon creeks, as the location for a potential 155-foot-tall dam. The city is still on record with the state as intending to build the dam here, if necessary, to meet its future water needs.

Storage rights

The city has been maintaining conditional water storage rights since 1965 for the two potential reservoirs on Castle and Maroon creeks.

The Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam across upper Maroon Creek, within view of the Maroon Bells, and the Castle Creek Reservoir would hold, as currently decreed, 9,062 acre-feet behind a 170-foot-tall dam across Castle Creek, 2 miles below Ashcroft.

The conditional storage rights, which hold a 1971 decree, are distinct from the city’s absolute diversion rights on Castle and Maroon, which are senior rights and adequately supply the city’s water system today.

In July, the city announced its intention to try to transfer the conditional storage rights out of the Castle and Maroon creek valleys, and it has put a parcel of land next to the gravel pit in Woody Creek under contract and directed staff to begin developing a reservoir there.

A study done by Deere and Ault in September concluded the city could store up to 8,000 acre-feet of water on the Woody Creek site. The city has said it is also looking at other places to potentially store water, including the city’s golf course and the Cozy Point open space at the intersection of Brush Creek Road and Highway 82.

The city has also put forth a settlement proposal to the 10 parties opposing its efforts to maintain its water rights, and the proposal is predicated upon the city transferring its storage rights out of the Castle and Maroon creek valleys.

But no settlement has yet been reached and the city is still officially on the record with the state of Colorado, through its two applications in water court, saying it fully intends to build both the Castle and Maroon creek reservoirs, someday, when necessary.

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.

Outstanding questions

After reviewing the two due diligence applications filed by the city in October 2016 seeking to maintain the conditional storage rights, the division engineer and water court referee in Divison 5 in Glenwood Springs raised a set of threshold issues they wanted the city to address.

The officials asked on Jan. 23 for the city to demonstrate it could secure permits and land-use approvals to build the dams and reservoirs, that it could do so in a reasonable time, that it has a specific plan to build them, and that there was sufficient population growth in Aspen’s water service area to justify storing the water.

The city’s water attorney, Cynthia Covell of Alperstein and Covell in Denver, has been reluctant to respond in detail to the court’s request, which came in the form of a summary of consultation.

In her Dec. 29 letter to the court, Covell suggested it was outside of the court’s purview to ask the city to do so at this point in the proceedings.

“Aspen maintains that much of this concern is based on the division engineer’s view of applicable law, and is beyond the proper scope of a consultation report, but nevertheless, responds as follows …” Covell said in her letter.

Covell then reiterated several points that city officials have been making over the past year, including that the city today does not have any “meaningful storage facilities” and that climate change projections “demonstrate the need for storage.”

And while she did not make a detailed case to the court that the city of Aspen could build the Castle Creek Reservoir or the Maroon Creek Reservoir, she did say Aspen could get the necessary permits and arrange financing for reservoirs.

“As a financially stable municipality, Aspen has available to it a number of financing options and therefore will be able to construct a reservoir sufficient to store 8,500 acre-feet,” Covell told the court in her letter in the Castle Creek case. “The decreed location of the Castle Creek Reservoir is primarily on private land. Aspen is able to acquire private land by purchase, lease or eminent domain. Legal procedures and mechanisms exist to obtain land-use approvals and permits on federal land, if necessary, including special-use permit, Congressional authorization and presidential authorization.”

On the other hand, Covell included language that alludes to the city’s stated intent to try to transfer the Castle and Maroon rights out of Castle Creek to another location, such as Woody Creek, and then fill that new reservoir with water from both Castle and Maroon creeks.

“Aspen will develop both the Castle Creek Reservoir storage right (to the extent of 8,500 acre-feet) [and] the companion Maroon Creek Reservoir storage right … in order to provide two sources to meet this storage need,” Covell wrote, without specifically mentioning a reservoir outside of the Castle or Maroon creek valleys. “The total amount of storage will be 8,500 acre-feet from both sources, with no more than 8,500 acre-feet to be diverted annually from Castle Creek. Aspen will relinquish the remaining 562 acre-feet decreed to the Castle Creek Reservoir.”

It’s not clear why the city is willing to relinquish 562 acre-feet from the potential Castle Creek Reservoir right, which is now decreed at 9,062 acre-feet, but it may be a reflection of two earlier agreements with adjoining land owners to reduce the size of the reservoir so as not to flood their properties.

In a separate letter to the court regarding Maroon Creek, Covell took a similar stance, saying the city “will be able to construct a reservoir sufficient to store the 4,567 acre-feet per year to be diverted from Maroon Creek,” but didn’t say where that reservoir might be located.

A status conference in the two water court cases is set for Jan. 4. The parties could agree to keep the case on a quasi-administrative track in front of a water court referee, or the case could be set on a trial track in front of a water court judge.

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 Aspen Times published this story in its print edition on Tuesday, Jan. 2, 2017 and the Post Independent published it on Jan. 3.

Aspen’s proposal to move rights out of Castle and Maroon creeks well-received — @AspenJournalism

Castle Creek

From Aspen Journalism (Brent Gardner-Smith):

The city of Aspen has put forward a proposal that would move its conditional water-storage rights, and with it two potential dams and reservoirs, out of the Castle Creek and Maroon Creek valleys and spread a proposed 8,500 acre-feet of water storage among as much as six locations between Aspen and Woody Creek.

That deal was well-received Thursday by opposing parties in two water-court cases tied to the potential Castle and Maroon reservoirs during a brief water court status conference. The city circulated a settlement proposal Dec. 8 to the 10 parties opposing the city’s efforts to maintain a conditional right to store 4,567 acre-feet of water in a potential Maroon Creek Reservoir and 9,062 acre-feet in a potential Castle Creek Reservoir.

In its proposal, according to sources close to the negotiations, the city said it will seek to transfer its conditional storage rights from the two reservoirs to other potential reservoirs on a range of other sites that could hold as much as a combined 8,500 acre-feet of water from Maroon and Castle creeks.

The reservoirs, either surface or underground “in-situ,” would be built on a range of potential locations including the city’s golf course, the Moore, Burlingame, and Cozy Point open space parcels, the gravel pit in Woody Creek operated by Elam Construction, and a parcel of vacant land next to the gravel pit the city now has under contract.

Under the deal, the city would make a firm commitment to move its potential reservoirs out of the Maroon Creek and Castle Creek valleys, and the opposing parties would refrain from fighting the city’s future efforts in water court to transfer its conditional storage rights, and its 1971 decree dates, to the new locations.

“Based on what I’ve heard today it sounds like … there is some consensus that the cases are moving toward settlement,” Division 5 water court referee Susan Ryan said Thursday after each of the attorneys in the two cases stated their view of the ongoing settlement negotiations.

Ryan set another status conference in the two cases for Feb. 15.

The city filed two periodic applications with the court Oct. 31, 2016, to show it’s been diligent in developing its conditional storage rights for the Maroon and Castle creek reservoirs, which it first filed in 1965. The recent applications drew opposition from the U.S. Forest Service, Pitkin County, American Rivers, Colorado Trout Unlimited, Western Resource Advocates, Wilderness Workshop, and four private landowners, two in each valley.

James DuBois, an attorney with the U.S. Justice Department in Denver, told the referee during Thursday’s status conference that “as far as the United States’ objections, I think it’s likely we’ll be able to reach settlement.”

Craig Corona, a water attorney representing the Larsen family, which owns property in Maroon Creek, also was bullish on the city’s proposal to move the water rights out of the valleys.

“Larsen Family LP feels like we’re making substantial progress in negotiating toward a settlement,” Corona told the water court referee. “And we’re happy to stay on the referee’s docket at least for another 45 days to try to finalize the settlement agreement.”

Any party in a water court case has the option at any time to re-refer a case away from a settlement track under the purview of a water court referee and put the case on a trial track in front of a water court judge.

Paul Noto, a water attorney representing American Rivers, Colorado Trout Unlimited, and another Maroon Creek landowner, told the court, “My broad view of the status is that we are making some headway toward settlement and I’d prefer, for one, to avoid trial-track deadlines and focus on settlement issues.”

Rob Harris, a staff attorney at Western Resource Advocates, who also is representing Wilderness Workshop, said, “I agree that we’ve made significant progress toward settlement and I think we’d benefit from at least another couple months or so to pursue settlement.”

Attorneys for Pitkin County and the two property owners in Castle Creek said they did not object to the case staying in front of the referee.

Aspen’s water attorney, Cynthia Covell, told the court that the city has only just recently received a number of written comments to its proposal from the opposing parties, and that the city would like about a month to review them and further discuss its proposal with the parties.

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

Storage options

Aspen officials have been reviewing alternative water storage sites for about a year with the help of Deere and Ault, an engineering firm in Longmont.

A study done in September by Deere and Ault identified a range of in-situ and surface reservoirs that could be built, in differing combinations, on the Woody Creek gravel pit site and the neighboring parcel of land the city intends to buy.

The options include a 320 acre-foot in-situ, or underground, reservoir and five options for surface reservoirs in various configurations that would hold between 700 acre-feet and 8,000 acre-feet of water. The Woody Creek reservoirs range in cost from $48 million to $81 million and would require about 6.5 miles of pipeline to reach the city’s water treatment plant.

Deere and Ault has also found, in a screening study of various sites, that the city could store water in a number of potential in-situ reservoirs on other sites upvalley from Woody Creek.

In-situ reservoirs require deep trenches dug 50 to 100 feet down to bedrock, depending on the site. The trenches form the walls of the storage vessel, or bucket, while the bedrock, and sometimes a geosynthetic liner, forms the bottom of the bucket.

The rocks and dirt on the site are not excavated, but left in place between water-tight slurry walls poured into the surrounding trenches. Water is then poured into the bucket and pumped out for later use.

Deere and Ault found that an in-situ reservoir could be built on the city-owned Moore open space, across Maroon Creek Road from the Aspen Chapel, to hold 550 acre-feet of water, at a cost of $26.9 million. The water could then be pumped nearly a mile via a pipeline to the city’s water treatment plant, which is on a hill behind Aspen Valley Hospital.

The city’s golf course could hold two in-situ reservoirs, one holding 650 acre-feet and another holding 760 acre-feet, for a total of 1400 acre-feet, at a combined cost of $71.3 million.

The Burlingame, or Zoline, open space, which is 1.9 miles from the water treatment plant and owned by the city, could accommodate a 650-acre-foot in-situ reservoir, at an estimated project cost of $34 million.

The Cozy Point open space, also owned by the city, could hold two 100-acre-foot reservoirs for a combined 200 acre-feet of storage. The site is 5.6 miles from the water treatment plant and the estimated project cost for the reservoirs and pipeline system is $15.5 million.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily, and the Summit Daily on coverage of rivers and water. The Times published this story on Thursday, Jan. 5, 2017.

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.

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

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

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

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

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

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

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

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

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

Aspen City Council wades into water shortage scenarios

Scenario A, worst-case:

This scenario is intended to represent assumptions with a combined 1 in 100 probability of occurring.
Climate change is at the worst end of consideration, at 6 weeks peak, 50 percent combined flow and ET impacts. Weighted average demand growth rate is 1.2 percent, resulting in a 2065 treated water demand of approximately 6,320 acre-feet. And flow adjustment factors are at their expected values.

Scenario B, no-growth

Climate change is at the worst end of consideration, at 6 weeks peak, 50 percent combined flow and ET impacts. Demand growth rate is zero; current treated water demand of approximately 3,500 acre-feet continues through 2065. And flow adjustment factors are at their expected values.

Scenario C, intervention

Climate change is at the worst end of consideration, at 6 weeks peak, 50 percent combined flow and ET impacts. Demand growth rate is zero, no outdoor usage during shortages; effective treated water demand during shortages is 2,280 acre-feet. And flow adjustment factors are at their expected values.

_

ASPEN – Whether Aspen needs to build a reservoir to meet water demands in 2065 may depend in part on whether it wants to keep irrigating its municipal golf course during an apocalyptic drought.

According to a water attorney and an economist working for the city on a risk analysis of future water shortages, Aspen may find itself unable to meet domestic water demands — including both indoor and outdoor water use — anywhere from two out of 25 years in an optimistic scenario to 19 out of 25 years in a worst-case scenario.

The most optimistic scenario can be achieved, in theory, if the city limits outdoor watering by its customers and also stops diverting water from Castle Creek to irrigate the 148-acre municipal golf course and other nearby open space.

Outdoor water use accounts for about 60 percent of current demand for city water.

The members of the Aspen City Council took a sip of such concepts Monday at a work session on the results of a water demand study.

Aspen Mayor Steve Skadron said he expects the council to now spend “several months” grappling with the city’s future water needs as part of an exercise to identify alternatives to maintaining conditional water rights for two large reservoirs on upper Castle and Maroon creeks.

Aspen trees near the site of the proposed Maroon Creek Reservoir. The City Council has acknowledged the pristine nature of the Maroon Creek location and is openly looking for water storage alternatives, including at the city golf course and Cozy Point Ranch.

Climate wildcard

Monday night, George Oamek, an economist with Headwaters Corp., presented three scenarios from a risk analysis he’s been developing for the city.

He told the council that his model is packed with uncertainties, mainly around the severity of climate change, but also around the amount of flow in Castle and Maroon creeks and the future demand from Aspen’s water customers.

“We’ve got just a tremendous amount of variability in the existing information that gets translated into our analysis,” Oamek said.

“There is so much uncertainty,” concurred council member Ann Mullins.

“Climate change is everything,” Oamek said. “And it’s the thing we know the least about.”

Oamek also said his model includes a 1-in-100 chance that the factors will line up to cause havoc, which he said is a common risk assumption for municipal water providers and in floodplain mapping with its concept of a “100-year-flood.”

“Frankly, water planners are risk adverse,” he said.

In Oamek’s “worst-case” scenario, runoff would come six weeks earlier in the spring and there would be half as much water flowing in Castle and Maroon creeks, the city’s primary sources of water.

The city of Aspen’s diversion structure on Castle Creek.

Water rights portfolio

The city owns two large senior diversion rights on Castle Creek tied to the historic Castle Creek-Midland Flume. The city has an 1892 decree allowing it to divert 60 cfs. On top of that, it has another right from 1892 for 100 cfs, giving it the ability to divert 160 cfs from Castle Creek.

The city’s streamwide diversion dam is just downstream of Midnight Mine Road and the water is sent via a pipeline to the city’s water treatment plant on a knoll above Aspen Valley Hospital.

Water from Maroon Creek is also sent via pipeline to the treatment plant and the associated 10 acre-foot Leonard M. Thomas Reservoir, which serves as a forebay to the treatment plant, holding water from both Castle and Maroon creeks.

The city owns a 3.4 cfs diversion right on Maroon Creek with an 1893 decree date and another 65 cfs diversion right with a 1949 decree date that, notably, includes an 1892 appropriation date. The city’s streamwide diversion dam on Maroon Creek is located at the T-Lazy-7 Ranch.

The water rights from Castle and Maroon creeks give the city a portfolio of “paper” rights adding up to 228.4 cfs, which is a much larger amount than the city runs through its water treatment plant, even in dry, high-demand, years.

According to a water availability study from Wilson Water adopted by the city in June 2016 as a planning document, the city in the last big drought year of 2012 brought between 2.38 and 9.4 cfs of water into its water treatment plan from Thomas Reservoir. The peak intake of 9.4 cfs was in June.

The city’s pipeline from the Castle Creek diversion limits the amount of water that can be sent from Castle Creek to the treatment plant to 25 cfs and the pipeline from Maroon Creek can move up to 27 cfs.

The city’s diversion rights are separate from its two conditional water storage rights higher on Castle and Maroon creeks.

Those rights, as currently decreed with a 1971 date, are for storing 4,567 acre-feet of water just below the confluence of East and West Maroon creeks in the Maroon Creek Reservoir, and for storing 9,062 acre-feet of water in the Castle Creek Reservoir two miles below Ashcroft.

The combined storage capacity of the potential reservoirs, as currently decreed, is 13,629 acre-feet. The reservoirs, notably, would be located above the city’s two downstream diversion dams.

And both the city’s diversion rights and its conditional storage rights are separate from rights it owns in three irrigation ditches on Castle Creek, downstream from its diversion dam. The headgates for the three ditches on Castle Creek are near the Marolt housing complex.

The city calculates the instream flow at a location below the headgate of the Marolt Ditch, as it is the lowest of the three ditches.

The city of Aspen's Leonard M. Thomas Reservoir, next to the city's water treatment plan, can hold water from both Castle and Maroon creeks.
The city of Aspen’s Leonard M. Thomas Reservoir, next to the city’s water treatment plant, can hold water from both Castle and Maroon creeks.

Supply down, demand up

In his presentation to the City Council, Oamek said his worst-case scenario assumes that demand for treated water would be 6,320 acre-feet of water a year, up from about 3,500 acre-feet today.

The assumption includes a negligible 0.4 percent growth rate in the permanent population in Aspen’s water service area, and a 2 percent growth rate for the part-time population and commercial sector.

That assumption does seem to run counter to Aspen’s past ability, and plans, to lower water demands while the population rises, which may be why the three scenarios also include a no-growth-in-demand scenario, where demand is held flat at current levels, regardless of potential population growth.

For example, a 2014 water efficiency plan from Element Consulting and WaterDM projects the city will, by 2035, “reduce treated demand by about 583 AF — an overall 14 percent reduction in demand.”

And the city has been making solid progress on reducing water demand. In 2012, city staffers told the council the city had reduced water consumption by “over two-thirds over the last 19 years.”

But the water efficiency plan does raise a cautionary note about the city’s lack of storage.

“On an annual basis, the dry year yield of the City’s water rights appears to be more than sufficient to meet current and forecast future demands,” the plan says. “However, the city does not have storage to regulate the timing of supply to match demands, and therefore is vulnerable to peak demand shortfalls in dry years when physical streamflow conditions are limited, or in emergencies such as a fire or landslide when one or more particular water supply sources may become unavailable.”

A graphic in Aspen's draft water efficiency plan shows that the city has generally been using less water over time.
A graphic in Aspen’s draft water efficiency plan shows that the city has generally been using less water over time.

Setting aside the downward demand trend, the most draconian scenario developed by Oamek assumes a near doubling of demand in a much hotter and drier world.

And it shows the city might not be able to meet all municipal water demands — including both indoor and outdoor use — in 19 of 25 years.

“There are frequent shortages for Aspen’s potable supply during that period,” Oamek said.

In 15 of those years, water shortages could be greater than 100 acre-feet of water.

In four of those years, water shortages could be greater than 1,000 acre-feet.

And in one of those years — think the drought year of 1977 — shortages could be greater than 2,000 acre-feet.

“Over 1,000 acre-feet … that would definitely cause some hardship,” Oamek said. “A lot of these shortages, they are not occurring during the irrigation season, or during the summer where you might be able to reduce outdoor use, or work some deals with the irrigators.

“The shortages are occurring kind of in the shoulder season, occurring in late summer, early fall, and also during the winter. And those shortages may be a little harder to mitigate through the utilization of outdoor sources.”

The well-watered Aspen golf course, which sits between Castle and Maroon creeks.

No outdoor watering

The picture gets brighter in Oamek’s “intervention scenario,” the least demanding of the three scenarios.

Runoff would still come six weeks earlier, and there would still be half as much water flowing down Castle and Maroon creeks.

But demand for city water is projected at 2,280 acre-feet a year, as the scenario assumes the city will curtail the use of treated waters for outdoor purposes during a drought.

“During times of shortages, we set outdoor usages to zero,” Oamek told the council, explaining that would drop annual demand in the model to about 2,200 acre-feet, down from 3,500 acre-feet.

In that scenario, there might be 14 years out of 25 when there are water shortages, but only in five of those years would the shortages be over 100 acre-feet, and none would produce shortages over 1,000 acre-feet.

One of the city’s irrigation ditches that carries water from Castle Creek toward the city’s golf course.

No ditch water

Cindy Covell, the city’s water attorney with Alperstein and Covell, then told the council she asked Oamek — the day of the council work session — to run another scenario where the city also stopped diverting water it controls into three irrigation ditches on lower Castle Creek, downstream of the city’s diversion dam to its treatment plant.

“I was thinking, if you were going to run a scenario that involved no outdoor irrigation – you’re telling your customers they can’t water their lawns – you probably are going to have a hard time taking irrigation water down those ditches and irrigating your golf courses and your parks,” Covell said.

Oamek ran a calculation — not a full model run — and said curtailing irrigation drove the number of years with indoor water shortages down to just two years out of 25, and in only one of those years was the shortage greater than 100 acre-feet.

In 2012, the city diverted up to a total of 20.5 cfs into the three Castle Creek irrigation ditches, with the highest diversion rate in June, according to the Wilson Water study.

The city has diversion rights in the Holden Ditch of 25.9 cfs with a 1952 decree, in the Marolt Ditch of 13.6 cfs with a 1934 decree, and in the Si Johnson Ditch of 2.55 cfs with a 1936 decree, according to an agreement with the Colorado Water Conservation Board. That adds up to a “paper” portfolio of 42.05 cfs worth of irrigation rights.

“To some extent you already have a bucket of water, which is the downstream irrigation ditches,” said water attorney Paul Noto, who represents three clients opposing the city’s conditional storage rights in water court, and was asked to comment at the work session by the mayor.

“Tonight we talked about what’s the worst-case scenario, [and] might I suggest that we look at priority irrigation under those ditches,” Noto said. “So perhaps we say, at the golf course we want to keep our fairways and greens green, but maybe we don’t irrigate the rough if the streamflows are below x.”

Noto also pointed out to the council that almost all of their municipal water comes from Castle Creek, and that the water in Maroon Creek is now primarily diverted to power the city’s small hydropower plant on the banks of Maroon Creek.

Maroon Creek, below the diversion, at about 12 cfs during a minimum stream flow demonstration in 2011.

Maintaining instream flows

Maintaining instream flows is a challenge in each of the scenarios presented, as there are dry years when it’s hard for the city to reach its goal of leaving enough water in Castle and Maroon creeks to maintain the environmental flows while also meeting all municipal water demands.

“Worst-case, maximum growth, there is a lot of damage to the instream flows,” Oamek said, noting the annual instream-flow shortages were over 10,000 acre-feet in the worst year in the model.

The city has a policy of maintaining minimum, or instream, environmental flows in Castle and Maroon Creeks.

The Colorado Water Conservation Board holds an instream flow right in Castle Creek for 12 cfs and a right in Maroon Creek for 14 cfs. The state defines that level of flow as the amount of water needed to protect the environment “to a reasonable degree.”

Both of the CWCB’s instream flow rights are junior to the city’s senior diversion rights on Maroon and Castle creeks.

The city, based on the recommendation of a consulting biologist, recently increased its minimum flow target on Castle Creek to 13.3 cfs. As such, the combined minimum instream flow level in Castle and Maroon creeks that the city seeks to maintain is 27.3 cfs.

The city’s policy of voluntarily honoring the state’s junior instream flow rights is centered on a 1997 agreement with the CWCB to protect 12 cfs of flow on Castle Creek. The agreement does not technically extend to Maroon Creek, although the city’s stated policy does.

However, the agreement with the state also includes a provision that allows the city to exempt itself from the policy during periods of “extraordinary drought,” which are not defined.

The provision gives the city latitude to meet its municipal demands and “invade,” as Oamek put it, the junior minimum instream flow rights held by the state, as necessary.

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.

Need a bucket

Staff in the city’s Water Department continue to point out to the City Council that Aspen likely needs some amount of water storage in the future.

“In our integrated water supply system, there are alternatives to storage than can help mitigate our shortages, things like re-use, conservation, ag transfers … but even though these combined can minimize the shortages, storage is still needed because of timing issues,” Margaret Medellin, a utilities portfolio manager for the city told the council Monday night. “To really make these other mechanisms work, we still need a bucket to be able to augment and … re-time the water.”

That message has gotten the attention of Mayor Skadron.

“As we proceed, my goal would be to ensure a sufficient water supply for future generations and to ensure that their options are open,” he said.

He also asked during the meeting, “Does a scenario exist in municipal water planning where storage is not needed beyond just what nature provides?”

“Historically, that’s how Aspen has operated,” Medellin replied. “Aspen has very little storage and has historically operated as a direct-flow water provider. And in areas maybe that are wetter, back East, it is not as problematic.

“And I think the concern is as we are starting to see runoff happening earlier, the demand being extended and happening later into the system … [and] what has worked historically for Aspen, we aren’t convinced is going to work for the next 50 years.

“Even though that it is something that other communities can do, and something that Aspen has done, as we are looking into our models going forward, we’re not convinced that it’s something that is sustainable here,” Medellin said.

However, a 2016 water supply report done by Wilson Water and adopted by the City Council in June of 2016 as a planning document, painted a different picture and found that no storage was necessary – even after factoring in available climate change projections.

The Wilson Water 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.

“However, during drought periods, physical water supplies may limit the city from satisfying desired ISF (instream flow) bypasses. These modeled ISF deficits are forecasted to occur during drought periods in only the climate scenarios with very low late summer and winter streamflow conditions.

“Most ISF deficits occur at a frequency of 5% of the time or 1 out of 20 years. The predicted average daily ISF deficits are relatively small and can be managed utilizing the existing water supply tools the city has in place and/or is actively developing,” the Wilson Water study said.

And recently completed water-efficiency plans for Basalt, Carbondale, and Glenwood Springs found that those three nearby cities have adequate water supplies for the future without significant storage “buckets.”

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

Shortage into storage

Medellin also told the council one of the next steps is to convert the shortage numbers from the Headwaters risk analysis to potential storage numbers.

“It’s not a one-to-one conversion,” Medellin said, noting that the storage figure is always larger than the shortage number.

She said a “reservoir operations model” will be used to “apply a reservoir efficiency factor to account for losses and reservoir integrity.”

“What that means is all of the water that we put into a reservoir, we’re not going to get that back out,” she said. “So there is a factor that is commonly added to account for that. Then the next step is going to be to determine what volume of conditional storage rights we need to satisfy that requirement.”

Covell, the city’s water attorney, further explained the process.

“You look at your streamflows, and you say, how often can I fill up this reservoir?” she said. “And on the eastern slope, you might not be able to fill it up more than once every five years. So you say, if I need to be sure I’ve got to have 100 acre-feet of water in storage, I might have to fill up 600 acre-feet, because when I need that 100 acre-feet some of the water will have evaporated and I won’t be able to top it off again because my water right won’t be available.

“And that’s a, maybe, overly simplistic example, but when you’re trying to figure how much storage capacity you need, you have to figure out when you are going to be able to put water in, how much of it’s going to evaporate, and when you’re going to need to take it back out,” Covell said.

Medellin added that the engineering firm Deere and Ault of Longmont is now making calculations for both in-situ and surface water reservoirs, and the storage needs will be based on the representative period of years in the model being used by Headwaters.

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

Settlement talks

It’s not clear yet how the scenarios presented Monday may change the city’s negotiating position with the 10 parties opposing its ongoing efforts in water court to maintain conditional water storage rights for reservoirs on Castle and Maroon creeks.

Last week, the city announced it now intends to transfer its water rights from Castle and Maroon creeks to two potential reservoir sites in Woody Creek, including on land it now has under contract near the Elam gravel pit, and the gravel pit itself.

“The impetus for the purchase is to seek a way to transfer decreed storage rights to locations other than the decreed locations on Castle Creek and Maroon Creek,” the city said in a July 19 press release titled “Aspen City Council to Purchase Land for Possible Alternate Site for Water Storage.”

“Since 1965, the city has held decreed water storage rights at sites in Maroon and Castle Creek Valleys but the nature of these pristine locations has made it a priority for the city to first seek other ways to address potential water shortages and to seek alternate locations for water storage,” the city stated.

And Skadron was quoted in the release as saying “securing Aspen’s water future is an essential task of today’s city council. It is council’s responsibility to look out for the welfare, safety, and health of the community and we take that very seriously. In addition, our commitment to protecting our environment is also a priority and this land purchase is a way to both protect the community and preserve Castle and Maroon valley wild lands.”

The city also said in the press release about the Woody Creek options that “other alternatives for water storage are still being explored, including in-situ reservoirs at the Aspen Golf Course, Cozy Point Ranch, the portion of the city-owned Maroon Creek golf course, and other upper valley locations.”

A second settlement conference with the opposing parties in the two water court cases is set for Aug. 2 and a status conference with the water court referee is Aug. 8.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of rivers and water. The Times published a version of this story on July 25, 2017.

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

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

From Aspen Journalism (Brent Gardner-Smith):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Woody Creek options

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

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

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

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

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

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

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

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

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

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

Praise from opponents

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

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

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

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

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

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

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

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

Aspen changing course on conditional water rights?

The Maroon Bells from the meadow just above the confluence of East and West Maroon creeks, and the location of the potential Maroon Creek Reservoir.

ASPEN – Aspen city officials plan to reveal this week a proposal that seeks to resolve some of the issues raised by its efforts to maintain conditional water storage rights tied to potential dams and reservoirs on upper Castle and Maroon creeks.

Last week the city approved money to study underground storage, looked into how much water storage it needs, and responded in water court to a previous filing. In the past month, city officials also have met with a number of opponents in the water case.

“Things are changing rather quickly regarding the current diligence cases,” Aspen City Manager Steve Barwick said Friday, referring to the two ongoing due diligence cases now unfolding in Division 5 water court. “I expect a completely different discussion will be taking place within one week.”

Barwick also said he and other city staff members “have a great deal of work to do toward that outcome” and he expects to hold a news conference by Friday about the city’s proposal.

As presently decreed, the Maroon Creek Reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam a mile and a half below Maroon Lake. The Castle Creek Reservoir would hold 9,062 acre-feet behind a 170-tall-reservoir on the main stem of Castle Creek 2 miles below Ashcroft.

The city originally filed for the water rights in 1965 and has periodically told the state it intends to build the dams and reservoirs, if necessary, as part of its municipal water system.

The city filed its most recent applications for due diligence Oct. 31 and is seeking to hold on to its conditional rights for another six years.

City officials do not appear to have tipped their hand to the opposing parties in the cases about the substance of this week’s announcements.

“I really don’t know what the city will present at its big announcement,” said Rob Harris, senior staff attorney at Western Resource Advocates, who recently met with city officials on potential alternatives to the reservoirs, along with a representative from Wilderness Workshop of Carbondale. “I’m assuming that this will be more in the nature of the city announcing its preferred solution, or some part thereof, rather than any sort of finalized deal with any of the parties.

“Whatever they present, the follow-up questions we’re going to be asking include whether their idea moves Castle and Maroon creeks upstream of Aspen closer to permanent protection and, if their idea involves moving any or all of the water rights, what the potential impacts and benefits of that change will be,” Harris said.

The environmental organizations opposing the city in water court also include Colorado Trout Unlimited and American Rivers.

“What would not make us happy is if they said, ‘We will significantly downsize these reservoirs but keep them in the same place,'” said Matt Rice, director of American River’s Colorado River basin program, during an interview in late June. “We’re hopeful they are coming around to the impossibility of developing those projects in the two valleys, and what that means for this diligence, and that they are getting realistic about more-appropriately sized projects that can help them meet their water supply needs.”

Rice also said that Aspen Mayor Steve Skadron met with Bob Irvin, the president and CEO of American Rivers, on June 21 at city hall for 45 minutes.

“It was an opportunity to extend an olive branch of sorts and commit to working toward a resolution to this issue in good faith,” said Rice.

The city has scheduled a second settlement conference for Aug. 2 with the 10 opposing parties in the water rights cases.

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

Golf course option?

On Monday the city council approved a $116,000 contract with the engineering firm of Deere and Ault of Longmont to drill test bores and dig exploratory pits on the course at the Aspen Golf Club as part of a feasibility study of an in-situ, or underground reservoir.

Such an “in-situ” reservoir would likely hold about 1,200 acre-feet of water, according to a preliminary investigation done by Deere and Ault.

Deere and Ault now plans to drill up to six test bores through what is estimated to be 75-feet of gravel under the golf course, and to dig up to eight pits, of undisclosed size, to analyze the soil and gravel conditions.

City Engineer Trish Aragon said this week that a construction management plan will be required by the city’s engineering department for any drilling work that goes deeper than 50 feet.

And a permit would be required if the excavation pits disturb more than 200 square feet of surface area.

Aragon, after checking with officials at the city’s water department, said it has not yet been determined when, or where, the drilling or digging will take place.

The members of the Aspen City Council on Monday, July 10, 2017. From left, Bert Myrin, Ward Hauenstein, Mayor Steve Skadron, Ann Mullins, and Adam Frisch.

In water court

On the same day the city council approved further investigations on the golf course, the city’s water attorney, Cindy Covell of Alperstein and Covell in Denver, submitted a required response to a “summary of consultation” report filed by the division engineer in Division 5, Alan Martellaro, on January 23.

In a July 10 letter Covell told Materellaro that Aspen “understands that it must meet the required burden of proof at trial,” but otherwise she left the concerns of the state officials unaddressed.

The report, prepared after consulting with water referee Susan Ryan, challenged the core of Aspen’s applications for the dam and reservoir rights.

“I cannot recommend approval of this application until the following concerns are addressed,” Martello’s report began, in a standard opening line for such reports.

The first concern cited was about the phrase “other beneficial uses” in the city’s claims to maintain its conditional storage rights, which carry a 1971 decree date.

And the second concern was whether Aspen’s applications meet key tests in a due diligence case.

“Regarding the ‘can and will’ and the ‘anti-speculation’ doctrines,” Martellaro wrote, “the applicant must demonstrate” that it will secure necessary permits and land use approvals, that it will complete the projects “within a reasonable time,” that a “specific plan is in place to develop the subject water rights,” and that the city “is not speculating with the subject water rights.”

The issues raised by the state officials are much the same as those raised by the ten opposing parties in the two cases.

The parties, in addition to the four environmental organizations, include Pitkin County, the United State Forest Service, and four private landowners.

Two of the landowners own property in the Maroon Creek valley, Thomas and Margot Pritzker and Marcella Larsen and her family. And two own property in the Castle Creek valley, Robert Y.C. Ho and Charles Somer.

“I think the division engineer raised some serious concerns that are entirely consistent with ours,” Rice of American Rivers said in late June. “We would appreciate it if they would answer the core questions.”

But the city chose not to do that this week.

The questions raised in the summary of consultation remain open in the case, however, and may be addressed in the future by the water referee or at trial, as Covell suggested.

The location of the potential Maroon Creek dam and reservoir, just below the confluence of East and West Maroon creeks.

Supply and uncertainty

On Tuesday the city council got an update on a risk analysis being conducted by Headwaters Corp. of Nebraska regarding the city’s future water supply and demand equation.

George Oamek, the economist who is preparing the study, submitted a preliminary report to the city on July 3, in an effort to help the city council determine how much will they need in the future and where they should store it.

He told the council that in order to complete his risk analysis, he and the council members are going to have make a number of assumptions about “uncertain variables.”

He said the data recorded by now defunct stream gages on Castle and Maroon creeks from 1970 to 1994 was insufficient for his analysis, although the 24 years of data has been the basis of several other in-depth water supply and demand studies done for the city.

He said that available climate data would be hard to use to predict local conditions.

And he recommended using land use projections in Aspen and Pitkin County to determine future water demand, as opposed to the standard methodology of using population projections.

Oamek also presented a pie chart to the council that illustrated the varying degrees of uncertainty presented by each of those areas.

About 70 percent of the uncertainty, and thus required assumptions, is in the area of climate change, he said, while 20 percent was related to the gaps in the data about flows in the creek, and ten percent was tied to demand projections.

Oamek told the city council members that he was relying on them for assumptions about land use and population.

Margaret Medellin, a utilities portfolio manager for the city, told the council that Tuesday’s meeting on the Headwaters study was not the last.

“This is just the first of many conversations,” she said. “We’ll be coming back to council for quite some time.”

Editor’s note: Aspen Journalism is an independent nonprofit news organization collaborating with The Aspen Times on coverage of rivers and water. The Times published a shorter version of this story on Monday, July 17, 2017.

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

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

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

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

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

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

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

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

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

Feasible

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

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

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

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

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

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

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

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

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

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

Exploring options

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

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

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

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

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

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

A trench, filled in

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

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

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

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

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

Water hazards

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

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

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

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

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

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

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

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

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

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

From Aspen Journalism (Brent Gardner-Smith):

The city of Aspen has rejected an initial settlement offer made in the unfolding water court cases about conditional water rights tied to two large potential dams on Castle and Maroon creeks.

On May 23 the city’s water attorney, Cynthia Covell, sent a letter to the water attorney for the Larsen Family Limited Partnership, rejecting its settlement proposals made on May 8 and 11.

“Aspen cannot accept your client’s settlement offer,” Covell told Larsen Family attorney, Craig Corona.

The Larsen’s proposal required the city to stay, or put on hold, it’s two current applications to the court to extend its conditional storage rights for another six years.

Then the city could file a new request with the water court to change those conditional water rights to another location and size outside of the Castle and Maroon creek valleys and somewhere within the city limits.

“Our offer was quite clear that there were terms that could be negotiated, and the basic concept was that we would support (along with the other opposers) Aspen’s relocation of its dam rights, in a location and amount to be determined through negotiation,” Marcella Larsen of Larsen Family LP said.

In his May 11 letter, attorney Corona told the city, “If there’s no objection and the change is decreed, dams won’t be built in the wilderness and the city will retain its water rights – a win-win.”

But establishing new water storage rights within city limits, with a 1971 priority date, without opposition, may be hard to do, even with the opposing parties in the current cases sitting on the sidelines.

The current water court review was triggered when the Aspen filed two applications in October to maintain its conditional water storage rights, which were decreed in 1971.

Larsen Family LP is one of ten opposing parties in the resulting “due diligence” cases now before the Division 5 water court referee in Glenwood Springs.

The other parties include the U.S. Forest Service, Pitkin County, four environmental organizations, and three owners of high-end residential property in the Castle and Maroon creek valleys.

Corona told the city there was a “general consensus” among the other parties in the case in support of the Larsen Family proposal, which technically only pertained to the Maroon Creek Reservoir case.

But the city decided to sit on its cards.

On May 22, the council held an executive session to discuss, in part, the water court cases.

On May 23, Covell sent Corona the city’s rejection letter.

Corona then sent the letter to the other opposing parties.

“A new application to change the location (of) the Maroon Creek Reservoir conditional storage right would require that a new location be specified,” the city’s May 23 letter said, according to an attorney in the case. “Aspen must complete its supply/demand study and identify an alternative location or locations for the Maroon Creek Reservoir storage right in order to be able to file a change application to move that right, or some portion thereof, to another location.”

Asked about the rejection of the settlement offer, Aspen City Manager Steve Barwick would only say last week via email that ”the City of Aspen is still working with all parties in the water case with the hope of reaching a mutually agreeable settlement. We are still trying to refine water supply and demand estimates and study alternative storage locations.”

A second closed-door and facilitated settlement meeting hosted by the city for the opposing parties is being set up for the first week of August. The first such meeting was held in March.

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

1965 filing

The city’s conditional storage rights on Castle and Maroon creeks date back to 1965, when the first told the water court it intended to build two reservoirs to meet forecasted demands.

In October 2016, the city again told the state it still intends to build the reservoirs, someday, if necessary.

But since October the city has also has been openly studying alternatives to the two reservoirs, and doing so with the knowledge that it’s possible, in some water court cases, to move and adjust conditional storage rights.

As currently decreed the Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam just below the confluence of East and West Maroon creeks, within view of the Maroon Bells.

And the Castle Creek Reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam across Castle Creek two miles below Ashcroft.

Both dams would flood some portion of the Maroon Bells –Snowmass Wilderness.

The city has done little work on the reservoirs since the mid-1960s. But since 2012 when the rights came into public view, city staffers have increased their warnings to the city council about the city’s lack of storage, save for nine acre-feet at the water treatment plant.

A staff memo for the May 15 work session, for example, said “the Aspen community will face significant challenges maintaining its water supply as we experience changing precipitation and runoff patterns, and possible increased fire, drought, change in runoff timing and lower snowpack levels due to climate change.”

But a raw water availability study prepared by Wilson Water Group in June 2016 indicated the city would not need any storage in the future, although it may need to curtail some irrigation if it wants to maintain minimum flow levels on Castle and Maroon creeks.

And while the council adopted the Wilson Water study as a formal planning document last year, it also recently contracted with an economist at Headwaters Corp. to develop new scenarios illustrating a range of needs and varying levels of risk in a hotter and drier future.

Margaret Medellin, a utilities portfolio manager with the city, told the city council on May 15 that the work from Headwaters will not be complete until the end of summer. And more studies may then be necessary.

That’s been a frustration to Corona.

“Instead of engaging in meaningful settlement discussions, the city engaged a myriad of consultants at great expense to study its ‘needs’ when it already has a demand study,” Corona told the city on May 11. “This work should have been done before filing the application, not after.”

Corona’s May 11 settlement letter also contained a number of other messages for city.

“The City is concerned with giving up the current locations for the dams,” Corona wrote. “But, the City can’t build the reservoirs there, anyway. It would take twenty to forty million dollars (at least) to condemn private property for the Castle Creek dam. The City would need a special use permit to inundate Forest Service property, and private legislation from Congress to inundate wilderness – highly improbable, if not impossible. So, if the City transfers the rights to a new location that has challenges, the City will be no worse off than they are now.”

“The City’s claims are weak,” he also told the city. “In almost fifty years, the City has done almost nothing to develop these rights. The City has no need for storage, especially not a sixty-year supply, according to the City’s engineers. Unless the City settles, it will not come out of these cases with its water rights intact.”

“The delay for the City’s studies is unnecessary and is self-inflicted. With no need for storage, it should be simple to determine a reasonable supply amount and risk,” he also wrote. “The 1,200 acre feet we originally offered would give the City a five-year supply. Is the City concerned that Castle Creek and Maroon Creek will be completely dry for more than five years? If that happens, 1965 reservoir rights are not going to help.”

And he told the city it can expect ongoing opposition from Larsen Family LP.

“Larsen Family LP will never stipulate to diligence for dams in the wilderness,” Corona wrote. “It seems it should be easy for the City to say it will never dam the Maroon Bells. But, apparently, that’s not the case.”

The location of the potential Maroon Creek Reservoir.

How much water?

There is also a question about how much storage the city thinks is really necessary.

The combined storage of the two potential reservoirs in Castle and Maroon creeks, is 13,629 acre feet, or almost 14,000 acre-feet. Ruedi Reservoir, by comparison, holds 100,000 acre feet.

Aspen city council member Bert Myrin said on May 15 he did not think that the city would ever need more than about ten percent of the conditional 14,000 acre-feet described in the city’s conditional rights.

Myrin said council members should know the size of the need before studying various alternatives, such as an “in-situ” reservoir under the city’s golf course, which could hold about 1,200 acre feet.

“I think it would help us to have a better idea of the problem we’re trying to solve before we try and solve the problem,” he said.

But Scott Miller, Aspen’s public works director, said the result of the Headwaters Corp. study will not be a single number.

“We’ll have a range of risks,” Miller told the council members. “A range of need, and a range of risk. Then you guys are going to lead the discussion about where we go from here.”

Marcella Larsen, of Larsen Family LP, Larsen also responded to questions in writing from on Aspen Journalism on May 31 about the settlement proposal:

Larsen is a retired attorney and served for four years as the assistant Pitkin County attorney from 1997 to 2001. Her remarks, as perhaps the most aggressive of the opposing parties in the two cases, are notable.

AJ: In a May 23 letter, the city informed your attorney that it could not accept your settlement offer because it had not developed an alternative location for the Maroon Creek Reservoir storage right. First, to clarify, your settlement offer was for both the Maroon and Castle creek reservoirs, correct?

ML: The Larsen LP is a party only in the Maroon Creek case, but it was our understanding that the other opposers, including Pitkin County, the U.S. Forest Service, the multiple environmental non-profits, and other private property owners whose properties would be inundated by Aspen’s dams were all generally open to pursuing the offer further. The offer was a concept that would be worked out among the parties, and could have included the Castle Creek side, but unfortunately Aspen rejected it out of hand.

AJ: Next, the city says it is still defining how much storage it needs. Do you yet understand whether that means the city needs something less than a combined nearly 14,000 acre feet of storage?

ML: The City hasn’t said they need less than the 14,000 acre feet claimed and, at their latest work session, they maintained the possibility they will need all 14,000 acre feet. However, Aspen’s own 2016 Wilson Water Group Water Supply Availability report shows that Aspen has no need for any water storage, much less giant dams in wilderness areas. As in zero need. That study concludes that Aspen will only need 231 acre feet per year in 2064.

Wilderness Workshop and Western Resource Advocates recently shared their analysis of how Aspen might simply conserve water to avoid dams in wilderness areas. Instead of trying to justify 14,000 acre feet of storage that would provide sixty-five years of unneeded storage, we wish Aspen would identify a realistic storage amount and location. As evident from our settlement offer, we will support Aspen storage in locations other than the White River National Forest and wilderness areas—and that’s even if Aspen choses to build storage it does not need.

AJ: Your settlement offer included a condition that the storage be located within the city of Aspen. Was that a firm condition? If so, why was it included?

ML: Our offer was quite clear that there were terms that could be negotiated, and the basic concept was that we would support (along with the other opposers) Aspen’s relocation of its dam rights, in a location and amount to be determined through negotiation. Again, that offer was rejected by Aspen. The reason we included a condition that the relocated water storage be located in Aspen (and let’s be clear about what we are talking about here, which would be industrial-scale development, similar to other extractive industries), is because we believe Aspen should not externalize the impacts of its growth and force others (Pitkin County, the Forest Service, private property owners, and the public) to bear the burden of Aspen’s failure to adequately plan for and control its own growth. (Again, this assumes that storage is actually needed, or will be built by Aspen regardless of need.)

AJ: What do you expect from the city’s supply/demand study from Headwaters?

ML: The credible and credentialed expert Aspen hired in 2016 to prepare Aspen’s Water Supply Availability report concluded that Aspen “can always provide sufficient potable and raw water supplies” without dams/reservoirs. When Aspen realized that the Wilson Water Group’s finding conflicted with their desire to continue with dam rights up Castle and Maroon Creek, they hired an economist (not a scientist) to prepare a new report.

We expect this new “study” from Headwaters will do what Aspen wants it to do: prove up an extreme “Mad Max” scenario where both Castle and Maroon Creeks are obstructed for a long period of time, wildfires burning, land sliding, and water short. Also, expect huge projected population increases, where many in this dystopian “Mad Max” world decide to make Aspen their full-time home. In short, we expect this new “study” will attempt to demonstrate the “need” for storage Aspen’s prior experts, the Wilson Water Group, did not support.

AJ: Have you heard a credible explanation why the Wilson Water study is somehow incomplete?

ML: No. Wilson Water Group provided the type of demand analysis typical for municipal planning, and prior to Aspen’s water court filing, there was no indication Aspen believed it was “somehow incomplete.”

AJ: You’ve reserved the right to re-refer the case to the water judge at the July status conference. Do you think you will do that at that time?

ML: We reserved the right to re-refer the case at any time between the last status conference on May 9 and the next one on August 10. The City wants to have a settlement conference in late July or early August. We are looking for some indication from Aspen that they will commit to moving the dams out of wilderness areas, along the lines we already offered. If Aspen continues to advocate for wilderness dams without any offer of settlement, then, yes, of course we will re-refer the case. Aspen’s wilderness area dams, in the iconic Maroon Bells, should be opposed by everyone, except for perhaps the Trump Organization. We will do our part to further that cause, as I’m sure the other opposers will do as well, because Aspen’s dams in national forest and wilderness areas is fundamentally bad public policy and contrary to the values of our environmentally-conscious, nature-respecting, slow-growth community.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily and the Summit Daily on coverage of water and rivers in the upper Colorado River basin. The Times published a shorter version of this story on June 13, 2017.

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

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

From Aspen Journalism (Brent Gardner-Smith):

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

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

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

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

The resulting transcript has been edited for clarity.

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

CT: Correct.

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

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

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

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

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

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

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

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

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

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

CT: Right.

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

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

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

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

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

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

BGS: Have studied moving it, for example?

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

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

CT: No.

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

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

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

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

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

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

CT: Yes.

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

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

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

CT: Yes.

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

CT: Colorado water law prohibits speculation.

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

CT: Yes, right.

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

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

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

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

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

CT: I don’t know that.

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

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

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

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

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

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

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

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

CT: Yes.

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

CT: That’s up to the water judge.

BGS: There is no clear standard?

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

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

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

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

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

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

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

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

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

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

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

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

CT: Yes. You will.

BGS: Not now?

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

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

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

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

CT: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CT: Impossible.

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

CT: Correct.

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

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

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

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

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

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

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

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

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

CT: Essentially right.

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

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

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

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

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

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

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

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

BGS: Well, I keep asking.

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

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

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

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

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

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

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

BGS: So there’s generally limited flexibility?

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

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

CT: Well, we’ve never been asked.

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

CT: No. Aspen has not asked for help.

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

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

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

CT: We have not looked at them.

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

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

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

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

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

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

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

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

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

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

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

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

CT: We haven’t looked at it.

BGS: Again, with respect, why not?

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

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

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

BGS: I guess so.

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

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

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

River management plan for upper Roaring Fork surfaces for public input — @AspenJournalism

A stream gage on the upper Roaring Fork River.

From Aspen Journalism (Brent Gardner-Smith):

ASPEN – At the first public meeting this week about the emerging river management plan for the upper Roaring Fork River, Aspen officials wanted to ask people if, and where, they perceive the river to be struggling from factors such as diversion, development, pollution and recreation.

And while turnout was low on a cold and snowy Thursday, with only three members of the general public showing up, those who did go saw well-rendered maps of the Roaring Fork and its tributaries above the river’s confluence with Brush Creek, and were asked to place colored stickers on locations where they have noticed problems on the river.

The entire watershed above Brush Creek, which flows out of Snowmass Village and into the Roaring Fork River above Woody Creek, is being looked at in the study. That includes the main stem of the Roaring Fork River and its primary tributaries, Hunter, Maroon, Castle, Difficult, Lincoln and Lost Man creeks.

A map of the upper Roaring Fork River watershed, from the Brush Creek confluence to the Continental Divide.

Flow modification

The river management plan will look at threats to the river’s health, including “flow modification” from diversions of water into ditches and tunnels, such as in the headwaters near Independence Pass, on upper Hunter Creek, or on the Roaring Fork east of town.

Diversions from the Roaring Fork and its tributaries can frequently lead the section of river that flows through central Aspen to fall below 32 cubic feet per second, the minimum amount of water deemed by the state to be necessary to protect the environment to a reasonable degree.

“We’re doing this river management plan because of known issues on the Roaring Fork,” said April Long, an engineer and stormwater manager for the city, who is managing the project.

The reach of the Roaring Fork River through Aspen that often runs lower than the state-prescribed level of 32 cfs.
Low flows in the Roaring Fork River just above Rio Grande Park, in July 2012. City of Aspen officials say the Roaring Fork runs below environmentally-sound levels on this stretch about eight weeks of the year now.

Consultant team

The cost of the $200,000 plan is being split by the city and Pitkin County, which has concerns about the North Star area east of Aspen.

The contract was approved in June and a team of technical consultants has since been reviewing prior studies and developing new information about the upper Roaring Fork.

Seth Mason, the principal engineer at Lotic Hydrological of Carbondale, is the project manager, Greg Espegren is in charge of “river health evaluations” and Lee Rozaklis is overseeing “water rights and resource planning.”

Also on the team is Bill Miller, a river biologist who has worked extensively in the past for the city, whose firm is called Miller Ecological Consultants.

Consultants with CDR Associates and the Consensus Building Institute are managing stakeholder engagement.

Lincoln Creek between Grizzly Reservoir and the Roaring Fork River will be one reach studied by the river management plan.
Grizzly Reservoir on Lincoln Creek, well above its confluence with the Roaring Fork River. The reservoir briefly stores water before it is diverted under the Continental Divide.

Various stretches

The plan will focus on at least eight stretches of the river network, such as the Roaring Fork River between Lost Man Creek and Difficult Creek, and the stretch of Lincoln Creek between Grizzly Reservoir and the creek’s confluence with the Roaring Fork, just above the Grottos.

And that approach includes Castle and Maroon creeks, and the locations of the potential Castle Creek Reservoir and Maroon Creek Reservoir.

Long said the Roaring Fork River plan is on a separate track than the public process that city officials are preparing to soon roll out about storage alternatives for the city. But she said nothing is off the table for discussion.

“When we talk about water resources, we are at times talking about all of our water and all of our resources,” Long said. “We would be remiss in pulling anything off the table when we’re looking for solutions.”

The Maroon Creek valley, from the confluence of East and West Maroon creeks to the Roaring Fork RIver.
The site of the potential Maroon Creek Reservoir, just below the confluence of East and West Maroon creeks.

Recommendations coming

Ultimately the goal of the plan is to make recommendations that inform “future river-related projects,” “water development planning and approval processes,” and “management of water infrastructure,” according to material passed out at the meeting.

The Roaring Fork River management plan joins a growing number of stream management plans and integrated water management plans being developed in Colorado.

The 2015 Colorado Water Plan called for 80 percent of priority streams in the state to be covered by loosely defined “stream management plans,” which so far tend to be smaller versions of more common “watershed plans.”

Whatever they are called, such river plans have a technical component to them, often overseen by an informal technical advisory group, and a social component, often represented by a group of local stakeholders.

The technical advisory group for the Roaring Fork plan has been selected, according to Long, and is poised to meet for the first time May 23. The meeting is not open to the public.

Over a dozen entities have been invited to send a representative to the technical group, Long said, including officials from the city’s stormwater, parks and utilities departments and Pitkin County officials from its river and open space boards.

Also invited are representatives from the Roaring Fork Conservancy, Aspen Center for Environmental Studies, Salvation Ditch Co., Twin Lakes Reservoir and Canal Co., Ruedi Water and Power Authority, Colorado River District, Colorado Water Trust, Trout Unlimited, Colorado Parks and Wildlife and the U.S. Forest Service.

Long said representatives from Salvation Ditch Co. and Twin Lakes Reservoir and Canal Co. have agreed to serve on the technical advisory group.

She also said the city and county has decided against having a separate and distinct stakeholders group, as described in the approved proposal.

“There is a little bit of change in the scope, exactly, from that,” Long said. “Basically what we’re doing is having a back and forth between a technical advisory group and the public as stakeholders in the project.”

Long added, “We’re hoping that we have a broad technical advisory group so we can vet and deliver very viable and implementable options.”

Long plans to hold a second public meeting and has posted a survey, and the maps, on a city website. Aspen and Pitkin County expect to share draft actions and projects with the community this summer and present findings and recommendations to elected officials this winter.

A map of Hunter Creek showing the Fry-Ark project diversions on Midway, No Name and Hunter creeks.
A map of the Fry-Ark system. Aspen, and Hunter Creek, are shown in the lower left. Fryingpan-Arkansas Project western and upper eastern slope facilities.
A portion of the flow in Hunter Creek is diverted to the Front Range and to locations downvalley from Aspen.

Editor’s note: Aspen Journalism is collaborating on coverage of water and rivers with The Aspen Times, the Glenwood Springs Post Independent, the Vail Daily and the Summit Daily News. The Times published this story in its print version on Saturday, April 29, 2017.

Aspen councillors still set to dam Castle and Maroon creeks in the future

Aspen

From The Aspen Times (Rick Carroll):

An Aspen city councilman said this week he erred by voting in favor of potentially damming Castle and Maroon creeks, but he failed to persuade his fellow elected officials to rescind their unanimous decision from October.

Bert Myrin conceded that it was “my mistake” when he voted in favor of the city’s pursuit of preserving its water rights on the two pristine streams.

Myrin’s proposal, which was not on the council’s Monday meeting agenda and had not been formally noticed to the public, came eight days before the May 2 municipal elections.

Council members Art Daily and Ann Mullins are up for re-election and face four challengers. Mayor Steve Skadron is seeking re-election to his third and final two-year term. Lee Mulcahy is the challenger.

The dam issue has been one of the hot-button issues of the election season.

Candidates Ward Hauenstein and Torre, both of whom have Myrin’s public support, have been vocal in their opposition against the city preserving its water rights, as has Mulcahy. Council candidate Skippy Mesirow has expressed a desire to preserve the water rights but not dam the streams. And at a candidate forum last week, candidate Sue Tatem vowed to lay down in front of a bulldozer if and when construction on the reservoirs ever begins.

Others, however, have argued that candidates are capitalizing on an issue that has been overblown because the city has regularly extended its water rights for the two streams since 1971.

Those conditional water rights allow the potential for building a 9,062-acre-foot reservoir in Castle Creek Valley and 4,567-square-foot reservoir in Maroon Creek Valley.

The issue is now pending before the District 5 Water Court in Glenwood Springs, where several parties, including Pitkin County, have filed opposition to the city’s extension.

Elected officials and city officials also have maintained they must renew the water rights in preparation for 50 years from now when Aspen’s population could be nearly triple what it is today, as well as climate change’s impact on the water supply. Maroon and Castle creeks supply the city’s drinking water.

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.

Division engineer, referee, question substance of Aspen’s water rights applications tied to dams and reservoirs

A group of citizens during a site visit in September standing in the meadow near the Maroon Bells that would be flooded by a potential 155-foot-tall dam across Maroon Creek. State officials have recently questioned the city of Aspen’s claims to extend conditional water rights for the dam, and another one on Castle Creek, for another six years.
A group of citizens during a site visit in September standing in the meadow near the Maroon Bells that would be flooded by a potential 155-foot-tall dam across Maroon Creek. State officials have recently questioned the city of Aspen’s claims to extend conditional water rights for the dam, and another one on Castle Creek, for another six years.

By Brent Gardner-Smith, Aspen Journalism

City of Aspen also signs flurry of contracts with water professionals to study reservoirs and Aspen’s water storage needs

GLENWOOD SPRINGS – After conferring on the city of Aspen’s applications to extend its conditional water rights tied to potential dams and reservoirs on Maroon and Castle creeks, the division engineer and the water court referee in Division 5 together have raised substantial questions about the two applications.

The two state officials, based in Glenwood Springs, said recently in two required summary of consultations that 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.”

It also said the city needs to show that it “will complete the appropriations within a reasonable time,” that the city has to show that “a specific plan is in place to develop the subject water rights” and that it is “not speculating with the subject water rights.”

Alan Martellaro, the division engineer in Division 5, signed the two summary of consultations on Jan. 23, one regarding Maroon Creek Reservoir and one regarding Castle Creek Reservoir. They are identical save for the names of the reservoirs and differing case numbers.

Martellaro wrote in both reports, “I cannot recommend approval of this application” until the concerns cited in the reports are addressed.

And the reports say that the “state and division engineers ask that the issues discussed in this consultation be addressed prior to granting any findings of diligence” for either the Maroon Creek or Castle Creek reservoirs.

The city filed two “due diligence” applications on Oct. 31, one for Maroon Creek Reservoir and one for Castle Creek Reservoir. Aspen is seeking to extend the conditional water storage rights for another six years. The rights were appropriated in 1965 and adjudicated in 1971.

The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.

The conditional rights, as currently decreed, cannot be made absolute unless the city builds a dam 155 feet tall and an estimated 1,280 feet wide across Maroon Creek, within view of the Maroon Bells, and a dam 170 feet tall and an estimated 1,220 feet wide across upper Castle Creek two miles below Ashcroft.

The Maroon Creek Reservoir would hold 4,567 acre-feet of water and flood 85 acres of land, and the Castle Creek Reservoir would hold 9,062 acre-feet of water and flood 120 acres of land. Water in both reservoirs would flood some land within the wilderness boundary.

Members of the City Council indicated this fall said they are loath to actually build the dams, but still want to maintain the water rights for future potential use.

However, the language in the applications the city filed with water court in October indicates the city intends to build the dams some day.

The city told the court the two reservoirs are “part of Aspen’s integrated water supply system” and are “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”

The city also said it has “steadily applied effort to complete the appropriation” of the water rights for the reservoirs and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”

But the consultation reports in the two cases show that state water officials are skeptical about the city’s claims.

Aspen “is not entitled to an exemption from the anti-speculation doctrine” and “it cannot assert issue or claim preclusion to avoid the ‘can and will’ and the ‘anti-speculation’ doctrines,” the reports say.

The reports also observe that the city lists “other beneficial uses, both consumptive and non consumptive” in its water right application, in addition to storage. And as such, the city “must explain what these ‘other’ uses are or they should be cancelled by the court as speculative.”

Many of the points raised in the consultation reports were also raised by some of the 10 opponents to the city’s applications in their statements of opposition.

The United States of America, on behalf of the U.S. Forest Service, and Pitkin County are among the 10 parties that have filed statements of opposition in the two cases.

In addition to the two governments, four environmental organizations and four private-property owners also filed statements of opposition in the cases.

Attorneys at the U.S. Justice Department told the court the city “cannot show that it can and will” complete the two reservoirs “within a reasonable time” because both potential reservoirs would flood portions of the Maroon Bells-Snowmass Wilderness.

And Pitkin County told the court the city “appears to be speculating with no reasonable demonstration of need” for the reservoirs.

It is standard procedure in Division 5 water court for applicants to eventually file a “response to the summary of consultation.”

Orange tape marks the location of a potential 155-foot-tall across upper Maroon Creek near the Maroon Bells. The City of Aspen has filed to extend its conditional water tied to the potential dam and reservoir, as well as another dam on Castle Creek, but the state division engineer and water court referee in Division 5 have challenged the city's claims.
Orange tape marks the location of a potential 155-foot-tall dam across upper Maroon Creek near the Maroon Bells. The city of Aspen has filed to extend its conditional water rights tied to the potential dam and reservoir, as well as another dam on Castle Creek, but the state division engineer and water court referee in Division 5 have challenged the city’s claims.

Relevance of consultations

Under Colorado law, the water court referee and the division engineer are required to review all applications to water court.

The law says the officials are to “make such investigations as are necessary to determine whether or not the statements in the application and statements of opposition are true and to become fully advised with respect to the subject matter of the applications and statements of opposition.”

The law then requires that the “engineer consulted shall file a report” within 35 days.

But it is sometimes hard to discern how much weight such a report carries in the water court process.

Holly Strablizky, who recently stepped down from her position as water court referee in Division 5 after almost seven years, said last week during a presentation at the Colorado Water Congress that as water referee she “really tried hard and I know our division engineer tried really hard as well … to use the consultation process to get a better product out there.”

Strablizky, who is now an assistant county attorney for Eagle County, said the engineer and the referee also need to look at a given application from a statewide perspective.

“The constitution really says that we as the water court need to think not only of the parties that are in the cases, but the people of Colorado,” Strablizky said.

She also praised the use of the water court referee process, where parties are encouraged to settle their differences.

“I think it relieves pressure of hard deadlines and it allows for thoughtful and creative settlement discussions,” Strablizky said of the referee period, which usually lasts 12 to 18 months. “And it creates that opportunity for concise, and understandable, proposed decrees.”

The parties in Aspen’s two conditional water rights cases are set to have a joint initial telephone conference with the new water court referee, Susan Ryan, on Feb. 9.

A detail of a map of the potential Castle Creek Reservoir, prepared by Wilderness Workshop and based on a map filed by the city with the state in 1965. The dam would be 170-feet-tall and 1,220 feet across the valley.
A detail of a map of the potential Castle Creek Reservoir, prepared by Wilderness Workshop and based on a map filed by the city with the state in 1965. The dam would be 170 feet tall and span 1,220 feet across the valley.

Community water planning

In addition to participating in the two water rights cases regarding due diligence, the city is also launching a community-based water planning effort, and has signed a flurry of contracts to study its storage needs and better understand at least the potential Castle Creek Reservoir location.

It also not retreating from its call to build a new dam somewhere in the future.

In a memo about a Jan. 31 work session, city staff wrote, “Without water storage, Aspen’s water supply for households and businesses will be threatened.”

To move its new water-planning process forward the city has entered into a contract with the Consensus Building Institute of Cambridge, Mass., to develop a “convening assessment” that will lead to a “collaborative process,” according to the staff memo.

“It is critical to use an effective community-based approach in order to leverage the expertise in the community and develop a long-term water supply plan with the greatest chance of success to secure Aspen’s water future,” the city’s memo states.

The convening assessment is expected to take two months and then a collaborative process will begin by summer.

According to the memo for the work session, which was written by Margaret Medellin, the city’s utilities portfolio manager, Aspen has also entered into a contract with Headwaters Inc. in South Jordan, Utah, to perform a “preliminary review of risks in Aspen’s demand and supply” of water through 2065.

The city has also signed a contract with Sopris Engineering of Carbondale “to update surveying for Castle Creek Reservoir” and it has “met with dam and reservoir expert, Terry Arnold, to review certain existing geological data.”

A series of test bores in 1971 by the Bureau of Reclamation found 142 feet of loose rock and sand under the proposed Castle Creek dam site and that it was also on an unstable fault zone.

The city also signed a contract in January with Deere and Ault Consultants of Longmont for a feasibility study on the use of storing water underground, including in old mine shafts, which are plentiful under downtown Aspen.

The consulting firm says on its website that it is “a specialized civil engineering firm focused on water resources, geotechnical, dam, slurry wall, tunnel, and mine reclamation projects.”

And the city memo notes that “on January 26, 2017, consultants Don Deere and Victor DeWolf met with staff and performed on site investigative tour of local mines.”

The city also signed a contract with Carollo Engineers, a national engineering firm focused on water projects, to help it gain approval from the Colorado Dept. of Public Health and Environment to use treated effluent from the Aspen sewage treatment plant.

The city has been working on this reuse project for several years and plans to pump water up from the treatment plant for a number of uses, including watering the city golf course and for snowmaking.

The Jan. 27 staff memo closed by saying “staff is developing a project specific budget that will include estimates of the costs of community facilitation” as well “identified supporting engineering consultant and expert services, legal expenses and staffing.”

The budget details are to be presented at a follow-up work session.

Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published a version of this story on Monday, Jan. 30, 2017.

Ten parties file statements of opposition in Maroon Creek and Castle Creek reservoir cases

Will Roush, left, of Wilderness Workshop, and Ken Neubecker, right, of American Rivers, hold up tape on Sept. 7 showing where the base of a 155-foot-tall dam would be located on Maroon Creek if the City of Aspen were to build a reservoir tied to one of its conditional water rights. Wilderness Workshop and American Rivers were two of ten parties who filed statements of opposition by Dec. 31 in two water rights cases the city is pursuing.
Will Roush, left, of Wilderness Workshop, and Ken Neubecker, right, of American Rivers, hold up tape on Sept. 7 showing where the base of a 155-foot-tall dam would be located on Maroon Creek if the city of Aspen were to build a reservoir tied to one of its conditional water rights. Wilderness Workshop and American Rivers were two of 10 parties who filed statements of opposition by Dec. 31 in two water rights cases the city is pursuing.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – The United States of America and Pitkin County are among the 10 parties that have filed statements of opposition in two conditional water rights cases being pursued by the city of Aspen in water court for Maroon Creek Reservoir and Castle Creek Reservoir.

In addition to the two governments, four environmental organizations and four private-property owners filed statements in the cases by the Dec. 31 deadline.

Such statements of opposition are typically short and generic, and simply give notice of formal entry into a case. But the statements filed by the U.S. and Pitkin County offer some insight into their concerns about the city’s water rights applications.

Attorneys at the U.S. Justice Department acting on behalf of the U.S. Forest Service told the court the city “cannot show that it can and will” complete the two reservoirs “within a reasonable time” because both potential reservoirs would flood portions of the Maroon Bells-Snowmass Wilderness.

And Pitkin County told the court the city “appears to be speculating with no reasonable demonstration of need” for the reservoirs.

The city filed two applications in Division 5 water court in Glenwood Springs on Oct. 31, one for Maroon Creek Reservoir (16CW3128) and one for Castle Creek Reservoir (16CW3129). Aspen is seeking to extend the conditional water storage rights for another six years. The rights were appropriated in 1965 and adjudicated in 1971.

The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.

The conditional rights, as currently decreed, cannot be made absolute unless the city builds a dam 155 feet tall and an estimated 1,280 feet wide across Maroon Creek, within view of the Maroon Bells, and a dam 170 feet tall and an estimated 1,220 feet wide across upper Castle Creek.

The Maroon Creek Reservoir would hold 4,567 acre-feet of water and flood 85 acres of land, and the Castle Creek Reservoir would hold 9,062 acre-feet of water and flood 120 acres of land. Water in both reservoirs would flood some land within the wilderness boundary.

The federal case

The two statements of opposition from the federal government are nearly identical, save for the name of the potential reservoirs in each case. Both begin by saying the reservoir would require a Forest Service permit, and then they raise the wilderness issue.

“Maroon Creek Reservoir would impound water that would inundate lands within the Maroon Bells – Snowmass Wilderness Area,” the statement in the Maroon Creek case said. “Development of Maroon Creek Reservoir is not authorized by [federal law] or any existing special use permit or land use authorization.

“Under the Wilderness Act of 1964, the U.S. Forest Service cannot authorize any new development of conditional water rights, including the conditional water right requested in Case No. 16CW3128 in the Maroon Bells–Snowmass Wilderness Area,” it continued.

“Because the applicant [the city] does not hold a valid right to use or occupy national forest system lands, and the U.S. Forest Service lacks authority to authorize development of Maroon Creek Reservoir within the Maroon Bells–Snowmass Wilderness Area, the applicant cannot show that it can and will complete the claimed appropriation within a reasonable time,” the statement of opposition said.

The statements of opposition from the U.S. were signed by John Cruden, the assistant attorney general at the Environment and Natural Resources Division in the Department of Justice in Washington, D.C., and James DuBois, a trial attorney with the department, who is based in Denver.

In September, the acting district ranger in the Aspen-Sopris Ranger District, Kevin Warner, told the Aspen City Council it would take a presidential exemption to the Wilderness Act to allow the Forest Service to issue a permit for the reservoirs.

“Based on our understanding of the Wilderness Act, and the fact that there was no exception built into the designation for the Maroon Bells wilderness area … it would need to go to the president,” Warner said.

The city has not filed for a Forest Service permit for either reservoir.

Pitkin County’s view

Staff attorneys for Pitkin County told the court that the city should be held to “strict proof” to its claims, including its “ownership of or enforceable property interest” in the dam and reservoir sites.

“This water right is located within a designated wilderness area and the applicant’s ability to obtain the property interest necessary to construct the structure, as decreed, within this wilderness area is unproven,” the county told the court.

The county also told that court the city’s 2016 water supply study “demonstrates that this water right is unnecessary to meet current and future demand within a reasonable planning period using normal population growth assumptions.”

It also said recent statements by Aspen’s mayor and city council members “indicate that (the city) does not intend to effectuate these water rights in a reasonable time period,” and that the city “appears to be speculating with no reasonable demonstration of need.”

16 statements

In all, 16 statements of opposition were filed in the two water court cases by 10 different parties.

In addition to the two governments, U.S. and Pitkin County, four environmental organizations filed statements in both cases: Colorado Trout Unlimited, American Rivers, Wilderness Workshop and Western Resource Advocates.

As such, there is a common set of six parties in each case – the two governments and the four environmental groups – and they’ve filed 12 statements between them, six in each case.

There are also four different property owners, two in each case, and they each filed one statement. That adds four statements to the list of 12, for a mind-numbing total of 16.

Making it somewhat easier to track, the list does break out into eight parties in each case: two governments, four environmental organizations, and a unique pair of property owners.

The differing pairs of property owners in each case brings to 10 the total number of parties across the two cases.

A detail of a map showing the location of a potential dam forming the Castle Creek Reservoir, with underlying property owners. The map was prepared with information based on a map the city filed with the state in 1965.
A detail of a map showing the location of a potential dam forming the Castle Creek Reservoir, with underlying property owners. The map was prepared with information based on a map the city filed with the state in 1965.

Property owners

The two property owners who filed in the Maroon Creek case are Roaring Fork Land and Cattle Co. and Larsen Family LP.

Roaring Fork Land and Cattle is an entity controlled by Thomas and Margot Pritzker. The Pritzkers, who are on the Forbes billionaires list, own property near T-Lazy-7 Ranch in the Maroon Creek valley.

Marcella Larsen of Aspen is the co-manager of the Larsen Family LP, based in Boca Raton, Fla., and she signed the statement of opposition. The Larsen family owns residential property in the lower Maroon Creek valley.

The two property owners who filed in the Castle Creek case are Double R Creek Ltd. and Asp Properties LLC. Double R Creek is controlled by Robert Y.C. Ho, a member of a prominent Hong Kong family, while Asp Properties is controlled by Charles Somers, the CEO of a company based in California.

The properties owned by Ho and Somers are located under the potential dam site of Castle Creek Reservoir, two miles below Ashcroft.

A 2016 rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city 1965.
A 2016 rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city 1965.

Environmental arguments

The statements of opposition filed by the four environmental groups do not offer much insight as to why they are in the cases, but they issued press releases about their filings.

“Aspen does not need these dams for municipal water supply, climate resiliency, or for stream protection – now or at any time in the foreseeable future,” a Dec. 28 from om American Rivers quoted Matt Rice, its director of programs in the Colorado River basin, as saying.

The same release also quoted David Nickum, the executive director of Colorado Trout Unlimited, as saying, “Building dams on free-flowing streams in one of Colorado’s most iconic wilderness areas is the last approach we should be taking to meet water needs in the 21st Century.”

Wilderness Workshop of Carbondale, which is collaborating with Western Resource Advocates of Boulder, released both a press release on Dec. 21 and an article about the water court cases from its newsletter.

“Both dams would inundate portions of the Maroon Bells-Snowmass Wilderness and cause significant environmental damage: severing the streams in two, flooding important riparian habitat, and reducing the ecologically critical spring peak flows,” Wilderness Workshop’s newsletter said.

“The city council met three times this fall to discuss water rights, but those meetings focused almost exclusively on the impact of population growth and climate change to Aspen’s future water supply,” Wilderness Workshop members were told. “They were silent on the ecological impacts of the dams, the regulatory obstacles, financial costs and dubious assertion that these rights actually protect the streams. Over a dozen concerned citizens spoke, unanimously asking the city to abandon their water rights.

“Despite this outcry, the city is moving ahead. All five council members justified their vote on the basis that we might need to store water in the future despite their recent study concluding just the opposite,” the organization said.

In its press release, the Wilderness Workshop quoted Will Roush, its conservation director, as saying: “We’re filing for two reasons: first, to have a seat at the table with the city and other parties to find common ground and second, to make sure that dams are never built on Castle or Maroon Creeks.”

Castle Creek, not far below Ashcroft. This section of river would be covered by a potential Castle Creek Reservoir.
Castle Creek, not far below Ashcroft. This section of river would be covered by a potential Castle Creek Reservoir.

City’s position

David Hornbacher, the city’s director of utilities and environmental initiatives, declined to comment on the statements of opposition.

A resolution unanimously approved by the city council on Oct. 10 said, “the city is obligated and intends to provide a legal and reliable water supply and to that end can and will develop all necessary water rights, including but not limited to, Maroon Creek Reservoir and Castle Creek Reservoir.”

In its diligence applications, the city told the court the two reservoirs are “part of Aspen’s integrated water supply system” and “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”

Further, the city said it has “steadily applied effort to complete the appropriation” of the water rights for the reservoirs and it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”

However, in its Oct. 10 resolution, the city council also directed its staff to “enhance and increase the city’s efforts to investigate alternative locations and sizing requirements of the Maroon Creek Reservoir and/or Castle Creek Reservoir, and to report its findings back to City Council for further consideration and action as appropriate.”

Typically in water court cases, opposing parties are given a year to try and work out their differences under the guise of a water court referee. The discussions among parties in this phase of the process are private.

If parties cannot reach agreement within a year, they can ask for another six months. And then dates are eventually set for a trial in front of a judge.

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Monday, Jan. 2, 2017.

Aspen claims Fry-Ark Project creates ‘obligation’ for Castle Creek Reservoir

Freddie Fisher in his 1954 Winterskol float. Fisher was a professional musician who ran a ramshackle fix-it shop and yard in Aspen and sent in a regular stream of witty letters to The Aspen Times. In the mid-1950s, the proposed Fryingpan-Arkansas project was being reviewed at the local, state and federal level, and Aspenites were concerned about the amount of water that would be diverted from the Roaring Fork River watershed, on top of the amount already being diverted by the Twin Lakes-Independence Pass project.
Freddie Fisher in his 1954 Winterskol float. Fisher was a professional musician who ran a ramshackle fix-it shop and yard in Aspen and sent in a regular stream of witty letters to The Aspen Times. In the mid-1950s, the proposed Fryingpan-Arkansas project was being reviewed at the local, state, and federal level, and Aspenites were concerned about the amount of water that would be diverted from the Roaring Fork River watershed, on top of the amount already being diverted by the Twin Lakes-Independence Pass project.

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?”

A detail of the cover of a 1975 EIS on the Fry-Ark Project that was prepared the Bureau of Reclamation.
A detail of the cover of a 1975 EIS on the Fry-Ark Project that was prepared by the Bureau of Reclamation.

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.

A large portion of the meadow in the North Star nature preserve east of Aspen was flooded in June 2015. The expanse of water offers a glimpse of what the long-planned Aspen Reservoir might have looked like.
A large portion of the meadow in the North Star nature preserve east of Aspen was flooded in June 2015. The expanse of water offers a glimpse of what the long-planned Aspen Reservoir might have looked like.

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.

The end of the tunnel that delivers water diverted from Hunter, Midway and No Name creeks as part of the Fry-Ark Project. The City of Aspen says their is a lingering unmet obligation in the Fry-Ark Project to study the potential Castle Creek Reservoir.
The end of the tunnel that delivers water diverted from Hunter, Midway, and No Name creeks as part of the Fry-Ark Project. The city of Aspen says there is a lingering unmet obligation in the Fry-Ark Project to study the potential Castle Creek Reservoir.

Ancient history?

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.

The outfall of the Bousted Tunnel, which delivers water from the Roaring Fork and Fryingpan rivers to the East Slope.
The outfall of the Boustead Tunnel, which delivers water from the Roaring Fork and Fryingpan rivers to the East Slope.

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.

Castle Creek dam site dismissed in 1971 by the Bureau of Reclamation

One of the many small ponds that dot the portion of the Castle Creek valley that would be flooded by the Castle Creek Reservoir. The city has told two landowners it will reduce the size of the potential reservoir so as not to flood their properties, which are at the upper end of the reservoir.
One of the many small ponds that dot the portion of the Castle Creek valley that would be flooded by the Castle Creek Reservoir. The city has told two landowners it will reduce the size of the potential reservoir so as not to flood their properties, which are at the upper end of the reservoir.

By Brent Gardner-Smith, Aspen Journalism

Editor’s note: The following is the third 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.

ASPEN – The city of Aspen has never conducted and then made public a detailed and comprehensive feasibility study of either the potential Maroon Creek Reservoir or the Castle Creek Reservoir.

But in 1971, the Bureau of Reclamation drilled three out of five planned test holes at the Castle Creek dam site, two miles below Ashcroft. What they found in the first few test borings — 142 feet of loose rock and sand — prompted officials at Reclamation to abandon the last two planned bores.

The findings caused the federal agency to write a letter to Aspen’s city manager, telling him that to keep drilling would not be a “wise investment.”

The 1971 drill tests by Reclamation appear to be the high-water mark of investigation into the physical feasibility of either reservoir.

The city filed maps with the state in December 1965 for the two potential reservoirs, but it did very little work on the projects between 1965 and 1970, disregarding suggestions from its consulting engineer, Dale Rea, to conduct feasibility studies on the reservoirs.

But on May 11, 1970, according to city council minutes, the members of the council met with the head of the Colorado River Water Conservation District to discuss the Castle Creek Reservoir.

The minutes note that Rollie Fischer, the “secretary engineer” of the River District, was in Aspen “to discuss with council their cooperation on the reservoir for Castle Creek or the Ashcroft area.”

“Mr. Fischer gave the background and responsibilities of the Water Conservation District and discussed those items that the city and board co-operate on, i.e., proposed dam on Castle Creek,” the Aspen City Council minutes state. “The status of which the Bureau of Reclamation is presently doing preliminary studies as [to] the proposed location of the dam.”

It’s not yet clear just how serious officials at the Colorado River District and the U.S. Bureau of Reclamation were about constructing the Castle Creek Reservoir in cooperation with the city of Aspen, but in the fall of 1970, the Bureau decided to drill some test bores into the ground that would serve as the foundation of the proposed dam. Fischer went up to take a look at the work on Oct. 5, 1970.

“The Bureau of Reclamation has been taking cores at Aspen’s proposed Castle Creek Reservoir site,” Fischer wrote in a quarterly report to the River District Board on Oct. 10. “I visited the site of the coring work with a Bureau of Reclamation geologist. The first cores indicate that valley alluvium is approximately 142 feet deep and the dam site is in a fault zone.”

Word of Reclamation’s findings apparently soon reached Aspen officials.

A topographic map showing the location of the potential Castle Creek Reservoir, downstream of Ashcroft. The map was submitted by the City of Aspen as part of its Oct. 31, 2016 diligence filing.
A topographic map showing the location of the potential Castle Creek Reservoir, downstream of Ashcroft. The map was submitted by the city of Aspen as part of its Oct. 31, 2016, diligence filing.

“Aspen’s proposed dam”

On Oct. 28, 1970, Rea sent a letter to J.W. Robins, a project manager at Reclamation’s office in Grand Junction.

“On several occasions I have had discussions with Mr. Leon A. Wurl, city manager, Aspen, Colorado, concerning any progress you have made with respect to Aspen’s proposed dam on Castle Creek,” Rea wrote to Robins. “We understand you did test drill our proposed dam site but have no further information. If you have made any progress at all in this matter, I would appreciate hearing from you, along with a copy to Mr. Wurl.”

On Nov 4, Rea heard back.

“This letter is in response to your inquiry of Oct. 28, 1970, regarding the status of our work at the Castle Creek dam site,” Robins wrote. “The dam axis we are considering is located about 1,400 feet upstream from the one originally contemplated. The purpose of this change is to place the dam embankment so as to reduce seepage loss through the alluvial fan on the right embankment.

“Our drill crew is presently working on a program of five test holes; to date two holes have been completed. The first hole was located adjacent to the creek channel and found 142 feet of pervious sand and gravel over bedrock of aplite, an igneous intrusive rock. The second hole was drilled on the alluvial fan on the east side of the creek and found 115 feet of overburden over aplite.

“Work is now beginning on a test hole on the right (east) abutment. Other items of work which we have completed at the site include plane table surveys of topography of the damsite and the digging of five test pits to explore for earth materials for dam embankment.

“The rather deep deposit of pervious sand and gravel at this site will present a special design problem to minimize seepage loss,” Robins wrote. “If we can provide further information, please let us know.”

The November 1970 letter was cc’d to Wurl at the city of Aspen.

The “rather deep deposits of pervious sand and gravel” at the Castle Creek dam site were, at a minimum, going to make the Castle Creek Reservoir more expensive.

The following spring, on May 8, 1971, Wurl wrote a letter to Rea.

“It was suggested by the Bureau of Reclamation that perhaps we obtain a cost estimate from a private concern to determine the estimated amount of seepage that would be lost in the bottom of the dam,” Wurl wrote.

A view of the Castle Creek valley near the proposed dam site for the Castle Creek Reservoir.
A view of the Castle Creek valley near the proposed dam site for the Castle Creek Reservoir.

A deeper report

And on May 11, 1971 Wurl got a more formal report from Robins at Reclamation about the agency’s drill tests. The report was copied to Fischer at the River District, and it referenced a recent meeting where Wurl had asked Reclamation officials about the Castle Creek drilling tests.

“As explained at this meeting the Bureau drilled three deep holes at the Castle Creek site during the fall and early winter of last year,” Robins wrote.

“The first hole was located adjacent to the present channel of Castle Creek to determine the depth to bedrock and the character of the overburden. The hole found 142 feet of pervious sand and gravel over bedrock. The bedrock was also quite broken and believed to represent a possibly dangerous fault zone.

“The second hole was drilled on the alluvial fan near the base of the right abutment and found 125 feet of sand, gravel, and cobbles over bedrock,” Robins wrote. “Percolations tests showed this material to be unacceptably pervious.

“Although the exact quantity of water that would be lost through this material if a dam were to be constructed at this site without a cutoff trench would be impossible to estimate without detailed tests, the results of the percolation tests we performed indicate the seepage losses would be excessive to acceptable standards for Reclamation design as the resulting piping may dangerously weaken the foundation of the dam.”

This could not have been good news for Aspen city officials, especially the part about how “the seepage losses would be excessive to acceptable standards for Reclamation.”

“The third hole was located at about dam crest elevation on the right abutment,” Robins continued in his letter to the city. “Igneous rock was found but the rock was badly broken to a depth of 142 feet where drilling was stopped. Percolation tests in this hole also showed the rock to be very pervious and an expensive grouting program would be necessary to properly seal this foundation material.

“The fourth hole, planned on the left abutment, was not drilled because of the unsatisfactory geological conditions encountered at the other three holes.

“The results of this drilling indicate that an excessive amount of seepage loss could be expected through the sand and gravel in the canyon bottom unless a cutoff trench or some type of special treatment was performed. The great depth (as much as 142 feet) and the distance of about 900 feet across the bottom area would make such treatment unjustifiably expensive.

“Because of the poor conditions found at the three exploratory holes drilled by the Bureau, we do not believe this additional work would be a wise investment for the district or the city of Aspen,” Robins concluded.

In 1971, Reclamation was still in the business of funding and building large reservoirs in Colorado, but Robins had just dismissed the idea of building one on the city’s proposed site on Castle Creek.

One of the many wetlands in the area that would be covered by a Castle Creek Reservoir.
One of the many wetlands in the area that would be covered by a Castle Creek Reservoir.

‘Costly mitigation’

In 2012, Aspen Journalism posed a number of questions in writing to city officials about the two reservoirs, including one about the Bureau’s 1971 report.

“Any construction at these sites would require extensive permitting as well as consideration of environmental values and community priorities at the time,” city officials replied at the time. “Construction is very expensive. The Castle Creek site, in particular, will likely require costly mitigation of soil conditions, such as grouting and lining.”

But it’s not clear how expensive such a “grouting and lining” effort would be.

In its Oct. 31 application for finding of reasonable diligence in Division 5 Water Court, the city made a reference to the “significant cost of permitting, design and construction” for the reservoirs, but it has yet to make public a detailed and updated estimate of those costs.

When asked recently if it had produced a recent estimate, David Hornbacher, the city’s director of utilities and environmental initiatives, said the city had “nothing to share at this time.”

A public record search has not provided any evidence of Aspen’s response to the Bureau’s advice that additional work on the Castle Creek dam site would be an unwise investment.

A detail of a map showing the location of a potential dam forming the Castle Creek Reservoir, with underlying property owners. The map was prepared with information based on a map the city filed with the state in 1965.
A detail of a map showing the location of a potential dam forming the Castle Creek Reservoir, with underlying property owners. The map was prepared with information based on a map the city filed with the state in 1965.

Rights decreed, despite drill tests

But on Nov. 5, 1971, the slowly turning wheels of justice produced an official water court decree for Aspen’s conditional water rights for both reservoirs. The decree came as part of Civil Action W-5884 and gave Maroon Creek Reservoir a priority number of 806 and Castle Creek Reservoir a priority number of 805.

The priority numbers represent the water right’s place in the state’s prior appropriation system, which is predicated on the idea of “first in time, first in right.”

The 1971 date marks the adjudication for the conditional water rights, while the appropriation date, when the “first step” was taken on the water rights, is July 19, 1965, the date on which the Aspen City Council gave direction to Rea to survey the dams and prepare maps to file with the state.

In April 1971, city officials were apparently still discussing the Castle Creek Reservoir with officials at the Bureau of Reclamation and the Colorado River District.

Wurl sent a letter to Rea on April 15, 1971, inviting him to a meeting in Aspen.

“On April 27 at 11:00 there will be a meeting here with the Bureau of Reclamation and the Colorado River Conservation District people relating to the proposed dam site on Castle Creek,” Wurl wrote. “I thought perhaps you would like to attend this meeting.”

About a year later, on May 31, 1972, the city filed its first finding for reasonable diligence with the water court to extend the conditional water rights for the two reservoirs.

The diligence report was prepared by the law firm of Delaney and Balcomb in Glenwood Springs, a leading local water law firm.

In its effort to convince the court it was making progress on building the two dams, the city said it conducted “Geologic core drilling on Castle Creek dam site in November of 1970.”

It did not, however, tell the court of the results of that core drilling, which the city had learned about a year-and-half earlier, November 1970.

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published a version of this story on Wednesday, Dec. 28, 2016. This version includes the correct year – 1971 – of a letter referenced in the last section.

American Rivers, Trout Unlimited oppose Aspen-built dams — Glenwood Springs Post Independent

Site map for the proposed reservoirs on Castle and Maroon creeks via Robert Garcia and The Grand Junction Daily Sentinel.
Site map for the proposed reservoirs on Castle and Maroon creeks via Robert Garcia and The Grand Junction Daily Sentinel.

Here’s a guest column from American Rivers and Trout Unlimited about filing for objector status in the Aspen Maroon Creek and Castle Creek dam diligence case, via The Glenwood Springs Post Independent:

American Rivers and Trout Unlimited have joined the chorus of opposition against the city’s application to extend its conditional water rights to build dams on Castle and Maroon creeks.

The two lobbyist organizations announced Wednesday they entered a statement of opposition in Colorado Water Court, where the city made its filing Oct. 31.

The city secured its conditional water rights to build reservoirs on Maroon and Castle creeks in 1965. It is required to renew those rights every six years.

Castle and Maroon creeks supply Aspen’s drinking water. The city has maintained it must preserve the rights to build the dams in order to be prepared for population growth and climate-induced droughts depleting the water supply. The City Council approved the extension application Oct. 5. The proposed dams would be 150 feet tall on Maroon Creek and 175 feet tall on Castle Creek.

The statement from American Rivers and Trout Unlimited emphasized that the conditional water rights the city wants to renew hinge on damming the two streams.

“Conditional is the crucial word here,” the statement said. “According to the Colorado Standards for Due Diligence and Colorado Water Law, the City of Aspen can only possess these rights on the condition they develop the dams. That is what the water right was granted for in 1965. If the city does not renew these rights they simply vanish. No one else can claim these water rights.”

Filing an opposition allows American Rivers and Trout Unlimited to participate in water court proceedings regarding the city’s application. Pitkin County and Carbondale-based conservation group Wilderness Workshop also have filed statements of opposition, which are due no later than Saturday.

“We hope that Aspen will take this opportunity to work with stakeholders on better solutions for its water future,” said Dave Nickum, the executive director of Colorado Trout Unlimited, in a statement. “Building dams on free-flowing streams in one of Colorado’s most iconic wilderness areas is the last approach we should be taking to meet water needs in the 21st century. It is time to look forward toward new strategies, instead of relying on flawed ideas from the past.”

Matt Rice, director of the Colorado River Basin Program for American Rivers, said: “Aspen does not need these dams for municipal water supply, climate resiliency or for stream protection — now or at any time in the foreseeable future. Why not come up with a solution that does not involve dams? If the city were to determine sometime in the future that new storage is needed, reservoirs that flood wilderness on Castle and Maroon creeks would be the last place in the valley they would consider. We believe the best time to get bad projects off the books is as early as possible and this diligence filing is that opportunity for the city to do so.”

The city has countered that it is simply preserving its rights in the event of a worst-case scenario that severely impacts Aspen’s water supply.

“The science confirms that Aspen’s climate is already changing and will continue to do so,” Ashley Perl, the city’s climate-action manager, said in a city-issued statement released Dec. 20 in advance of the county commissioners’ decision to file opposition. “Aspen now sees 23 days less of winter than in the years before 1980. This trend is projected to continue and Aspen’s current water storage — our snowpack — will diminish.”

Did the city of Aspen ever really intend to build dams and reservoirs?

A view of the Maroon Bells, through a zoom lens, from the meadow that would be flooded by a potential 155-foot-tall dam on Maroon Creek. The city of Aspen voted Monday to tell the state this month it still intends to build such a dam - someday - if necessary.
A view of the Maroon Bells, through a zoom lens, from the meadow that would be flooded by a potential 155-foot-tall dam on Maroon Creek. The city of Aspen voted Monday to tell the state this month it still intends to build such a dam – someday – if necessary.

Editor’s note: The following is the second 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. The series, which began Monday, continues tomorrow.

ASPEN – In December 1965, an engineer working for the city of Aspen filed maps of two dams and reservoirs with the state engineer’s office, indicating the city intended to build a 170-foot-tall dam on upper Castle Creek and a 155-foot-tall dam on upper Maroon Creek.

And by June 16, 1966, Aspen’s claim for storage was formalized in a proposed water-rights decree labeled as Civil Action 5884, which indicates the city of Aspen was serious about building both reservoirs.

Under the heading of “Maroon Creek Reservoir,” for example, the court document says, “The claimant of said reservoir is the city of Aspen.”

“The purposes for which the water stored in said reservoir will be used are industrial, irrigation, domestic, municipal and other beneficial uses, both consumptive and non-consumptive,” the decree application states. “The capacity of said reservoir is 4,567 acre-feet.”

“The appropriation date hereby awarded said structure is the 19th day of July 1965,” the court document continues.

That’s the date on which Aspen City Council directed its consulting engineer, Darrell “Dale” Rea, to prepare maps of both reservoirs.

The court document closes by noting that the conditional water right was “granted on condition that the dam and other structures necessary to store water in said reservoir shall be completed and that the water stored in said reservoir shall be applied to beneficial use with due diligence and within a reasonable length of time.”

In other words, Aspen could have its conditional rights to store water, as long as the city actually built the dams at the center of their claim “within a reasonable length of time.”

That was half a century ago.

A detail from the water right decree for Maroon Creek Reservoir.
A detail from the water right decree for Maroon Creek Reservoir.

On to water court

After the city filed to have its water rights approved, a hearing in water court was held on Nov. 29, 1966, so a water court judge could make a decision about the city’s proposed rights. Rea, the city’s consulting engineer who originally surveyed the Castle Creek and Maroon Creek reservoirs, testified.

An attorney representing Aspen, Janet Gaylord, walked Rea through a series of questions meant to inform the court of Aspen’s intent to store water from the creeks.

Rea said in court that he started working for Aspen as a consulting engineer in July 1956, when the city was trying to acquire and develop a municipal water system.

“At that time we made a feasibility report for the development of surface rights for the city … which included proposed rights on Hunter Creek, Castle Creek and Maroon Creek,” Rea said. “We made the estimated cost for construction of a filter plant and diversion structure necessary to deliver and bring this water to the city of Aspen.”

One key component of the city’s new water system was to rebuild a diversion dam on lower Castle Creek, not far below Midnight Mine Road, and another was to install a 30-inch pipe that could bring 25 cubic feet per second (cfs) of water from the diversion dam to a new water-treatment plant on a knoll above Aspen Valley Hospital between Castle and Maroon creeks.

According to the archives of the Aspen Historical Society, this is a photo of the Aspen water plant under construction in 1966. The plant was a significant step forward for Aspen's municipal water supply system.
According to the archives of the Aspen Historical Society, this is a photo of the Aspen water plant under construction in 1966. The plant was a significant step forward for Aspen’s municipal water supply system.

Water for Aspen

Rea said during these projects he also looked into the supply of, and projected demand for, water in Aspen.

“Our studies of projection show that Castle Creek and Maroon Creek had low flows in the summer that would not be sufficient to sustain the city more than a few years,” Rea testified. “This meant that they would have to store water in either or both of these creeks.”

And so Rea had surveyed two dams that were to sit astride upper Castle and Maroon creeks. Stored water was then to be released to run several miles down the streams to the city’s diversion dams, which would direct the water into pipelines to the city’s water-treatment plant.

Rea identified for the court the November 1964 water plan he prepared for the city, which included charts of flow levels on the creeks, as recorded by the state engineer from 1913 to 1917.

Based on those four years of records, Rea projected that low flows in some dry years could drop to 24 cfs in Castle Creek and 16 cfs in Maroon Creek.

He said such low flows “would not yield enough water unless storage supplemented the flow in the dry years,” and that “these flows would not suffice the city at the presently projected growth for more than, I think, five years.”

“Somewhere between ’70 and ’75,” Rea said, “the city would need supplemental flows either from Maroon Creek, which it is not now presently using, or the construction of storage on Castle Creek.”

Then, reviewing his “proposed steps of development,” Rea said that within “the next five or 10 years” Aspen would need to build a reservoir on Castle Creek and later a reservoir on Maroon Creek.

He added, “That will take care of the city of Aspen for the foreseeable future.”

A young skier on Buttermilk Mountain about 1965. Aspen was starting to grow as a result of its ski areas, but it wasn't clear how big the community would get by 2000.
A young skier on Buttermilk Mountain about 1965. Aspen was starting to grow as a result of its ski areas, but it wasn’t clear how big the community would get by 2000.

Locals and visitors

Gaylord, the attorney for the city, asked Rea about his population projections.

Rea said his estimates took into account “transit population,” referring to the growing number of visitors coming to Aspen in both winter and summer, as well as “permanent residents.”

He estimated that the combination of visitors and locals equaled 7,000 people in 1965, and the combination would rise to 30,000 people in 1990.

“We have found that it is necessary for Aspen to have storage on these streams in order to meet this population,” he told the court.

In his 1964 plan, Rea at one point had estimated that as many as 66,000 people might someday live in the greater Aspen area, but in his court testimony, he spoke of a more modest population estimate.

Rea’s estimate of a population of 30,000 people was fairly accurate, although time would prove that Aspen’s municipal water system would be able to serve 30,000 people without having to build a reservoir.

By 2008, for example, Aspen’s year-round resident population was about 6,400. And data from the Aspen Consolidated Sanitation District showed that another 8,000 people or so were also in town each day, bringing the town’s average daily population to about 15,000.

But peak days such as the Fourth of July and Christmas could attract about 30,000 people to Aspen.

“In 2007, the average daily flow of sewage to the treatment plant, which is next to the river below the Aspen Business Center, was about 1.5 million gallons, which means there were an average of 14,362 people in town each day,” the Aspen Daily News reported in 2008. “The plant can handle 3 million gallons a day, which is enough capacity for about 31,000 people.”

Sheep being driven across the Castle Creek bridge from their summer range in the mountains, in 1967. Sheep were grazed on the ski areas in Aspen and Snowmass until the early 1980s.
Sheep being driven across the Castle Creek bridge from their summer range in the mountains in 1967. Sheep were grazed on the ski areas in Aspen and Snowmass until the early 1980s.

Timing and feasibility

During his 1966 appearance in water court, the judge asked Rea when the city proposed to complete the two dams for which it held water rights.

“Well, they have three alternatives,” Rea replied of the city. “I would say between ’70 and ’75 one of these will need to be constructed in order to [supplement] the direct flow.”

He also said that while the city might build both dams at once, “from the actual demand they would build this one first and the other one later.”

“It is proposed that they drill the two reservoir sites for the geological surveys, and depending upon that result they will select either the Maroon Creek Reservoir or Castle Creek Reservoir, and it will be constructed and there is no time schedule for the second reservoir,” Rea said, speaking in November 1966. “I would assume that all of these facilities would be needed within the next 35 years.”

A detail of a letter sent by Dale Rea to the Aspen city manager in 1967 about studying the Maroon and Castle creek reservoirs.
A detail of a letter sent by Dale Rea to the Aspen city manager in 1967 about studying the Maroon and Castle creek reservoirs.

Feasibility study?

On May 5, 1967, Rea sent a letter to Leon Wurl, Aspen’s city manager, proposing to conduct a feasibility study for the two reservoirs.

“We would recommend the preparation of an interim report during the 1967-68 winter season,” Rea said. “The purpose of this report would be to form the basis of a continuance with the district court on the reservoir and pipeline decrees.”

The reference to “the basis of a continuance” is to the expected diligence review that would be required for the proposed reservoirs.

“A final report could be performed only after geological studies and field surveys have been completed along with investigations for financing the project,” Rea wrote. “Geological studies could start in 1968 or 1969. The engineering cost of such a report should await discussions with the council on the actual scope of such a report.

“The interim report would set forth problems that would have to be evaluated before construction could start on the dams,” Rea also wrote.

He provided an outline of information that today still seems relevant. And much of the information he proposed the city investigate has apparently never been done. Or if it has, the city has yet to make it public following a request under the Colorado Open Records Act.

Rea’s outline included investigating and compiling information about water rights, hydrologic data, and geologic data.

It also included producing surveys, maps and “data” on the proposed dams, including “choice of materials for constructing dam” and “final location of dam.”

A 2016 rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city 1965.
A 2016 rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city 1965.

Follow-ups

The city was slow to respond to Rea’s suggestion of an investigation into the dams, so Rea sent a follow-up letter.

In the Jan. 12, 1968, missive to Aspen’s Wurl, Rea presented costs for “engineering, aerial [photography] and geological in the eight items of our letter and outline of May 5, 1967.

“The report as presented should firm up the location, capacity and cost of the two reservoirs,” Rea said. “It will also show how much water is needed, where it will be used, and the cost of treating and transmitting the water to the areas of use. Methods of financing the total construction costs will be also presented.”

In November 1968, Rea checked one of the items off his list for additional study when he submitted a preliminary report to the city on “stream gauging, hydrology and water supply.”

“The purpose of this preliminary report is to collect data that will supplement the water filings made with the state engineer in December 1965 for reservoirs on Castle and Maroon creeks,” he wrote. “This report is limited to stream gauging, hydrology and water supply because they offer a good beginning that is highly desirable and lays the foundation for collection of further needed data in order to adequately design the two dams.”

On March 3, 1969, Rea wrote yet another proposal letter to the city, which included a detailed budget for an investigation into the reservoirs.

“We would recommend the entire preliminary report be started in 1969 and completed in 1969 or 1970,” Rea wrote.

Under the heading “Final Report – Phase II” he wrote, “This final report may be completed on both dams at the same time or at separate times. There will be some savings in field investigations if the two dams are investigated at the same time.”

He went on to write that for “the purpose of a capital improvement program, we would recommend that $22,500 be set up for 1971 and $22,500 in 1972 to