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