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.