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

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

From Aspen Journalism (Heather Sackett):

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

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

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

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

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

Conditional water rights

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

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

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

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

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

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

Storage needed?

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

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

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

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

Carollo Engineers agrees with that assessment.

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

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

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

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

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

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

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

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

From Aspen Journalism (Heather Sackett):

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

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

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

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

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

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

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

Aspen Mountain expansion

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

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

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

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

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

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

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

Instream flows

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

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

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

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

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

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

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

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

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

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

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

From The Aspen Daily News (Alycin Bektesh):

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

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

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

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

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

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

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

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

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

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

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

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

From Aspen Journalism (Brent Gardner-Smith):

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

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

So now they are.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here’s the release:

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

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

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

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

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

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

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

From Aspen Journalism (Brent Gardner-Smith):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Aspen Journalism (Brent Gardner-Smith):

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

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

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

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

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

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

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

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

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

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

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

Briefly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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