In a joint interview, Tom Buschatzke, the director of Arizona’s Department of Water Resources, and Ted Cooke, the general manager of the Central Arizona Water Conservation District, said they have been talking for the past several weeks.
Federal officials will visit Tempe next week for a briefing on the Colorado River. The event features a keynote speech from U.S. Reclamation Commissioner Brenda Burman, who in late May urged the Lower Basin to finish DCP.
“On the one hand, I don’t want to say that the only reason that Tom and I are [embarking on] this initiative is because we’ve been pressured to do so by folks,” Cooke said of the renewed effort to finish DCP. “On the other hand, I don’t want to say it’s a complete coincidence of timing.”
Having Burman kick off a public process will serve to remind people, Buschatzke said, that Arizona has been better off when it avoid lawsuits. “When the state’s moved with the federal government into that paradigm, away from ‘let’s have a bunch of big fights and litigation,’ we better controlled our own destiny,” he said.
The rest of the basin looks on
Fights and litigation would only delay a coordinated response to continued high temperatures and slipping water levels in Lake Mead and Lake Powell.
“The situation in Arizona is a topic of a lot of discussion in the upper basin,” said Jim Lochhead, CEO of Denver Water.
He said Arizona’s internal conflict has led to political problems in Colorado.
“It puts pressure on Denver Water as a municipal utility, taking water out of the Colorado River, and it exacerbates historic animosities and relationships between Western Colorado and Denver Water,” Lochhead said.
Lochhead sent a letter to the Central Arizona Project in April threatening to pull out of a program to conserve water unless the lower basin made real progress on its plan.
Shortage is so imminent, California has even agreed to take reductions — something the current rules don’t require it to do.
“And you have to ask yourself, given the position that you are in, why would you let that opportunity go by?” said Pat Mulroy, a longtime water leader in Nevada who is now at the University of Nevada Las Vegas.
But before it can sign a Lower Basin plan, Arizona needs its own internal deal.
One sticky subject is what to do about farmers in central Arizona, who would take a big hit under the current rules.
“How do we find a way to make things less painful for them? Not completely painless, but less painful,” Cooke said.
Another big issue is determining who gets to decide when certain conserved water stays on Lake Mead
It’s a major question that Buschatzke said was still “under discussion.”
“We will work that out,” Cooke said.
To get to “yes,” Buschatzke and Cooke agreed they’ll have to avoid letting side issues divert the talks.
Buschatzke said his task is “to find a collective way to create a package where everyone is better off with the package, even though there might be individual pieces of that package that they might not particularly like 100 percent.”
By rebooting negotiations, Arizona gets another chance at writing something it can live with.
Bret Jaspers reports for KJZZ in Phoenix. This story is part of Elemental: Covering Sustainability, a new multimedia collaboration between public radio and TV stations in the West, and part of a project covering the Colorado River produced by KUNC in northern Colorado.
This story is a part of the ongoing Back 40 series, where HCN reporters look at national trends and their impacts close to home.
Following a dry winter, Colorado’s already low snowpack is rapidly dwindling and extreme drought has been declared in a third of the state. Many communities, not only in Colorado, but also in other parts of the West, are wondering about their future water security.
For the city of Aspen, located in the headwaters of the Upper Colorado River Basin, planning for a warmer climate is no longer about the distant future. The 6,500-population municipality relies on pulling water from creeks fed by the snowpack, which sat at just eight percent of its median as of June 11, according to snow monitoring data. And the future doesn’t look any better: Recent research suggests climate change will further disrupt the snowpack in the coming years.
In Aspen, the need for water security is being met with a search for alternative storage solutions that have less damaging environmental impacts than the big dams of yesteryear. Over the past two years the city has begun testing several potential water storage sites, including beneath the municipal golf course, as a means to deal with future water shortages. “We are at that point now were it is time to start putting those (storage) plans into action,” said Margaret Medellin, the city’s utilities manager.
While Aspen pulls its water from nearby Crystal and Maroon creeks, the city doesn’t have any storage capacity. Currently, the city can stockpile just a day’s worth of water, something Medellin said could be a problem this year. “People right now are conserving water and we could still be in a real hardship at the end of the summer because we have no way to store that water,” she said. “When talking about other communities in Colorado and the West that is a level of vulnerability that is not really acceptable as a water management practice.”
This vulnerability is part of the reason why, since 1965, the city has quietly renewed a filing in Colorado’s water court that kept alive the possibility of building two dams on Castle and Maroon creeks. In 2016, when area environmental groups including the Wilderness Workshop and Western Resource Advocates got wind of the renewal, they announced their opposition to the filing, urging the City of Aspen to relinquish its storage rights. If developed, those rights would have flooded some of the state’s most pristine landscape.
In May the city agreed to forego its conditional water storage rights in these wilderness areas, marking the end of Aspen’s ties to the era of large federal dams like Hoover and Glen Canyon. As part of the agreement, the city is now entering a new period for water storage and conservation policy. One option includes storing water under the city’s municipal golf course. The water could either be injected into the underlying aquifer, or would reach it through a basin specifically designed to draw water underground, Medellin said. This would allow the city to store up to 1,200 acre-feet, or about enough to supply 2,400 households for one year, and would eliminate evaporation, a problem that worsens with rising temperatures. “As a concept it really does help you preserve a lot of the water with minimal loss,” Medellin said.
The groups also identified a former gravel pit, and land adjacent to it, that could accommodate up to 8,000 acre-feet of water, which could be diverted from the Roaring Fork River, if the city transfers its water rights. Seen as a win-win by environmentalists, retrofitting old gravel pits has been used successfully on Colorado’s Front Range since the 1980s. The key would be diverting water from the river at the right time, which, according to Ken Neubacker, Colorado projects director at American Rivers, is right after the river reaches its peak flows. “It all depends on how they do it,” he said.
Aspen’s water management plans include irrigating with reused water and introducing a net metering system, which would help the city’s residents track — and reduce — water use. In collaboration with environmental groups, the city is also looking at a program which would allow farmers to temporarily lease some of their water rights during dry periods, letting the municipality use them instead.
For Aspen, much like other communities across the West, storage will increasingly become a part of water planning strategy, but at least now environmental groups are part of the discussion. “Coming to the table and talking these problems through will be essential,” said Robert Harris, an attorney with Western Resource Advocates. As climate change reduces available water, “we can’t depend on the past being any guarantee of the future.”
Jessica Kutz is an editorial intern at High Country News. This article was first published online at The High Country News on June 19, 2018.
A group of community stakeholders traveled part way up Mount Elbert last Wednesday to evaluate the logistics of installing a head gate and flume on Corske Creek.
The group, which included representatives from the Lake County Board of County Commissioners and Public Works, Parkville Water District, the United States Forest Service, United States Fish and Wildlife Service, Colorado Department of Public Health and Environment and the City of Aurora, examined potential sites for the flume, as well as environmental impacts.
In January 2017, the Colorado Division Two Water Court approved Lake County’s augmentation plan after approximately six years in water court.
The court decision granted Lake County administrative use of 34-acre-feet of consumptive use water, stemming from the water right associated with Derry Ditch No. 3.
Additionally, the augmentation plan changed the water’s use from solely agricultural to also allow for commercial and residential uses.
In order to start storing and leasing the 34-acre-feet of water, Lake County must measure and report the amount of water physically flowing through the area. To do so, the county must construct a head gate and flume on the creek.
Last Wednesday’s outing clarified that installation of a flume will have to wait until at least next summer.
Obtaining a permit for the installation of the flume would take between six to 18 months, representatives from the USFS said.
Depending on the location of the infrastructure, wetland and beaver habitat disruption are also potential concerns.
Three other Native water settlements currently await congressional approval. They arise from federal legal decisions recognizing that many tribes in the West hold water rights that largely pre-date — and therefore override — the water rights of non-Native settlers.
Many tribal nations are currently asserting those rights as a way to ensure economic vitality, affirm sovereignty and provide basic services that some communities lack. In many places, however, Native water rights have yet to be quantified, making them difficult to enforce. Settlement is usually the preferred remedy; it’s cheaper, faster and less adversarial than a lawsuit, and can include funding for things like pipelines or treatment plants. With settlements, “the tribes are able to craft solutions that work for them and that can be more flexible than anything that could be achieved through litigation,” says Kate Hoover, a principal attorney for the Navajo Nation Department of Justice water rights unit.
Once negotiations are complete, Congress has to confirm the settlements. Here are the three introduced in the Senate this session:
THE TAKEAWAY: This settlement allocates 4,000 acre-feet of Colorado River water per year from the Central Arizona Project to the 2,300-member Hualapai Nation. It also authorizes federal spending for a water pipeline to Peach Springs, the reservation’s main residential community, and Grand Canyon West, an economically important tourist destination featuring a horseshoe-shaped “skywalk” jutting out over the canyon.
Subsequent legal decisions confirmed that so-called “reserved water” could also be used for livestock, drinking water and even commercial purposes. That’s crucial for this settlement, because the Hualapai Nation plans to use a portion of their water to expand Grand Canyon West — and their economy. “We have done everything possible to provide jobs and income to our people in order to lift them out of poverty — but the lack of a secure and replenishable water supply on our Reservation is our major obstacle to achieving economic self-sufficiency,” wrote Damon Clarke, chairman of the Hualapai Nation, in testimony to the U.S. Senate Committee on Indian Affairs.
THE TAKEAWAY: This settlement affirms the Navajo Nation’s right to 81,500 acre-feet of water each year — enough to serve about 160,000 households — from the Utah portion of the San Juan River, a Colorado River tributary. In addition, it would establish funds for treating and transporting drinking water.
WHY IT’S IMPORTANT: In many Native water rights settlements, tribes agree to give up a portion of the water to which they’re entitled — often allowing other groups to continue using that water, which might otherwise have been cut off — in return for expensive water projects, typically built by a federal agency.
The Navajo Utah settlement is different: It would transfer money directly to the tribe for water infrastructure. During a U.S. Senate Committee on Indian Affairs hearing in December, Russell Begaye, the president of the Navajo Nation, explained why the tribe, rather than the U.S. government, should lead the work: “It’s important as a sovereign nation that we are able to do that — employ our people, use our laws — in order to build and construct any kind of construction that may take place.”
WHY IT’S IMPORTANT: Kansas, like much of the West, is prone to drought. This settlement would help the Kickapoo deal with dry periods by allowing the tribe to store more than 18,000 acre-feet of water in a reservoir that has yet to be built, but that has been contemplated for at least 40 years. A dispute over how to acquire the private land that the reservoir would flood led to a 2006 lawsuit, and, eventually, to settlement negotiations, which concluded in 2016.
Experts say it’s not unusual for settlements to take years or even decades to complete, and that securing congressional approval requires balance. “Ultimately, these settlements are political instruments,” says Steven Moore, a staff attorney at the Native American Rights Fund and an advisor to the Kickapoo Tribe in Kansas. “You really have to work these settlements out so that it’s a win-win for everybody.”
Emily Benson is an assistant editor at High Country News.
This article was published in the June 22, 2018 print edition of High Country News.
From Kevin Duggan writing on the opinion pages of The Fort Collins Coloradoan:
The cost of a water-storage project Fort Collins has been pursuing for more than a decade continues to float higher and higher.
But even at its current estimated cost of $74.1 million — $27.3 million more than estimated just a few years ago — city officials say expanding Halligan Reservoir along the North Fork of the Poudre River remains the city’s best and most affordable option for securing future water supplies that would be needed in the event of drought.
That’s a big-ticket item by any measure. The cost would be covered by reserves in a fund that gets money from water rates paid by Fort Collins Utilities customers and fees charged to developers for tapping into the city’s water system.
Those development fees could go up 23 percent in coming years to help pay for Halligan, according to a memo to City Council…
Part of the reason for the project’s rising cost estimates is the uncertainty that comes with going through the National Environmental Policy Act process. The current projected cost includes $16.3 million in contingency funds to cover potential surprises in federal and state requirements for permitting and mitigation.
Fort Collins has been working on and paying for an Environmental Impact Statement, or EIS, for the proposed expansion of Halligan for 12 years. The latest estimate for when a draft EIS for the project will be released by the U.S. Army Corps of Engineers is April 2019, said Adam Jokerst, the city’s project manager.
Construction costs have gone up over the years and continue to rise. If the project is permitted, construction on the expansion, estimated to cost $31.3 million, could begin in 2023 and be completed in two years.
It would be quite an effort. The city has proposed enlarging Halligan’s capacity from 6,400 acre-feet to about 14,525 acre-feet by raising its concrete dam 25 feet…
The Halligan project has faced a lot of issues over the years. For a time, the EIS process included the city of Greeley’s proposal to expand its Milton Seaman Reservoir, which also is on the North Fork of the Poudre. Greeley wanted to expand its 5,000-acre-foot reservoir to 53,000 acre-feet.
The Halligan-Seaman project included the cities in partnership with North Poudre as well as the Fort Collins-Loveland, East Larimer County and North Weld County water districts, also known as the Tri-Districts.
The Tri-Districts backed out of the project in 2009, citing mounting costs and a lack of progress on environmental studies. North Poudre withdrew in 2014 over the same concerns.
Those withdrawals required scaling back the project, changing its environmental impacts and adding time to the review process, Jokerst said. There’s also been a lot of turnover at the Corps over the years with personnel overseeing the EIS.
The Seaman project was separated from Halligan in 2015 because of changing scopes for the projects and differing time frames. Greeley is now proposing to expand Seaman to 88,000 acre-feet to meet its water supply needs to 2065, according to the Corps’ website.
Fort Collins officials maintain the Halligan project still makes sense for the city even with its escalating costs. It makes use of an existing reservoir and could potentially improve flows on the North Fork through mitigation. The city has the water rights it needs to fill the reservoir, Jokerst said.
And Halligan is still less expensive than other water supply sources, according to the city. The going rates for an acre-foot of firm yield from the Colorado-Big Thompson project is $60,000. Under current estimates, water from the Halligan project would cost $8,800 per acre-foot.
So far, Fort Collins Utilities has spent $12.6 million on the project. The city has appropriated $37.4 million for it and would have to come up with another $36.7 million under current projections.
As a way to settle a 2009 state water court case led by Pitkin County and the Colorado River District, the Front Range city of Aurora has agreed to let as much as 1,000 acre-feet of water run down the upper Roaring Fork River each year instead of diverting the water under Independence Pass.
The pending settlement could mean that about 10 to 30 cubic feet per second of additional water could flow down the river through Aspen in summer and fall.
It’s an amount of water that Pitkin County Attorney John Ely said would be “visibly noticeable” and would help bolster flows in the often water-short stretch of the Roaring Fork between Difficult and Maroon creeks.
“It’s exciting,” Ely said. “It’s not very often you get to put water into the upper Roaring Fork. These opportunities are pretty limited, and I’m not sure if we’ll ever see another one.”
A June 13 memo from Ely on the agreement states that “the Pitkin County Healthy Rivers and Streams Board has long recognized this reach of the Roaring Fork as one of the most stressed reaches of the Roaring Fork” and that “the Roaring Fork Conservancy’s State of the Watershed report identifies the upper Roaring Fork just above Aspen and heading into town as being severely degraded.”
The Pitkin Board of County Commissioners is expected to approve the settlement in the form of an intergovernmental agreement with Aurora on Wednesday.
Aurora’s city council also is expected to approve the agreement, as is the Colorado River District board of directors at its July meeting. A Water Court judge has set a July 20 deadline for the parties to file the settlement.
Officials with Pitkin County and the Colorado River District see the deal with Aurora as a victory, especially as some estimates, according to Ely, place the value of water in Aurora at $50,000 an acre-foot, which makes the 1,000 acre-feet of water potentially worth $50 million.
The settlement is also of high value to officials at the Colorado River District, who led the efforts of the West Slope entities in the case.
“I think it’s a big deal,” said Peter Fleming, the general counsel for the Colorado River District, which represents 15 counties on the Western Slope. “I think it’s going to be a good deal for Pitkin County, the Roaring Fork River, and the West Slope as a whole. And frankly, I think it’s a pretty good deal for Aurora, as well.”
But Tom Simpson, a water resource supervisor with Aurora, said it’s a “bittersweet” deal for the growing Front Range city.
“We’ve worked hard on this agreement over the last year,” Simpson said. “It is bittersweet, but we are happy that we are finally there.”
The deal lets Aurora retain its current use of 2,416 acre-feet of water it diverts on average each year from the top of the Fryingpan River Basin, but Aurora also is giving up 1,000 acre-feet of water it now diverts from the top of the Roaring Fork River Basin.
Aurora also is agreeing to abide by operating protocols and future potential use of the senior water rights on the Colorado River now tied to the Shoshone hydropower plant in Glenwood Canyon. That agreement could limit the amount of additional water Aurora can divert in the future from the Colorado River Basin.
The provisions of the agreement relating to the Shoshone water right also include an acknowledgement that the senior water right might someday be changed to include an instream flow right rather than the water being diverted out of the river and sent to the hydropower plant.
“Aurora will not oppose an agreement between a West Slope entity or entities, the Colorado Water Conservation Board, and any other entity entered for the purpose of adding instream flow as an additional use of the senior hydropower right,” the agreement states.
Simpson agreed the overall deal represented a “haircut” for Aurora’s water rights in the Colorado River Basin.
“Yes, we’re going to get the 2,416 acre-feet out of Busk, but we’re going to make these other deliveries on the Roaring Fork, and we might lose just a little bit of water on the Shoshone protocol,” he said. “It’s a haircut, absolutely.”
On the other hand, Simpson said “while this agreement is not perfect, we feel like it is a good agreement, and preserves some of our Busk-Ivanhoe water and lets us all move forward.”
Started in 2009
In December 2009, Aurora filed a water rights application in Division 2 Water Court in Pueblo to change the use of its water rights in the Busk-Ivanhoe transmountain diversion system in the Fryingpan River headwaters.
The system, built in the 1920s, gathers water from Ivanhoe, Pan, Lyle, and Hidden Lake creeks and diverts the water through the Ivanhoe Tunnel to Turquoise Reservoir near Leadville before it is sent to East Slope cities. The system was built to deliver water to irrigators in the lower Arkansas River basin.
The water rights to the system carry appropriation dates from 1921 to 1927, which makes them junior to the senior water rights on the Colorado River near Grand Junction known as the “Cameo call.”
The Pueblo Board of Water Works bought half of the Busk-Ivanhoe system in 1972, and Aurora gradually secured its half-ownership in the system between 1986 and 2001.
In its 2009 application, Aurora told the water court it wanted to change the use of its water in the Busk-Ivanhoe system from irrigation to municipal use.
However, it also conceded it had already been using the Busk-Ivanhoe water for municipal purposes in Aurora, even though its water-right decree limited the use of the water to irrigation in the lower Arkansas River valley. It also came to light that Aurora was first storing the water in Turquoise Reservoir without an explicit decreed right to do so.
That caught the attention of Pitkin County, the Colorado River District, a host of other Western Slope water interests, and the state engineer’s office, which administers water rights.
As Ely put it in a June 13 memo to the Pitkin County commissioners, “In 1987, Aurora began using Busk-Ivanhoe water for undecreed municipal and residential purposes in an undecreed area, the South Platte Valley, after storing the water in an undecreed manner in Aurora system reservoirs.”
Aurora’s stance was that since the water had been diverted under the Continental Divide, it didn’t matter how it used or stored the water, as it should make no difference to the West Slope. But an array of West Slope entities, including the Colorado River District, disagreed with Aurora’s position.
In July 2013 the Western Slope entities and the state took Aurora to a five-day trial in Div. 2 Water Court in Pueblo, arguing that Aurora should not get credit for its 22 years of undecreed water use and storage.
“It was always an issue of fact at trial as to how much water was in play because it depends on how you calculate the yield of the project,” Ely said.
In 2014, thought, the district court judge in Division 2 ruled in Aurora’s favor, and the West Slope interests then appealed to the state Supreme Court.
The appeal process prompted a host of entities on both sides of the Continental Divide to come forward and argue aspects of the case before the court. It also prompted a scolding of Aurora by former Supreme Court Justice Greg Hobbs over the use of undecreed water rights.
In 2016, the Colorado Supreme Court reversed the lower court’s decision, ruled in favor of the Western Slope, and remanded Aurora’s original change application back to the lower court.
“The Supreme Court wrote that notwithstanding the fact that the change application and original decree concerned developed transmountain water, water used for undecreed purposes cannot be included in a calculation for historic consumptive use and is therefore excluded from water available for change of use,” Ely wrote in his June 13 memo.
So, rather than going back to Water Court and continuing to fight over the potential size of the Busk-Ivanhoe rights, which the West Slope now saw as being between zero and well-less than 2,416 acre-feet, Aurora began negotiating in January 2017 with the Western Slope entities still in the case, which included Pitkin County, Eagle County, the Colorado River District, the Grand Valley Water Users Association, the Basalt Water Conservancy District, Eagle County, Orchard Mesa Irrigation District, and Ute Water Conservancy District.
Today, each of those entities is also a party to the intergovernmental agreement expected to be submitted to the water court in July, along with a proposed decree for Aurora’s Busk-Ivanhoe rights.
Ely said Pitkin County didn’t start out in the case with an eye on securing 1,000 acre-feet for the Roaring Fork, but did have a local interest in the operation of the Busk-Ivanhoe project.
“We weren’t doing it to obtain an end result, we were doing it because the [Busk-Ivanhoe] project is in our backyard and we felt it was the right thing to do,” Ely said. “And all the other dialogue developed after the trial and the Supreme Court decision.”
At the time of the 2016 Colorado Supreme Court decision, Pitkin County had spent $353,000 in legal and other fees in the case, using money brought in by a tax to fund the county’s Healthy River and Streams program, which includes litigation in water court.
Since then, Ely said the county had spent an additional $27,300 for hydrology and engineering work, but had not spent more on additional outside legal help, as he and Assistant County Attorney Laura Makar handled the settlement negotiations for the county.
Pan, or Fork?
For Pitkin County and other Western Slope entities, it made more sense to negotiate with Aurora for some of the water it owns in the Independence Pass-Twin Lakes system rather than the Busk-Ivanhoe system, as any water bypassed by the Busk-Ivanhoe system would be scooped up by the Fry-Ark Project, which sits below the Busk-Ivanhoe system in the upper Fryingpan valley and also diverts water to the East Slope.
Aurora owns 5 percent of the shares in the Twin Lakes Reservoir and Canal Co., which operates the Independence Pass Transmountain Diversion System. Its share of the water diverted each year from the top of the Roaring Fork equals about 2,100 acre-feet a year, so the 1,000 acre-feet of water equals about half of Aurora’s water in the Twin Lakes company.
In the 10 years from 2007 through 2016, Twin Lakes Co. diverted a total of 485,762 acre-feet of water from the upper Roaring Fork River Basin through its diversion system, putting the 10-year average for that period at 48,567 acre feet. 2011 was the biggest year of diversions since 2007, with 67,463 acre-feet diverted, and 2015 was the lowest year since 2007, with 18,374 acre-feet diverted.
Colorado Springs owns 55 percent of the shares in Twin Lakes Co., Pueblo 23 percent, Pueblo West 12 percent, and Aurora 5 percent. There are also other minority shareholders, holding 5 percent of the shares, still using the water from the system for agriculture.
Twin Lakes is not a party to the intergovernmental agreement between Aurora and the West Slope entities, but it is willing to work with all involved to make the water deliveries as beneficial as possible for the Roaring Fork River.
Ely said Pitkin Country was grateful for the willingness of the Twin Lakes Co. to work with the county and the Colorado River District to release the water in a way that benefits the river, even if it means more work for the operators of the Independence Pass-Twin Lakes system.
According to Kevin Lusk, the president of the Twin Lakes Reservoir and Canal Co. and a senior engineer at Colorado Springs Utilities, the company is simply responding to the desires of a shareholder in the company, Aurora.
He also said it’s legal under a 1976 water-rights decree held by Twin Lakes to bypass water for use on the West Slope instead of diverting it under the Continental Divide.
“The decree allows for this type of operation and so really all we’re doing as a company is accommodating the request of one of our shareholders to do something that was contemplated and provided for in the decree,” Lusk said.
And as part of the agreement, representatives from Pitkin County, the Colorado River District, Aurora, and Twin Lakes will meet each year to agree on a delivery schedule for the water that describes the “desired rate, timing, amount, location and ultimate use of the water, as well as the operational needs and constraints” of the Independence Pass-Twin Lakes diversion system.
In a letter attached to the agreement laying out how Aurora and the Twin Lakes Co. plan to manage the releases, Aurora said it “would prefer the water to be delivered at times of the year and at locations that will provide the most benefit to the Roaring Fork River stream flow. Typically this will be in the second half of the summer, beginning July 15, through the fall season.”
And Pitkin County feels the same way, according to Ely.
“We would like it delivered later in the year when the flows of the river start to go down,” he said.
However, Lusk at Twin Lakes said if the West Slope entities wait too long in the season to bypass the water, it may not be there to bypass.
“I know that there is a great interest in saving a lot of this water and bypassing it at the end of the season,” Lusk said. “But it’s going to be a bit of a balancing act. You’ve got to take the water when it’s there, because if you don’t take advantage of it there won’t be any to release later.”
Lusk also said that if the West Slope really wanted to take full advantage of the water, it might consider building a reservoir above Aspen to store the water at peak runoff and then release it later in the season.
Flows on the Fork
According to a draft resolution to be voted on by the Pitkin County commissioners Wednesday, there were several factors that went into the county’s goal of acquiring 1,000 acre-feet per year of water for the upper Fork, including “the expected amount of yield for Aurora in the Busk-Ivanhoe system; existing in-basin and out-of-basin diversions from the Roaring Fork River between Independence Pass through the City of Aspen; potential future demand on the river; extent of existing conditional water rights; and the results of a stream analysis and channel measurement study.”
If the deal is approved, as soon as next year 700 acre-feet of Aurora’s water is expected to be captured briefly in the Independence Pass system, which includes dams on Lost Man Creek, the main stem of the Roaring Fork River, and on Grizzly Creek, and then released down either the Fork or Lincoln Creek toward Aspen.
Another 200 acre-feet of Aurora’s Twin Lakes water will be held in Grizzly Reservoir on Lincoln Creek, which holds 570 acre-feet of water. That water will then be released late in the year, after most transmountain diversions have stopped, to bolster late-season flows in the river.
“So it’s actually reservoir release of previously stored water, while the [700 acre-feet] is a true bypass of water that would have gone through the tunnel that day to the other side,” Lusk said. “It’s new for us. We typically don’t operate the reservoir that way. Typically we would run that reservoir quite a bit lower, just for safety-of-dam reasons. But this change in operation is going to be holding the reservoir up much fuller for a lot longer, and we just need to watch the behavior of the dam.”
Another 100 acre-feet of water could also eventually be left in the Roaring Fork each year after a complicated exchange-of-water arrangement is worked out with Aurora and other parties on the Fryingpan River, which brings the potential total water left in the Fork to 1,000 acre-feet.
There is also a drought contingency provision which will allow Aurora to bypass 100 acre-feet less than they would have under the deal if the water level in their system of reservoirs falls below 60 percent on April 1 in a given year. So in a dry year, that could bring additional flows in the Roaring Fork back to 900 acre feet.
The pending Busk-Ivanhoe settlement also includes a provision that allows the Basalt Water Conservancy District to store 50 acre-feet of water in Ivanhoe Reservoir, which holds 1,200 acre-feet of water and serves more as a forebay for the Ivanhoe Tunnel diversions than a storage reservoir.
And, in a provision to Aurora’s benefit, the West Slope entities, including Pitkin County, have agreed not to fight, at least on a wholesale basis, the permitting of two potential reservoirs that Aurora is working on, Wild Horse Reservoir in South Park and Box Creek Reservoir, which could hold between 20,000 and 60,000 acre-feet on private land on the south flank of Mt. Elbert.
“Any participation in the permitting processes by the West Slope Parties will not seek to prevent the project in its entirety and comments or requests may be raised only for the purpose of addressing water related impacts caused directly by either of the two above specified projects on the West Slope,” the draft agreement between Aurora and the West Slope says.
The concession from the West Slope is significant as Box Creek Reservoir will be able to store water from the West Slope.
The West Slope entities also agree not to oppose changes in diversion points tied to the Homestake transmountain diversion system in the Eagle River Basin, not to oppose Aurora’s efforts to repair the Ivanhoe Tunnel, which is also called the Carlton Tunnel. The tunnel was originally built as a railroad tunnel, and then used as a highway tunnel.
Finally, the parties to the deal have agreed, in what’s called a “diligence detente,” not to challenge in water court for 15 years a list of conditional water rights, held by both East Slope and West Slope entities, that are required to periodically file due-diligence applications with the state.
The list of conditional water rights includes rights held by Aurora tied to the Homestake project and rights by the Southeastern Water Conservancy District tied to the Fry-Ark Project. They also include rights held by the Colorado River District on a number of West Slope water projects, including the potential Iron Mountain Reservoir near Redcliff and the Wolcott Reservoir near Wolcott.
Notably, the agreement does not include provisions to legally shepherd the water from the Independence Pass-Twin Lakes system all the way to the confluence of Maroon Creek, so it’s possible that diverters on the river near Aspen, such as the Salvation Ditch, could pick up the water left in the river.
However, Ely said the county will seek cooperation from diverters on the river near Aspen.
“We’ve had some conversations with water users on this side of the hill, and we’ve had conversations with the Division 5 engineer’s office, and we’re hopeful that when the water is being bypassed and put in the river and there is an increase of flow, folks won’t take advantage of that and we’ll be able to get it down through Aspen,” Ely said. “And eventually, you know things will change, and we hope to have that water associated with its own water right, so we can call it further down, but that won’t be the case right away.”
An additional benefit to the deal, according to Ely, is that the management of the 1,000 acre-foot pool of water from Aurora may also lead to better management of a 3,000 acre-foot pool of water also available in the Independence Pass-Twin Lakes system.
That pool was created to mitigate the impacts to the Roaring Fork River from diversions by the Fry-Ark Project on Hunter, Midway, and No Name creeks, which drain into the Fork in central Aspen. And while Twin Lakes releases the water down the Roaring Fork, releases from the Fry-Ark Project replace the water in Twin Lakes Reservoir, where both transbasin diversion systems can send water.
For years, the water from the 3,000 acre-foot pool has been released at a rate of 3 cfs on a year-round basis and has not been timed to help bolster low-season flows. Now, given the greater cooperation over the management of the 1,000 acre-foot pool from Aurora, how the 3,000 acre-foot pool from Fry-Ark is managed may also change, to the benefit of the river.
Aspen Journalism is collaborating on the coverage of rivers and water with The Aspen Times. The Times ran a shorter version of this story on Tuesday, June 12, 2018.
May 8, 2018, a status conference is held in the two cases in front of the water court referee. The city must respond to opposer’s settlement proposals by June 1. The next status conference is set for June 29. Meanwhile, the City of Aspen’s two due diligence applications remain before the water court referee, in a quasi-administrative, non-trial-track status.
May 24, 2018, A staff memo regarding stipulation agreements on the water rights is published by the city. The packet for a May 29 staff meeting also includes a proposed resolution.
The title of the resolution is “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY’S ATTORNEYS TO EXECUTE STIPULATIONS WITH OPPOSERS TO THE DILIGENCE CASES FOR CONDITIONAL WATER STORAGE RIGHTS ON CASTLE AND MAROON CREEKS ON BEHALF OF THE CITY OF ASPEN, COLORADO.”
May 29, 2018, The Aspen city council votes unanimously to approve agreements with five opposing parties in the Castle and Maroon creek cases. Agreements have yet to be reached with the other five opposing parties.
The city issues a press release with the headline, “City Council Votes to Support Moving Conditional Water Rights off Wilderness Areas.”
As of May 29 there were stipulation agreements signed by five parties. Three of those parties are in both the Castle and Maroon creek cases. Below is a list, with links to the agreements signed to date, and made public by the city.
The Pitkin County stipulation is listed at the top, as it is the most restrictive of the stipulation agreements yet signed. It eliminates the use of the county-owned Moore Open Space as a potential storage site, while the earlier agreements with other parties include it.
Agreements were not signed by May 29 with five other opposing parties, three of whom are in both cases:
USFS – Maroon Creek Reservoir
USFS – Castle Creek Reservoir
American Rivers – Maroon Creek Reservoir
American Rivers – Castle Creek Reservoir
Trout Unlimited – Maroon Creek Reservoir
Trout Unlimited – Castle Creek Reservoir
Larsen Family LP – Maroon Creek Reservoir
Roaring Fork Land and Cattle Co. – Maroon Creek Reservoir
May 30, 2018, Western Resource Advocates issues a press release about the city’s vote, with the headline, “Conservationists reach settlement with Aspen to permanently move water rights for dams out of Maroon & Castle Creeks.”
WRA is also encouraging people to sign a thank you card to the city of Aspen, saying “We’re celebrating a landmark agreement two years in the making: the City of Aspen has agreed not to build dams on Maroon and Castle Creeks!”