American Whitewater and Western Resource Advocates have joined a long list of other parties in state water court now scrutinizing an application from Glenwood Springs to create water rights for three new whitewater parks on the Colorado River.
The two conservation groups were allowed on June 6 by water court judge James Boyd to intervene in the case, even though they had missed the original deadline to do so.
Glenwood Springs applied for a new water right on Dec. 31, 2013. The 60-day deadline to file a “statement of opposition” in the case was Feb. 28.
The court received 13 such statements, which despite their name, also can be a way for other parties to conveniently monitor a case or actually be in support of an application.
Both American Whitewater and Western Resource Advocates support Glenwood’s application, which would secure a right to a “recreational in-channel diversion,” or RICD, in which river water is diverted through concrete structures embedded in a river channel, but otherwise not diverted or consumed.
The conservation groups said they should be allowed to join the case because they were concerned, in part, about Glenwood’s resolve in water court “to pursue a full suite of flows” after seeing statements of opposition come in from Aurora, Colorado Springs and other powerful water interests.
“We were a little surprised by how much opposition there was, especially from some of the heavy hitters on the Front Range,” said Rob Harris, a staff attorney with Colorado Resource Advocates who was the lead attorney for both his organization and American Whitewater. “We just wanted to make sure that the city had some allies and that voices in support of recreation were heard.”
Three parks, six waves
Each of the three whitewater parks Glenwood Springs is proposing to build on the Colorado River would have two concrete control structures embedded into the river to create ridable waves — as well as clear passage — for everything from commercial rafts to pool toys.
The uppermost park on the river would be at the No Name rest stop on I-70, at exit 121. The rest stop area includes both CDOT property and private land along the river.
The next spot downstream is at Horseshoe Bend, where I-70 goes into a short tunnel. The location can be accessed off of exit 118 at No Name, or from the bike path that runs along the river.
“The city of Glenwood Springs owns the land along both banks of, and under, the river where the RICD control structures would be constructed,” says a report by S2o Design & Engineering about the Horseshoe Bend site. “Immediately upstream, the Bureau of Land Management manages the property and has developed a covered picnic area and boulder weir to produce a large river eddy.”
Expressions of concern
The concerns of the parties in the case that had filed statements of opposition were shared in a case management conference in late April. The water court referee, Holly Kirsner Strablizky, filed minutes from the conference call with the court on April 24.
The attorney for the Homestake Steering Committee, which is an entity jointly controlled by the Front Range cities of Aurora and Colorado Springs, “stated that it is an upstream water rights owner,” according to Strablizky’s minutes. “It is [involved in case] to ensure that there are appropriate terms and conditions to address impacts on compact and compact carve-outs.”
Such “carve-outs” allow for flexibility in the face of a “compact call” or a demand from downriver states for more water, while another type of “carve-out” allows for some future level of new water development by upstream parties outside of any new restrictions created by a proposed RICD. Such carve-outs were agreed to in the decrees for recently completed RICDs in Basalt, Carbondale and Grand County.
“It was an approach to settle those cases short of litigation,” said Chris Thorne, an attorney with Holland and Hart, which is representing Glenwood Springs in the water court application and also represented Carbondale in its RICD case. “The carve-outs preserve the ability for some reasonable additional water development upstream of the proposed boating parks. And to address concerns of upstream municipal water suppliers about protection of future water supply.”
Thorne added that he wasn’t suggesting that such a carve-out would be necessary or appropriate in the case of the Glenwood RICD.
On April 30, American Whitewater and Western Resource advocates filed a joint statement of opposition and a motion to intervene.
The two nonprofits, referring to themselves as “the conservation groups,” told the court they “should be afforded the opportunity to defend this important proposed RICD.”
Under state law, only certain governmental entities, such as cities and counties, can apply for a RICD, which means that conservation groups cannot do so on their own.
The two groups told the court they “cannot rely on the city of Glenwood Springs to adequately represent their interests in this litigation” and that it “is feasible that changes in policy or administration may cause the city of Glenwood Springs to shift away from a zealous defense of the full suite of flows.”
Harris, the attorney for the conservation groups, said it was important in the motion to draw a distinction between the interests of the city and the conservation groups, but that he currently doesn’t doubt Glenwood’s resolve in the case.
All the other parties in the case consented to the effort by American Whitewater and Western Resource Advocates to join the case. However, in consenting, Aurora and Colorado Springs also went on record stating legal reasons why the motion to intervene should be denied.
The two Front Range cities said the conservation groups role in the case should be “limited accordingly” and that they would “monitor the participation” of the conservation groups to make sure they didn’t “take over” the case.
Over 1,250 cfs
Denver Water, another powerful Front Range water entity, also consented to the groups joining the case, but it did so without formal comment.
At the April 24 case management conference, an attorney for Denver Water “stated that it is OK with 1,250 cubic feet per second (cfs) and it is not sure about the larger flow claims,” the referee wrote in her minutes.
The reference to 1,250 cfs is a reference to the proposed base flow of the three whitewater parks, and, not coincidentally, also to the 1,250 cfs water right that has been exercised by the Shoshone hydropower plant, six miles up river of the proposed parks, since 1907.
A base-level instream flow right of 1,250 cfs is proposed for all three of the whitewater parks, and that flow would be in effect from April 1 to Sept. 30.
A secondary flow right of 2,500 cfs would be in place for 46 days, between April 30 and July 23. And a flow of 4,000 cfs would be in place for five days between May 11 and July 6.
“Based upon interviews with the boating community, the response was a desire to maintain a flow of 2,500 cfs as long as possible and to have a late season event around the Fourth of July when other whitewater parks do not have reliable flows,” says a report from Wright Water Engineers.
The proposed 183-day water-right season includes 46 days at levels above the base flow of 1,250 cfs, and it’s not clear if that will be acceptable to Denver Water, which agreed to the 1,250 cfs level for a new Glenwood RICD in the recently signed Colorado River Cooperative Agreement, but not to new water rights above that level.
No threat to water developers
The report also concluded that “there are numerous existing transmountain diversion projects upstream of the Glenwood Spring’s RICD that are senior to 2013. Ongoing efforts to firm up the yield of these projects would not be adversely affected by the city’s RCID claims.”
And it concluded that the RICD “has no effect on the ability to develop additional water supplies on the lower Colorado River, including the Roaring Fork River, the White River, the Yampa River, or the Gunnison River.”
In the April 24 case management conference, an attorney for CDOT said “it needs to ensure that proper channels are pursued in obtaining right to access,” according to the water referee.
An updated report on the design and engineering of the parks, submitted to the court by S2o Design & Engineering on May 30, noted that “a collaborative process with CDOT has been initiated to identify cooperative management opportunities at the rest area to provide for parking, access and site facilities use.”
There is another agency that is concerned about the Horseshoe Bend proposal.
An attorney representing the Bureau of Land Management said “it is [involved in] the case to ensure that the applicant obtains access properly,” according to the water referee.
The location of the third whitewater park is at the upper end of Two Rivers Park, just above the confluence with the Roaring Fork River, which flows into the Colorado a few blocks west of downtown Glenwood.
In all, the three parks are located across 3.25 miles of the Colorado River. The “Glenwood wave,” an existing whitewater park in West Glenwood, is downstream of the three proposed parks.
The parties in the water court case now have until Sept. 12 to provide comments to Glenwood Springs on the new reports about the proposed parks. The Colorado Water Conservation Board has been granted until Feb. 2015 to submit its required findings on the city’s application.
And, perhaps optimistically, the water referee’s April 24 minutes state that “all parties believe the case can remain in front of the referee” and not require the involvement of James Boyd, the water court judge in Division 5.
“We’re optimistic that when folks sit down at the table, they can see that they can protect their own interests with little impact on the application,” said Harris of Western Resource Advocates. “And we’re certainly open to hearing any good faith concerns the opposers might have.”