Environmental Protection Agency officials said Wednesday they are deciding where to haul sludge from the temporary water-treatment plant for Gold King Mine wastewater.
The EPA periodically has updated the communities of San Juan and La Plata counties in recent months as a Superfund proposal moves forward, and most aspects of the agency’s work has been in the evaluation stages thus far.
On Wednesday, the EPA told La Plata County commissioners that the agency is considering whether to dispose of nontoxic sludge produced by the temporary treatment plant at a mining district site or a landfill.
La Plata County Commissioner Brad Blake said he opts for the least expensive option.
“It’s not toxic waste, so it can go anywhere,” he said.
Commissioners inquired about the life of the plant, which is supposed to end this fall.
“It was designed and constructed to be an interim measure,” Superfund project manager Rebecca Thomas said. “We’ll continue to evaluate options, but we’ll come up with a comprehensive remedy for the entire mining district.”
Thomas said for now, the temporary plant is operating as usual, and a long-term solution could include a permanent water-treatment facility.
The EPA also is evaluating what Superfund designation will mean for private property owners, officials said Wednesday.
The state of New Mexico has filed a lawsuit against the state of Colorado in U.S. Supreme Court, adding to a string of legal actions in response to the Gold King Mine spill.
New Mexico Attorney General Hector Balderas filed the complaint on Monday, alleging that Colorado’s policies and practices led to the Aug. 5 incident. In May, Balderas’ office filed similar lawsuits against the U.S Environmental Protection Agency and two mining companies.
The case against Colorado focuses on the state’s attitude toward the threat that abandoned mines pose to downstream communities. The Gold King Mine spill north of Silverton, Colo., occurred when a crew from the EPA working to address wastewater seepage accidentally released 880,000 pounds of heavy metals into the Animas River.
New Mexico is demanding reimbursements for the costs incurred during the emergency and for cleanup efforts moving forward. The complaint also calls for Colorado to claim partial responsibility for the spill.
“It was Colorado’s permitting process that ultimately failed,” said Tania Maestas, New Mexico’s Deputy Attorney General for Civil Affairs. “It was a complete catastrophe that flowed downstream.”
The lawsuit points to a 1996 agreement between Colorado and the Sunnyside Gold Corp., a major mining company in the Bonita Peak Mining District outside Silverton, that allowed the mining company to plug leaking mine shafts, rather than operate expensive water treatment plants. This caused wastewater to build inside abandoned tunnels, eventually spilling out of sites that are higher in elevation, according to the complaint.
These new sources of seepage garnered the attention of the EPA, which in 2011 proposed designating the mining district outside Silverton, Colo., as a Superfund site to spur cleanup efforts. According to the complaint, however, Colorado fought the designation due to its negative connotations, “choosing instead to protect the local tourism and skiing economy.”
“While Colorado refused to act, the volume of water and hydraulic pressure within the Gold King Mine continued to build, setting the stage for the catastrophic blowout,” the complaint states.
The lawsuit also takes issue with Colorado’s plans moving forward.
“It’s the response that’s equally, if not more, frustrating,” said Ryan Flynn, secretary of the New Mexico Environment Department.
Flynn said Colorado has focused on the impacts to recreation and tourism, rather than addressing the needs of downstream stakeholders in New Mexico. He said the move to sue is a last resort, but efforts to communicate outside of court have failed to produce results.
Colorado’s Attorney General Cynthia Coffman, however, expressed concern that the lawsuit will cost unnecessary amounts of time and money.
“I have done what I can within the bounds of my power and authority as Attorney General to resolve this matter without litigation,” Coffman said in a statement on Wednesday. “It could take years, even decades, to resolve this.”
Flynn said he thinks New Mexico has a strong case, though, and hopes that it will prompt action.
“Our job is to protect New Mexico,” he said. “All we want is to start getting results.”
Flynn added that he is open to further discussion if Colorado chooses to rethink its response. He said the issue lies in the state government, not with regional officials north of the state border.
Kim Carpenter, San Juan County’s executive officer, echoed this sentiment. He said he has worked well with county officials in Colorado, but doesn’t agree with how higher-ups in Denver have handled the situation.
“At times, it seems the state doesn’t think this is a big deal,” Carpenter said.
The gravity of the situation, however, is one of the main points that New Mexico has consistently argued. Flynn said the mine spill caused immense economic and environmental damage and will continue to pose problems in the future.
“We want communities to be compensated for their losses,” Flynn said. “When people think about the Four Corners, I don’t want the image to be a yellow river.”
The lawsuit seeks restitution for the financial damages suffered in the wake of the spill, including declines in tourism and crop losses for farmers.
Maestas said the case against Colorado doesn’t specify a dollar amount. She said the federal tort claim against the EPA asks for $154 million, and it would be up to the EPA to determine how much Colorado would pay.
The lawsuit, filed in the U.S. Supreme Court this week by Attorney General Hector Balderas and outside attorneys hired by the state Environment Department, seeks reimbursement for all costs – including “stigma” damages – connected to the mine spill, in which more than 3 million gallons of toxic waste was spewed into a tributary of the Animas River and flowed into New Mexico.
“The Gold King Mine release is the result of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price,” Balderas said in a statement.
Meanwhile, Environment Secretary Ryan Flynn described the lawsuit as a last resort, saying his agency’s attempts to negotiate a deal with Colorado officials have been unsuccessful.
“We can’t continue to wait,” Flynn told the Journal . “At some point, we have an obligation with the citizens we’re serving to move forward.”
Specifically, the lawsuit alleges a Colorado department signed off on a plan to block the tunnels of a closed mine in the same network as the Gold King Mine with concrete plugs – or bulkheads – to try to block acidic wastewater from escaping, the lawsuit alleges.
The plan essentially turned the mine into an “enormous wastewater storage facility” and Colorado environment officials were aware of the possible risk of a blowout, the suit claims.
“It’s going to be very difficult for Colorado to explain why they ignored these warnings,” Flynn said…
In addition to the lawsuit against Colorado, New Mexico has also filed a lawsuit in federal court against the EPA and the owners of the Gold King Mine that seeks more than $136 million in damages. That amount would include money to pay for economic losses the state attributes to the mine spill, specifically in the tourism, recreation and agriculture sectors.
New Mexico is no stranger to lawsuits with its neighbors. The state has also been embroiled in a lengthy legal battle with Texas that hinges on whether groundwater pumping in southern New Mexico is draining the Rio Grande and depriving downriver water users in the Lone Star State from their rightful share.
That lawsuit also was filed with the U.S. Supreme Court, as is typically the case when one state sues another.
In the Wednesday interview, Flynn acknowledged interstate lawsuits are typically not resolved quickly and said there’s a good likelihood the case could still be pending when Gov. Susana Martinez’s second term expires at the end of 2018.
“Anytime you go to court, there’s some risk,” Flynn said, adding that New Mexico officials are still open to negotiating with Colorado and hopeful the case might be resolved out of court.
Both mine spill lawsuits are being driven by Attorney General Balderas, a Democrat, working with the administration of Martinez, a two-term Republican.
This week’s lawsuit claims Colorado’s actions have “prejudiced New Mexico’s economy, finances and natural resources, and have injured the health, comfort, safety and property of New Mexico’s citizens.”
Although New Mexico officials have taken a hard-line approach to the Gold King Mine spill fallout, some Colorado officials have said their testing shows no risk to human health from the contaminants.
Colorado Gov. John Hickenlooper even drank water from the Animas River just days after the spill – after adding an iodine tablet to purify the water – in an attempt to downplay environmental concerns.
“If that shows that Durango is open for business, I’m happy to help,” Hickenlooper said, according to the Durango Herald.
From the Associated Press via the The Denver Post:
The New Mexico Attorney General’s Office and the state Environment Department announced late Wednesday that they filed a complaint against Colorado with the U.S. Supreme Court.
It marks the second major legal salvo fired by New Mexico in the wake of the August 2015 spill, which fouled rivers in three western states with a bright-yellow plume of arsenic, lead and other heavy metals…
New Mexico is also suing the U.S. Environmental Protection Agency and the owners of two mines.
“We had hoped EPA and Colorado would try to work with us and come up with solutions,” New Mexico Environment Secretary Ryan Flynn told The Associated Press. “But the state of Colorado, its leadership, seems intent on defending EPA at every turn and is unwilling to work with us to move forward in a meaningful manner.”
The EPA has declined to comment on the litigation, but it has said repeatedly that it takes responsibility for the cleanup.
Colorado officials previously declined to comment on New Mexico’s claims, citing possible litigation…
The EPA said water quality quickly returned to pre-spill levels. But New Mexico officials and others continue to warn about heavy metals collecting in the sediment and getting stirred up each time rain or snowmelt results in runoff.
The lawsuit against Colorado details the results of recent soil samples taken north of Durango, Colorado, where discolored sediment was visible at residential properties. The results showed lead at concentrations far above the risk level established by EPA.
The lawsuit also outlines the business and regulatory history of the Sunnyside Gold Mine, where operators were allowed to install plugs — or bulkheads — that eventually caused wastewater to back up and fill the mine and its workings. That led to problems at nearby mines.
The shuttering of a water treatment plant for mine discharge further aggravated the situation, according to New Mexico officials.
By 2011, acidic drainage from four inactive mine sites at and above the former treatment plant — including at Gold King Mine — was pouring into Cement Creek, a tributary of the Animas River, at a rate of nearly 850 gallons per minute, according to the lawsuit.
“The Gold King Mine release was the coup de gr—ce of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price,” the lawsuit states.
New Mexico contends Colorado’s past, present and ongoing conduct and the resulting contamination amounts to a public nuisance.
Attorney General Hector Balderas said New Mexicans rely on the Animas and San Juan rivers for drinking water, ranching, farming, tourism and more, so communities must be compensated and protected from future health and safety risks.
The state is seeking damages and demands that Colorado address the problems at the mines.
New Mexico and Colorado officials had been in talks for months, and Flynn said the state is still open to discussions in hopes of settling with the EPA and Colorado.
“We’re here out of necessity,” Flynn said. “I would prefer to spend time and resources resolving this rather than duking it out in court.”
Click here to read the report from the Colorado River Research Group. Here’s an excerpt:
Tribes with reservations in the Colorado River Basin currently have quantified rights to divert about 20 percent of the basin’s annual average water supply, while over a dozen others still have outstanding claims. Yet, as the Colorado River Research Group has noted before, existing uses of basin water already exceed reliable supplies, even though many tribes are not fully using the water already allocated to them. Understandably, tribes want and deserve to enjoy the full benefits of their rights. Other water users, however, are concerned about how tribal water rights and uses integrate with already existing and planned future non‐Indian uses of basin water. These competing interests have long been viewed as on a collision course. But, in fact, much progress has been made over the fifty plus years since Arizona v. California (1963) to satisfy tribal rights without displacing other existing uses. It has not been easy.
Making additional progress will also be difficult, but is an essential step forward in basin management. This reality jumped from the pages of the 2012 Colorado River Basin Water Supply and Demand Study (“Basin Study”), and is being explored further in an ongoing joint study by the Bureau of Reclamation and the Ten Tribes Partnership, now tentatively scheduled for completion in December 2016. Given the salience of tribal rights—both to tribal and non‐Indian users—this article provides an introduction to what we currently know about tribal water rights in the basin. This article provides context for emerging policy discussions focused on providing tribes with more flexibility and opportunity in the use of their water, perhaps through voluntary transfer mechanisms such as leasing and forbearance agreements.
The Mancos Water Conservancy District board voted to put up for lease 150 acre-feet of water from the Jackson Gulch project, district Superintendent Gary Kennedy said.
The board approved the water lease at their meeting June 14. District officials will be going out to see if people need extra water, though they might not need extra because of the wet spring season, Kennedy said.
The board and the Federal Bureau of Reclamation found agreement on project water rights for Jackson Reservoir, Kennedy said. The rights will be assigned to the water district from the federal government, he said.
Also at the meeting, the board discussed the title transfer for the project, Kennedy said. The title transfer is an ongoing issue that will take many years to resolve.
The district had hoped to complete some appraisals of land associated with the project this summer, but that hit a snag, Kennedy said. The cost for the appraisals is almost double what the board anticipated, and another government agency will be involved, he said. Even if the board decides to pay the new price for the appraisals, Kennedy could not say how long that would take.
The district is planning a party to celebrate 75 years of the water district. The celebration will take place July 16 at noon at Jackson Gulch Reservoir on Road N north of Mancos. There will be a barbecue as well as some educational information on the history of the district. RSVP is requested by emailing Kennedy at firstname.lastname@example.org or calling 970-533-7325.
District officials also will be working on clearing the inlet canals to the reservoir this summer, Kennedy said. The reservoir’s two drop chutes also need some work, but that might not take place until 2019, when the district could receive money from the federal government to rehabilitate the chutes, Kennedy said.
Board member Boe Hawkins was reappointed to a four-year board term at the meeting.
The reservoir’s jet valve was rebuilt over the winter, and some safety issues came up with the valve, Kennedy said. After investigation, the valve was operating normally and there were no major problems, he said.
The hydro lease of the power permit for the project is still moving forward and the board is still working on it, Kennedy said. At next month’s board meeting July 12, board members will elect officers.
Runoff on the Colorado River this past week has pushed Lake Powell to its highest level in four years. When the runoff ends in early July, the lake will be near 3,620 feet above mean sea level (msl).
Even though runoff in 2016 was slightly below normal it was enough to boost Lake Powell 30 feet from the spring low in April. By July, the lake level will be 65 feet higher than April 2005 when the lake dropped 145 feet below full pool.
As sure as winter snows give way to spring runoff each year to replenish our rivers, lakes and waterways, Lake Powell naysayers have flooded the opinion pages of newspapers with drain-the-lake propaganda. The reality is that Lake Powell has continued to hold its own for over a decade now and continues on a quiet upward trend toward the lake’s normal 50-year elevation of 3640 feet msl.
“Some good news is that despite 15 years of drought, Lake Powell is storing more than 4.3 trillion gallons of water and the reservoirs above Lake Powell in the Upper Colorado River Basin have filled to near 90 percent of capacity,” said Tiff Mapel, Friends of Lake Powell spokesperson…
“The silent but important statistic is that Lake Powell has provided extra water to Mead in five of the past 10 years, including the giant release of 12.5 maf in 2011,” Mapel said.
These increased flows have pushed the 10-year rolling average of Upper Basin deliveries to 89.4 maf – significantly more than the obligated base flow of 82.3 maf. The difference is almost an extra year’s worth of water.
If Lake Powell is rising, why does Lake Mead continue to drop?
Eric Kuhn, general manager of the Colorado River Water Conservation District, recently reported the problem is that Lake Mead continues to operate with a water budget deficit of up to 1.2 million acre-feet per year.
This deficit exists because of water delivery inefficiencies and evaporation in the Lower Basin. Lake Mead releases more water downstream than is actually allocated to California, Arizona and Nevada because of timing and other delivery inefficiencies. In addition, Lake Mead and the other downstream lakes, located in the hot Mojave Desert where temperatures can soar to 120 degrees, experience an evaporation rate that can exceed 0.6 million acre-feet per year. Together, these operating losses result in a water deficit for the Lower Basin that approaches 1.2 million acre-feet per year.
To make up for this water budget deficit, the Lower Basin has traditionally relied on wet hydrological events in the Rocky Mountains to periodically fill and then overflow the Upper Basin reservoirs sending additional water cascading all the way down to Lake Mead. This occurred in the mid-1980s and then again in the late-1990s which helped to replenish the Lower Basin system of reservoirs.
Today as Lake Mead continues to drop, the Upper Basin is doing its fair share to increase water deliveries downstream in accordance with existing reservoir-operating criteria between the two basins. However, the additional deliveries by the Upper Basin have largely been lost in the negative media stories about the Colorado River and the ongoing drought.
“The real concern of the Colorado River is the failure of the Lower Basin to account for its system delivery losses and the continued reliance of overflowing water deliveries by the Upper Basin during times of hydrologic plenty,” Mapel explained. “With economic stakes high, it is a risky gamble and a choice not considered sustainable in light of ongoing drought conditions.”
Droughts do tend to go in cycles. The multi-year Texas drought turned to flooding conditions in 2016. The fickle nature of the Colorado River and the need to store water in reservoirs during periodic wet periods was not lost on our forefathers. When there is abundant rainfall and the reservoirs are full, the infrastructure on the Colorado River may seem redundant but water managers rely on this stored water to make up the difference when the heavens don’t cooperate.
“Lake Powell is doing exactly what it was intended and designed to do,” said Marlon Duke, spokesperson for the Bureau of Reclamation’s Upper Colorado Region. “It is storing water for Upper Basin states and helping ensure the Upper Basin can meet its obligation deliveries to the Lower Basin without curtailing entitled use by Upper Basin water users.”
In the late 1990s, when Lake Powell and Lake Mead were both full to near capacity, environmental groups hoping to drain Lake Powell floated the notion that two large reservoirs on the Colorado River were redundant and unnecessary. They considered Lake Mead large enough to withstand a severe drought. They also claimed that keeping Lake Powell full could result in a catastrophic dam failure with significant loss of life and property downstream.
In retrospect, it was simply another self-serving attempt to drain Lake Powell and restore Glen Canyon.
“When the climate tables turned in the year 2000, the folly of this proposal became apparent,” Mapel said. “Thank goodness we had Lake Powell. Simply put, Lake Powell is a critical asset. It has kept Lake Mead from running empty and it also provides important regional recreational resources.”
The notion to drain Lake Powell is a shallow idea that ignores important economic, political and resource consequences. According to officials at the Bureau of Reclamation, the loss of hydropower from Glen Canyon Dam would have a major negative impact to the western power grid and compromised rural electric rates. The revenue loss for the Upper Basin would, undermine repayment schedules for irrigation projects in the Upper Basin and reduce funding for salinity control efforts, improvements to aging irrigation systems and jeopardize existing endangered fish recovery programs.
Additionally, draining Lake Powell would destroy a thriving and important regional economic engine. Arguably the most scenic lake in America, Lake Powell attracts millions of people each year to its inviting waters, the scenic landscape, comfortable Colorado Plateau temperatures and an unbounded sense of adventure. Lake Powell is a world class experience that offers a multitude of experiences including recreational boating, exploration of 96 lush and scenic canyons, wakeboarding, kayaking, camping, photography and outstanding fishing opportunities whether on the lake or the downstream cold water, blue-ribbon trout fishery at Lees Ferry.
The team is injecting fluorescent, non-toxic, green dye into water that flows into the collapsed mine shaft on Illinois Gulch Road above Breckenridge. They’re then observing and sampling the water downstream to see how much of the water filters through the mine and emerges on the other side. The hill has been mined all the way through and is rife with tailings and collapsed mine shafts. Contaminated water — a toxic tangerine from heavy iron — trickles out of the mine openings and along the ground, staining the dirt and rocks in its path.
“Basically, the study is to figure out how the water is draining from the mine sites,” said Katherine Jenkins of the Environmental Protection Agency (EPA).
A group of partner agencies is managing this several dayslong water tracer study at the Puzzle Willard Mine. The Illinois Gulch Tracer Study — led by Colorado Department of Natural Resources Division of Reclamation Mining and Safety and assisted by the Colorado Environmental Protection Agency, the Colorado Department of Public Health and Environment, the U.S. Fish and Wildlife Service, Trout Unlimited, the U.S. Geological Survey and the U.S. Forest Service — is being conducted to trace the path of water flowing in creeks down Boreas Pass through the mine and out three adits, or openings.
At each of the adits downstream, there is an automated sampler that tests for traces of the dye every few hours. After the injection of the dye into the mine site on Monday morning, the team will spend the next 7-10 days testing the water on the other side of the mine for traces of the dye, to see whether the contaminated water was making its way into the surface water in the Illinois Gulch drainage.
Peter Stevenson, of the EPA, explained that the mine runoff presents no danger to the drinking water of Breckenridge residents. He said the water sources for the town are located in other drainages, and everyone who lives up near Illinois Gulch Road uses Breckenridge water. However, a small amount of this water could make its way to Lake Dillon. The stream that runs through the mine is the headwaters of Iron Springs, which feeds into Blue River and then the lake.
At this point in the process, the investigation is intended to establish a baseline of the water quality at the site and then use the data to determine what further steps must be taken.
“After we figure out where the water goes, then we’re going to come together with all of our partners and try to figure out what the next step is,” said Jean Wyatt of the EPA. “We’ve done fish studies, we’ve done macro-invertebrate studies and we’re still compiling all that data,”
When the amount of water that is actually running through the mine is found, the group can assess the situation and determine whether steps need to be taken and, if so, what the best method is for preventing the water from reaching the metals in the mine.
“We have a lot of sampling data from over the years. We need to compile it and review it and look at it. This is a piece of a multi-year assessment,” said Stevenson.
The research team is leaving all its options for mitigation open until this assessment is complete, but they do have an expectation of what may happen to the mine tailings in the area that are not sitting in the drainage water.
“Ultimately, I would expect this to get shaped and capped somewhere nearby,” said Stevenson
ASPEN – Officials at the city of Aspen intend to hold at least one public meeting this summer to discuss the conditional water rights it holds that are tied to potential dams on upper Castle and Maroon creeks.
The city’s next diligence filing for its conditional water rights for the two dams and reservoirs is due in Division 5 water court in Glenwood Springs by Oct. 31. It’s highly unusual in Colorado for a city, or any other entity, to hold a public meeting on a pending diligence filing.
David Hornbacher, city of Aspen director of utilities and environmental initiatives, said that while holding a public meeting is indeed “different,” he is acting at the direction of the city council.
“These are important questions,” he said. “And it’s very much about looking into the future and how do we ensure Aspen has what it needs to continue to thrive and be the place that it is, and what’s the best approach.”
Paul Noto, a water attorney with Patrick, Miller and Noto, which specializes in water law and has represented many clients in the Roaring Fork River watershed, said it was “very unusual” for a city to hold a public hearing about a pending diligence filing.
“I’ve never heard of it, although that’s not to say it’s never occurred,” Noto said. “I’ve just never heard of it.”
If built as currently described by the city’s plans, which were first presented to a water court judge in 1965, the Maroon Creek reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam just below the confluence of East Maroon and West Maroon creeks.
While only about a third of the size of Paonia Reservoir, which can hold 15,553 acre-feet when full, a Maroon Creek reservoir would still cover 85 acres of U.S. Forest Service land about a mile-and-a-half below Maroon Lake.
It would also inundate portions of both the East Maroon Creek and West Maroon Creek trails in the Maroon Bells-Snowmass Wilderness.
The Castle Creek reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the historic town site of Ashcroft.
It would inundate 120 acres of mostly private land between Fall Creek and Sandy Creek and flood a small piece of Forest Service land within the Maroon Bells-Snowmass Wilderness.
Both reservoirs would be located in Pitkin County.
Since 1965, the city has told the state eight different times it intends to build two large dams in pristine locations in the upper Castle and Maroon creek valleys, and it is on the record that the city intends to file a diligence application this fall. In its September 2009 diligence filing the city told the water court “it has steadily applied efforts to complete” the reservoirs “in a reasonably expedient and efficient manner.”
A court official, known as a water referee, agreed.
“To date, the city of Aspen has not needed to construct the storage structures as it has devoted considerable resources to reducing per capita water consumption,” the unnamed referee wrote. (Please see related story).
Private and public meetings
Hornbacher said this week he will hold one private meeting with stakeholders in early July about the dams and at least one public meeting in July or early August, “depending on the level of public interest.”
After presenting information about the water rights and taking questions and suggestions at the meetings, Hornbacher said he would report back to the council in a work session in August or September to get its direction by the Oct. 31 filing deadline.
He said council could direct staff to proceed with the diligence filing and try and keep the water rights on the books for another six years.
Or it could direct staff not to file, or to file a modified application.
Hornbacher said a modified application could mean filing on one dam and reservoir, but not both, or it could mean filing on both reservoirs but changing their size and shape.
It’s not unheard of for entities to walk away from conditional water rights. The Colorado River District made the decision to abandon rights for two large dams on the Crystal River in 2013. And over the last five years, the district has stepped away from a number of other conditional water rights.
Among the stakeholders Hornbacher plans to invite to a private meeting are Wilderness Workshop, Roaring Fork Conservancy, U.S. Forest Service, and Pitkin County.
Wilderness Workshop first reported the city’s decision to hold public hearings in a newsletter it sent to members on June 1. The headline of the article read, “Potential dams on Maroon and Castle creeks still on the books” and a subhead read, “A diligence filing this fall would keep them alive; WW says, ‘No way!’”
Typically, owners of conditional water rights need to demonstrate to the court they meet the “can and will” doctrine – that they can build the proposed water supply project and that they will build it.
The city may also need to meet standards developing in the wake of a Colorado Supreme Court decision in Pagosa Area Water & Sanitation Dist. v. Trout Unlimited.
Alan Martellaro, the Division 5 engineer based in Glenwood Springs, told the city in May, in response to a separate conditional water rights application it filed, that “the applicant [the city] must demonstrate that speculation is overcome per the criteria in ‘Pagosa.’”
“The applicant must demonstrate the proposed appropriation can and will be diverted and put to beneficial use for each of the proposed uses: a) within a reasonable planning period; b) using normal population growth assumptions; and c) the amount claimed is necessary and unappropriated water is available,” Martellaro wrote.
In past filings, the city has left the state with the distinct impression that it intends to build the two reservoirs, especially in the face of the uncertainty of climate change. But it has also left citizens with another impression – that it is simply protecting its water rights, not warming up bulldozers in view of the Bells.
Noto, the Aspen water attorney, says “you can’t have it both ways.”
“It’s a really important point,” Noto said. “You either are moving forward toward completing your project, which is essentially the standard for keeping your water right, or you’re not. And there’s no in-between.”
Noto has represented clients in the past who successfully opposed the city’s proposed hydropower plant on Castle Creek, but said he is not currently representing a client regarding the city’s pending diligence filing.
As such, Noto was willing to talk on the record in the role of citizen and as an experienced local water attorney.
He said he doesn’t agree with the city’s reasoning that a hotter future may increase the need for the reservoirs.
“I don’t buy it,” he said. “To use climate change as a pretext for damming the Maroon Bells and damming upper Castle Creek is not appropriate.”
The city of Aspen recently completed a raw water availability study that concluded that Aspen has sufficient water to meet future municipal demands, but in one of out of 20 years it might have trouble meeting its goal of keeping instream flows of at least 14 cfs in Maroon Creek and 13.3 cfs in Castle Creek.
The language in the water availability study leaves open the door for the city to suggest that building dams on the upper sections of the creeks could help meet its instream flow goals on the lower sections of the creeks.
“What we’re talking about is trade-offs,” Noto said. “Is maintaining an instream flow worth building large dams at the Maroon Bells and upper Castle Creek? Absolutely not. There are other ways that the city could meet the instream flow such as eliminating some irrigation during times of shortage. There are better ways to meet your goals than building big dams. And the people aren’t going to stand for it.”
Noto was asked if he could see a reason why the city should hold on to its conditional water rights on Castle and Maroon creeks.
“I don’t see it,” he said. “I can’t, for the life of me, envision a scenario where it would be good planning or good policy to dam Maroon Bells and to dam upper Castle Creek.”
Wilderness Workshop told its members in its June newsletter that it would be working “to convince the city to abandon the rights to these reservoirs (and we’ll need your help).”
American Rivers is also on the record as opposing the city’s plans to build dams and reservoirs.
“We are absolutely and always will be opposed to new reservoirs on Castle and Maroon creeks,” said Matt Rice, director of the Colorado River Basin Program for American Rivers. “They contradict the values of Aspen and the state of Colorado — values we will fight for.”
American Rivers is a national nonprofit dedicated to river restoration and protection, which fought vigorously against the city of Aspen’s Castle Creek hydro power plant.
Rice said whether or not American Rivers will oppose the city in water court if it does decide to file a diligence application is a strategic decision to be made down the road.
“We think the city’s willingness to have an open, transparent process with citizens is a good thing, if indeed that’s what it is,” Rice said. “There needs to be a sincere and open examination of these projects and what people would be giving up if they were developed.”
Editor’s note: Aspen Journalism, the Aspen Daily News, Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published this story on Monday, June 20, 2016.