Aspen’s deep well application draws interest in water court

The Roaring Fork River, looking upstream from No Problem Joe Bridge, in February 2016. This stretch of river runs along a proposed deep well site.
The Roaring Fork River, looking upstream from No Problem Joe Bridge, in February 2016. This stretch of river runs along a proposed deep well site.

by Brent Gardner-Smith, Aspen Journalism

ASPEN – Six statements of opposition have been filed in water court regarding the city of Aspen’s application for several new water rights, including rights for water from a well that may be drilled 3,000 feet down to reach a major underground aquifer.

The city is seeking rights for the new well, as well as increased diversions of 1.5 cubic foot per second from the Roaring Fork River into the Riverside Ditch, and a storage right of 1.5 acre-feet of water in Snyder Pond, which is in Snyder Park on Midland Ave.

Aspen has also filed an augmentation and exchange plan that involves releasing up to 7.85 cfs of water from the 400 acre-feet of water the city owns in Ruedi Reservoir on the Fryingpan River.

Such back-up water plans can protect junior water rights in the event of a call for water from holders of senior downstream water rights.

The city filed its application on Dec. 31, 2015.

Attorney Paul Noto of the water law firm of Patrick, Miller and Noto, filed a statement of opposition on March 31 on behalf of five entities, including The Wonderful Company, which is owned by Stewart and Linda Resnick.

The Resnicks, said by Forbes to be worth over $4 billion, own an estate east of Aspen that the Pitkin County assessor estimates is worth $15.8 million.

Along with the Wonderful Co., there are four other parties represented by Noto in the case: the Stage Road Homeowners Association; Russell B. Wight, Jr.; Mountain Queen, Inc.; and Rocky Mountain Property II Trust.

In his sparsely worded statement of opposition, Noto suggests his clients’ concerns include the use of the proposed underground water, the use of water from Ruedi Reservoir and the use of an unspecified irrigation ditch that he claims the city “has no ownership in.”

Also filing a statement on March 31, the deadline to do so, was a collection of entities controlled by Daniel Och, the CEO of Och-Ziff Capital Management Group, who owns a home on Willoughby Way.

The entities are called Red Mountain Willoughby Associates, LLC, RMWW Holdings, LLC, RMWW Holdings 25 QPRT, and RMWW Holdings 30 Year QPRT.

“Opposers are the owners, users and beneficiaries of water rights that might be adversely affected by the granting of the application filed herein,” the statement of opposition from the Red Mountain entities states, without raising specific issues with the city’s application. Attorney Mark Hamilton of Holland and Hart filed the statement.

The Stillwater Ranch Open Space Association, the Duroux Ditch Co., the Basalt Water Conservancy District, and a state agency, the Colorado Water Conservation Board, also each filed a statement of opposition in the case.

The Stillwater Ranch Open Space Association is tied to a neighborhood of luxury homes, upstream of the Aspen Club.

The Duroux Ditch Company owns and manages the Duroux Ditch, which diverts water from Hunter Creek and sends it across Red Mountain to Willoughby Way.

The members of the Duroux Ditch Co. include Och, Will Mesdag, a former partner in Goldman Sachs and the founder of Red Mountain Capital Partners, LLC, and Bennett Goodman, a senior managing partner at the Blackstone Group and founder of the company’s GSO Capital Partners.

Christopher Geiger, an attorney with Balcomb and Green representing the Duroux Ditch Co., noted in his statement of opposition that the city must prove that its claimed water rights “are not speculative.”

Gleaning a party’s true intent from a statement of “opposition” can be hard to do, as statements don’t always signal litigious intent. Such statements can be filed as a means to learn more about a proposed new water right or to simply monitor a case.

But attorneys do sometimes suggest project-specific concerns in their statements of opposition.

“Applicant claims a tributary underground water right that is not fully augmented and is thus contrary to law,” was one point made in the filing by attorney Noto.

Noto’s mention of a “tributary underground water right” refers to the city seeking the right to drill down to reach an ancient aquifer sitting in a layer of Leadville Limestone below Aspen.

A map from the city's water rights application showing the location of the potential Queen Street Aspen Well.
A map from the city's water rights application showing the location of the potential Queen Street Aspen Well.

Deep Well

The Aspen Queen Street Well is proposed for a site just off Queen St., in the Prockter Open Space, which borders the Roaring Fork and is across Neale Ave. from Herron Park.

The city is seeking the right to draw 3.3 cfs from the deep well primarily as a back-up water supply, but its application also seeks a long list of potential uses, including the production of geothermal energy.

The city also wants to increase diversions from the Roaring Fork River and into the Riverside Ditch, by 1.5 cfs. Today the ditch, from its head gate near the Aspen Club, winds through residential areas near Riverside Drive, goes under Highway 82, and then passes through Snyder Park.

The city said it intends to use 1 cfs from the additional diversions into the Riverside Ditch to fill, re-fill and freshen Snyder Pond, which is used to irrigate Snyder Park, and to use .5 cfs to irrigate the Prockter Open Space and neighboring Herron and Newbury parks.

But the new water right would also include many other potential uses.

A map from the city's water rights application showing Newberry and Herron parks and Prockter Open Space.
A map from the city's water rights application showing Newberry and Herron parks and Prockter Open Space.

Aug plan

In a proposed augmentation plan, the city proposes to back-up its new water rights when needed by releasing water from Ruedi Reservoir. Ruedi water would protect the ongoing use of the Queen Street Well, as well as the other elements in its application, in the face of a downstream call.

The state, however, has concerns about the city’s proposed water rights.

In its statement of opposition, the CWCB said, “the proposed plan for augmentation and exchange may not replace depletions in the proper time, place and amount, which could injure the CWCB’s instream flow water rights.”

The CWCB holds an instream flow right of 32 cfs in the Roaring Fork between Difficult Creek and Maroon Creek and a right of 30 to 55 cfs, depending on the season, between Maroon Creek and the Fryingpan River.

“Terms and conditions should be included in the decree to ensure that the proposed change will not injure the CWCB’s instream flow water rights,” the statement of opposition from CWCB said.

The city is aware of the concerns of the CWCB and other water rights owners.

Phil Overeynder, an engineer with the city who oversees long-range water planning, said in February that the burden will be on the city to show that its use of water from a new Queen Street Well will not harm any other water rights.

A status conference in the case, number 2015CW3119 in Division 5 water court in Glenwood Springs, has been set for April 28.

Editor’s note:
Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Monday, April 11, 2016.

Please also see: “City of Aspen files for a water right tied to a deep new well”

2016 #coleg: HB16-1392 (Water Banks Administration) update

From The Pueblo Chieftain (Chris Woodka):

A water banking bill being considered in the state Legislature would help farmers keep their water rights while increasing the range of uses.

“Farmers always get the short end of the stick. The state likes to pick on farmers,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.

Farms face a policy of “use it or lose it” that means if water can’t be used on a specific parcel of land, it flows downstream. Water banking could mean about 5-10 percent more water could be put to use each year, according to some estimates.

“Once a farmer deposits the water in this water bank, he can use it in any way within the Arkansas Valley,” Winner explained.

The bill, HB16-1392, is sponsored by Reps. Jeni Arndt, D-Fort Collins, and Ed Vigil, D-Fort Garland, and Sen. Larry Crowder, R-Alamosa. The Lower Ark district is backing the bill as a way of improving on the 2013 legislation, HB1248, that established a pilot program now being used by the Arkansas Valley Super Ditch.

Winner spoke about the bill Thursday with The Pueblo Chieftain editorial board.

Winner expects the water bank to succeed where others have failed because it will be useful to farmers. It allows for short-term leases, either to cities or other farms, that are now possible, but expensive and complicated to execute. No change in water right is required, since the leases would be made under administrative rules under the supervision of the Colorado Water Conservation Board.

“This is a way to bring some land back into production,” Winner said. “The water rights decree never changes, but it provides more options to the farmers.”

The legislation also could advance concepts such as deficit crop irrigation, supplementing sprinklers or well and or partial irrigation of a parcel.

Farmers would be limited to putting water into the “bank” every three years in 10 or using no more than 30 percent of the total consumptive use water supply over that time. Water would not be able to leave its basin of origin. [ed. emphasis mine]

“It makes the water more valuable to farmers,” Winner said

Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters

No “Buy and Dry” and sprawl for Berthoud area farm

Berthoud Auto Storage back in the day
Berthoud Auto Storage back in the day

From the Berthoud Surveyor (John Gardner):

The property will continue to be farmed by a lease agreement with proceeds going back to the county’s Open Lands Department. This deal satisfies the sister’s dream of keeping the property a working farm.

“We just couldn’t stand to see it developed,” [Peggy] Malchow Sass said. “Knowing that it’s going to stay a farm is really satisfying to us.”

The water for the property fills the Handy Ditch that gets water from the Big Thompson River, Malchow Sass said, adding that it’s positive to keep the water with the land, not only for the farm, but for all the other nearby ranches and farms that utilize the Handy Ditch water.

“By leaving the water in the ditch enables many farmers along the way to get their water more easily; the more water there is in the ditch the more easily it is for farmers to get their water,” she said. “That’s a benefit directly to the Berthoud area.”

Per the agreement, the water will continue to be used on the property seven out of 10 years but will also be available to local municipalities during times of drought. Acquiring the water rights is an innovative aspect of the purchase, according to Larimer County Commissioner Tom Donnelly.

“I think this is a great opportunity to really talk about what we want to do with water and how we want to see water addressed,” Donnelly said. “The last thing we want to see is a lot of irrigated farm land bought then dried up. We want to make sure that we keep some of those resources with the land so that they can be used in perpetuity.”

Craig Godbout, program manager for the Colorado Water Conservancy Board’s Alternative Transfer Methods grant program, agreed with Donnelly, saying the CWCB’s mission is to help preserve irrigated Ag land. And this is one of the first agreements that will have the water available for use by municipalities during time of drought.

“[Agriculture] is our second biggest industry contributing to our economy here in the state, and this project fits in really well with the state water plan because it helps close that municipal-industrial gap without permanent Ag dry-up,” Godbout said.

This is only the second alternative transfer of water agreement that’s been completed, according to Godbout, and it also creates a new mechanism that can be used as a model for future projects. It’s also an innovative way for the county to explore partnerships with municipal partners and some local farmers, Donnelly said.

“I think we’re doing some groundbreaking work here,” Donnelly said.

The property consists of high quality agricultural soils, with approximately 188 irrigated, 18 pastures and five farmstead acres, according to a natural resources department report. Two homes remain on the property; one built in the 1860s and the other built in 1947. There’s also the scenic red barn, once used to milk cows, located at the farm’s entrance, and a beat shack that was built in the late 1800s.

This land adds to the county’s open space catalog. The county’s interest in this particular parcel grew from its updated 2015 Open Space Master Plan that included citizens’ request for preserving irrigated farm and agriculture land according to Kerri Rollins, Open Lands Program manager.

“When we looked at our inventory across the board, we’ve done a whole lot of ranchland, we’ve done a really good job with ranchland; we’ve bought a few irrigated farms and conservations easements that we own, but they are certainly much smaller,” Rollins said. “So this opportunity happened to come along at the right time and at the time of updating our master plan. We’re excited to be moving forward with it.”

Donnelly credited the county’s Agricultural and Natural Resources Department for its work on making this deal happen and said that this deal has a wealth of opportunities. One of those opportunities could include an educational site for the Thompson School District’s resurrected Future Farmers of America program, where students who could use the land for a hands-on approach to agriculture, or using the farm as an incubator for organic farmers.

The Malchow family has worked with the Berthoud Historical Society to preserve some of the property’s historic features, including the beet shack and a pioneer grave.

One of the oldest ditches in Larimer County, the Eaglin Ditch, is located on the property. And the property also is located within the medium-to-high regional trail priority area for the Berthoud to Carter Lake Regional Trail Corridor…

The county’s Open Lands Department is actively pursuing grant funding to reimburse a portion of the county’s investment to the conserve this property and has already received a $178,425 grant from the Colorado Water Conservation Board to develop the Alternative Transfer Mechanism and water-sharing agreement.

The county will pay $8.4 million for the land and its water shares with the intent of keeping it an active farm and making the water available to municipal providers in drought years. The land is valued at $1.6 million while the water rights are valued at nearly $6.9 million.

Rollins attended Tuesday’s Berthoud Board of Trustees meeting and requested a $100,000 contribution from the town’s Open Space Tax Dollar fund to help pay for the land acquisition. Trustees advised town staff to see what could be done to participate in this partnership.

The county is also seeking contributions through Great Outdoors Colorado and a private foundation, according to a report from the Department of Natural Resources. The land purchase will be finalized in April.

#COWaterPlan: How #Colorado is trying to get beyond zero-sum water wars — The High Country News

Here’s a column George Sibley writing for the The High Country News. Click through and read the whole thing. Here’s an excerpt:

The self-styled sensible people today seem to take it for granted that Americans have lost any capacity for working through difficult problems, especially where cultural differences are concerned. That attitude has certainly surfaced in response to Colorado’s water planning process. Given the absence of additional unappropriated water, the sensibles say, more water for one group means less water for other groups, an unacceptable zero-sum situation, especially across Colorado’s transmountain and rural-urban “divides.”

Colorado historian Patricia Limerick lent credence to that zero-sum thinking in her contribution to a “Citizen’s Guide to Colorado’s Transbasin Diversions,” published by the state’s Foundation for Water Education. “There is no moral algebra,” she said, “for calculating whether retaining water to support commercial development on the Western Slope is better or worse than transporting water to support commercial development on the Front Range.”

Her statement reflects the first-come-first-served approach of metropolitan Denver toward West Slope water until late in the 20th century. It is a legal approach under the longstanding “prior appropriation” doctrine (first in time, first in right), but one of questionable morality. Colorado’s big federal transmountain diversions in that same period – the Colorado-Big Thompson and Fryingpan-Arkansas projects – transcended the letter of the law and carefully worked through a more just process that resulted in compensatory storage and maintenance of “live streams.”

The goal was to ensure that future development of the Western Slope would not be sacrificed, however legally, to the thirsty and more populated Front Range.

If water were the only factor in the equations between Colorado’s “divides,” then zero-sum skepticism might be warranted. But it is never just about water. All uses of water, from irrigated fields to municipal utilities to float trips, also involve the application of money and ideas to water. So when water is moved from Colorado’s rural Western Slope to the Front Range, Front Range money to implement ideas for how to make up that loss should be moved back across the Continental Divide to maintain the equation.

This is already happening to a greater extent than the water-war stories in the press suggest. The Colorado Water Plan that skeptics question coincided with two successful transmountain negotiations that anticipated most of the “conceptual framework” for diversions in the new Water Plan: the Moffat Tunnel Firming Project negotiated between Denver Water and the Colorado River District, acting on behalf of 37 West Slope partners; and the Windy Gap Firming Project between Grand County on the West Slope and Northern Water’s Municipal Subdistrict (the Longmont-Fort Collins urban corridor).

A screenshot from the website for Colorado's Water Plan.
A screenshot from the website for Colorado’s Water Plan.

2016 #coleg: #COWaterPlan finally shows signs of progress — The #Colorado Independent

Colorado Water Plan website screen shot November 1, 2013
Colorado Water Plan website screen shot November 1, 2013

From The Colorado Independent (Marianne Goodland):

Since John Hickenlooper’s administration finalized Colorado’s first-ever statewide water plan in November, watchdogs have been wondering when — and if — state officials might start putting the document into action.

Some had feared the issue, which is likely to irk at least some of the state’s many competing water interests, might be put off until after the November election. But, alas, there’s at least some forward movement this election year.

This week, state lawmakers are taking a first look at an annual water projects bill that includes at least three items that might trigger some water planning momentum.

The largest? A $5 million yearly transfer to the Colorado Water Conservation Board construction fund “to implement the state water plan.” That money would come from a severance tax “perpetual base” account that had $350 million in the bank as of June.

But what would that $5 million be spent on? The measure, Senate Bill 16-174, doesn’t exactly say, other than it could be “studies, programs or projects.”
Rep. Ed Vigil of Fort Garland, the Democratic chair of the House Agriculture, Livestock and Natural Resources Committee, is the House sponsor on the bill, which was introduced Monday. Asked Tuesday what the state would get for taxpayers’ $5 million investment, he said that was a question he intends to ask the Water Board when the bill hits his committee.

The Water Board, which is part of the state’s Department of Natural Resources, is responsible for implementing the water plan — a pet plan of Hickenlooper, who has said that warding against a massive, mid-century water shortage is a key goal of his second term.

The state water plan, finalized November after two years and more than 24,000 public comments from throughout the state, lacks specifics on what legislation should be proposed or even which specific projects would help Colorado solve a looming water shortage of some one-million acre-feet by 2050.

An acre-foot of water is the amount of water it would take to cover Sports Authority field at Mile High from endzone to endzone with one foot of water. A family of four uses about one acre-foot of water per year, or about 326,000 gallons, according to the U.S. Bureau of Reclamation.

“It’s a step in the right direction, but there’s still not much there in there,” water lawyer Peter Nichols, one of Hickenlooper’s water appointees, told The Colorado Independent as the water plan was being drafted last summer. “There are a lot of platitudes and clichés and nice words like ‘foster,’ ‘develop,’ ‘encourage,’ and ‘coordinate’ in this draft. But those aren’t action words. Those words won’t carry us. They’re not going to meet our water needs for 2050.”

This week’s water projects bill does propose some specifics — albeit relatively small ones in the $20 billion context of the statewide water plan’s projected price tag.

One provision in the measure seeks $200,000 from the Conservation Board’s construction fund to study underground storage, such as refilling aquifers, “along the front range [sic].” That provision matches up neatly with a bill awaiting action from the House Appropriations Committee.

House Bill 16-1256, sponsored by Rep. J. Paul Brown of Ignacio, got a glowing vote of support from the House Agriculture Committee last month. Brown’s bill would task the water conservation board with studying storage possibilities along the South Platte River between Greeley and Julesburg. But if that measure fails to survive the full House, the study could still move forward under the projects bill being proposed this week.

The second specific item tied to the water plan is $1 million to update the Statewide Water Supply Initiative, also known as SWSI (pronounced SWA-sea). That 2010 study, commissioned by the Conservation Board, identified the one million acre-foot water shortage that became the driving force behind creating the state water plan.

But many believe the SWSI figure is too low, perhaps by as much as another one million acre-feet. During the water plan development process, officials on the Conservation Board stated the SWSI study would be updated in the next year or two to more accurately estimate the water shortage Coloradans will face in the future.
The bill is on the calendar for its first hearing in the Senate Agriculture, Natural Resources and Energy Committee on Thursday.

The time to address water planning is before the reservoir run dry.

Dolores River: Southwestern Water files lawsuit over spring minimum flows

Dolores River watershed
Dolores River watershed

From the Cortez Journal (Jim Mimiaga):

In September, the Colorado Water Conservation Board agreed to establish minimum in-stream flows up to 900 cubic-feet per second in spring on the Dolores River between the confluence of the San Miguel River and Gateway.

The new flow standards on the 34-mile stretch are intended to help river health, including three species of native fish: the flannelmouth sucker, bluehead sucker and roundtail chub.

Local water boards objected to the new standard, arguing that the flows were too high and could not be met in drought conditions. In addition, there was fear that water stored in the upstream McPhee Reservoir could be used to meet the standard.

But the CWCB denied their appeal, and the minimum flow plan for the Lower Dolores River was approved. In December, SWCD responded by filing a lawsuit in Colorado’s Division 4 water court in Montrose to try and overturn or modify the flow allocation.

Their lawsuit claims CWCB’s action on the Lower Dolores River exceeds the ISF’s statutory standard of “minimum stream flows to preserve the natural environment” and that it does not protect “present uses” of the water.

It further states that the new in-stream flow is inconsistent with CWCB’s statutory responsibility to develop water for beneficial and future use for state residents, and that the new standard is inconsistent with CWCB’s appropriation of an in-stream flow regime on the San Miguel River.

John Porter, SWCD board president, says it’s time to rethink the in-stream flow program so that some of it is reserved for future growth.

“A small amount, 1 to 2 percent of average in-stream flows, should be held by the CWCB for future domestic uses,” he said during a meeting with the Montezuma County commissioners. “We want to get people talking about the idea.”

The so-called “carve out” concept suggests tapping in-stream flow allocations to provide a more accessible water supply for unforeseen small development projects.

In defending the new Dolores River in-stream flows, CWCB was joined in the lawsuit by Western Resource Advocates, Conservation Colorado, and San Juan Citizen’s Alliance…

The new in-stream flows for Lower Dolores River begin below the San Miguel confluence are as follows: minimum flows of 200 cfs from March 16 to April 14; 900 cfs from April 15 to June 14; 400 cfs from June 15 to July 15; 200 cfs from July 16 to Aug. 14; and 100 cfs from Aug. 15 to March 15.

#ColoradoRiver: Difficulties arise in efforts to save water for Powell #COriver

From the Glenwood Springs Post Independent (Hannah Holm):

A recent Bureau of Reclamation report projects that Western river basins, including the Colorado Basin, are likely to experience a 7-27 percent decline in spring streamflows during this century.

The bureau’s 2016 SECURE Water Act Report to Congress, which can be found at http://usbr.gov/climate/secure/, is just the latest to warn of reduced streamflows in our region as temperatures climb.

The Colorado River Basin has already experienced more than a decade in which more water has been pulled out of rivers and streams for farms and cities than has come back in through rain and snow. As a result, water levels in Lake Mead and Lake Powell have begun to approach critical levels. For Mead, that means dropping too low to reliably meet demands. For Powell, that means dropping too low to generate hydropower and meet downstream obligations.

One of the efforts to head off this looming crisis is the System Conservation Pilot Program, which pays for voluntary, temporary water use reductions. This program, funded by major cities and other water suppliers that rely on Colorado River Basin water, was initiated in 2014 to test the feasibility of voluntary, compensated measures to curtail water use in order to prop up water levels in lakes Powell and Mead. Details on the program can be found at http://bit.ly/1UUSbIC.

Farmers and ranchers in western Colorado are among those who have participated and are considering participating in the program. Agricultural approaches tried so far include foregoing irrigation for part of a season, fallowing ground, leasing water and converting to lower water use crops. Some of these farmers recently met with program funders, researchers and supporters to discuss how the program is working.

The group included representatives of Denver Water, the Colorado Water Conservation Board, Colorado Division of Water Resources, the Nature Conservancy, Trout Unlimited, the Colorado River District, Colorado State University and Colorado Mesa University.

On the positive side, being paid to temporarily fallow land or reduce water use can provide money and time to upgrade aging headgates or other irrigation infrastructure, improve soil health or explore alternative crops.

Some farmers are hoping to use the program to receive income while transitioning ground from conventional to certified organic production, a three-year process that can lead to long-term economic benefits for the farmer. Farmers also like the opportunity to take the lead in figuring out how they could get by with less water, since there is concern that they may have to do so in the future. State law provides that participants in approved conservation programs will not have their water rights diminished as a result.

On the other hand, the first year of the pilot revealed many logistical hurdles to increasing flows into Lake Powell by paying farmers and ranchers to use less water. One major problem is how to ensure that saved water makes it to Lake Powell without being picked up by another water user that was previously short.

A related issue has so far hobbled attempts to lease water under the program. How can you lease water to an undefined recipient for an undefined use? According to some interpretations, this doesn’t square well with Colorado water law.

How to recognize the full value of agricultural water was also discussed. In addition to the need to compensate producers for forgone crop sales, concern was expressed about the impact of reduced production on farmworkers, implement dealers and the community at large. And how can you make sure that temporary water use reductions to get through a crisis really stay temporary, and don’t just permanently transfer that use elsewhere, from farms to cities? The fact that some cities are also participating in the program by reducing their water withdrawals or treating and returning wastewater helps address this concern, but doesn’t eliminate it.

The amount of water saved through the system conservation program so far is miniscule in relation to the amount needed to significantly reduce the risk of the reservoirs hitting critical lows. With all the issues involved with implementing the program and the growing demand for water, a major concern is whether this mechanism will ever be able to move enough water to really make a difference. Meeting participants noted that resolving the legal and logistical challenges, as well as building community understanding and acceptance of the program, are preconditions for scaling it up.

Avoiding critically low levels in Lakes Mead and Powell will require either significantly more action to reduce water demands or a lot more snow in the mountains. As of March 1, the 2016 water year inflows into Lake Powell were forecast to be 83 percent of average. That’s not terrible year, but it’s also not good enough to take the pressure off water users to control demand.

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