Eliminating the city’s future possibility to build reservoirs that would inundate portions of the Maroon Bells-Snowmass Wilderness would be irresponsible, given the uncertainties presented by climate change, Aspen City Council members said on Tuesday.
The board was unanimous in its direction to file a diligence application that would maintain the city’s water rights, first decreed in 1971, to build dams that would create the reservoirs on upper Maroon and Castle creeks.
“I have no more interest in building these dams than anyone else in this room,” councilman Art Daily said in the work session attended by about a dozen members of the public, most of whom wanted the city to abandon the water rights.
Yet Daily, like the rest of his council colleagues, said he would need more information about how the city could meet future water supply challenges without the dams, before he could agree to sign away a later council’s ability to pursue their development.
“I can’t in good conscious say we are going to drop these rights without knowing what the viable alternatives are,” Daily said, while acknowledging that a future where they would be necessary feels like an “almost unforeseeable possibility.”
Ann Mullins said she cannot predict what will happen in 50 years, and officials in the city utilities department have noted that the snow pack around Aspen could look very different under some climate projection scenarios.
“I think it’s the unpredictable part of climate change that is probably the scariest,” she said…
Council members were clear that the city will continue to study alternative water management strategies that will hopefully preclude the need to ever build the dams. This includes increasing conservation and pursuing other supply and storage initiatives.
Within the next year or two, for example, the city hopes to pump treated wastewater from the Aspen Consolidated Sanitation District up hill from the treatment plant near the Aspen Business Center to irrigate the municipal golf course. The city is also exploring developing water supply from deep-underground wells…
Numerous parties, including environmental groups, stream-side property owners and the U.S. Forest Service have indicated they will file statements of opposition to the diligence application should it go forward.
Will Roush, conservation director at Wilderness Workshop, made the case at Tuesday’s meeting that the Maroon Bells are too important a resource to keep the possibility of the dams alive. The regulatory hurdles the city would encounter if it ever tried to develop the reservoirs would be too extreme, and would require an exemption signed by the president to federal wilderness area rules, Roush has said previously.
Paul Noto, a local attorney who is working on behalf of the conservation group American Rivers, said that once the application is before a water court judge, the discussion will enter a new phase. A judge would approve any amendment to the water rights that was mutually agreeable to the city and opposing parties, Noto said.
That means changes to the size and placement of the dams and reservoirs would be on the table. Noto, who argued Tuesday that the city doesn’t need the water that would be stored behind these dams, said there’s a strong possibility that the size of the would-be reservoirs is in for a “substantial haircut” in the water-court process.
At the heart of this [water law] system, and protected by a section of the Colorado Constitution, is a concept called “prior appropriation.” The way this works is that some water users have priority over other water users, with the effect that, in times of scarcity, holders of senior water rights receive their water and holders of junior water rights do not. The seniority of water rights is generally based on a first-to-use-wins concept, meaning the most senior (and therefore the most valuable) water rights go back to the 1800s.
Any upstream activity even remotely threatening to downstream water rights holders is cause for great alarm. This came to light in the 2016 session of the Colorado Legislature when a bill (House Bill 16-1005) was introduced intended to regulate the collection of rainwater in barrels.
What finally emerged, after heated debate, is a new law allowing rainwater running off the rooftop of a residential property containing no more than four dwelling units to be collected in no more than two barrels having a combined storage capacity of no more than 110 gallons. These barrels must have a sealable lid; the water from the barrels can only be used at the property where the water is collected; and it can only be used for outdoor purposes “including irrigation of lawns and gardens.” The water “shall not be used for drinking water or indoor household purposes.” (Whether the water could be used for bathing activities if conducted outdoors is not clear.)
The state engineer, “to the extent practicable within existing resources,” is instructed to provide information on his agency’s website about the permitted and prohibited uses of rain barrels and water collected therein. The state engineer is also given authority to curtail rain barrel usage in situations where it might impair the rights of downstream water users. And the state engineer is required to diligently study whether rain barrel usage is causing injury to holders of downstream water rights and to report back to the Legislature on this issue by no later than March 1, 2019.
The Colorado Department of Public Health and Environment also gets into the act. That agency is instructed, “to the extent practicable within existing resources,” to develop “best practices” intended to address nonpotable usage of collected rainwater and issues relating to disease and pest control. When and if such best practices are developed, they are to be posted on the department’s website and on the state engineer’s website. Alternatively, the state engineer’s website can provide a link back to the department’s website.
Finally, knowing the penchant of homeowners living in common-interest ownership communities to fight over almost everything, the Legislature added language to the new law addressing rain barrel usage in these communities. An owners association in a common-interest ownership community cannot prohibit rooftop water collection using rain barrels. The association can, however, “impose reasonable aesthetic requirements that govern the placement or external appearance of a rain barrel.” So, for any of you who have the misfortune of serving on your neighborhood architectural control committee, it’s time to develop design guidelines for rain barrels.
FromAspen Journalism (Allen Best) via the Aspen Daily News:
Two Front Range cities along with Western Slope parties and the Climax Molybdenum Co. hope to narrow their plans during the next 18 months for new or expanded reservoirs in the upper Eagle River watershed near Camp Hale.
One configuration of a possible new reservoir on Homestake Creek, a tributary of the Eagle River, would force a minor tweaking of the Holy Cross Wilderness Area boundary.
That adjustment along with the presence of ecologically important wetlands along where Whitney Creek flows into Homestake Creek are among the many complexities that partners — including the cities of Aurora and Colorado Springs — face as they consider how to satisfy their projected water needs.
Work underway this fall and expected to wrap up next year focuses on technical feasibility of individual projects. None alone is likely to meet the needs of all the partners.
Also at issue is money. One set of projects would cost $685 million, according to preliminary engineering estimates issued by Wilson Water Group and other consultants in April.
Aurora Water’s Kathy Kitzmann likens the investigation to being somewhere between the second and third leg around the bases.
“We’re not in the home stretch,” Kitzmann said at a recent meeting.
Still to be decided, as costs estimates are firmed up, is how badly Aurora, Colorado Springs and other water interests want the additional storage.
The Glenwood Springs-based Colorado River Water Conservation District has decided it only needs another several hundred-acre feet of yield.
John Currier, chief engineer for the river district, said that the less expensive studies have been done. Coming studies will be more expensive.
“I think we are to the point that the cost of investigations themselves are going to start driving the decisions, and I also think that the timing and need of the partners is helping drive those decisions,” Currier said.
At one time, the idea of pumping water eastward from Ruedi Reservoir was considered. That idea has been discarded as part of this investigation.
This exploration of water what-ifs is governed by a 1998 agreement, the Eagle River memorandum of understanding, or MOU.
The MOU envisioned water projects collaboratively constructed in ways that benefit parties on both Eastern and Western slopes, as well as Climax, the owner of the molybdenum mine that straddles the Continental Divide at Fremont Pass. Minimal environmental disruption is also a cornerstone of the agreement.
Long legal fight
The collaboration stems from a milestone water case. Aurora and Colorado Springs in 1967 completed a major water diversion that draws water from Homestake Creek and its tributaries.
Homestake Reservoir has a capacity of 43,500 acre-feet, or a little less than half of Ruedi, and is located partly in Pitkin County. The water is diverted via a 5.5-mile tunnel to Turquoise Lake near Leadville and into the Arkansas River.
Near Buena Vista that water is pumped 900 feet over the Mosquito Range into South Park for eventual distribution to Aurora and Colorado Springs.
But the cities left water rights on the table. In 1987, they returned to Eagle County with plans to divert water directly from the Holy Cross Wilderness.
The Colorado Wilderness Act of 1980 that created Holy Cross left the legal door open for a new water diversion. The law specified that “this act shall not interfere with the construction, maintenance, and/or expansion of the Homestake Water Development Project of the cities of Aurora and Colorado Springs in the Holy Cross Wilderness.”
But Colorado had changed greatly from 1967 to 1987 and state laws adopted in the early 1970s gave Eagle County expanded land-use authority. County commissioners in 1988 used that authority to veto Homestake II.
That veto, which was appealed all the way to the U.S. Supreme Court, along with the denial of the Two Forks Dam southwest of Denver at about the same time, signaled that Colorado was in a new era of water politics.
Under Colorado water law, though, the two cities still owned substantial water rights in the Eagle River Basin. Guided by the Glenwood Springs-based Colorado River District, negotiations led to an agreement to develop projects to jointly benefit the former protagonists: 10,000 acre-feet of guaranteed dry-year yield for Western Slope users, 20,000 acre-feet of average-year yield for the cities, and 3,000 acre-feet for Climax.
Water supply options
Expansion of Eagle Park Reservoir is one option being studied.
Located near Fremont Pass at the headwaters of the East Fork of the Eagle River, it was originally created to hold mine tailings from Climax. In the 1990s it was gutted of tailings in order to hold water. A consortium of Vail Resorts, two-interrelated Vail-based water districts, and the Colorado River District combined to create a reservoir.
Aurora and Colorado Springs agreed to subordinate water rights in order to ensure firm yield for the Western Slope parties.
To expand the reservoir from the existing 3,300 acre-feet to 7,950 acre-feet could cost anywhere from $39.1 million to $70.8 million, depending upon how much work, if any, is needed to manage seepage beneath the existing dam. Test borings that began Sept. 12 will advance the design of the larger reservoir. Five possible configurations date from 1994.
Another option is to create a new relatively small dam on or adjacent to Homestake Creek, near its confluence with Whitney Creek. This is three miles off of Highway 24, between Camp Hale and Minturn.
Among the four possible configurations for this potential Whitney Creek Reservoir is a tunnel to deliver water from two creeks, Fall and Peterson, in the Gilman area.
A third option is restoration of a century-old dam at Minturn that was breached several years ago. Bolts Lake, however, would serve only Western Slope interests.
Still on the table is a new reservoir on a tributary to the Eagle River near Wolcott. That reservoir has been discussed occasionally for more than 30 years. However, like a Ruedi pumpback, it’s not part of the current discussion involving the Eagle River MOU partners.
Most problematic of the options is Whitney Creek. It would require relocation of a road and, in one of the configurations, water could back up into the existing wilderness area. For that to happen, Congress would have to tweak the wilderness boundary.
Wetlands displacement could also challenge a Whitney Reservoir. An investigation underway seeks to reveal whether those wetlands include areas classified as fens. Fens are peat-forming wetlands fed primarily by groundwater. As they may take thousands of years to develop, the U.S. Fish and Wildlife Service specifies that “every reasonable effort should be made to avoiding impact fens.”
“If fens are found, I expect a lengthy debate about the quantity and quality of fens required to be a fatal flaw,” said the river district’s Currier in a July memorandum. That determination will be made before drilling is authorized to determine whether a dam is possible.
Western Slope parties, said Currier in the memo, “believe an Eagle Park enlargement may ultimately become very attractive because the environmental and permitting issues are much, much simpler than a Whitney Creek alternative.”
Nearly all the alternatives being considered in the Eagle River Basin would require extensive pumping, as opposed to gravity-fed reservoir configurations. Water would have to be pumped 1,000 vertical feet into Eagle Park Reservoir, for example, then pumped again to get it across the Continental Divide.
A Whitney Creek Reservoir would require less, but still expensive pumping. Water in the reservoir would be received by gravity flow, but from there it would be pumped about seven miles up to Homestake Reservoir. Whether it can accommodate more water has yet to be determined, one of many dangling question marks.
Earlier, the parties had investigated the possibility of using an aquifer underlying Camp Hale as a reservoir. But drilling to determine the holding capacity proved maddening complex. Accounting for water depletions from pumping would have been very difficult. Further, operation of the system to prevent impact to other water users and instream flows would have been problematic. The idea was abandoned in 2013.
Currier, in his July report to the River District board of directors, outlined several questions that he said should provoke discussion among the Eagle River partners this fall: How much of the water outlined under the 1998 agreement does each party realistically need, and when? Are they ready to begin seeking permits after this new round of investigation to be completed next year?
Need for water?
This week, in response to questions from Aspen Journalism, the Eagle River MOU partners explained the need for the water to be developed between 2036 and 2050.
Both Aurora and Colorado Springs have added major projects in recent years. After the drought of 2002, a very-worried Aurora pushed rapidly for a massive reuse project along the South Platte River called Prairie Waters. It went on line in 2010 — far more rapidly than any project on the Eagle River could have been developed.
Colorado Springs last year began deliveries of water from Pueblo Reservoir via the Southern Delivery System, an idea first conceived in 1989. The Vail-based water districts also increased their storage capacity after 2002.
At a meeting in Georgetown in August, representatives of the two cities said they were unsure of the precise need for water.
Greg Baker, a spokesman for Aurora Water, describes a “delicate balancing act” about what is “going to be most reliable and what is going to be most environmentally permittable and permissible.”
Brett Gracely, of Colorado Springs Utilities, said project costs are “still in the realm of other projects are we looking at.”
The 1998 agreement specified that costs of initial studies should be divided equally, four ways. As the project progresses, the costs are to be split according to percentage of yield that each party would gain.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on the coverage of rivers and water. More at http://www.aspenjournalism.org.
Four streams in the San Juan National Forest, including Vallecito Creek, are being looked at as relatively non-controversial ways to promote this by acquiring junior in-stream flow rights to the Colorado Water Conservation Board, which administers the in-stream flow program within the prior appropriation system.
The section of Vallecito Creek being discussed runs 17.7 miles from a high-elevation cirque lake south to the Forest Service boundary above Vallecito reservoir. The other creeks are Himes Creek in Mineral County, Little Sand Creek in Hinsdale County, and Rio Lado Creek, a tributary to the Dolores River.
The La Plata County Commissioners got an update on this on Sept. 13. The federal claims have been seen over the years as a threat to the state’s prior appropriation system and state administration of water rights – especially claims on lower elevation rivers and streams that could threaten upstream private or municipal water rights.
“We’ve come close to resolving this in District 7 (Water Court), but not quite,” said Bruce Whitehead, director of the Southwest Water Conservation District. “Right now it’s still an active case. Within the last year or two, the Forest Service and state started having discussions… The Forest Service was interested in how in-stream flow could help resolve the reserve rights. We looked at the streams the Forest Service was interested in. If we’re successful, it could be a great tool to resolve these outstanding cases without being litigated.”
He continued, “We’re looking for certainty, that they are state appropriated rights. We don’t want to expand the state in-stream flow program. We’re kind of in a wait-and-see mode.”
Forest Service staffer Anthony Madrid said, “In the 1990s, there was a big effort to work out a settlement. That stalled out. This past year, we’ve put more effort into it. We want free-flowing streams to support aquatic and riparian values. We’re really excited to engage in this new process.”
Jeff Baessler, director of the CWCB’s in-stream flow program, told commissioners that back in 1973, in-stream flow was not considered a beneficial use in state water law. State legislators passed SB 97 that year to make it a beneficial use and gave the CWCB authority to acquire those rights to ensure reasonable preservation of the natural environment and provide regulatory certainty for current water users under prior appropriation…
“Today I’m only talking about new appropriations. This new right probably would be January 2017,” Baessler said.
Whitehead added that the proposed in-stream right on Vallecito Creek won’t change anything. “It preserves the status quo,” he said.
The Forest Service came to CWCB in January this year with its recommendations for the four streams, Baessler said. He said before the nine member CWCB can make an in-stream flow recommendation, there has to be a determination that a natural environment exists, that there’s an “indicator species” to be protected, that the natural environment can be preserved with the amount of water available for appropriation, and that there won’t be injury to senior water rights.
The in-stream right will be “the minimum amount necessary” to serve the purpose, he said. “We have to quantify that amount. Sometimes people say, ‘I’ve seen this stream dry, so that’s the minimum.’ The minimum is the amount necessary to preserve the natural environment, such as the fishery. We look at median flow over time.”
Those studies are now happening on the proposed section of Vallecito Creek. Madrid said, “If the weather holds, we should have the data collection by the end of the month.”
Whitehead said that if CWCB supports a recommendation, it directs staff to file for the in-stream right in Water Court. Those can be contested. “At this point, we’re supportive of the whole process. Everyone is waiting to see the data, to make sure it’s reasonable,” he said. “Technically we’re still in litigation (with the Forest Service). We need to see where everything goes.”
Baessler acknowledged, “The in-stream flow program is controversial. There’s an impact we can have to other users, especially lower on the river. When senior users file for a change of use or something, we’ll file a statement of opposition if we think there’ll be harm to the status quo. That’s where it gets controversial.”
These four streams are high elevation on Forest Service land, he said. He doesn’t think they’ll be contested.
Whitehead added, “There are many counties that have contested in-stream flow because of impact on future growth. These shouldn’t be.” And the hope is they can become a model to resolve the federal reserved rights claims from 1973 within the state appropriation system, he said. “If they are successful, there may be other streams in the future to use this process. They are in areas that we hope will be the least controversial. This could be the start of what the Forest Service will do in the future.”
Acting San Juan National Forest Supervisor Russ Bacon said, “On Division 7 (Water Court), we haven’t used this process before. We’d prefer a local solution to a process that involves judges. The next big step is the data. There are still a lot of unknowns… We’re always looking for a better path than reserve water rights.”
Click here to read the summary. Here’s an excerpt:
The Colorado Cattlemen’s Association (CCA) and Partners for Western Conservation (PWC) initiated the Ag Water Network in late 2015 with the objective of helping to ‘keep ag water connected with ag land.’ The Ag Water Network is partially funded by a Walton Family Foundation grant.
The state water plan, released in November, 2015, estimated Colorado’s population could swell to 10 million people by 2050, nearly doubling our current population of 5.4 million. The plan projects that the demand for water driven by the increasing population could result in a municipal and industrial water supply gap of 560,000 acre-feet. Statewide, this could result in the loss of 700,000 irrigated acres by 2050 through the purchase and transfer of water rights from irrigated agriculture to urban areas. Such large-scale dry-up of irrigated agriculture would have permanent adverse economic, environmental and food security impacts.
The water plan acknowledges the economic, environmental and cultural value of Colorado’s agriculture industry. To minimize ‘buy and dry’ of irrigated farmland, the plan emphasizes water conservation, increased storage, and alternative agricultural transfer methods (ag water leases) as the primary means for closing the projected water supply-demand gap.
Rotational fallowing, deficit irrigation, and planting lower consumptive use crops are the main practices being used and/or tested for “creating” consumptive use water that would otherwise have been used by crops. Consumptive use (CU) water is water retained by the growing plant plus the amount lost through evapotranspiration.
The consumptive use (CU) water can be leased to municipal, industrial, recreational, environmental or agricultural interests provided the lease complies with state water law. All alternative ag transfers, or “ag water sharing” agreements must be voluntary, temporary and compensated. A variety of state laws have been passed over the last decade to ensure that a participating landowner’s water right(s) are not negatively impacted as long as the terms of the lease agreement comply with state law. Ag water leasing represents a sustainable approach that enables irrigated land to stay in production, albeit at a reduced output level, while helping supply water for other uses.
Ag water leasing is a new concept to most Colorado ag producers. The purpose of the ag water survey was to assess the level of knowledge of ag water right holders throughout the state regarding water leasing terms and concepts, and determine ag water right holder perspectives, concerns and interest related to leasing.
The survey was initiated February 26th, 2016 and closed on July 15, 2016, and received more than 300 responses. The first question – “do you own or lease ag water rights?” – was answered “no” by 51 respondents, leaving 266 respondents that said they own or lease agricultural water rights. The survey contained 25 background and water-related questions as well as a section at the conclusion which allowed respondents to leave comments or ask questions. All 25 survey questions are listed in the Appendix .
The Republican River Compact Administration signed off on a resolution presented by Colorado last week during the three-state entities’ annual meeting.
The resolution lays out the final steps Colorado has to take for compliance with the Final Settlement Stipulation and Republican River Compact, between it, Nebraska and Kansas.
If Colorado meets the requirements laid out in the resolution, it will be protected from any further lawsuit filings in the matter by Kansas or Nebraska.
“It basically means Kansas can’t come after us again and again,” Colorado State Engineer Dick Wolfe said. “It doesn’t prevent them from raising some other issue we haven’t thought of yet.”
He added the states have agreed to try to work out future issues among themselves instead of immediately going to the costly and time-consuming non-binding arbitration process.
“This is not nearly as restrictive as some people fear,” Deb Daniel, general manager of the Republican River Water Conservation District, said of the resolution.
A final agreement on the use of Colorado’s compact compliance pipeline, as well as the voluntary retiring of more acreage along the South Fork of the Republican River, are the key components in the resolution. Colorado already has removed 23,838 acres from irrigation in the South Fork Republican River Basin, through voluntary retirement programs such as the federally-funded CREP.
The resolution, presented last week in Burlington by Wolfe, and signed by him and Kansas’ David Barfield and Nebraska’s Gordon W. Fassett, calls for Colorado to utilize voluntary programs to retire up to an additional 25,000 acres from irrigation in the South Fork Republican River basin.
The resolution states Colorado will retire at least 10,000 acres by 2022, and the remaining 15,000 acres by December 31, 2027. It also includes language allowing Colorado to submit to the other states for their approval a plan to reduce consumption within Colorado by other means if the state cannot or will not retire 25,000 acres by the 2027 deadline.
“It gave us and the users the most flexibility going into the future,” Wolfe said.
Daniel noted the agreement does not make any mention of stream flows or how much acre feet of water must be removed from consumptive use, only acreage.
The Denver Water and Colorado Parks and Wildlife officials said they’ve obtained 2,100 acre-feet of water that they will use strictly for environmental purposes…
“We’re trying to make the South Platte the best it can be for this city. … It’s not going to be like a Danube,” Denver Water manager Jim Lochhead said. “We can make it what it is, which is a plains river that creates an appreciation of the connection to water in this city. The city would not exist without that water supply.”
The idea is that putting more water into the Platte at the southwestern edge of metro Denver will mimic long-lost natural flows, to the extent possible given the channelization of the Platte after the 1965 flood that destroyed buildings in the floodplain. More water also would help a fish hatchery where state wildlife workers breed rainbow trout.
For more than two decades, Denver conservationists have worked at reviving the Platte corridor, building cycling-oriented pathways and riverside parks. It’s been complicated because metro Denver grew up around the river and, for more than a century, people exploited it as a sewer with industrial plants and discharge pipes draining into the water. Now as kayakers, surfers, skaters, waders and others flock to the river, city leaders face rising demands for more water, cleaner water and wildlife.
But just beyond Denver, farmers await every drop of the treated wastewater metro users put back in the Platte, water used to grow food. There’s so much demand for South Platte water across booming northeastern Colorado that parts of the river run dry.
By 2018, project leaders say, new environmental flows from Chatfield will keep that from happening — and create curves and pools favoring aquatic bugs and fish.
“Now we’ve got some water so that we can start to build the river back to being a natural-looking river. It is limited. The river won’t have access to the true floodplain. But we can build smaller floodplain ditches so that the river will look more like a sinuous river coming through Denver,” CPW senior aquatic biologist Ken Kehmeier said.
“The water will be used mostly during the low-flow times of the year,” the 65 or so days when water rights holders have the ability to dry up sections of the river, Kehmeier said.
“It will mean water stays in the river downstream of Chatfield, including the hatchery. That’s where the trout will come from. And brown trout in the river now, with this extra water, will be able to reproduce naturally.”
Lining up storage for the water proved crucial. Denver Water has committed to work with the Greenway Foundation to buy space for 500 acre-feet in an enlarged Chatfield Reservoir. This water adds to 1,600 acre-feet of water to be used only for environmental purposes that federal engineers required as “mitigation” for Colorado’s repurposing of the reservoir from flood control to water supply. The 500 acre-feet would be owned by the Central Colorado Water Conservancy District, a downstream agricultural entity, which agreed to pay annual operational and maintenance costs.
Storing water in Chatfield costs $7,500 an acre-foot, Denver Water officials said. They’ll spend $2 million to buy storage space, on the condition the Greenway Foundation does the same…
This push to put more clean water in the Platte through Denver coincides with broader environmental efforts. Federal, state and city engineers have been mulling possibilities for restoring other metro waterways, for which the U.S. Army Corps of Engineers has dangled possible funding.