Aspen utilities official favors new dams on local streams — Aspen Journalism

March 15, 2015
Gravity dam

Gravity dam

From Aspen Journalism (Brent Gardner-Smith):

A top utility official with the city of Aspen voiced his support last week for building “small reservoirs” on a number of streams in the Roaring Fork River watershed, including on Hunter, Castle, Maroon, and Avalanche creeks.

“Small reservoirs would improve stream flow on tributaries,” said Mike McDill, deputy director of utilities for the city of Aspen, referring to the ability to store water in the spring and release it later during low-flow periods.

“A small reservoir on Castle Creek would improve the stream health on Castle Creek and also help our drinking water reserves,” McDill said. “I think there may also be benefits to Hunter Creek, Maroon Creek and maybe even Avalanche Creek. All of our tributaries could use that kind of small reservoir and stream-flow calming.”

Today, the city of Aspen owns two diversion dams, one on lower Castle Creek next to Dick Butera’s estate, and one on lower Maroon Creek near the T-Lazy Ranch. Both of the dams are river wide and completely block fish passage, but they do not form reservoirs of water behind them.

McDill also said the city fully intends to keep its options open for two large dams on both upper Castle and Maroon creeks, which he referred to as “serious water storage reservoirs.”

McDill’s remarks were made during a public meeting of the Roaring Fork Watershed Collaborative, held at the Third Street Center in Carbondale.

At the watershed meeting, consulting engineers from SGM were facilitating a group-planning exercise in an effort to determine the top three water projects in the Roaring Fork River basin for inclusion in the forthcoming statewide Colorado Water Plan.

The effort did not result in a definitive shortlist of water projects, and no one else at the meeting spoke in favor of Aspen building new dams.

The Colorado River Basin Roundtable is slated to finalize a water project list for the entire Colorado River basin March 23.

“Serious water reservoirs”

McDill represents the city of Aspen on the Colorado Roundtable, and over the past year has consistently said the city needs to develop or acquire water storage.

“The city of Aspen, most of the cities in the region, none of them have any storage,” McDill said. “Their storage is snowpack, as is ours. I can tell you that that works great in the spring, works great through the summer. But believe it or not, our times of greatest concern are January, February, March, because Castle Creek, where we take most of water, is so low that we have to send a crew out almost every morning to chip the ice off of our intake bars, because the development of an inch or so of ice is enough to block our intake.”

McDill said the city, in addition to exploring new storage options, also is developing new water-supply projects, such as a reclaimed-water system and a deep-water well originally drilled as part of a geothermal energy project.

“The reason that we are doing that and the reclaimed water system,” McDill said, “is they are all really part of this idea of continuing due diligence to try to investigate every other possible way to provide the security for our drinking water system before we go to the point of building serious water storage reservoirs.

“We have reservoir storage rights on Maroon Creek and Castle Creek,” McDill added. “We know that’s going to be a really hard sell whenever we would start to do that, so before we even try, we’re going to look at every other alternative.”

The city holds conditional water rights for dams and reservoirs on both upper Castle and Maroon creeks.

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, about a mile-and-half from Maroon Lake.

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.

The city’s conditional water rights for the Castle and Maroon creek reservoirs are officially on the state’s books through 2016, when the city will need to convince the state water court it is diligently making progress toward building the dams.

(Please see related stories: “Aspen’s Ruedi water buy may bolster prospect for new dams on Castle and Maroon creeks” and “City maintains rights for dams on Castle and Maroon creeks“)

Small and large reservoirs

When McDill was asked at Thursday’s meeting what his definition of a “small dam” is, he pointed to the city’s Leonard Thomas Reservoir at the city’s water treatment plant, which he said holds 14 acre feet of water. The dam at the reservoir is 19 feet tall.

“But it’s a good question,” McDill then said. “What’s a large reservoir?”

He went on to say that the conditional water rights for the Maroon and Castle creek reservoirs were “in the neighborhood of 10,000 acre-feet,” and that the other “smaller” reservoirs under discussion were in the “4,000 to 5,000 to 6,000” acre-foot range.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times on coverage of rivers and waters. The Times published this story on Friday, March 13, 2015.

More Roaring Fork River watershed coverage here.


March 12, 2015

More endangered/threatened species coverage here.


The City of Aspen filed a microhydro app yesterday with FERC on Maroon Creek

March 5, 2015


On Monday the City of Aspen officially ended its pursuit of a hydroelectric generation plant on Castle Creek — Aspen Journalism

February 25, 2015


The City of Aspen councilors decide to let FERC hydropower application expire in March

January 28, 2015


From The Aspen Times (Karl Herchenroeder):

The Federal Energy Regulatory Commission granted Aspen its first three-year preliminary permit for a 1,175-kilowatt hydropower plant on lower Castle Creek in November 2008 and a second three-year permit in March 2012.

City Attorney Jim True recommended allowing the permit to expire on March 1, which would officially put the controversial Castle Creek Energy Center on ice, for now. City officials did, however, agree to continue exploring micro-hydro projects on Castle and Maroon creeks, which True said would involve protection of city water rights.

“We will update you on those issues,” True told the council, adding that there will be more detailed analysis later. “We do believe there are additional protections.”

Will Dolan, the city’s utilities project coordinator, said that if the city were able to install low-head hydro on Maroon Creek, it would allow it to run more water through the existing Maroon Creek hydroplant and “optimize production.” Councilwoman Ann Mullins asked if it will affect streamflows.

“It wouldn’t affect the flow regimes necessarily,” Dolan said. “It would allow us to more fully utilize our water rights, but it wouldn’t create any additional diversion from the stream.”

“These are issues we want to bring back in greater detail,” True said, adding that consultation with federal and city water attorneys is needed.

Councilman Adam Frisch said he believes there is broad community support to explore micro-hydro and called the plan that True laid out “a great step forward.” None of the council members offered objections to True’s recommendation.

“I agree to let it expire, continue the investigation of micro-hydro and have a universal statement on protecting water rights,” Councilman Dwayne Romero said.

In March, the city filed a progress report saying it was still working on the Castle Creek project, despite a November 2012 advisory vote where 51 percent of city voters said the city should stop doing so.

However, in June, the city settled a lawsuit over its water rights for the proposed hydroplant. Both the settlement and a subsequent city council resolution said the city “will not be pursuing or seeking to complete the Castle Creek Energy Center hydroelectric project at this time.”

More hydroelectric/hydropower coverage here and here.


Aspen faces deadlines on federal hydro permit — Aspen Journalism

January 8, 2015
Aspen

Aspen

From Aspen Journalism (Brent Gardner-Smith) via The Aspen Times:

The Aspen City Council is expected Jan. 12 to face decisions about its federal permit for a hydropower plant on Castle Creek, as the permit expires Feb. 28 and there are deadlines Jan. 29 and March 1 if the city wants to keep the permit alive.

The Federal Energy Regulatory Commission granted Aspen its first three-year preliminary permit for a 1,175-kilowatt hydropower plant on lower Castle Creek in November 2008, and its second three-year permit in March 2012.

In the past nine months, the city’s communication with the commission has signaled varying degrees of commitment for the project.

In March, the city filed a progress report saying it was still working on the project, despite a November 2012 advisory vote where 51 percent of city voters said the city should stop doing so.

“The Aspen City Council has not abandoned the project … ” the city told the agency in March. “The project remains a viable project at this juncture, one which the city continues to study and to defend the water rights upon which its plans are based.”

In June, however, the city settled a lawsuit over its water rights for the proposed hydropower plant. Both the settlement and a subsequent City Council resolution said the city “will not be pursuing or seeking to complete the Castle Creek Energy Center hydroelectric project at this time.”

Instead, the city declared it was going to “pursue other renewable energy projects, including microhydroelectic installations at existing city-owned or controlled facilities.”

Those facilities are two diversion dams located several miles up Castle and Maroon creeks, which are currently used to divert water to the city’s water treatment plant.

The city in June sent FERC a copy of the resolution and the settlement agreement, and feels it gave adequate notice to the commission that its position on the project had evolved to embrace microhydro, Aspen City Attorney Jim True said.

But in September, the city sent FERC a progress report that seemed to suggest the city was leaving the door open for the plant on lower Castle Creek.

“In the event the City Council decides to proceed with the Castle Creek Energy Center project as a chosen alternative, the city will move forward as appropriate in accordance with applicable statues and regulations,” the city stated.

On Dec. 23, True said that sentence should not be taken to mean the city is still pursuing the original project.

Micro-hydroelectric plant

Micro-hydroelectric plant

“The city intends to pursue microhydro and we’ve made that clear to FERC,” True said. “We’re not looking at the Castle Creek Energy Center any more, at all.”

But if the city is not pursuing the lower Castle Creek project and instead plans to study microhydro projects, should it ask FERC to extend or renew its existing preliminary permit?

That’s one question the City Council is facing Jan. 12.

The city does have the right to apply for a third “successive” preliminary permit, but Shana Murray, who manages hydro projects at FERC, said it would be difficult.

“We will take a very hard look at what they have done to develop a license application over the last six years.”

Karl Kumli, an attorney working for the city on its federal permit, was more upbeat about the chances of extending the city’s current permit, even though the city’s focus has shifted.

“A preliminary permit, by its very nature, has some flexibility associated with it because you are studying options,” Kumli said.

Murray said if Aspen did want to file for a third permit, it would be expected to do so on March 1, the day after its current permit expires Feb. 28.

That is because one purpose of a preliminary permit is to secure the location of a proposed hydropower plant, so most applicants don’t leave a gap of even one day.

The city also has the option, with the passage of the federal Hydropower Regulatory Efficiency Act of 2013, to apply for a two-year extension to its current permit.

Murray said so far two-year extensions on second permits are getting about the same level of scrutiny at FERC as applications for a third permit.

However, if the city wants to go that route, it would need to notify FERC officials 30 days before the existing permit expires Feb. 28, which in this case is Jan. 29.

Murray wouldn’t speculate on how the agency would respond if the city applies to extend or renew its permit.

The city also has the option of simply letting its current permit expire and then applying for a new permit, or permits, for its proposed microhydro projects.

And in June, the city signaled to FERC it might go that route, although it did not discuss letting its current permit expire.

“In the near future, the city anticipates filing a separate preliminary permit or permits for such microhydro sites, which will be separate and different projects from the Castle Creek Energy Center,” the city said in its update.

Aspen Journalism and The Aspen Times are collaborating on coverage of rivers and water. More at http://www.aspenjournalism.org.

More hydroelectric/hydropower coverage here.


Can Colorado approve a water right to grow pot? — Aspen Journalism

January 2, 2015

Roaring Fork River back in the day

Roaring Fork River back in the day


From Aspen Journalism (Brent Gardner-Smith) via the Glenwood Springs Post Independent:

Can the state of Colorado issue a water right to irrigate marijuana plants when federal law still says that growing pot is a crime?

That’s the question being asked by a division engineer and a water referee in Division 5 water court in Glenwood Springs, in response to a water rights application filed by High Valley Farms LLC.

“Even though the cultivation of marijuana and the sale of marijuana is legal in the state of Colorado, because it is still not legal under federal law, this question is still out there — whether beneficial use includes any use that is not legal under federal law,” said Alan Martellaro, the division engineer in Division 5.

Martellaro said a water right in Colorado can be issued only if the water is being put to a beneficial use, such as irrigation.

But the use of the water also has to be lawfully made. If it is not a lawful use, it is not a beneficial use, and so no water right can be issued.

On the other hand, Martellaro recognizes the logic of a counterargument, which is that if it is legal under state law to grow pot plants, then it is a lawful act to water them, regardless of federal law.

“We’re not coming down one way or the other, we just want an answer,” Martellaro said.

High Valley Farms, LLC is controlled by Jordan Lewis, who owns the Silverpeak marijuana store in Aspen and a new 25,000 square-foot indoor marijuana growing facility along the Roaring Fork River south of Basalt.

High Valley Farms filed an application with the water court in August seeking the right to annually pump 2.89 acre-feet of water (941,710 gallons) from the Roaring Fork River to irrigate 2,000 to 3,000 marijuana plants in the Basalt facility.

It also is seeking approval of an augmentation plan for a back-up supply of water.

‘APPLICANT MUST EXPLAIN’

On Nov. 19 Martellaro, after conferring with the Division 5 water court referee Holly Strablizky, issued a “summary of consultation” about the High Valley Farms application.

“The applicant must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined in (Colorado state law),” the summary of consultation stated.

“Specifically,” the summary report said, ”beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’”

The word “lawfully” is in italics in Martellaro’s summary report, but that’s the extent of how the question is posed.

Whether it is legally a “beneficial” use or not, watering marijuana plants in Colorado is a valuable practice.

In the first 10 months of 2014, people spent $574 million on marijuana legally grown in Colorado, according to “The Cannabist” at The Denver Post.

In May, the U.S. Bureau of Reclamation issued a policy in response to Washington state and Colorado legalizing the growing of marijuana.

The federal agency said it “will not approve use of Reclamation facilities or water in the cultivation of marijuana,” given that the Controlled Substances Act of 1970 still prohibits growing weed.

This has lead to a tentative working assumption by some water providers that it is OK in Colorado to provide water for irrigating marijuana plants, as long as it is done with “nonfederal” water.

The augmentation plan filed by High Valley Farms includes a contract for a back-up supply of water from an irrigation ditch owned by the Basalt Water Conservancy District.

The Basalt district often leases water it controls in Ruedi Reservoir, which is a Bureau of Reclamation facility.

But the contract between High Valley Farms and the Basalt district says the water provided on High Valley’s behalf will be only from “nonfederal sources.”

High Valley’s augmentation plan also includes a contract to buy water from the Colorado River District out of Wolford Reservoir, which is a nonfederal reservoir north of Kremmling.

PRECEDENT-SETTING CASE?

Other marijuana-growing operations in Colorado have so far gotten their water by using existing water rights, Martellaro said, not by applying for new ones.

For example, a grower might have bought land that came with water rights, or may have leased water from a district or city with existing water rights.

Martellaro said this is apparently the first time an applicant has filed in Colorado for a new water right specifically to grow marijuana.

Beth Van Vurst, a water attorney for High Valley Farms, responded to the division engineer’s summary of consultation on Dec. 19.

“The procedure for addressing this concern will be discussed at the next status conference,” Van Vurst told the court, which has set the next conference for Jan. 13.

At that time, Martellaro expects that a deadline will be set for High Valley Farms to file a legal brief on the issues raised by the court.

Van Vurst said Wednesday she could not discuss the issues in the case as they are pending before the water referee.

If High Valley Farms does file a legal brief, Strablizky, the water referee, would have several options, Martellaro said.

She could accept the explanation from High Valley Farm and the matter could end there.

She could, without making a ruling, refer the case to Judge James Boyd, who presides over Division 5 water court.

She could reject the legal argument, and High Valley Farms could then appeal to Boyd.

And if the judge eventually rules against it, High Valley Farms could appeal directly to the Colorado Supreme Court.

Many water court cases include a number of parties that have filed “statements of opposition” in the case, which gives them standing to appeal decisions.

However, only one party has filed a statement of opposition in the High Valley Farms case, and that’s the Roaring Fork Club.

The club’s office is next door to Silverpeak’s new growing facility and it owns water rights on the Roaring Fork River.

“The Roaring Fork Club will probably get invited to weigh in on this, but we’re very likely to take no position on this issue,” said Scott Miller, a water attorney representing the club, referring to the issue raised by seeking a right to water marijuana plants.

“Our primary issue in this case is to protect our water rights in this stretch of river, which is already heavily diverted,” Miller said.

Aspen Journalism, The Aspen Times and the Glenwood Springs Post Independent are collaborating on coverage of rivers and water. More at http://www.aspenjournalism.org.

More water law coverage here.


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