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.


“There are a lot of good tools out there that could create informal and formal benefits” — Amy Beatie

December 26, 2014

Screen shot from Peter McBride's video arguing that the Crystal River should be left as is

Screen shot from Peter McBride’s video arguing that the Crystal River should be left as is


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

The Pitkin County Healthy Rivers and Streams Board unanimously agreed Thursday to approve a $45,000 grant to help the East Mesa Water Co. repair an irrigation ditch on the Crystal River as long as the ditch company agrees to talk with the county about ways to leave more water in the river.

The grant comes with the condition “that the shareholders of the East Mesa Ditch agree to engage with the river board and consider working with Pitkin County on matters of irrigation efficiency and measures to protect instream flows and the free-flowing nature of the Crystal River.”

The condition was left broad, as there are no routine ways in Colorado to improve an irrigation system and then leave any saved water in a river despite the fact that 86 percent of the water diverted from Colorado’s rivers is for agriculture.

On Friday, Dennis Davidson, a consultant helping East Mesa secure funding for the ditch-repair project, said the 12 shareholders in the ditch company would likely accept the county’s condition.

“I don’t see why they wouldn’t,” said Davidson, who had not conferred with the shareholders yet. “There is no reason for them not to talk with them.”

After presenting to the river board Nov. 20, Marty Nieslanik, president of East Mesa Water Co., said, “I think all of us we want to see the river healthy, too. I mean, it’s not like we’re trying to hog all the water; it just takes water to do what we do.

“We need the water to maintain our lifestyle, but if there is any way that we can make that water more efficient, then maybe there is some way that we can leave some of it the river.”

The East Mesa Ditch repair project includes shoring up a collapsing tunnel and installing 1,200 feet of new pipe. The project is still being engineered, and the projected cost is now $700,000.

East Mesa has raised $410,000 for the project from state and federal sources so far. That does not include the river board’s $45,000 grant, which still must be approved by the Pitkin County commissioners, who are set to review it Jan. 6.

The repairs to the ditch are not expected to result in more water for the river, but other improvements, such as piping or lining more sections, installing high-tech control gates and using sprinklers in fields, could likely save water.

The 8.5-mile-long ditch irrigates 740 acres of land southeast of Carbondale. Of the 740 acres, 180 acres are under a conservation easement either through Pitkin County Open Space and Trails or the Aspen Valley Land Trust.

East Mesa is the second-largest diversion on the Crystal River, which in summer can run well under the environmental minimum set by the state of 100 cubic feet per second.

The ditch has two water rights that allow it divert as much as 42 cfs of water. One right is from 1904 and is for 32 cfs. The second is from 1952 and is for 10 cfs.

Pitkin County’s river board, created in 2008, is funded with a 0.1 percent sales tax, which is expected to generate $850,000 in 2015. The board has budgeted $150,000 for grants next year.

The board is charged with “improving water quality and quantity” in the Roaring Fork River watershed and “working to secure, create and augment minimum stream flows” in conjunction with nonprofits and government agencies. The board also can improve and construct “capital facilities.”

While the vote to award East Mesa the grant was unanimous, some board members questioned whether fixing an irrigation ditch was consistent with the board’s mission.

“Our job isn’t supporting ag and open space,” said Andre Wille, the chairman of the board. “Agriculture and healthy rivers are two different things.”

But board member Bill Jochems supported the grant, saying it could increase support among irrigators for federal protection of the upper Crystal River.

And board member Dave Nixa suggested that East Mesa talk to the nonprofit Colorado Water Trust, which works with water-rights owners to find ways to leave water in rivers.

“There are a lot of good tools out there that could create informal and formal benefits,” said Amy Beatie, the executive director of the water trust, who was pleased Friday with the river board’s decision.

Rick Lofaro, the executive director of the Roaring Fork Conservancy, is working with irrigators in the Crystal River Valley as part of developing a management plan for the river.

“The goodwill and the momentum this could create could really be precedent-setting,” Lofaro told the river board Thursday.

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

Meanwhile, he East Mesa Water Company is asking Pitkin County’s Healthy Rivers and Streams Board for dough to pipe the ditch, according to this article from Brent Gardner-Smith writing for Aspen Journalism:

The East Mesa Water Company is asking Pitkin County’s Healthy Rivers and Streams Board for a $45,000 grant to help cover the $550,000 cost of installing 1,450 feet of new pipe in the 8.5-mile-long East Mesa Ditch.

The irrigation ditch can divert up to 42 cubic feet per second of water out of the Crystal River 9 miles above Carbondale, but it typically diverts about 32 cfs.

The proposed East Mesa Ditch project entails installing 48-inch plastic pipe on a failing section of the irrigation ditch that includes an 80-year-old, 650-foot-long tunnel and a hillside that often sheds rock and mud down toward the ditch.

The work will keep the ditch functioning but won’t result in more water being left in the Crystal River, which is a goal of the county river board.

“As a board, with our mission, we’d like to keep as much water in the river as we can,” Andre Wille, the chair of the county river board, said Nov. 20 during the review of the East Mesa application. “If we can improve the efficiency of that ditch, and leave the rest in the river, that would be in our interest.”

Dennis Davidson, a consultant for East Mesa Water Co. with more than 40 years experience at the Natural Resource Conservation Service, said there would be “minimal” water added to the river from the repair project, as it only included adding 1,450 feet of pipe to a 8.5-mile-long ditch.

But, he noted, if the ditch were fully piped, which he said would cost $20 million, there would be water savings.

“If we lined the East Mesa Ditch from beginning to end, we would probably get by diverting 50 percent of the water that we divert,” Davidson told the river board.

The ditch “loses as much as 35 percent of the water in the ditch due to seepage through the course and rocky soil,” according to a feasibility study from East Mesa submitted to the Colorado Water Conservation Board in a funding application.

The East Mesa Ditch typically runs the first two weeks of May until about mid-October. It sends water to 740 acres of land between 1 and 5 miles south of Carbondale, most if it with big views of Mount Sopris and some of it protected with conservation easements.

The water is used for cattle ranching, and growing nursery trees, forage crops and hay.

On paper, the East Mesa Ditch is the second biggest diversion on the lower Crystal.

The largest diversion on the river is the Sweet Jessup Canal, which can divert 75 cfs. It is located about a mile-and-a-half upstream from the East Mesa diversion structure.

When the Sweet Jessup, the East Mesa and the Lowline Ditch, which is just downstream of East Mesa, are all diverting, water levels in the Crystal River often drop well below the environmental minimum of 100 cfs set by the state.

According to a study done by consultant Seth Mason in 2012, the river below the diversions dropped to 4 cfs Sept. 4 and to 1 cfs Sept. 22, 2012.

“Near complete dewatering of the stream channel was observed through much of September at Thomas Road and near the Garfield/Pitkin County line,” Mason, with Lotic Hydrological, LLC, said in his 2012 report.

Need to divert all the water?

The East Mesa Ditch has a senior water right for 32 cfs that dates back to 1894 and a second water right for 10 cfs from 1942.

Davidson told the river board that in his experience in the Roaring Fork River Valley, 20 cfs is usually enough to irrigate 800 acres of land.

As the East Mesa Ditch typically diverts 32 cfs to irrigate 740 acres, does that mean there is as much as 12 cfs of water that could potentially be left in the river and still allow for adequate irrigation?

No, according to Marty Nieslanik, president of the East Mesa Water Co.

He said the full 32 cfs of water needs to be diverted today to act as “push water” to convey water to the end of the long irrigation ditch.

“We figure we lose two feet of water from our head gate to the last person who takes it out,” Nieslanik said.

He also said that some of the diverted water also returns to the river.

“After it dumps out at our ranch, it comes down the draw and drops in right below the fish hatchery,” Nieslanik said. “So that’s why you see the big difference as you drive down the Crystal, it’s almost dry and then all of a sudden there is a lot of water there.”

Nieslanik told the river board that the company was “trying to make our water go further.”

“If we can get that whole mesa irrigated with 25 feet of water, we may let six or eight of water go by to help the river maintain its levels,” he said.

“It would be good to understand the benefits,” river board member Lisa Tasker told Nieslanik about the project. “We are very interested in the natural hydrograph and trying to mimic that as best as possible.

“Speaking for myself, I would love to leave a little bit of water coming down the river to help the river out, if we could somehow make that happen,” Neislanik said after the meeting. “We need the water to maintain our lifestyle, but if there is any way that we can make that water more efficient, then maybe there is some way that we can leave some of it the river.”

Money for water

The East Mesa Water Company is on track to raise $410,000 toward its ditch-repair project, whether or not the county’s Healthy Rivers and Streams Board agrees to a grant.

The company will receive a $300,000 grant from the federal Natural Resource Conservation Service when the work is complete.

It has secured a $60,000 grant from the Colorado River Basin Roundtable and a $25,000 grant from the Colorado River District. And it has requested a $25,000 grant from the Colorado Soil Conservation Board.

The company also has obtained a $375,000 loan from the Colorado Water Conservation Board, which is to serve as a bridge loan until the project is complete and grant funds come in, Davidson said.

There are 12 shareholders in the East Mesa Water Co., and 1,003 shares have been issued to them, based on the size of their land holdings. Owners are assessed an annual fee of $15 a share, which brings in $15,000 a year. The company has no debt.

“The East Mesa Water Co. operates on assessments of the water users,” according to the feasibility study given to the Colorado Water Conservation Board. “For many years, the ditch company has kept the assessments as low as possible as many of the users are just getting by.”

The largest shareholders in the company include Paul Nieslanik, who owns 200 shares, John Nieslanik, who owns 185 shares, Tom Bailey, whose Iron Rose Ranch owns 185 shares and Richard McIntrye, who owns 168 shares.

Marty Nieslanik told the county the hay grown with water from the East Mesa ditch was worth about $500,000 a year under a calculation of four tons of hay per acre, on 740 acres, at $170 per ton.

At the end of Nieslanik’s presentation, the members of the Healthy Rivers and Stream Board agreed to meet in December to continue to review East Mesa’s application.

The Healthy Rivers and Streams Board will next consider the East Mesa application Thursday at 4 p.m. in Pitkin County’s Plaza 1 meeting room.

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

More Crystal River coverage here.


Southeastern Colorado Water Conservancy District 2015 budget update

November 30, 2014
Pueblo dam releases

Pueblo dam releases

From The Pueblo Chieftain (Chris Woodka):

The Southeastern Colorado Water Conservancy District board is expected to approve a $17.9 million budget at its next meeting, 11 a.m. Dec. 4.

The district last week reviewed the details of the budget and hosted a public hearing. No member of the public attended.

A mill levy of 0.94 mills is planned, the same as 2014. One mill is an assessment of $1 for every $1,000 of assessed valuation. The district covers parts of nine counties, including Chaffee, Fremont, Pueblo, El Paso, Crowley, Otero, Bent, Prowers and Kiowa.

The district also makes money through sales of water and grants.

More than $12 million will go toward repayment of the Fryingpan-Arkansas Project, including the Fountain Valley Conduit. The conduit serves El Paso County communities that pay a dedicated mill levy on top of the district mill levy.

The district will spend $2.34 million for its own operating expenses, and $3.5 million on enterprise, or business, activity.

Included in the enterprise fund are the Arkansas Valley Conduit, and an ongoing project to develop hydroelectric power at Pueblo Dam.

More Southeastern Colorado Water Conservancy District coverage here.


Aspen puts the skids under proposed hydroelectric plant — council pulls funding for penstock

November 27, 2014
Micro-hydroelectric plant

Micro-hydroelectric plant

From the Aspen Times (Karl Herchenroeder):

The Aspen City Council reversed its decision to spend $750,000 on an emergency drainline associated with the controversial Castle Creek Energy Center on [November 9] after city staff admitted mistakes in communicating the issue to officials and the public.

To date, the city has invested about $7 million in the estimated $10.5 million hydro project, which was halted in 2012 when 51 percent of Aspen voters shot it down during an advisory election. The 3,900-foot drainline, which was originally intended to source the hydroelectric plant with water from Thomas Reservoir, is about 91 percent complete but is currently capped and inoperable.

On May 27, the Colorado Department of Natural Resources conducted a scheduled inspection, which found the reservoir to be a “significant hazard,” meaning damage is expected with a dam failure while the reservoir is at the high-water line. Aspen’s Utilities Manager Dave Hornbacher admitted Monday that he misrepresented the issue to the council in October, when he gave officials the impression that it was a safety issue and state recommendations called for the drainline.

“Clearly, I could have done a better job, and I sincerely apologize for any misunderstanding or confusion or lack of diligence,” Hornbacher said.

Hornbacher explained that staff presented its recommendation as if it were based solely on the dam inspection, when in fact, officials also considered opportunities to address the potential for property damage near the drainline.

Assistant City Manager Randy Ready, who also admitted mistakes in his delivery to the council, made the case that staff was blinded by the opportunity to address two issues at once. He said that a question from the council that staff failed to respond to was, “How do we minimally meet the dam inspector’s requirements?”

More background from Brent Gardner-Smith writing for Aspen Journalism:

David Hornbacher, the city of Aspen’s director of utilities, acknowledged Friday he may have oversold the impact of a May 27 state dam safety report to the city council on Oct. 21, when he successfully convinced elected officials at a budget work session to approve $750,000 to complete the tail end of a big pipeline running from the bottom of Leonard Thomas Reservoir toward Castle Creek.

Hornbacher left the council with the distinct impression that the state was now requiring the city to complete the pipeline, originally envisioned as a penstock to a proposed hydropower plant, and now primarily seen as an “emergency drain line” for the city reservoir.

But, as it turns out, the state is not specifically requiring the city to finish its big pipeline, nor has it ever told the city the pipeline is required to safely operate the reservoir.

Erin Gleason is the state dam safety engineer with the Colorado Division of Water Resources who inspected the dam and reservoir in May. She wants documentation that the city can slowly draw down the reservoir through its existing low level outlet, which today directly feeds the city’s adjoining water treatment plant, or whether a bypass of the plant will be required.

“It might just be that I need information,” Gleason said.

After talking with Gleason on Friday, Hornbacher said he now intends to research whether the city can meet Gleason’s concerns by either using the reservoir’s current low-level outlet system, or if it can do so after some level of modification. He said he would prepare a range of options that compare cost and risk and bring them to council to discuss.

Hornbacher also said he would clarify things by describing two types of potential emergencies at the reservoir. The first is some type of structural threat to the dam, which would require the use of a low-level outlet to slowly draw down the reservoir. The proposed emergency drain line, if finished, would serve as a low-level outlet.

The second type is a a hydrologic event, such as losing control of the two feeder pipes that can bring up to 52 cfs of water to the reservoir, which requires the use of a spillway or an emergency drain line to deal with more water coming into the reservoir than it has the capacity to contain.

“We look forward to having a greater depth of discussion to solutions to a low-level outlet and a hydrologic event, and we look forward to a follow-up to have a detailed discussion about the options,” Hornbacher said.

Hornbacher said on Friday that he did not try to mislead the city council about the reservoir.

“My intent is to try and be factual and accurate and convey the information in an open and honest way,” Hornbacher said, pointing out that his answers were to questions at a budget work session, and he did not make a formal proposal.

And it’s fair to note that it is Hornbacher’s standing professional opinion that the city should complete the last 360 feet of the 4,000-foot-long pipeline installed before the proposed hydropower project ran into political turmoil and was mostly shelved by the city council.

He has consistently pointed out that the pipeline is a better way to move a lot of water out the reservoir than running it down the hillside just to the east of the reservoir. However, the city does routinely run 3 to 4 cubic feet per second (cfs) of water down the hillside toward the creek, but Hornbacher is concerned that a flow of 52 cfs could damage Castle Creek Road.

A water tight case?

At an Oct. 21 budget work session, Hornbacher was asked by council to answer questions about the $750,000 line item in the 2015 budget. (On meeting video, start at 26:52).

There was no staff memo on the topic and the May 27 dam inspector’s report was not in the public packet, nor was the last inspector’s report from April 2012.

However, the discussion turned toward the May report from Gleason.

“The report requires that we complete, or provide some level of a low-level drain line, or outlet, to this reservoir,” Hornbacher told the council. “Completing the drain line does provide that low-level outlet to the reservoir. So we do have an action item required by the dam safety division. If we do not comply with that in a method that is acceptable to them, then they are forced to take action. “

At another point, Hornbacher told the council, “We need a have plan in place, something that we can demonstrate within the next several years, 2017, that you know, we’ve got something already done or that we’re taking this tangible action,” Hornbacher said. “And certainly completing the drain line is that action. If we were to try to look at other mechanisms, that would either require us to make modifications at the reservoir or provide other types of facilities that could drain that reservoir.”

With that, and other statements, Hornbacher consistently backed-up to his professional recommendation that the city complete the pipeline. And he only mentioned in passing the existing low level outlet.

During public comment at city council on Oct. 27, Maurice Emmer, a former Aspen mayoral candidate and staunch opponent of the city’s hydro project, told the council that they should conduct their own research and not trust staff to give them all the information they might need to make a decision on projects such as Thomas Reservoir.

“Staff makes a proposal, then it gives city council information to support the proposal,” Emmer said. “It doesn’t give council information that might undercut the proposal.” (Meeting video starts at 19:01).

For example, Emmer pointed out that Hornbacher did not tell council that the dam had been inspected in 2012, or elaborate on how the existing low-level outlet might satisfy the state.

And Hornbacher did not know, when asked by Councilman Dwayne Romero, how often the state inspects dams.

“I was going to look that up and I didn’t,” Hornbacher said. “I would say it is somewhere between two to five years, I’m thinking it’s around three, which is why you know, we’ve got this report in 2017.”

The state historically has inspected dams classified as “high hazard” dams, which pose a threat to human life, every year. It inspects significant hazard dams, which only pose a threat to property, every other year, as in 2012 and 2014 in the case of Thomas Reservoir, which has been classified as a significant hazard dam since at least 2012.

It’s not clear why Hornbacher is citing a need to act by 2017, as Gleason, the dam inspector, said she would need proof of a low-level outlet by the next inspection, which is slated for 2016.

Hornbacher, when asked, also did not cite the date of the last dam inspection, which was April 4, 2012.

Thomas Leonard Reservoir was completed in 1966, although water had historically been stored on the site in wooden structures to feed an old hydro plant in the same location as the proposed plant.

In 1989, the state concluded the city’s dam was under 10 feet tall, and didn’t meet its definition of a “jurisdictional” dam. So they stopped inspecting it. At the time it was classified as low hazard dam.

Inspection reports in the early 1980s mention that the reservoir’s low-level outlet drains to the water treatment plant — and was considered acceptable.

In 2010, when the city went to install its new penstock/emergency drain line, it had to rebuild the north side of the reservoir to a height of 19 feet, which put the dam back under the state’s jurisdiction.

At that time, regulators saw that the dam, if breached, would damage some property below the reservoir, but not threaten any lives, and gave it a significant hazard classification. That did not change at the May inspection, as Hornbacher implied on Oct. 21.

As to the overall damage that would be caused if the dam failed, a 2011 report by the city’s consulting engineers, McLaughlin Water Engineers, stated that “it is unlikely that buildings or roads would receive extensive damage as a result of a dam breach at Leonard Thomas Reservoir.”

No other options?

By the time Hornbacher was through discussing the completion of the emergency drain line with council on Oct. 21, it was clear he had persuaded them that his proposal was the only safe and correct course of action for the city to take to meet the requirements of the May inspection report.

“So, summing it up for my purposes, this is a state-mandated action to put in this drain line?” Councilman Art Daily asked Hornbacher at the end of the discussion on Oct. 21.

In response to Daily, who is an attorney with Holland and Hart, Hornbacher seemed to choose his words carefully.

“The state mandates that we must have a low-level outlet,” Hornbacher said. “What we have available is a nearly completed low-level outlet, and that would meet the state requirements. So they are telling you, you have to do it. They don’t necessarily go and say this, this and this, is how.”

“But some sort of drain line has got to go in?” Daily asked.

“Yep, a low-level outlet has got to be established in there for emergency, you know, release of water or draining the reservoir,” Hornbacher said.

“I guess, then the last question that comes to my mind is, are there any more equally efficient but more cost effective means of resolving the state requirement versus … this is the best solution?” Daily asked.

“This is a really enduring and complete solution, and by that I mean that you’ve got this hardened route that takes it to the stream and empties into the stream without further erosion or damage there at the stream, you’ve sort of dissipated the energy,” Hornbacher said. “Any other option that you might pursue to get water out of that reservoir does not have such a direct route, so you’d be either placing that water in an unimproved, sort of drainage-like way, and movement of such water would then … start to erode, and cause other types of damage, and then … basically recovery costs or other impacts we can’t even foresee today.”

However, it is also possible that there may be simpler and less expensive ways to meet the state’s requirements for a low-level outlet, without completing the emergency drain line — which the state has never required the city to install. And that’s what Hornbacher said on Friday he is now looking into.

In fact, as Hornbacher briefly alluded to early in his remarks on Oct. 21, and confirmed on Friday, there is a low level outlet already in place at the reservoir, and it sends water to the water treatment plant, where it can then be released down to Castle Creek.

All the state is requiring of a low-level outlet at Thomas Reservoir is that it be able to move 1 cubic feet per second (cfs) of water out of the reservoir over a five-day period, which would lower the water level by five feet — a state standard that technically doesn’t even apply to reservoirs as small as Thomas Reservoir.

Under the “Outlet” section of her May 27 dam inspection report, Gleason wrote “it is our understanding that the only active outlet(s) discharge into the water treatment plant. According to Rule 5.9.6.2.1, a low-level outlet is required to draw down the reservoir under emergency conditions. Please either provide documentation of an existing bypass for treatment plant flows, or provide a low level outlet for the reservoir.”

May was the first time Gleason had inspected Thomas Reservoir. She inspected another 60 dams this summer and said she will review issues identified in those inspections throughout the winter.

As a state dam safety engineer, Gleason said she has wide latitude to work with dam owners, such as the city, to come up with reasonable solutions to concerns raised during inspections.

According to a safety manual published by the state in 2002, “follow-up of the inspection often includes reviewing questionable conditions on site with the dam owner, explaining the problems and suggesting the best and/or most economical way to proceed in assuring the dam’s safety. Frequently, further studies by a consulting engineer are recommended.”

“We work with the owner to make sure we are not requiring something that they can’t afford,” Gleason said. “The city could propose having a stand-by generator, a pump and a hose on site. Our office would typically accept such a solution.”

Hornbacher, in his response to Daily or other council members, did not bring up the pump-and-hose option.

Editor’s note: The Aspen Daily News collaborated with Aspen Journalism on this story and published in Monday, Nov. 3, 2014. Aspen Journalism was responsible for an error in the printed version of the Daily News story, as well as the initial digital version, as we said David Hornbacher is a licensed engineer, and he is not.

More hydroelectric/hydropower coverage here.


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