Opposition growing to 
Aspen’s conditional water rights for dams on Maroon and Castle creeks

A view of the Maroon Bells from just below the confluence of East Maroon and West Maroon creeks, where the City of Aspen has told the state of Colorado it intends - at some point - to build a 155-foot-tall dam. The resulting reservoir would back up 4,567 acre-feet of water and cover 80 acres of USFS land, including a portion of the Maroon Bells-Snowmass Wilderness.
A view of the Maroon Bells from just below the confluence of East Maroon and West Maroon creeks, where the city of Aspen has told the state of Colorado it intends – at some point – to build a 155-foot-tall dam. The resulting reservoir would back up 4,567 acre-feet of water and cover 80 acres of USFS land, including a portion of the Maroon Bells-Snowmass Wilderness.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – A representative of the U.S. Forest Service told Aspen City Council Tuesday that the federal agency is likely to oppose the city if it files to extend conditional water rights it holds for dams on upper Maroon and Castle creeks.

The city has until Oct. 31 to submit a due diligence filing in Division 5 water court in Glenwood Springs to keep its conditional water rights alive for another six years, and the council held a work session Tuesday where it took public comment on the issue.

Kevin Warner, who is serving as the acting district ranger in the Aspen-Sopris Ranger District, said legal counsel for the Forest Service at the regional level had advised him that the federal agency would likely submit a statement of opposition if the city filed to extend its conditional water rights.

He said that given the city’s ongoing exploration of whether or not it should seek to renew its conditional water rights, the Forest Service also took an “in-depth” look at the rights.

“In this instance, we’ve taken a little more time, looked into it,” Warner told the council. “And based on advice from our counsel, we are considering filing a statement of opposition to this diligence filing.”

If built as currently described by the conditional water rights, 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.

The Maroon Creek Reservoir would cover 85 acres of Forest Service land about a mile and a half below Maroon Lake. The reservoir would also inundate portions of the Maroon Bells-Snowmass Wilderness.

The potential Castle Creek Reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the ghost town of Ashcroft.

The reservoir, inundating 120 acres, would affect mostly private land but would also flood some Forest Service land within the wilderness.

The city originally filed for the water rights in 1965, citing an expectation that it would need to build at least one of the reservoirs by 1970 to meet demands for water.

In its last diligence filing in 2009, the city told the water court “it has steadily applied effort to complete the appropriation of this water right in a reasonably expedient and efficient manner.”

On Tuesday, the city’s director of utilities and environmental initiatives, David Hornbacher, told the city council there could be a gap in the future between the city’s water supply and demand, especially given 
climate change, but he did not cite the specific size of the perceived gap, or how the potential reservoirs would be used to meet it.

He did, however, recommend that the city file an application in water court to maintain its conditional water rights and then look at alternatives.

A draft resolution put forward by city staff says “the city should also continue to further investigate alternative locations and sizing requirements of the Maroon Creek Reservoir and/or Castle Creek Reservoir, and, if appropriate, seek water court approval for modification of one or both conditional decrees, with their existing appropriation dates.”

A view of one of the many wetlands in the Castle Creek valley that would be flooded by a potential Castle Creek Reservoir. The U.S. Forest Service has advised the city of Aspen that its potential reservoirs would conflict with management plans for the White River National Forest.
A view of one of the many wetlands in the Castle Creek valley that would be flooded by a potential Castle Creek Reservoir. The U.S. Forest Service has advised the city of Aspen that its potential reservoirs would conflict with management plans for the White River National Forest.

Not compatible with USFS 
management plan

Art Daily, a member of the Aspen City Council and a veteran attorney with Holland and Hart in Aspen, asked Warner during Tuesday’s work session whether the Forest Service viewed filing a statement of opposition in water court as an “opportunity” or a “responsibility.”

Statements of opposition in water court cases do not always reflect a party’s intent in the case. A statement could be simply a way to monitor court proceedings, or it could signal intent to litigate against a proposed water right.

In response to Daily’s question, Warner said the agency saw it as a responsibility to oppose the city, rather than an opportunity.

Warner said the Forest Service’s opposition to the city’s water rights was based on the fact that the reservoirs would inundate portions of the Maroon Bells-Snowmass Wilderness.

“Based on our understanding of the Wilderness Act, and the fact that there was no exception built into the designation for the Maroon-Bells Wilderness Area … it would need to go to the president” in order for the reservoirs to be approved, Warner said.

Without such an authorization, the Forest Service could not support the city’s conditional water rights.

“It is nothing against this particular one, it’s just a legal thing,” Warner told the council. “It is kind of our opportunity in the court system to say, ‘You guys would have to get this done,’ and therefore it is kind out of our control.”

Will Roush, conservation director at Wilderness Workshop in Carbondale, told the city council in an Aug. 19 letter that no president has granted such an exemption to the Wilderness Act since it was approved 52 years ago.

Roush wrote, “the city would have to convince the president of the Unites States that the ability of Aspen residents and second homeowners to water their lawns in late summer was of a greater national interest than the internationally recognized ecological and scenic values of the Maroon Bells-Snowmass Wilderness.”

He also urged the city, on behalf of Wilderness Workshop, to abandon its conditional water rights.

This is not the first time the Forest Service has warned the city of Aspen that its proposed dams and reservoirs conflict with federal policy.

In 2009, the last time the city filed to extend its conditional water rights, White River National Forest Supervisor Scott Fitzwilliams sent the city a letter about its conditional water rights, but did not file a statement of opposition.

“As currently decreed, the locations of the Castle Creek and Maroon Creek reservoirs would not comply with the goals and objectives of the White River National Forest’s land and resource management plans for these areas,” Fitzwilliams wrote. “For example, the Maroon Creek Reservoir, as currently sited, would not be compatible with the specific management of the highly visited area for the protection of its high scenic value. Both proposed structures would conflict with our management objective to maintain or improve long-term riparian ecosystem conditions on the forest.”

A map showing the location of the potential Castle Creek Reservoir. The extend of the reservoir has been slightly modified to flood a smaller portion of private property owned by adjacent neighbors.
A map showing the location of the potential Castle Creek Reservoir. The extent of the reservoir has been slightly modified to flood a smaller portion of private property owned by adjacent neighbors.

County in question

In addition to the likely pushback from the Forest Service, American Rivers has also stated it will oppose the city in water court.

“American Rivers strongly encourages the city of Aspen to not file to maintain its conditional water rights for new dams on Castle and Maroon creeks,” wrote Matt Rice, the director of the Colorado River basin program for American Rivers on Aug. 17. “Aspen does not need these dams for municipal water supply, climate resiliency, or for stream protection now or at any time in the foreseeable future.”

Last month, Rice also said in an interview that American Rivers would oppose the city in water court if it filed to extend the conditional water rights.

The Roaring Fork Conservancy also weighed in with an Aug. 25 letter to the council, arguing that based on relevant studies, the city “appears to have sufficient water supply to meet its forecasted demand” without the reservoirs, which would “result in needless, drastic alteration of the natural landscape of two of our state’s most scenic places.”

“Rather than prolonging this debate for another six-year diligence cycle, Roaring Fork Conservancy believes now is the appropriate time to cancel these conditional water rights and tfor the city to pursue any other water demand and supply initiatives,” says the letter signed by director Rick Lofaro.

The city council also heard Tuesday from Lisa Tasker, the chair of Pitkin County’s Healthy Rivers and Streams Board, which recently sent a letter to the city saying the board “does not support new construction of impoundments on Maroon and Castle creeks.”

Tasker also suggested that Pitkin County might oppose the city’s diligence filing.

But Laura Makar, an attorney with the county who specializes in water issues, said Wednesday that the board of county commissioners “has not taken any position on any possible permutation of a diligence application the city of Aspen might file and I expect the [commissioners] will not have any position until any application is filed.”

A map produced by Pitkin County from a map on file with the state of the city of Aspen's proposed Maroon Creek Reservoir, located just below Maroon Creek Lake, shown to the left as the smaller of the two bodies of water. The map was commissioned by Aspen Journalism and confirmed in 2012 as accurate by city officials.
A map produced by Pitkin County, from a map on file with the state, of the city of Aspen’s proposed Maroon Creek Reservoir, located just below Maroon Creek Lake, shown to the left as the smaller of the two bodies of water. The map was commissioned by Aspen Journalism and confirmed in 2012 as accurate by city officials.

Opposition in Maroon Creek Valley

The city also received a letter from an attorney representing the Larsen Family Limited Partnership, which owns water rights on Maroon Creek.

Craig Corona, a water attorney in Aspen who represents the Larsen family, wrote a letter on Aug. 17 to the city saying, “The city has not demonstrated that it will have a water supply shortfall in the future raising questions as to the need for these water rights. Even if such a supply issue arises, the city has other far less damaging options to meet its needs, including improving conservation and efficiency, developing additional groundwater sources (which the city is currently doing), and developing multiple smaller storage structures in more appropriate locations.”

Corona also told the city that it “should not file for diligence on its Castle Creek and Maroon Creek Reservoir water rights and should allow them to be canceled.”

Marcella Larsen of Aspen is co-manager of the Larsen Family Limited Partnership. She’s also a member of the Maroon Creek Caucus, which advises Pitkin County on land use in the Maroon Creek Valley.

Larsen recently sent a comment letter to the city from the Maroon Creek Caucus, opposing the Maroon Creek Reservoir, noting, “The city has made several statements to the public that it has no plans to build the reservoir and merely seeks to keep its options open by maintain the water rights. But when it files in court, the city will have to prove that it ‘can and will’ build the reservoir. Put differently, the city must prove that the project is essentially a foregone conclusion, not just a potential pursuit.”

The caucus concluded, “We think the only reasonable decision is for the city of Aspen to choose to not maintain its Maroon Creek Reservoir water right.”

The city council next plans to meet in a closed-door executive session with its water attorney on Monday about its conditional water rights, and then hold another public work session on Tuesday.

It also plans to vote on Oct. 10 whether or not to file to maintain the conditional water rights.

Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Thursday, Sept. 22, 2016.

Opposition likely to Aspen’s conditional water rights on upper Maroon and Castle creeks

A view of the Maroon Bells from just below the confluence of East Maroon and West Maroon creeks, where the City of Aspen has told the state of Colorado it intends - at some point - to build a 155-foot-tall dam. The resulting reservoir would back up 4,567 acre-feet of water and cover 80 acres of USFS land, including a portion of the Maroon Bells-Snowmass Wilderness
A view of the Maroon Bells from just below the confluence of East Maroon and West Maroon creeks, where the city of Aspen has told the state of Colorado it intends – at some point – to build a 155-foot-tall dam. The resulting reservoir would back up 4,567 acre-feet of water and cover 80 acres of USFS land, including a portion of the Maroon Bells-Snowmass Wilderness.

ASPEN – After holding both private and public meetings last week about its conditional water rights for dams and reservoirs on upper Maroon and Castle creeks, the city of Aspen is likely facing opposition in water court if it files a request to extend the water rights for another six years.

“If their diligence filing is consistent with the current project configuration, I do think we will file a statement of opposition,” said Matt Rice, Colorado basin director for American Rivers, a national river conservation organization.

The city has until the end of October to file a due diligence report in Division 5 water court in Glenwood Springs. Such filings are required every six years.

In its September 2009 diligence filing, which was approved in 2010, the city told the water court “it has steadily applied efforts to complete” the dams and reservoirs “in a reasonably expedient and efficient manner.” The city first filed for the conditional water right in 1965 and the conditional rights were formally decreed in 1971.

The view, with a zoom lens, of the Bells from the meadow that would be flooded by a Maroon Creek Reservoir. The meadow is known as the Stein Meadow and the wedding meadow.
The view, with a zoom lens, of the Bells from the meadow that would be flooded by a Maroon Creek Reservoir. The meadow is known as the Stein Meadow and the wedding meadow.

Routine filing?

At a public meeting Thursday a consultant working for the city, Larissa Reed of Common Ground Environmental Consulting LLC, told the gathering of about 35 people that the city’s pending due diligence filing was “routine.”

“City council is not proposing to build water storage reservoirs at this time,” Reed said. “What they are doing is thinking about the conditional water storage rights and whether or not they should be filed for again in October for another six years.“

A work session with city council on the question is to be held in September or October.

Reed then explained some aspects of conditional water rights, including the “can and will” test for proposed water supply projects.

“The phrase ‘can and will’ suggests, in the law, that you have to be making progress towards developing this water supply in order to re-up every six years in your diligence filing,” Reed said. “The idea is that applicants have to show that they are making progress on those water rights, that they’re not just sitting on them doing nothing.”

A view looking down the Castle Creek valley at one of the many wetlands that would be covered by the potential Castle Creek Reservoir. The city of Aspen has told the state it intends to build - at some point - a 170-foot-tall dam that would stretch about 1,000 feet across the Castle Creek valley and back up 9,062 acre-feet of water, inundating 112 acres of public and private land.
A view looking down the Castle Creek valley at one of the many wetlands that would be covered by the potential Castle Creek Reservoir. The city of Aspen has told the state it intends to build – at some point – a 170-foot-tall dam that would stretch about 1,000 feet across the Castle Creek valley and back up 9,062 acre-feet of water, inundating 112 acres of public and private land.

Can and will?

Since 1965, the city has consistently told the state it intends – at some point – to build a 155-foot-tall dam at the confluence of East and West Maroon creeks that would store 4,567 acre-feet of water behind it and build a 170-foot-tall dam on Castle Creek that would back-up 9,062 acre-feet of water.

The city has not undertaken feasibility or cost studies of the dams and reservoirs since filing for the water rights, although the Bureau of Reclamation did conduct limited test drilling on the Castle Creek dam site in 1970.

Nor has the city determined how much water storage it actually might need in the future, or what other storage locations might be feasible, according to David Hornbacher, the city’s director of utilities and environmental initiatives.

Castle Creek, not far below Ashcroft. This section of river would be covered by a potential Castle Creek Reservoir.
Castle Creek, not far below Ashcroft. This section of water would be covered by a potential Castle Creek Reservoir.

Facilitated sessions

On Wednesday, the city held a private stakeholders meeting about the conditional water rights with representatives from American Rivers, Wilderness Workshop, Roaring Fork Conservancy, Aspen Center for Environmental Studies, the Colorado River District, U.S. Forest Service, and Colorado Parks and Wildlife.

The formats of both the private stakeholders meeting and Thursday’s public meetings were the same, with remarks from the consultant and Hornbacher, limited time for questions, and then facilitated small-group discussions focused on questions crafted by the city.

“I’m hopeful that they will take this public input and present it to the council in an unbiased and accurate fashion,” said Rice of American Rivers, who attended Wednesday’s stakeholder meeting, “but if the city moves forward with due diligence for a reservoir on Maroon Creek and a reservoir on Castle Creek, we intend to stand up for those rivers and those wild places and oppose.”

When asked if American Rivers was prepared to take its opposition to a level of active litigation in water court, which typically comes after a lengthy period of time when parties are asked by the court to work out their differences in private meetings, Rice said he hoped it wouldn’t go that far.

“I would hope that it would give the city an opportunity to investigate real alternatives to this project to meet their future water supply needs,” he said of discussions during the initial phase of the process. “One thing that a statement of opposition in a diligence filing does is that inspires those discussions at a quicker pace than would happen otherwise.”

American Rivers filed a statement of opposition in response to a diligence filing in 2011 from the Colorado River Water Conservation District and the West Divide Water Conservancy District for conditional water rights for two large dams on the Crystal River.

The River District and the West Divide District agreed to abandon those water rights in 2013.

Pitkin County also filed a statement of opposition against the Crystal River conditional water rights and took an active role in the proceedings.

After Thursday’s public meeting on the rights on Maroon and Castle creeks, Laura Makar, an assistant county attorney for Pitkin County, said the county had not yet decided if it would oppose a diligence filing by the city.

“We don’t have a position at this point in time,” Makar said. “The diligence filing is not due until October. Any statement of opposition would not be due until December. We’re in August right now, so I anticipate we’ll have a position at some point.”

In a small bit of irony, there is a two-foot-tall beaver dam just below the location where Aspen has told the state it intends to build a 155-foot-tall dam - some day.
In a small bit of irony, there is a 2-foot-tall beaver dam just below the location where Aspen has told the state it intends to build a 155-foot-tall dam – someday.

Dueling statements

Pitkin County Commissioner Rachel Richards, a former mayor of Aspen, attended Thursday’s meeting. She said during the small-group discussions that she thought it was “premature” for the city to abandon its conditional rights for the dams and reservoirs.

Will Roush, a conservation advocate for Wilderness Workshop, attended both the private stakeholders meeting and the public meeting.

When asked Friday if Wilderness Workshop intended to oppose the diligence filing, Roush said, “We’ll make that decision once they decide whether or not to file a diligence filing,” but also said his organization wants Aspen to abandon the water rights.

Paul Noto, a water attorney at Patrick, Miller, Noto who fought the city’s proposed hydropower plant on lower Castle Creek on behalf of a group of local clients, was asked if he expected someone to file a statement of opposition if the city filed.

“It’s not a question of someone, it is a question of how many,” Noto said. “There is going to be a lot of opposition to this project. The reason is Aspenites, and others, hold Castle and Maroon creek valleys near and dear to their hearts and I think a lot of people passionately believe, rightly so, that there shouldn’t be dams in those valleys.”

Rob Harris, the senior staff attorney at Western Resource Advocates of Boulder, also was at Thursday’s meeting. Afterward, he was critical of the city’s dueling messages about its intentions for the dams and reservoirs.

“The city can’t and shouldn’t say different things to the public that it says to the water court,” Harris said. “The city shouldn’t come in here, to this public meeting, and say, ‘We don’t really have any plans to build these dams’ and then go into the water court and say, ‘We can and will build these reservoirs.’ Those are two different, inconsistent, statements.”

He also challenged the way the city made it sound that climate change made the dams necessary.

Ashley Perl, the director of the city’s Canary Initiative, had presented climate projections at the meeting that showed less water would likely be in Aspen-area rivers in a hotter future. She said that Aspen doesn’t have any water storage facilities, which made it vulnerable, and that the community needed to have a conversation about storage.

But Harris said, “It is important to note that nothing we saw tonight connected any of those water availability scenarios under those climate models to actual water needs that the city of Aspen has. There was nothing presented tonight that showed that in any of those scenarios that Aspen would in fact be short of water.”

Harris added, “If the city does identify a water need, they have lots of other alternatives” than the dams and reservoirs.

The city has set up an email address for citizens to send comments and questions about the conditional water rights, at waterrights@cityofaspen.com, until Aug. 19.

One of the many wetlands in the area that would be covered by a Castle Creek Reservoir.
One of the many wetlands in the area that would be covered by a Castle Creek Reservoir.

Regional reservoirs and dams, ranked by normal storage capacity

During a public meeting on Aug. 4, 2016, the city of Aspen presented a graphic comparing the surface area of various regional reservoirs with the surface area of the proposed Castle and Maroon creek reservoirs.

We’ve expanded the list, added more criteria, ranked it by storage capacity, and used data from the Colorado Dept. of Dam Safety, including their term of “normal storage” for the storage capacity amount.

For Castle and Maroon, which the city labeled in their presentation as “proposed,” we’ve simply used “storage capacity.”

AF means “acre feet.” There are 325,851 gallons of water in an acre-foot.

Ruedi Reservoir
Normal storage: 102,369 AF
Dam height: 291 feet
Dam length: 1,060 feet
Surface area: 998 acres

Homestake Reservoir
Normal storage: 42,900 AF
Dam height: 231 feet
Dam length: 1,996 feet
Surface area: 333 acres

Paonia Reservoir
Normal storage: 20,950 AF
Dam height: 199 feet
Dam length: 770 feet
Surface area: 334 acres

Rifle Gap Reservoir
Normal storage: 13,602 AF
Dam height: 124 feet
Dam length: 1,450 feet
Surface area: 359 acres

Proposed Castle Creek Reservoir
Storage capacity: 9,062 AF
Dam height: 170 feet
Dam length: Approx. 1,000 feet
Surface area: 112 acres

Proposed Maroon Creek Reservoir
Storage capacity: 4,567 AF
Dam height: 155 feet
Dam length: Approx. 1,500 feet
Surface area: 80 acres

Spring Park Reservoir
Normal storage: 1,732 AF
Dam height: 20 feet
Dam length: 1,645 feet
Surface area: 258 acres

Wildcat Reservoir
Normal storage: 1,100 AF
Dam height: 75 feet
Dam length: 1,100 feet
Surface area: 50 acres

Ivanhoe Reservoir
Normal storage: 752 AF
Dam height: 16 feet
Dam length: 270 feet
Surface area: 82 acres

Grizzly Reservoir
Normal storage: 590 AF
Dam height: 56 feet
Dam length: 792 feet
Surface area: 44 acres

Dinkle Lake
Normal storage: 460 AF
Dam height: 40 feet
Dam length: 580 feet
Surface area: 20 acres

Ziegler Reservoir
Normal storage: 248 AF
Dam height: 28 feet
Dam length: 500 feet
Surface area: 16 acres

Chapman Reservoir
Normal storage: 100 acre feet
Dam height: 37 feet
Dam length: 160 feet
Surface area: 10 acres

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of rivers and water. The Daily News published this story on Monday, August 8, 2016.

Aspen: Public open house on 
Castle and Maroon creek water rights

Castle Peak
Castle Peak

From the City of Aspen via The Aspen Daily News:

The city of Aspen is hosting a public open house on the municipality’s conditional water rights on Castle and Maroon creeks on Thursday from 5 to 6:30 p.m. in the Pitkin County library community meeting room.

City representatives will provide background information and host a dialogue with the public with the goal of asking for input and ideas.

Since 1965, the city has maintained conditional water rights for a reservoir on Castle and on Maroon creeks to plan for the community’s future water needs, a press release says. To keep these rights, Aspen must submit a diligence filing this October.

Aspen Journalism reported in June that, if built as currently described by the city’s plans, which were first presented to a water court judge in 1965, the Maroon Creek reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam just below the confluence of East Maroon and West Maroon creeks.

But the release issued Monday by the city says the diligence filing is a routine one that occurs every six years.

And it is not a proposal to actually build the reservoir, the city says.

“A conditional water right is a place holder in Colorado’s priority system for water rights,” the release says.

City of Aspen to discuss possible dams on Castle and Maroon creeks

A rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city.
A rendering from Wilderness Workshop of a potential Maroon Creek Reservoir, which would hold 4,567 acre-feet of water behind a 155-foot-tall dam. The rendering was prepared by a professional hydrologist and is based on plans submitted to the state by the city.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – Officials at the city of Aspen intend to hold at least one public meeting this summer to discuss the conditional water rights it holds that are tied to potential dams on upper Castle and Maroon creeks.

The city’s next diligence filing for its conditional water rights for the two dams and reservoirs is due in Division 5 water court in Glenwood Springs by Oct. 31. It’s highly unusual in Colorado for a city, or any other entity, to hold a public meeting on a pending diligence filing.

David Hornbacher, city of Aspen director of utilities and environmental initiatives, said that while holding a public meeting is indeed “different,” he is acting at the direction of the city council.

“These are important questions,” he said. “And it’s very much about looking into the future and how do we ensure Aspen has what it needs to continue to thrive and be the place that it is, and what’s the best approach.”

Paul Noto, a water attorney with Patrick, Miller and Noto, which specializes in water law and has represented many clients in the Roaring Fork River watershed, said it was “very unusual” for a city to hold a public hearing about a pending diligence filing.

“I’ve never heard of it, although that’s not to say it’s never occurred,” Noto said. “I’ve just never heard of it.”

 A rendering from Wilderness Workshop showing the potential Castle Creek Reservoir. The rendering was developed by a professional hydrologist and i sbased on engineering plans filed by the city.
A rendering from Wilderness Workshop showing the potential Castle Creek Reservoir. The rendering was developed by a professional hydrologist and i sbased on engineering plans filed by the city.

15-story dams?

If built as currently described by the city’s plans, which were first presented to a water court judge in 1965, the Maroon Creek reservoir would store 4,567 acre-feet of water behind a 155-foot-tall dam just below the confluence of East Maroon and West Maroon creeks.

While only about a third of the size of Paonia Reservoir, which can hold 15,553 acre-feet when full, a Maroon Creek reservoir would still cover 85 acres of U.S. Forest Service land about a mile-and-a-half below Maroon Lake.

It would also inundate portions of both the East Maroon Creek and West Maroon Creek trails in the Maroon Bells-Snowmass Wilderness.

The Castle Creek reservoir would hold 9,062 acre-feet of water behind a 170-foot-tall dam located about two miles below the historic town site of Ashcroft.

It would inundate 120 acres of mostly private land between Fall Creek and Sandy Creek and flood a small piece of Forest Service land within the Maroon Bells-Snowmass Wilderness.

Both reservoirs would be located in Pitkin County.

Since 1965, the city has told the state eight different times it intends to build two large dams in pristine locations in the upper Castle and Maroon creek valleys, and it is on the record that the city intends to file a diligence application this fall. In its September 2009 diligence filing the city told the water court “it has steadily applied efforts to complete” the reservoirs “in a reasonably expedient and efficient manner.”

A court official, known as a water referee, agreed.

“To date, the city of Aspen has not needed to construct the storage structures as it has devoted considerable resources to reducing per capita water consumption,” the unnamed referee wrote. (Please see related story).

A rendering from Wilderness Workshop showing how a Castle Creek Reservoir might look on a seasonal basis after water has been drawn done to meet downstream needs.
A rendering from Wilderness Workshop showing how a Castle Creek Reservoir might look on a seasonal basis after water has been drawn done to meet downstream needs.

Private and public meetings

Hornbacher said this week he will hold one private meeting with stakeholders in early July about the dams and at least one public meeting in July or early August, “depending on the level of public interest.”

After presenting information about the water rights and taking questions and suggestions at the meetings, Hornbacher said he would report back to the council in a work session in August or September to get its direction by the Oct. 31 filing deadline.

He said council could direct staff to proceed with the diligence filing and try and keep the water rights on the books for another six years.

Or it could direct staff not to file, or to file a modified application.

Hornbacher said a modified application could mean filing on one dam and reservoir, but not both, or it could mean filing on both reservoirs but changing their size and shape.

It’s not unheard of for entities to walk away from conditional water rights. The Colorado River District made the decision to abandon rights for two large dams on the Crystal River in 2013. And over the last five years, the district has stepped away from a number of other conditional water rights.

Among the stakeholders Hornbacher plans to invite to a private meeting are Wilderness Workshop, Roaring Fork Conservancy, U.S. Forest Service, and Pitkin County.

Wilderness Workshop first reported the city’s decision to hold public hearings in a newsletter it sent to members on June 1. The headline of the article read, “Potential dams on Maroon and Castle creeks still on the books” and a subhead read, “A diligence filing this fall would keep them alive; WW says, ‘No way!’”

The city of Aspen intends to hold at least one public meeting on the conditional water rights it holds for two large dams, one on upper Castle Creek and one on upper Maroon Creek, shown here in this 2012 file photo, with the Maroon Bells visible in the background. The dam on Maroon Creek would be 155-feet-tall and store 4,567 acre-feet of water.
The city of Aspen intends to hold at least one public meeting on the conditional water rights it holds for two large dams, one on upper Castle Creek and one on upper Maroon Creek, shown here in this 2012 file photo, with the Maroon Bells visible in the background. The dam on Maroon Creek would be 155-feet-tall and store 4,567 acre-feet of water.

Proving diligence

Typically, owners of conditional water rights need to demonstrate to the court they meet the “can and will” doctrine – that they can build the proposed water supply project and that they will build it.

The city may also need to meet standards developing in the wake of a Colorado Supreme Court decision in Pagosa Area Water & Sanitation Dist. v. Trout Unlimited.

Alan Martellaro, the Division 5 engineer based in Glenwood Springs, told the city in May, in response to a separate conditional water rights application it filed, that “the applicant [the city] must demonstrate that speculation is overcome per the criteria in ‘Pagosa.’”

“The applicant must demonstrate the proposed appropriation can and will be diverted and put to beneficial use for each of the proposed uses: a) within a reasonable planning period; b) using normal population growth assumptions; and c) the amount claimed is necessary and unappropriated water is available,” Martellaro wrote.

In past filings, the city has left the state with the distinct impression that it intends to build the two reservoirs, especially in the face of the uncertainty of climate change. But it has also left citizens with another impression – that it is simply protecting its water rights, not warming up bulldozers in view of the Bells.

Noto, the Aspen water attorney, says “you can’t have it both ways.”

“It’s a really important point,” Noto said. “You either are moving forward toward completing your project, which is essentially the standard for keeping your water right, or you’re not. And there’s no in-between.”

Noto has represented clients in the past who successfully opposed the city’s proposed hydropower plant on Castle Creek, but said he is not currently representing a client regarding the city’s pending diligence filing.

As such, Noto was willing to talk on the record in the role of citizen and as an experienced local water attorney.

He said he doesn’t agree with the city’s reasoning that a hotter future may increase the need for the reservoirs.

“I don’t buy it,” he said. “To use climate change as a pretext for damming the Maroon Bells and damming upper Castle Creek is not appropriate.”

The city of Aspen recently completed a raw water availability study that concluded that Aspen has sufficient water to meet future municipal demands, but in one of out of 20 years it might have trouble meeting its goal of keeping instream flows of at least 14 cfs in Maroon Creek and 13.3 cfs in Castle Creek.

The language in the water availability study leaves open the door for the city to suggest that building dams on the upper sections of the creeks could help meet its instream flow goals on the lower sections of the creeks.

A map produced by Pitkin County from a map on file with the state of the city of Aspen's proposed Maroon Creek Reservoir, located just below Maroon Creek Lake, shown to the left as the smaller of the two bodies of water. The map was commissioned by Aspen Journalism and confirmed in 2012 as accurate by city officials.
A map produced by Pitkin County from a map on file with the state of the city of Aspen's proposed Maroon Creek Reservoir, located just below Maroon Creek Lake, shown to the left as the smaller of the two bodies of water. The map was commissioned by Aspen Journalism and confirmed in 2012 as accurate by city officials.

Good planning?

“What we’re talking about is trade-offs,” Noto said. “Is maintaining an instream flow worth building large dams at the Maroon Bells and upper Castle Creek? Absolutely not. There are other ways that the city could meet the instream flow such as eliminating some irrigation during times of shortage. There are better ways to meet your goals than building big dams. And the people aren’t going to stand for it.”

Noto was asked if he could see a reason why the city should hold on to its conditional water rights on Castle and Maroon creeks.

“I don’t see it,” he said. “I can’t, for the life of me, envision a scenario where it would be good planning or good policy to dam Maroon Bells and to dam upper Castle Creek.”

Wilderness Workshop told its members in its June newsletter that it would be working “to convince the city to abandon the rights to these reservoirs (and we’ll need your help).”

American Rivers is also on the record as opposing the city’s plans to build dams and reservoirs.

“We are absolutely and always will be opposed to new reservoirs on Castle and Maroon creeks,” said Matt Rice, director of the Colorado River Basin Program for American Rivers. “They contradict the values of Aspen and the state of Colorado — values we will fight for.”

American Rivers is a national nonprofit dedicated to river restoration and protection, which fought vigorously against the city of Aspen’s Castle Creek hydro power plant.

Rice said whether or not American Rivers will oppose the city in water court if it does decide to file a diligence application is a strategic decision to be made down the road.

“We think the city’s willingness to have an open, transparent process with citizens is a good thing, if indeed that’s what it is,” Rice said. “There needs to be a sincere and open examination of these projects and what people would be giving up if they were developed.”

Editor’s note:
Aspen Journalism, the Aspen Daily News, Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published this story on Monday, June 20, 2016.

Aspen and Pitkin in IGA to study Roaring Fork river health

Map of the Roaring Fork River watershed via the Roaring Fork Conservancy
Map of the Roaring Fork River watershed via the Roaring Fork Conservancy

From The Aspen Times (Collin Szewczyk):

Pitkin County agreed to an intergovernmental agreement last week with the city of Aspen to expedite a study that aims to assess the health of the Roaring Fork River from its origin high atop Independence Pass down to where it meets Maroon Creek.

The $200,000 Upper Roaring Fork River management plan will be funded evenly by the two entities, and address feasible changes to improve the river ecosystem’s health including return flows to keep water levels up. The project will last roughly 15 months, ending in July 2017.

The project will focus on the river’s health; assess the community’s values and expectations; and look into river management objectives during periods of critical flow, a county memo noted. The goal of the study is to improve water quality, recreational opportunities, riparian habitat, and the overall health of the river and surrounding ecosystem.

John Ely, county attorney, said the study will look at water rights and development potential to “assess the ability to coordinate the competing interests to improve or enhance the health of the upper Roaring Fork.”

The study will cover river health from Independence Lake to just below Maroon Creek.

Ely said the county’s $100,000 will be contributed from both the Open Space and Trails and Healthy Rivers and Streams funds. Both of those entities’ boards are supportive of the project and related costs.

April Long, stormwater manager for the city and project manager for the endeavor, told the 
commissioners that a goal is to determine “realistic view of river health” for the community.

“The health of this section of the Roaring Fork has been on the city’s mind for quite a while now,” she said. “We’ve developed a pretty substantial stormwater management program to improve the runoff from the city areas and from private development before it gets into the river.”

Long added that other issues the river faces include degraded riparian areas and the lack of water during critical times of the year.

“In drought years, like we saw in 2002 and 2012, this section of the river can almost run dry,” she said. “It runs dry enough for you to walk across it without getting your feet wet. That has significant impacts for our aquatic life.”

Long added that the project will have benefits to the entire area, and not just within the city of Aspen. She said stakeholder opinions will be sought to determine what constitutes a healthy river.

Carbondale-based Lotic Hydrological, which recently completed a management plan on the Crystal River, has been hired as consultant for the project.

Long added that all prior river data will be utilized in the study.

“This isn’t a restudy of what is a healthy river, this is using all of the information that comes from different consultants [and county studies],” she said. “Given that everybody thinks there’s these different pieces that make a healthy river, what is actually realistic? What can we make change on? … We want the community to understand that these are the opportunities for a healthy river.”

Commissioner George Newman noted that the county doesn’t want to simply match the current state minimum standards for a healthy river.

“They’re probably woefully [inept] and not going to really address our vision in terms of what makes up or determines a healthy river or stream,” he said.

Long said that while the state’s minimum standards are not viewed as being too low, the community may have higher standards.

“It may be that our community believes we should be striving for more,” she said. “This would actually look at not just striving for more, but what can we actually get done. We may not even be able to meet the minimum in-stream flow at times, therefore what should we be striving for if we can’t get even to that? What is realistic that we can get to?”

The commissioners unanimously approved the emergency ordinance, 3-0.

“For a variety of different events beyond anybody’s control, we were kind of behind the eight ball in getting the project up and running,” Ely said of the ordinance. “If we were to wait and put this on a normal schedule, we’d be further behind.”

He added that even though the terms of the IGA haven’t yet been finalized, it was best to act now.

“At least we have immediate expression of commitment to the project,” Ely said.

The IGA will return before the BOCC for a public hearing on June 22.

City water supply could be tested by climate change — The Aspen Daily News

Smuggler Mine back in the day via GregRulon.com
Smuggler Mine back in the day via GregRulon.com

From The Aspen Daily News (Curtis Wackerle):

If climate change renders the Western Slope warmer and drier, and if historic growth rates keep up, then Aspen’s water utility could have trouble meeting consumer demand without depleting minimum in-stream flows in Castle and Maroon creeks over the next 50 years.

Aspen City Council on Monday heard a presentation from consultants hired to evaluate the adequacy of the municipal water supply. Wilson Water Group put together a report forecasting demand and available supply over a 50-year outlook, and found that in the worst-case climate change scenario, the city could miss in-stream flow targets on Castle and Maroon creeks by between 4 and 9 cubic feet per second during the “irrigation months” of June through September.

The city has committed to a 13 cfs minimum flow in Castle Creek, and 14 cfs in Maroon. Both creeks are tapped to feed municipal needs through diversion structures that send water to Thomas Reservoir, a holding bay for the city’s treatment plant.

Even if the worst-case scenario projections come to pass in terms of climate change and population growth — demands on the city’s water system historically have risen by about 1.2 percent a year, according to special projects utilities engineer Phil Overeynder — the city has other ways to shore up its water supply.

One project that has been on the drawing board for years would pump treated wastewater uphill from the sanitation plant to irrigate the city’s golf course.

The city also controls three wells in town drawing from the local aquifer. If irrigation for city parks increasingly relied on those wells, then more water could be left in Castle and Maroon creeks.

Combined with more water conservation, or restrictions in drought years, depletion of in-stream flows could be avoided, consultants report.

City council agreed to adopt the 2016 Water Supply Availability Study, and continue monitoring hydrologic conditions.

Council also heard a presentation on Monday from another consultant that analyzed threats to the water supply and water quality. Given that Aspen’s water originates in high mountain valleys, wildfire poses perhaps the most imminent and hazardous threat. A bad fire in the Castle or Maroon watersheds could be detrimental to water quality in those streams, and subsequent mudslides could also cause problems.

There is also the abandoned Pitkin Iron Mine above Ashcroft that drains into Copper Creek, a Castle Creek tributary.

The Colorado Rural Water Association conducted a study for the city assessing the best ways to mitigate these threats.

Creating a buffer zone against wildfire near the diversion structures on Castle and Maroon creeks, while continuing to develop plans to limit wildfire debris flow into Thomas Reservoir, were among the study’s top recommendations.

More work to control erosion at the Pitkin Iron Mine site was also recommended. However, the consultant noted that the Pitkin Iron Mine did not make the list of the state’s 200 most pressing mine cleanup needs.

Aspen to develop river management plan for upper Fork — The Aspen Times

Roaring Fork River in early July 2012 via Aspen Journalism
Roaring Fork River in early July 2012 via Aspen Journalism

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

The city of Aspen is seeking consultants to help it prepare a river management plan for the upper Roaring Fork River, which has been plagued in drought years by low flows as it winds through central Aspen.

“The city of Aspen plans to study the upper Roaring Fork River, from its headwaters to a point just below the confluence with Maroon Creek,” the city’s request for proposals, or RFP, says.

April Long, the city’s stormwater manager, said the development of a river management plan was one of the Aspen city council’s top ten goals in 2015. Long said she expects regional engineering firms specializing in water to put together teams of consultants and submit proposals to the city, which are due by Jan. 15.

“Since 2008, the city has focused on improving the quality of water discharged through its outfalls. The city now feels it is important to focus its attention on one of the other probable causes for impairment – inadequate flows during periods of drought,” the RFP says.

The city’s RFP also says it expects proposed consulting teams “to include members with experience and expertise in water resources engineering, river science, hydrology, water quality, stream geomorphology, Colorado water rights and water law, and group facilitation.”

Long said the city’s river management plan will be similar to the ‘”stream management plans” that are called for in the recently released Colorado Water Plan, and that ongoing work being done by the Colorado Water Trust for Pitkin County on ways to add more water to the river will be looked at when formulating the city’s river plan.

“Our ultimate goal for the project is to develop a plan that outlines operational, management, and physical options that improve the health of the river while respecting each stakeholder’s rights and interests,” the city’s RFP says.

The Roaring Fork River flows into the city’s boundaries at Stillwater Drive east of downtown Aspen.

The stretch of the river between there and the confluence with Castle Creek has been known to drop below 32 cubic feet per second, which the Colorado Water Conservation Board considers the minimum amount of water necessary to protect the river’s environment “to a reasonable degree.”

“In the early 2000s several studies investigated the health of the Roaring Fork River and reported a severely degraded or impaired stretch of river within the city,” the RFP says. “The instream flow determined for this stretch in the 1970s is 32 cubic feet per second. During the droughts of 2002 and 2012, the river in this stretch dropped to only 5 cfs – only 15 percent of the instream flow.”

One big factor in the amount of water in the Roaring Fork River through Aspen is the Salvation Ditch, an irrigation ditch that diverts water from the river at Stillwater Drive.

The ditch has a senior 1902 water right that allows up to 58 cfs of water to be diverted and sent across lower Red Mountain to Woody Creek.

During the drought of 2012 there were days when there was more water flowing down the Salvation Ditch than was flowing down the Roaring Fork as it winds through town.

For example, according to a study done by S.K. Mason Environmental LLC, on July 27, 2012 there was 17.4 cfs flowing in the Salvation Ditch and 7.6 cfs of water flowing down the Fork below the ditch.

However, Tom Moore, the president of the Salvation Ditch Company, said the shareholders who own land along the ditch company also need the water in dry years, they have made significant investments in the water system, and they are concerned about weakening their water right by not diverting the water.

He also pointed out that the Salvation Ditch water right is senior to the 1930s era water rights held by the Twin Lakes Reservoir and Canal Co., which diverts water under Independence Pass. As such, the Salvation Ditch plays a role in keeping water in the Roaring Fork River, he said.

The city’s Long said talking with the Salvation Ditch Co. will be an important part of the river management plan, which is why the city is seeking proposals that include consultants with an expertise in working with various stakeholders.

The city’s RFP says “we hope that by determining valuable attributes of the river, we can work together as a community to lessen impairment and improve water quality, river health, ecological health, recreational opportunities, and riparian habitat in ways that closer meet the community’s goals.”

Editor’s note: Aspen Journalism is covering rivers and water in collaboration with the Glenwood Springs Post Independent and The Aspen Times. More at http://www.aspenjournalism.org.

A view of the Salvation Ditch diversion dam and head gate, just of off Stillwater Drive, east of Aspen. Smith / Aspen Journalism
A view of the Salvation Ditch diversion dam and head gate, just of off Stillwater Drive, east of Aspen. Smith / Aspen Journalism