Pitkin County and the Colorado Water Conservation Board (CWCB) are finding it’s not easy to leave water in a river for environmental purposes.
The two entities have been working since mid-2010 to reach agreements with various opponents to a plan that would leave 4.3 cubic feet per second (cfs) of county water in lower Maroon Creek and the Roaring Fork River, instead of diverting it for irrigation purposes to the Stapleton Brothers Ditch near the base of Tiehack.
They’ve reached agreements with 10 opponents so far, but the 11th, an entity controlled by the city of Colorado Springs called the Twin Lakes Reservoir and Canal Co., is proving to be challenging.
On Thursday, attorneys for Pitkin County asked a judge in Division 5 Water Court in Glenwood Springs to set a trial date as the parties have not yet resolved their differences. Judge James Boyd set the five-day trial for Feb. 3, 2014. The case number is 10CW-184.
Earlier this month, Pitkin County Attorney John Ely and Linda Bassi, the head of CWCB’s instream flow program, both said they thought an agreement could be reached with Colorado Springs within the next several months.
“We’ve gone through a lot of negotiations,” Bassi said.
And while talks between the county, the state and the city are expected to continue, they will now do so against a date in court.
“We have been in active settlement discussions with the applicants and have every intention of reaching agreement prior to trial,” said Kevin Lusk, a principal with Colorado Springs Utilities, the city’s water utility that controls Twin Lakes. “We believe that we have made significant progress and do not feel that the remaining issues are in any way insurmountable.”
Lusk also serves as president of the Twin Lakes Reservoir and Canal Co., which diverts significant amounts of water off the top of the Roaring Fork River basin each year, sending it in tunnels underneath the Continental Divide to Twin Lakes and eventually the Front Range.
This map, from Colorado Springs Utilities, shows how the city of Colorado Springs gets water from the Western Slope, including from the Roaring Fork River. Click here for a pdf of the map.
“Twin Lakes has a fiduciary responsibility to its shareholders to protect its interests,” Lusk said. “Because of this, Twin Lakes routinely objects to water rights cases on the Roaring Fork when they are of significant size or if there is significant precedent involved.”
Lusk said Twin Lakes is concerned that a change to the county’s water right from irrigation to an instream-flow right may indirectly lead to a situation where Twin Lakes is allowed to divert less water off the top of the Roaring Fork River basin.
The exact nature of Colorado Spring's ongoing opposition to the county and the CWCB is hard to discern, said several sources close to the case.
In an email, Lusk of Twin Lakes explained that "Twin Lakes' interests include protecting itself from a 'rebound call', which means when junior water users deplete the stream and short a downstream senior water right (i.e. the Grand Valley rights), causing it to place a call on Twin Lakes. Another interest Twin Lakes has it to preserve the ability and flexibility to respond to emergency conditions such as a Colorado River Compact curtailment scenario."
But the county and state say there will be no injury to Colorado Springs’ water rights if the 4.3 cfs is left in the river instead of being used for irrigation, especially as monthly flow limits have been placed on the water right consistent with its historic use.
“The maximum and average uses proposed ... will prevent any expansion of use of the Stapleton Brothers Ditch water right,” stated engineers from Bishop-Brogden Associates, Inc., the firm working with the county and the CWCB, in a report submitted to the court in response to issues raised by various opposing entities.
The same report also noted, in a different context, that "So long as future instream flow credits do not exceed the historical diversion less ditch loss ... other water rights will not be injured and the historical potential for a call from the Stapleton Brothers Ditch water right will not be expanded."
This map is included in an engineer's report submitted by Pitkin County and the CWCB. The report is a public document on file in Division 5 water court in Glenwood Springs. The map shows where the water would go, and where it used to go. (Use the zoom slider in the upper right-hand corner for a closer look).
The county owns a total of 8 cfs of water in the Stapleton Brothers Ditch, which diverts that amount and more from Maroon Creek near the base of Tiehack and takes it some 3 miles across the base of Buttermilk Mountain to Owl Creek.
The county’s water right in the Stapleton Brothers Ditch of 4.3 cfs has a 1904 priority date and was used by the Stapleton family to irrigate 136 acres of grass and alfalfa fields on land along Owl Creek.
Most of that land is now occupied by the lower half of the runway at the Aspen-Pitkin County Airport. And since the county no longer uses all of the water for irrigation, it wants to leave about half of it — or 4.3 cfs — in the river for the benefit of the riparian ecosystem.
If successful, Pitkin County would become the first entity in the state to legally leave its water in a river for environmental purposes via a long-term trust agreement with the CWCB, as allowed by a state law enacted in 200 via House Bill 08-1280.
“It is significant because it is the first long-term agreement since HB 1280,” said Bassi of the CWCB.
The county reached an agreement in 2009 with the CWCB to hold the county’s right to 4.3 cfs of water in a flexible trust for 10 years, as the state agency is the only entity in Colorado that can legally leave water in a river to protect the natural environment.
In 2010, Pitkin County and the CWCB then jointly filed an application in water court to officially change the nature of the water right.
Statements of opposition were filed in water court by at least 12 entities, and the county and the CWCB have reached necessary agreements with all but Twin Lakes. The various agreements to date are reflected in a draft "Findings of fact, conclusions of law and decree" on file with the court. The latest version is dated 11/20/2012.
The document serves to inform all parties of the various changes to the county and the state's original proposed decree for an instream flow right, and it reflects how the proposed right has been more clearly defined so as not to injure other users.
The opposing parties included Aspen Skiing Company, which supported the county's effort but also owns water in the Stapleton Brothers Ditch and wanted to ensure its rights were not injured.
The Starwood Metropolitan District also filed a statement of opposition, as it to owns water in the ditch. It subsequently reached an agreement with Pitkin County to share water at the headgate on a pro rata basis during times of water shortages, so both parties would suffer in proportion to the size of their water rights.
Other opposers included the city of Aspen, which owns extensive water rights on Maroon Creek, the Basalt Water Conservancy District, Celestial Land Company, which owns property and water rights in the Maroon Creek valley, State Road Homeowners Association, Maroon Creek LLC, Roaring Fork Land and Cattle Company, T Lazy 7 Corporation, and the Willow Creek Ditch and Herrick Creek Ditch Company.
The Colorado Water Trust, which strongly supports the efforts by Pitkin County and the CWCB, also filed a statement of opposition, as it is a convenient way to monitor activity in a water-court case. Grand County is also said to have filed a supportive statement of opposition, but it is not listed as having done so in the latest draft decree.
The volume of water actually left in the river by Pitkin County would vary by reach and by month in order to cause the least disruption to historic use patterns now relied on by other water rights owners.
Under the county's proposal, the last two miles of Maroon Creek would see the most water.
Up to 3.83 cfs could flow each day past the Stapleton Brothers Ditch headgate from May to November, but the average flow would range from a low of .53 cfs in May, to 3.11 cfs in June, to 1.22 cfs in late October
Once the water reaches the Roaring Fork River, and down the river to where Owl Creek enters below the airport, up to 3.54 cfs could run, with the average being a modest .49 cfs in May, a high of 2.88 cfs in June, and 1.13 cfs at the end of October.
To put that into context, the Roaring Fork River below Maroon Creek ran last October between 105 and 131 cfs. The county's water may not change the river by itself, but the CWCB determined it still would help improve or maintain the river's environment "to a reasonable degree."
Below Owl Creek, the water right is less significant due to a calculation of historic consumptive use of the water. The average cfs levels would range from .12 cfs in May to .52 in June and .05 in October.
To offset the consumptive use limitation, however, Pitkin County and the town of Basalt have entered into a low-cost lease arrangement for the water, which will effectively allow Basalt to "shepherd" much of the water to the confluence of the Fryingpan River and the nearby Pitkin County line.
In fact, the county's water has already been running in the river through Basalt for years now, without a formal decree to do so.
Such a practice can sometimes eventually weaken a water right, but in this instance, the county has been openly, and diligently, trying to change the water right to allow the water to officially follow its natural course.
Editor's note: A version of this story was published in collaboration with the Aspen Daily News on Feb. 1, 2013.