Pitkin County votes to oppose Aspen’s conditional water rights

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Brent Gardner-Smith/Aspen Journalism

Looking up Maroon Creek, just below the confluence of East and West Maroon creeks.

ASPEN – The Pitkin Board of County Commissioners voted 3 to 2 Tuesday to file a statement of opposition in two water court cases where the city of Aspen is seeking to extend its conditional water rights tied to potential dams and reservoirs on upper Castle and Maroon creeks.

Commissioners Patti Clapper, Michael Owsley, and George Newman voted in favor of a resolution that directs the county attorney to file statements of opposition in the two cases, which were opened in water court last month to review the city’s due diligence applications.

Board members Steve Child and Rachel Richards voted against the resolution, citing a desire to instead work constructively with the city on exploring alternatives to the two potential dams.

The city originally filed for the water rights in 1965, and has periodically informed the state that it still intends to build the dams and reservoirs if necessary. Its most recent such due diligence application was filed on Oct. 31 and seeks another period of six years in which to maintain the water rights.

A topographic map showing the location of the potential Maroon Creek Reservoir. The map was filed by the City of Aspen in Div. 5 Water Court on Oct. 31, 2016 as part of a diligence application.

City of Aspen

A topographic map showing the location of the potential Maroon Creek Reservoir. The map was filed by the city of Aspen in Division 5 Water Court on Oct. 31, 2016, as part of a diligence application.

Large rights

One of the city’s conditional water rights would allow the city to store 4,567 acre-feet of water behind a 155-foot-tall dam located just below the confluence of East and West Maroon creeks, within view of the Maroon Bells.

The Maroon Creek Reservoir would be on U.S. Forest Service land and would flood portions of the Maroon Bells-Snowmass Wilderness.

The other right is for 9,062 acre-feet of water storage behind a 170-foot-tall dam on Castle Creek two miles below Ashcroft in an area dotted with wetlands.

The Castle Creek Reservoir would be on both private and public land and would flood a small corner of the wilderness area.

The city has never completed a feasibility study of either reservoir but maintains both are still vital components of its integrated water supply system.

A topographic map showing the location of the potential Castle Creek Reservoir, downstream of Ashcroft. The map was submitted by the City of Aspen as part of its Oct. 31, 2016 diligence filing.

City of Aspen/Div. 5 Water Court

A topographic map showing the location of the potential Castle Creek Reservoir, downstream of Ashcroft. The map was submitted by the city of Aspen as part of its Oct. 31, 2016, diligence filing.

Statements of opposition

Interested parties have until Dec. 31 to file statements of opposition in the two cases. Officials at American Rivers and the U.S. Forest Service have said they intend to file statements and that they will actively oppose the city’s efforts.

Both the resolution passed by the county commissioners Tuesday and a draft statement of opposition attached to the resolution contain statements critical of the city’s conditional water rights and their potential outcomes.

“Both reservoir sites implicate the destruction of sensitive environmental areas as well as impacting the iconic and treasured view sheds of both the Maroon Creek and Castle Creek valleys,” the resolution states. “Additionally, the Castle Creek site will necessitate the acquisition of several private properties and the relocation of Castle Creek Road, a Pitkin County operated and maintained roadway, onto the hillside above the proposed reservoir site.”

The county also points out that while it appreciates the city’s need to provide water to its citizens, “the city’s own water supply availability study and system demands for the future do not indicate any problem with future water supplies …”

The county’s draft statements of opposition also hit on the issue of need, saying “this water right is unnecessary to meet current and future demands within a reasonable planning period using normal population growth assumptions.”

And it said, “the appropriation date of this water right is more than 50 years ago and applicant [the city] appears to be speculating with no reasonable demonstration of need.”

The county’s Healthy Rivers and Streams Board had recommended that the county oppose the city in water court.

In a Nov. 17 letter to the BOCC, the stream board unanimously recommended to the BOCC that it “vigorously oppose” the city’s diligence applications.

“These applications request diligence for reservoirs which appear, by the city’s own calculations, to be wholly unnecessary to meet Aspen’s present and future anticipated water needs.

“Future needs can be met by alternative municipal water supply sources and conservation measures.

“The Healthy Rivers and Streams Board recommends utilization of county resources to assist and participate with the City of Aspen in vetting alternative strategies to satisfy the city’s potential domestic water supply needs,” the letter said.

It also said, “this board does not support new construction of impoundments on these creeks.”

Rasberries in Stein Meadow, where the City of Aspen has told the state it intends to build, someday, a 155-foot-tall dam to hold back 4,567 acre-feet of water.

Brent Gardner-Smith/Aspen Journalism

Raspberries in Stein Meadow, where the city of Aspen has told the state it intends to build, someday, a 155-foot-tall dam to hold back 4,567 acre-feet of water.

City studying options

David Hornbacher, the city’s director of utilities and environmental initiatives, said Tuesday afternoon he could not yet comment on the county’s resolution.

But on Monday the city issued a press release saying “it has been working to compile a preliminary list of potential options to provide the water supply and storage systems that will protect the city into the future.”

The headline of the press release was “City Working on Alternatives to Storing Water in Local Reservoirs.”

“City Council has asked if we are confident that we can meet water need scenarios in the future without these reservoirs,” Aspen City Manager Steve Barwick said in the city’s press release. “The answer is no. We need to develop reliable alternatives to reservoirs or we will end up with reservoirs.”

The city said as part of a new water-planning process it will look at using abandoned mine tunnels for underground water storage, more ways to re-use water, using agricultural water to meet city demands, and other ideas and options.

The city also said it would look at potential changes to Colorado water law, including ways to get around aspects of the state’s “use it or lose it” policy, and that it would explore “collaborative partnerships with trans-basin water diverters to retain additional West Slope source water.”

Pitkin County does think it is necessary for the City of Aspen to build a 15-story dam within view of the Maroon Bells. This beaver pond, with Stein Meadow and the Bells in the background, marks the dam site.

Brent Gardner-Smith/Aspen Journalism

Pitkin County doesn’t think it is necessary for the city of Aspen to build a 15-story dam within view of the Maroon Bells. This beaver pond, with Stein Meadow and the Bells in the background, marks the dam site.

Vote in special meeting

The county’s vote to file a statement of opposition took place Tuesday in a special meeting of the BOCC scheduled after an executive session where the issue was on the agenda.

During the 30-minute meeting, Clapper said she felt it was important for the county to join the water court case so the county and the city could begin talking about alternatives to the dams and reservoirs as soon as next month.

“I believe moving forward with this statement of opposition is really representing the best interests of the people of Pitkin County,” Clapper said. “For me this is difficult to do because we try to be good neighbors and friends with the city of Aspen, but I think there are bigger issues.

“The thought of those dams in those pristine valleys is an overwhelming concept to me and really needs to have great thought and conversation,” she said. “And I’m hoping this next year or so we can be at that table with the city to look at other options before taking this drastic measure.”

After statements of opposition are filed in water court, parties in the case are asked by a court official to spend time exploring settlement opportunities before the case goes before a water court judge. Such settlement discussions are held in private.

Richards, a former mayor of Aspen, said she was against the construction of the dams but said the issue was about both “resources and relationships.”

“I have a hard time seeing two different taxing entities spending money fighting each other and it’s the same taxpayers paying that bill,” Richards said.

The funds from the county to oppose the city would come from the county’s Healthy Rivers and Stream Board fund, county attorney John Ely said. The fund’s revenues come from a countywide sales tax of 0.1 percent, or 10 cents on $100.

Richards also said, “I do not support putting dams in either of those areas, but I think it is about the dams themselves versus the issues of protecting the streams. And I don’t see the effort to get rid of the conditional water rights alone as protecting those streams.”

She said she felt the city would proceed in “good faith” when it came to the potential dams and it was not as if bulldozers were warming up to go build them tomorrow.

“I believe time is on our side to develop good solutions and maintain good relationships and put our dollars toward things that will lastingly protect both of those valleys, as well as stream flows on Castle and Maroon,” she said.

Child made similar points, suggesting that perhaps the city’s conditional storage rights could be transformed in some fashion to help maintain water levels in the Colorado River near Grand Junction or in Lake Powell.

And he said the county and the city could work together on such issues over the next six years after the city’s due diligence applications were approved.

“I don’t have the stomach to oppose the city in water court on this,” Child said.

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 Wednesday, Dec. 21, 2016.

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