ASPEN – The city of Aspen filed two applications Monday in Division 5 Water Court for “finding of reasonable diligence” on the conditional water rights it has maintained since 1965 for the potential storage reservoirs on upper Castle and Maroon creeks.
The city told the court it has “steadily applied effort to complete the appropriation” of the conditional water rights for both of the reservoirs over the last six years, and that it has done so “in a reasonably expedient and efficient manner under all the facts and circumstances.”
It then asks the court to issue conditional decrees for both reservoirs for six more years.
The “appropriation” of the current conditional water rights would mean completing the construction of the dams and the storage of water as described in the decrees, which call for a 170-foot-tall dam on upper Castle Creek to hold 9,062 acre-feet of water and a 155-foot-tall dam on upper Maroon Creek to hold 4,567 acre-feet.
(See three sets of maps: 1. 2016 topo maps from City of Aspen for Maroon Creek Reservoir and Castle Creek Reservoir. 2. 2016 illustrative maps from Wilderness Workshop for Maroon and Castle. 3. 2012 maps from Aspen Journalism for Maroon and Castle reservoirs.)
The city did not cite any specific actions it has taken in the last six years in regard to investigating, designing, constructing or financing the actual dams and reservoirs, outside of reaching agreement with two landowners in the Castle Creek Valley not to flood their property if the Castle Creek Reservoir is built.
Instead, both applications filed Monday say the reservoirs are “part of Aspen’s integrated water supply system” and are “part of Aspen’s long-range plan to maintain a water supply to meet current and future demand.”
The city’s diligence applications say it spent in excess of $6 million on its water system since 2010 and point to Colorado’s Water Right Determination and Administration Act of 1969 as to how that can help its case.
The law states that “when a project or integrated system is comprised of several features, work on one feature of the project or system shall be considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire project or system.”
The same law also says, however, that “the measure of reasonable diligence is the steady application of effort to complete the appropriation in a reasonably expedient and efficient manner under all the facts and circumstance.”
Directed to file
Aspen City Council unanimously passed a resolution on Oct. 10 directing staff to file the diligence applications, which were due on Oct. 31.
The last diligence decree was awarded on Oct. 11, 2010, which set the clock ticking on the last six-year diligence period.
In all previous filings, the city has filed one application covering both reservoirs, but on Monday it filed separate applications for each potential reservoir.
By Tuesday afternoon, both of the applications from the city had been processed by the water court clerk. The case number for the Maroon Creek Reservoir application is 16CW3128. The case number for the Castle Creek Reservoir application is 16CW3129.
The city has filed diligence applications for the reservoirs eight prior times, in 1972, 1977, 1981, 1985, 1989, 1995, 2002 and 2009, and each time has been awarded a new diligence decree for the conditional rights.
The required time between diligence filings changed from every four years to every six years in 1990, which accounts for the differing time spans between filings before and after that date.
When a water rights application is filed in water court, interested parties have two months to file a statement of opposition in the case.
And with the filing date for both of the city’s applications coming on Halloween, the deadline for statements of opposition to be filed has been set for New Year’s Eve, Dec. 31, 2016.
Any citizen, regardless of whether they own water rights, or might be injured by a water right claim, is allowed to file a statement of opposition in water court, although the court requires opposers to honor the court’s process, which can be time-consuming.
The opposition to come
The U.S. Forest Service informed the city in October it intends to file a statement of opposition, especially as the Maroon Creek Reservoir is wholly on U.S.F.S. land and would inundate portions of the Maroon Bells–Snowmass Wilderness.
Matt Rice, director of the Colorado River Basin Program for American Rivers, confirmed Tuesday that the national nonprofit organization also still intends to oppose the city’s diligence applications.
“We don’t believe that new water storage dams on Castle Creek and Maroon Creek are appropriate now or anytime in the future,” Rice said.
In a press release issued Tuesday by American Rivers, Rice said, “Constructing these dams would likely cost hundreds of millions of dollars, but the price would pale in comparison to the massive environmental impacts. American Rivers and our members urge the Aspen City Council to reconsider this decision.”
Rice said that Trout Unlimited, Western Resource Advocates, Wilderness Workshop and several private landowners are “seriously considering” filing statements of opposition.
Will Roush, conservation director for Wilderness Workshop, said Tuesday his organization has yet to decide if it will oppose the city in water court.
Wilderness Workshop sent out a press release on Tuesday, however, with a quote from Roush.
“The city of Aspen’s pursuit of dams on Castle and Maroon creeks could not be more out of step with the community’s values,” he said in the release. “These two iconic creeks, universally treasured by our community, have far too many social and ecological values to build unneeded reservoirs on them.”
And the Pitkin County Healthy Rivers and Streams Board unanimously agreed on Oct. 20 to direct staff to prepare a letter or resolution urging the Pitkin County commissioners to file a statement of opposition in the diligence cases.
“We’ve always felt that reservoirs were against the mission of the Healthy Rivers and Streams Board,” said Bill Jochems of Redstone, who has served on the river board for the last seven years.
He said reservoirs deprive rivers of necessary high spring runoff and “have highly undesirable aspects from an aesthetic point of view.”
Mayor proud to file
Steve Skadron, the mayor of Aspen, sent a letter to the editor Tuesday saying he was “proud” of the city for filing the diligence applications.
“Without knowing more about viable alternatives for water storage, it simply would not be prudent water management on our part to give up these water rights,” Skadron wrote. “After all, climate and other changes in this region are uncertain and what our needs will look like in 2066 is not something we are poised to gamble away by letting this storage right go.”
Aspen’s applications say “the city continues to investigate and develop more refined tools for planning its future water needs.”
Skadron also pointed out that the council directed staff on Oct. 10 to “undertake a collaborative effort to work with the community and stakeholders to find other water storage solutions.”
Reservoir size to be ‘revised’
The size of the Castle Creek Reservoir is expected to be reduced after agreements the city reached with Mark and Karen Hedstrom in May of 2010 and with Simon Pinniger sometime after mid-2012. Both the Hedtroms and Pinniger own land at the upper edge of the potential reservoir.
However, the city did not cite the size of the potentially reduced Castle Creek Reservoir in its diligence application.
“It is expected that this commitment by Aspen will result in a reduction in the volume and surface area of the Castle Creek Reservoir, and Aspen has contracted for a preliminary investigation of the anticipated revised size and volume of the Castle Creek Reservoir,” the city’s application states.
David Hornbacher, the city’s director of utilities and environmental initiatives, said on Tuesday that the city contracted for that “preliminary investigation” on Oct. 18, 2016.
The applications also include a sentence that seems to overstate how the reservoirs are referenced in the 2015 Colorado Water Plan.
“The city also participated in the development of Colorado’s State Water Plan, which resulted in the Colorado River Basin Implementation Plan, which identified the continued due diligence for the preservation of the Castle Creek and Maroon Creek storage rights as important projects for securing safe drinking water,” the city stated.
However, the two reservoirs were not identified in the basin implementation plan as “important projects” and they were specifically rejected from being included among the top three priority projects in the Roaring Fork River basin by roundtable members.
Instead, they are referenced in a broader context of “identified projects” in a chart under the theme of “secure safe drinking water.”
Under “methods,” the chart says, “Investigate the development of storage reservoirs on both Maroon and Castle creeks if no better alternative is discovered.”
And under “identified projects,” it states “Continue due diligence for the preservation of the 1972 storage rights on Maroon and Castle creeks by giving true consideration to all other potential options.”
(The rights were originally filed for in 1965 and decreed in 1971, not 1972.)
In both applications the city submitted Monday, it also says “the significant cost of permitting, design and construction” for both reservoirs “dictates that other long range plans be implemented first.”
The city did not provide estimates of costs for the dams and reservoirs in its applications.
It did say, however, that the city has spent $600,000 on water attorney fees since 2010, primarily to defend its water rights, and that expenditure should be considered as part of a finding of reasonable diligence. Those expenditures are included in the city’s overall spending figure of “in excess of $6 million” that it has spent on its water supply system in the last six years.
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, Nov. 2, 2016.