The city of Aspen has made some recent progress in water court as part of its ongoing effort to move conditional water rights tied to potential dams and reservoirs in the upper Castle and Maroon creek valleys to other, less pristine locations.

On Nov. 11, District Court Judge James Boyd approved all of the agreements the city has reached with the 10 opposing parties in two water court cases.

And while that is a notable step, the judge has yet to rule on the proposed water rights decrees in the two cases, which will be the controlling legal documents in the cases and are the city’s main goal at this point.

The agreements approved Nov. 11 may now carry more weight than before, but they are not in full effect until the water rights decrees are approved.

“The commitments come after the decree is entered,” confirmed Cindy Covell of Alperstein and Covell of Denver, who serves as the city’s water attorney.

The agreements with the 10 opposing parties in the two cases stipulate that the city has been diligently seeking to develop its conditional water rights. They state that the parties won’t challenge the city’s efforts to move its water rights to five alternative locations through an expected “change case” in water court.

Maroon Creek, just below the confluence of East and West Maroon creeks, where the city holds rights tied to a potential 155-foot-tall dam that would hold 4,567 acre-feet of water. The city is now working through a water court process to move the conditional water rights tied to the dam to other locations. Credit: Brent Gardner-Smith/Aspen Journalism

Moving the water

The city intends to move as much as 8,500 acre-feet of its conditional water rights, which today total 13,629 acre-feet on paper, out of the upper Castle and Maroon valleys to five other locations in the Roaring Fork River valley.

The locations are the city’s municipal golf course, the Maroon Creek Club golf course, the Cozy Point open space at Brush Creek Road and Highway 82, the gravel pit in Woody Creek and a parcel of city-owned land next to the gravel pit.

The potential Maroon Creek Reservoir would hold 4,567 acre-feet of water behind a 155-foot-tall dam about 2 miles below Maroon Lake, and the Castle Creek Reservoir would hold 9,062 acre-feet behind a 170-foot-tall dam 2 miles below Ashcroft.

In a conference call Thursday about the Maroon Creek Reservoir case, Judge Boyd first set another call for Nov. 29 for both cases. He then indicated he may or may not approve, or enter, the city’s proposed decrees in the two cases by Nov. 29.

“If I have questions in this case or the other case, or I am going to be looking for a briefing, I will advise you when we get to that conference,” he told the water attorneys on the call, who were representing the 10 opposing parties.

“Of course,” Boyd said, “if I just get through all the materials and decide everything is ready to just enter, I may just enter it, in which case we would cancel those phone conversations. Otherwise, we will touch base on where we are.”

In addition to managing most of the water court cases in District Court in Glenwood Springs, Judge Boyd also manages a crowded docket of criminal cases.

During the first status conference call about the Castle Creek Reservoir case, held Oct. 30, Judge Boyd said there were some “novel” aspects to the case, and in a summary of the call wrote that the “court advises legal review may lead to briefing request.”

The gravel pit in Woody Creek, operated by Elam Construction, is one of five alternative locations the City of Aspen now wants to store water from Castle and Maroon creeks, instead of in two potential dams in the pristine upper valleys. Another potential location is on vacant land next to the gravel pit owned by the city. Credit: Brent Gardner-Smith/Aspen Journalism

Asked about what issues in the cases the judge may request a legal briefing on, Covell said she wasn’t sure.

“I don’t really know what’s on his mind,” she said. “Conditional water rights like these can be changed. The statutes specifically provide for it. If that’s something of interest of him, we have statutory authority for that.”

During the first phase of the water court case, a “summary of consultation” in the case issued by the state’s division engineer raised questions as to just how diligent the city has been in developing its conditional water rights, which it first applied for in 1965, and whether the city “can and will” build the dams and reservoirs.

It’s not clear, however, if Judge Boyd shares the concerns of the division engineer.

Since obtaining a conditional decree for the two reservoirs in 1971, the city has periodically filed diligence applications with the state, consistently telling the state it still intends to build the two dams and reservoirs as part of its municipal water system.

However, after running into stiff opposition in the two diligence applications it filed in October 2016 and negotiating with the opposing parties, the city has since settled on its current plan to try to transfer the water rights to other locations.

While the city will still be diverting water from Castle and Maroon creeks to fill the new storage facilities, it has agreed it will no longer pursue the option to build dams and reservoirs at the currently decreed locations in the upper Castle and Maroon valleys, no matter the outcome of the pending change case.

Editor’s note: Aspen Journalism covers rivers and water in collaboration with The Aspen Times and other Swift Communications newspapers. The Times published this story on Tuesday, Nov. 20,2018.

Brent Gardner-Smith, the founder of Aspen Journalism, and who served as AJ’s executive director until August 2021 and as editor from 2011-2020, is the news director at Aspen Public Radio. He's also been...