Pitkin County wants a water court judge to rule that the planning period for a project that includes a dam on the upper Crystal River, and one on North Thompson Creek in the Thompson-Divide area, has lapsed since planning began in the late 1950s.
The West Divide “conditional water rights continue to be water rights in search of a project,” the county told the court in its Feb. 22 motion. “The project is no closer to being funded and built in 2013 than it was in 1957” and the project remains “speculative,” according to the motion.
The county’s motion was filed in Division 5 water court in Glenwood Springs. Judge James Boyd is overseeing the case, which is set for trial in August.
The county and other groups are opposing a diligence filing on the conditional water rights for the West Divide project held by the Colorado River District and the West Divide Water Conservancy District. The rights date to 1958.
The districts have not yet responded to the county’s motion. A spokesman for the River District declined to comment on the litigation.
The two water districts have previously told the court that they have “expended funds to aid in planning and placing the water rights to beneficial use” and have “maintained their intent to develop the conditional water rights.”
The districts also note in the court filings that “it is anticipated that the West Divide water rights will be used, in part, to meet the water demands of the energy industry.”
In 1956 the West Divide project was authorized by Congress in the Colorado River Basin Project Act, primarily to provide water from the Crystal River for oil shale production.
But no federal money was ever appropriated for the dams in the West Divide project.
In 1982 the Bureau of Reclamation took a fresh look at the West Divide project and declared it not “economically justified.”
The bureau’s finding left the project without a federal sponsor, but the conditional water rights have since been stewarded by the two water districts.
In 2011 the boards of the two water districts voted to abandon a substantial list of water rights tied to the West Divide project. In July 2012, the water court declared them abandoned.
So now, instead of a dam and reservoir on the Crystal River at Placita that would hold 62,000 acre-feet of water, the districts say a reservoir holding only 4,000 acre-feet is needed.
By comparison, Paonia Reservoir typically holds up to 18,000 acre-feet.
And instead of a reservoir holding 13,700 acre-feet at the confluence of Yank Creek and North Thompson Creek — tributaries of the lower Crystal River — they now are asking for rights for one that holds 5,000 acre-feet.
North Thompson Creek is part of the namesake of the controversial Thompson-Divide area, where new gas wells are being reviewed by federal and state officials.
The river district says the dam and reservoir on the Crystal would help meet water needs on the lower Crystal and could also produce hydropower.
The county’s motion for a determination of law by Judge Boyd is primarily based on a 2009 decision by the Colorado Supreme Court in the case, “Pagosa Area Water and Sanitation District v. Trout Unlimited.”
The court in “Pagosa” instructed water courts to “closely scrutinize” whether government entities have been “reasonably diligent” in their efforts to build structures designed to control or store water as described in their conditional rights.
The Supreme Court also said a 50-year planning horizon was appropriate when reviewing conditional water rights.
“Fifty-five years after the majority of the conditional water rights were decreed in 1957 and 1958, and with no end of the planning period in sight, the districts are contemplating a planning period of more than 100 years in total,” the county told the court.
“Without a reasonable planning period, the appropriator can simply move the goal posts every six years, as the districts have done here,” the county argues, noting that “50 years can easily become more than 100.”
The county wants Judge Boyd to rule that “the planning period for the project should be presumed to be 50 years and elapse without a very strong showing to the contrary.”
If the court doesn’t agree that the current planning period began in 1958, then the county hopes it will at least agree that it began in 1982 and should expire in 2032 — 19 years from now.
Other opposing parties in the case, 11CW93, include American Rivers, Trout Unlimited, the Crystal Valley Environmental Protection Association, the Crystal River Caucus, and Paul Gregory Durrett.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating to report on land and water issues in Pitkin County.