Editor’s note: This story was done in collaboration with the Aspen Daily News.
A long list of powerful parties are still opposing Pitkin County’s efforts to obtain a water right for a kayak park on the Roaring Fork River in Basalt, and a trial date in water court is now looming downstream.
The Colorado Water Conservation Board (CWCB), two major upstream diverters and three billionaires with property near Aspen have active statements of opposition on file against the county’s proposal.
On Feb. 1, Judge James B. Boyd of Division 5 water court in Glenwood Springs gave the parties in the case another 60 days to settle.
The county is seeking the right to run between 240 cubic feet per second and 1,350 cubic feet per second (cfs) of water over two rock and concrete structures it plans to build in the river, at a cost of about $1 million, which includes a stairway to access the feature.
The new water right would be what’s known as a “recreational in-channel diversion,” or RICD, which is a program that allows governments to obtain a water right for recreational purposes. It can have the added benefit of keeping more water in a river.
The structures would form two waves for kayakers and other boaters in the Fork, just across Two Rivers Road from the entrance to the Elk Run neighborhood.
The county so far has come to terms with three of the 14 parties that originally filed statements of opposition in the case — the city of Aspen, the Basalt Water Conservancy District and the Starwood Metropolitan District.
Of the remaining 11 entities, at least three are controlled by billionaires who own property upstream of the proposed “Pitkin County River Park.”
Bill Koch (via Elk Mountain Lodge LLC) and Penny Pritzker (via PT Ranch Barn LLC) each own property along Castle Creek, and Ed Bass (via Mountain Valley Cabin LLC) owns property on the banks of the upper Roaring Fork.
Another opposing entity is GRE II LLC, which is controlled by David Gerstenhaber of Argonaut Capital Management, a New York hedge fund. GRE II owns 37 acres of land, with water rights, on Star Mesa above McLain Flats Road.
Statements of opposition in water court are typically formulaic and it is not easy to discern a party’s true intent in filing them. Some parties file statements simply to monitor changes in a case.
The Twin Lakes Reservoir and Canal Co. and Southeastern Colorado Water Conservancy District, which both divert water off the top of the watershed, are also in opposition.
Others standing opposed include the Colorado River District and Grand County, which supports Pitkin County’s application, but filed its statement of opposition to monitor the proceedings.
County in quandary?
Judge Boyd noted in his case log that Pitkin County is in a “quandary” as it relates to the CWCB.
The CWCB, a state water regulatory agency, must review and make findings to the court about any proposed RICD. The agency is charged with making sure RICD rights don’t harm other water users.
The county applied in 2010 to water court to create the water rights for the “Pitkin County River Park.”
And it also applied to the CWCB, as required, for a finding about certain aspects of the proposed water rights for the kayak park.
In 2011, the CWCB found against Pitkin County’s proposal, objecting to the county’s request for two water rights — one for each wave-forming control structure.
“These flow rates represent a significant majority of the water flowing in the Roaring Fork River at the project’s location and often exceed historical average flow rates,” the CWCB said in a filing with the court.
Pitkin County has since amended its application in water court and now is only asking for one water right for the overall kayak park.
But the county has not yet submitted a new application to the CWCB, and Judge Boyd has noticed.
“The court suggests that the applicant (Pitkin County) work on figuring out how to move forward in front of the CWCB,” Judge Boyd’s minutes of a status conference on Aug. 28, 2012, said. “ … [The] local opposers are probably waiting to see what the CWCB says, so this is a bit of a quandary.”
Pitkin County has told the court it wants to try and settle with the opposing parties before going back to the CWCB.
Water for the park
The latest draft proposal from the county has the water right stepping up and then back down across a 142-day runoff season.
Beginning on April 15, the water right would run for 33 days at 240 cfs, another 24 days at 380 cfs, and then for 15 days at 1,530 cfs, ending June 25.
Then the flows step down from the peak — with 56 days flowing at 380 cfs and another 14 days at 240 cfs, ending Labor Day.
The two waves in Basalt would be rated like ski trails.
On the more difficult upper-wave at the Pitkin County River Park, flows at 240 cfs would be “blue,” at 1,000 cfs “black” and at 1,500 cfs “double black.” The lower wave would create “green” to “black” flows.
All the water that runs through the kayak park would stay in the river — it is a “non-consumptive” use.
But with its new water right, the county could demand that holders of junior water rights someday stop diverting water — at least during daylight hours — and instead send the water downstream to the kayak park.
But the county says not to worry.
“It seems apparent that even with RICD water rights, new junior water rights will have ample opportunities to divert in-priority water supplies,” said James Pearce of Canyon Water Resources, the county’s consulting engineer on the project, in a 2011 report to the CWCB.
There are 280 conditional water rights in the Roaring Fork River basin above Basalt, amounting to 21,000 acre-feet of storage and 320 cfs of diversion rights.
John Ely, the Pitkin County attorney, said last week he was hopeful the issues could be resolved before a trial, citing strong support for the kayak park from the county’s Healthy Rivers and Streams board and the town of Basalt.