When Div. 5 Water Court Judge James Boyd issued a final water-rights decree at 7:23 a.m. Tuesday in the Maroon Creek Reservoir case, he removed the prospect of the city of Aspen ever building a 155-foot-tall dam on Maroon Creek or a 170-foot-tall dam on Castle Creek below Ashcroft.
Although the city had reached agreement in October with 10 opposing parties in two water-court cases over the city’s conditional water rights, the agreements were not in effect until the court’s decree was issued in the Maroon Creek Reservoir case.
So now they are.
“It means the city will not build reservoirs at Maroon or Castle,” said Margaret Medellin, a utilities-portfolio manager for the city. “The decree was the last piece we needed to finalize all our negotiations. So until that was in place, Maroon Creek Reservoir was still a possibility.”
In issuing Aspen’s proposed decree for its conditional rights for the Maroon Creek Reservoir, the judge found that the city had been sufficiently diligent and could maintain its conditional water rights for another six years, but in doing so, he also enshrined the city’s commitment to move the rights out of the Maroon Creek valley. He did the same for the Castle Creek rights last month when he issued a decree for the conditional rights tied to the potential Castle Creek Reservoir.
“The judge’s final decree ensures that the Maroon and Castle dams are dead,” said Matt Rice, Colorado River Basin director for American Rivers, which opposed the city’s efforts to maintain its water rights in the Castle and Maroon creek valleys. “This is a big day for Colorado, the city of Aspen, and for all people that appreciate free-flowing rivers. This collaborative outcome demonstrates that Coloradans can protect rivers while planning for a water scarce future.”
The city first filed for the conditional water rights to the two potential reservoirs in 1965, and the decreed rights carry a priority date of 1971. (Please see timeline).
The Maroon Creek Reservoir would have held 4,567 acre-feet of water just below the confluence of West Maroon and East Maroon creeks, in a pristine location in view of the Maroon Bells. The reservoir would have flooded 85 acres of U.S. Forest Service land, including some in the Maroon Bells-Snowmass Wilderness.
The Castle Creek Reservoir would have held 9,062 acre-feet of water behind a dam on the creek two miles below Ashcroft. The reservoir would have flooded 120 acres on both private and USFS lands, including a small area in the wilderness.
Since first claiming the rights, the city periodically filed little-noticed diligence applications to maintain them. Outside of the diligence filings, however, the city did not take any active steps to develop the two dams, although they were mentioned in various city water-planning documents over the decades.
But the city’s last diligence filing, in October 2016, brought statements of opposition from 10 parties: the USFS, Pitkin County, American Rivers, Western Resource Advocates, Trout Unlimited, Wilderness Workshop and four private-property owners — two who owned land in the Maroon Creek valley and two who own land in the Castle Creek valley.
During the resulting water-court process, the city reached a deal with the opposing parties, agreeing to try and move the conditional water-storage rights out of the two pristine valleys to five identified locations in the Roaring Fork River valley.
The locations are the city golf course; the Maroon Creek Club golf course; the city’s Cozy Point open space; the Woody Creek gravel pit; and a 63-acre parcel of land next to the gravel pit, which the city bought in 2018.
“We worked a long time, and all the parties involved really were thoughtful and creative in trying to come up with a solution that the city got the storage that they desperately need, and we protect our environment,” Medellin said. “So I think it’s a real success story.”
In a joint press release issued Tuesday, representatives from American Rivers, Western Resource Advocates, and Wilderness Workshop praised the deal.
“The judge’s final decree cements over two years of collaborative work to find a win-win solution that both protects Castle and Maroon creeks in two of the region’s most beloved valleys, and ensures a sustainable future water supply for the city of Aspen,” said Will Roush, executive director of the Wilderness Workshop. “Water can be one of the most contentious issues in the West and I’m proud of our community for coming together to find a solution that benefits both people and place. Our wilderness and public lands deserve to be kept largely free of damaging developments like dams and I’m grateful to the city of Aspen for their work and commitment not only to providing water but also to protecting our environment and public lands.”
And Jon Goldin-Dubois, the president of Western Resource Advocates, said “this final decree marks the beginning of a new era of collaboration to safeguard the Maroon Bells Wilderness and Maroon and Castle creeks. The city of Aspen should be commended for its efforts to pursue water supply alternatives that will ensure future demands are met without sacrificing our rivers and cherished natural landscapes. As growing cities across the West seek sustainable and affordable ways to provide water in the face of climate change, we encourage them to follow Aspen’s lead.”
The city now plans to hire consultants to help it prepare an “integrated water-resource plan,” which it has not done since 1990, and then to file two “change cases” in water court seeking to modify the rights, which remain in place, with significant restrictions, for another six years.
All of the parties who settled with the city have agreed not to oppose the city in its upcoming change cases, which must be filed by June 2025, but other parties may do so.
Whatever the outcome of the city’s future efforts in water court, the agreements in the Maroon Creek case say, “Aspen agrees that after final entry of the final decree, it will not seek to retain any portion of the Maroon Creek Reservoir storage right at its original location.” Agreements in the Castle Creek case have similar language.
Paul Noto, a water attorney with the Aspen-based law firm of Patrick, Miller, Noto, represented American Rivers and Trout Unlimited in the cases, as well as Roaring Fork Land and Cattle Co., a property owner in Maroon Creek.
Noto said he was pleased with the outcome of the water-court process.
“For American Rivers and Trout Unlimited, it’s a really good outcome because you had the specter of dams being constructed near the base of the Maroon Bells and that specter has been removed from the table,” Noto said. “We could argue about how likely that was going to be. It was very unlikely, perhaps impossible. But, regardless, that is completely off the table now. And I think that it was commendable that Aspen agreed to that.”
Medellin, however, said climate change means the reservoirs were becoming more likely, not less.
“Obviously, no one had a big appetite for it because we value our watersheds and the city was trying everything it could to avoid that eventuality,” Medellin said. “But when we look at what climate change is doing in our valley and in our world, there was going to be a future that we wouldn’t have been able to operate without that.”
She also said the city made a big concession in walking away from the two reservoirs, as they would have stored water above the city’s diversion structures on lower Castle and Maroon creeks.
“What we traded was the benefits of having a gravity-fed system with protecting those valleys,” Medellin said. “And that was a trade-off that we all felt was appropriate. But we know that by not having a gravity-fed system, it’s going take some creativity and potentially a pipeline.”
It’s an open question for some whether the really city needs as much as 8,500 acre-feet of stored water to meet its future needs.
A study done for the city by Headwaters Corp. concluded that the city would need 8,500 acre-feet in a much drier future, but that’s including all of the city’s current municipal indoor and outdoor needs, its current irrigation levels on the two golf courses that use city water, and enough water to keep Castle and Maroon creeks above a minimum flow level.
“I understand their desire to plan on the high side,” Noto said. “But I don’t think they proved it and I don’t think they needed to. It was just basically a number that came from horse trading.”
Noto also says it is possible the upcoming water-court process may end up reducing the city’s claim.
“It’s too soon to say if they will take a haircut,” Noto said. “We have to wait and see what the proposal is. I don’t think the city has identified their fill sources and points of diversion, and that’s where the rubber meets the road in terms of the effect on nearby water rights.”
Medellin said she expects the city to now engage with the community in a transparent discussion about the city’s future water needs.
“People have probably lost interest in it to a certain extent, but I think now — as we move into the next phase of the project, where we talk about where are we going to store the water — I imagine that the community is going to get re-engaged,” she said.
Aspen Journalism covers water and rivers in collaboration with The Aspen Times. The Times published this story on June 12, 2019.