The U.S. Forest Service is questioning whether the Southeastern Colorado Water Conservancy District ever will be able to get approval to build six potential diversion dams and related tunnels and conduits in the Fryingpan River basin that are located on USFS land above 10,000 feet within the Holy Cross Wilderness.
In a statement of opposition filed last month in Division 5 water court in Glenwood Springs, attorneys for the USFS said it “cannot authorize development of these six conditional water rights … because they lie within a congressionally designated wilderness. Only the president has authority to approve water developments within the Holy Cross Wilderness.”
The USFS statement of opposition, which was the only one filed in the case (18CW3063), also said “as currently decreed, the subject water rights raise questions as to whether they can and will be perfected within a reasonable time.”
The opposition statement was submitted July 31 in response to a periodic diligence application filed with the water court by Southeastern on May 28.
In its application Southeastern is seeking to maintain a list of conditional water rights that are part of the Fryingpan-Arkansas Project. All of the water rights in the project were decreed in 1958, including those that have been absolute and others that are still conditional.
Some of the conditional rights are tied to existing structures that could possibly divert and move more water. But six of the conditional rights are specifically tied to un-built diversion structures within the Holy Cross Wilderness, which was created by federal legislation passed in 1980.
Southeastern, which is based in Pueblo, owns and manages the water rights for the Fry-Ark Project, which was built by the Bureau of Reclamation.
The six diversion dams inside the Holy Cross Wilderness would allow for the diversion of 10 cubic feet per second from an unnamed tributary of the North Fork of the Fryingpan River, for diversion of 135 cfs from Last Chance Creek and for 10 cfs from an unnamed tributary to Last Chance Creek, for 85 cfs from a creek called Slim’s Gulch and for 85 cfs from an unnamed tributary of Slim’s Gulch, and for 50 cfs from Lime Creek.
In all, the six conditional rights in the wilderness would allow for 375 cfs of additional diversions in the Fry-Ark Project.
The diversion structure on Lime Creek would be near pristine Halfmoon Lake, which is above Eagle Lake.
Chris Woodka, who is the issues management coordinator at Southeastern, said the conditional water rights in the wilderness “are like a bargaining chip that we really don’t want to give up.”
“If they could be developed at some point, we would still be interested in developing them, as far as getting the yield from there,” Woodka said. “But can we get more of a yield from the system using the mechanisms we have in place? Probably.”
Maximizing limited yield
The Fry-Ark Project today includes 16 diversion dams and 26 miles of tunnels and conduits on the Western Slope that move water from the Hunter Creek and Fryingpan River basins to the centrally located Boustead Tunnel, which can divert as many as 945 cfs under the Continental Divide.
The water is sent to Turquoise Reservoir near Leadville and then farther into the Arkansas River basin for use by cities and irrigators.
The six potential dams and tunnels in the Holy Cross Wilderness would connect to the existing Fry-Ark Project at the Carter Creek dam and tunnel, which is the most northerly point of the system. It was completed in 1981.
James DuBois, an attorney in the environment and natural resources division at the Justice Department and who filed the USFS statement of opposition, said he could not discuss the case.
DuBois filed a similar statement of opposition in a 2009 diligence filing for Southeastern’s conditional rights.
In that case, the USFS eventually agreed, in a 2011 stipulation, that Southeastern would study “the potential for moving its conditional water rights off of wilderness lands” during the next six-year diligence period, which ended in May.
It also would look at other ways to increase the project’s “authorized yield.”
Under the project’s operating principles, the authorized yield of the Fry-Ark Project is limited to diverting 120,000 acre-feet in any one year, and to diverting no more than 2.35 million acre-feet over a 34-year rolling average, or an annual average of 69,200 acre-feet.
From 2010 to 2015, the project diverted an average of 63,600 acre-feet, indicating there is more yield to be gained.
This year, a dry year, about 39,000 acre-feet was diverted. In 2011, the last really wet year, 98,900 acre-feet was diverted, according to an annual report on the Fry-Ark Project prepared by the Bureau of Reclamation.
Improving existing facilities
In accordance with the 2011 stipulation, a study on how to get more water out of the system was done by Wilson Water Group and presented to Southeastern in April.
In the presentation slides, Wilson Water told Southeastern’s board of directors that “analysis indicates contemplated project yield could be met through existing infrastructure and software upgrades.”
Another option studied was to move the six rights in the Holy Cross Wilderness downstream and out of the wilderness. However, Wilson Water said it would require pumping stations to lift the water back up to Fry-Ark system and the “cost per-acre feet is likely prohibitive.”
Despite the finding that improving the existing system would increase the yield on the project, Southeastern voted in April to file for diligence on the six conditional rights within the wilderness, along with other conditional rights, telling the court that “while the construction of certain conditionally decreed project features has not yet been started, there is no intent to abandon these features or any of the conditional water rights … .”
Upon learning of the diligence application this week, Will Roush, the executive director of Wilderness Workshop in Carbondale, said “the Holy Cross Wilderness is a completely inappropriate location” for the development of the conditional water rights.
“Lime Creek, Last Chance Creek and the surrounding lands and tributaries provide amazing opportunities for solitude and the rare opportunity to experience a landscape and alpine watershed free of human infrastructure and without the diversion of water,” Roush said.
An informational memo on the diligence case was presented to the Southeastern board of directors on Aug. 16, and there was no discussion of the case by the board.
An initial status conference in the diligence case has been set for Sept. 18.
Editor’s note: Aspen Journalism is covering the Roaring Fork and Colorado river basins in collaboration with The Aspen Times. The Times published this story on Saturday, August 19, 2018. This version of the story corrected the date of the earlier stipulation between Southeastern and USFS, which was reached in 2011, not 2012, when the case was closed.