HomeMy WebLinkAboutagenda.council.worksession.20160920
CITY COUNCIL WORK SESSION
September 20, 2016
4:00 PM, City Council Chambers
MEETING AGENDA
I. Council Discussion - no memo
II. Red Mountain & East Aspen Water System Upgrade
III. Maroon Creek Micro-Hydro Partnership Update
IV. Conditional Water Storage Rights
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MEMORANDUM
TO: Mayor and City Council
FROM: David Hornbacher, Director of Utilities
Tyler Christoff, Deputy Director of Utilities
Lee Ledesma, Finance and Administrative Services Manager
THRU: Scott Miller, Public Works Director
DATE OF MEMO: September 16, 2016
MEETING DATE: September 20, 2016
RE: Red Mountain and East Aspen Water System Upgrades and
Funding Mechanism
PURPOSE: The purpose of this work session is to summarize the proposed Red Mountain and
East Aspen Water system improvements, project cost, and funding mechanism.
Staff and our consulting engineers have analyzed the City’s water system for its ability to serve
water during a fire event on the Urban/Wildland interface. Recent models indicate that some
water flows are insufficient for fire events in certain areas of the City’s pumped water zones.
These pumped zones correspond with the highest risk wildfire zones in the Aspen area. Given
the current situation, several hydrants within these zones cannot provide adequate fire flows for a
single structure fire, let alone a major fire event which would quickly expend the system.
The purpose of the improvement project is to dramatically upgrade these fire suppression
capabilities in the City’s high risk wildfire zones (East Aspen and Red Mountain). The proposed
capital intensive water system improvements are estimated to cost approximately $10.98 million
including design, construction, project management, other supporting tasks, and contingencies.
The annual debt payment based on a 25-year bond issuance is $ 666,200. Based on previous
discussion with Council, Staff has updated the preferred funding mechanism for this project and
will present for your consideration and direction.
REQUEST OF COUNCIL: Council is requested to:
• Approval for staff to proceed with identified East Aspen and Red Mountain area water
system improvements project.
• Confirm and direct staff as to the cost allocation method and funding mechanism to be
utilized.
• Approval to proceed with securing project funding.
PREVIOUS COUNCIL ACTION:
July 23, 2013 – Council authorized staff to utilize $ 132,000 in funds on several interrelated
projects which collectively comprise a coordinated and multi-year wildfire mitigation program.
These programs included: Evacuation Routes, Community Outreach and Fuel Clearing, Utilities
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Easement Fuel Breaks and Anchor Lines, and harden Water delivery systems in the pump zones
on Red Mountain and East Aspen.
September 17th, 2013 - in a joint City/County work session, Council received an update on the
Wildfire Mitigation Program from Travis Elliot. Update covered: 1) Community Outreach, 2)
Fuel Removal, 3) Ingress and Egress, 4) Water System Hardening, 5) Wildfire Fighting
Capabilities Assessment, and 6) Gathering and organizing Community Data.
June 2, 2014 - in a Work Session, Council received an update on the Wildfire Mitigation
Program, Water System Improvements and Funding Mechanism. This work session focused on
water system improvement necessary to correct identified water flow and reliability deficiencies
in East Aspen and Red Mountain areas, project cost, and funding alternatives.
BACKGROUND: Colorado’s increasing problems with wildfire are well known. In addition to
the loss of life, the Rocky Mountain Insurance Information Association estimates damage from
the 2012 and 2013 wildfire seasons at more than $860.2 million in insurance losses in Colorado.
Aspen has been fortunate so far, but we must be proactive. The combination of increasing
periods of drought and decades of continued fire fuels growth has led to a worrisome situation
that must be addressed. While the Aspen Fire Protection District (AFPD) and other area fire
districts are well-prepared and adept at fighting fires, certain aspects of fire readiness in Aspen’s
Wildland Urban Interface (WUI) areas need attention.
In 2013, City Council made the creation of a comprehensive wildfire mitigation plan one of its
Top Ten Goals. Since then, staff members from the City of Aspen, Pitkin County, and the AFPD
have teamed up to prepare a multi-dimensional wildfire mitigation plan that emphasizes a
collaborative effort between the agencies by forming one Community Wildfire Mitigation Team.
Today’s discussion on water system upgrade is one of the focus area for the Community wide
plan being:
• Improve/Harden Water Delivery Systems in Pumped Zones in Red Mtn. and East Aspen
As a partner and trusted expert in fire suppression, the AFPD was consulted for the implications
of these high risk areas not meeting firefighting flow capacities. The fire district explained that,
“Fire is indiscriminate and any upgrades to the water utility and delivery system in
Aspen facilitates the protection of the entire community from the ravages of fire. Two
fundamental requirements to successful fire suppression operations are access and water
supply. Without one or the other, your firefighter's chances of success are greatly
diminished. We have concerns in our area with the Wildland Urban Interface, the direct
interaction between the built and natural environments, and the impacts one fire event
could have on the other.” – Brian Nichols, Former Fire Marshall, Aspen Fire Protection
District
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DISCUSSION: In December 2013, working as a consultant to the City, Merrick and Company
completed a “Wildfire Mitigation Plan”. This plan identified the essential water system
improvements in the Red Mountain and East Aspen area necessary to achieve the design criteria
identified by the Aspen Fire Protection District (Parker Lathrop) of:
• 1500 gallons per minute (gpm) water flow delivery at fire hydrants
• 2-hour duration of 1500 gpm fire flow to hydrant
• Fire Hydrant spacing less than 1000’
The Plan was further refined and revised by Merrick and Company in July 2015 as the
“Preliminary Engineering Report, Water System Wildland Urban Interface Mitigation Plan to the
East Aspen and Red Mountain Area”. The water system improvement estimates were updated in
2016 by a third party firm Rider-Levett-Bucknall and form the basis for overall project cost and
related funding mechanism. As the project moves from conceptual into the design phase, other
adjustment and refinement in individual project scope may occur.
In summary, this is a large infrastructure upgrade project based on the completed water system
model (by Merrick & Co. in 2013). This analysis concluded that the City’s current water system
is deficient in several of its pump-water zones. Specifically, the water delivery infrastructure is
inadequate to provide sustained and sufficient firefighting flows to two of the highest-risk
wildfire neighborhoods in Aspen and the adjacent Wildland Urban Interface (WUI) of
unincorporated Pitkin County.
The water systems model identified multiple deficiencies within the pumped zones.1 Among
them:
• There are 17 hydrants in the Red Mtn. neighborhood that don’t meet design criteria for
fire suppression flows, 7 of which deliver less than half of specified amount when water
storage tanks are empty;
• There are 16 hydrants in the East Aspen neighborhoods that don’t meet design criteria for
fire suppression flows, 4 of which deliver less than half the specified amount when water
storage tanks are empty;
• High dependency on pumped water from pump stations that, in turn, depend upon Holy
Cross electricity delivered via overhead power lines (that would likely fail in a wildfire
event), and the associated lack of backup power generation;
• Undersized pumps to deliver specified fire suppression flow and duration;
• Undersized water lines that lead to insufficient line capacity to meet specified fire
suppression flows; and
• Insufficient water storage capacity in East Aspen area (the current 25,500-gallon tank
would provide ~17 minutes of fire suppression flows, provided only one hydrant is open).
The recommended system improvements include:
• Pump system
o capacity and pumping upgrades,
o backup power generators for pump stations,
• Water Lines
1 The model was run to mimic water availability during peak use period—in Aspen’s case, this consistently occurs
on July 4th. “Deficient” was defined in the design criteria (by the AVFD) as hydrants that cannot provide >1,500
gpm for >2 hrs.
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o replacement of water lines,
o reconfiguration of the existing system.
• Storage
o installation of water storage tanks.
Ultimately, these improvements will increase flows across the system, and bring all but 5 of the
hydrants in the area within 300 gpm of fire suppression standards.2
FINANCIAL/BUDGET IMPACTS: Staff has received preliminary engineering reports and
costs estimates for the work necessary to provide sufficiently reliable and plentiful fire flows to
the Red Mountain and East Aspen neighborhoods. The current estimate for identified
improvements is approximately $ 10.98 million. It is proposed to bond for the project funding up
front on a 25-year amortization basis, and seek to recoup the costs via water rate adjustments.
The annual debit payment is estimated at $ 666,200 Construction would occur generally over a
5-year period.
At the June 2, 2014 work session, Council discussed four customer cost allocation scenarios.
While all of these funding options accomplish the public safety goal of increasing fire
suppression capabilities, the main difference between each policy is who bears the cost. These
funding options provide an array of concepts which shifts the cost between the individuals in the
service areas and the community as a whole. Each of these are justifiable due to two main
arguments: (1) those in the service areas should incur most of the cost of the project since they
are receiving the majority of the benefits or (2) the community as a whole should incur the cost
as owners of the system, and they were going to finance the upgrades within the master plan
already.
Of these four options, the general direction from the Council at the work session at that #3,
Focused-Blended. See attachment for further detail on this funding allocation.
1) Community Solution: Costs are borne by all 3,781 water account holders
2) Community - Blended: Costs are borne by all water account holders on a 49% / 51%
basis (with account holders in Service areas 2 and 3 paying for 51%);
3) Focused – Blended: Costs are borne by all water account holders on a 25% /
75% basis (with account holders in Service areas 2 and 3 paying for 75%);
4) Focused: Costs are borne by the 372 account holders in Service Areas 2 and 3.
RECOMMENDED ACTION: Staff recommends Council direct staff to proceed with the
proposed Red Mountain and East Aspen Water system upgrades projects and to proceed with
securing project funding and water rate adjustments as so determined in this work session.
ALTERNATIVES: Council could choose to fund only those portions/phases of the project they
deem most pressing, or not to fund these improvements at all.
CITY MANAGER COMMENTS:
2 1,500 gpm fire flow for a 2-hour duration, (assumed during the average demand rate during a peak day, per ISO
procedures) and fire hydrant spacing less than 1,000 ft. per City standard for structural fires.
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______________________________________________________________________________
_____________________________________
ATTACHMENTS:
Attachment A – Project List
Attachment B – Project Cost Summary
Attachment C – Water Recovery Option 3, Focused – Blended bill impact table
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Attachment A - Project List
RED MOUNTAIN PROPOSED IMPROVEMENTS
West Red pumping station improvements - increase capacity from 300gpm to 1400gpm
Ruby Red pumping station improvements - increase capacity - undetermined
Fixed generator to Ruby Red pumping station - 400kw
Mobile generator to Ruby Red pumping statio - 125kw
New 8" Green Zone line
New hydrant
New 8" line on Hunter Creek Rd
Relocate existing PRV
New 8" line replacing existing 6"
Generator connection at Lower Red Pump Station
Connection near Hunter Creek Plant
Trailer mounted mobile generator - 125kw
EAST ASPEN PROPOSED IMPROVEMENTS
Abandon Upper Aspen Grove Tank
Abandon Knollwood Tanks
Abandon Upper Aspen Grove Pump Station
Abandon Mountain Valley Pump Station
New 120,000 gallon below ground concrete tank
Replace existing 6" CIP with new 10" DIP from Mtn Valley Pump Station to existing
Replace existing 6" CIP with new 10" DIP from Mtn Valley Pump Station to Fire Hydrant 2002
Replace existing 6" CIP with new 8" DIP from Fire Hydrant 2002 to 2001
Add 3 new Fire Hydrants - Green Zone
Repiping on Upper McSkimming Road add 4" PRV (undetermined)
Site Acquisition Allowance
Site Preparation Allowance
New 150,000 gallon Mountain Valley Tank
Rehab existing Lower Aspen Grove Pump Station- 1-175 gpm pump - Generator
New Mountain Valley Pump Station -2-175 gpm pumps - Generator
New Mountain Valley Pump Station - 225gpm pump
New Mountain Valley Pump Station - 4" PRV
New Mountain Valley Pump Station - Electrical generator connection including switchgear, feeders
Replace existing 6" CIP with new 10" DIP below new Mountain Valley Tank - Gravel Surface
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Attachment B - Project Cost Summary
Engineering evaluation estimated cost
Construction = $ 5,590,000
PIO / PM / Staff = $ 2,060,000
Design = $ 447,000
Escalation = $ 559,000
Contingency = $ 2,164,000
One-Time Issuance = $ 160,000
Estimated Project Cost Estimated Project Cost Estimated Project Cost Estimated Project Cost ==== $$$$10101010,,,,980980980980,000,000,000,000
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Page 1 of 2
TO: Mayor and City Council
FROM: David Hornbacher, Director of Utilities
Phil Overeynder, Special Projects Engineer
THRU: Scott Miller, Public Works Director
DATE OF MEMO: September 15, 2016
DATE OF MEETING: September 20, 2016
RE: Work Session update on the development of the Maroon Creek
Micro-Hydro
_______________________________________________________________
REQUEST OF COUNCIL: Council is requested to affirm staff direction to:
• Create and incorporate the “Aspen Clean Energy Microhydro Company (ACEM)”, a
Limited Liability Corporation between the City of Aspen and the T-Lazy-7 Ranch
Corporation.
• Complete an Operating Agreement for ACEM
• Amend the existing FERC Preliminary Permit application for this project to replace the
City of Aspen with ACEM as the applicant.
PREVIOUS COUNCIL ACTION: On February 23, 2015 City Council adopted Resolution
#23. This resolution affirmed the City’s intent to pursue micro-hydro facilities on Maroon Creek,
including filing an application for a Preliminary Permit or other appropriate mechanism as
determined by legal counsel.
On June 27th, 2016, Council adopted Resolution 88, series of 2016. This resolution directed staff
to develop a partnership agreement with the T-Lazy-7 Ranch Corporation for the installation and
operation of a micro-hydro facility at the existing City of Aspen Maroon Creek diversion
structure. Staff was directed to work with the owners of the T-Lazy-Ranch to prepare an
agreement for Council review and approval within 90 days of the approval of the resolution.
BACKGROUND: On March 4th, 2015 City staff submitted a Preliminary Permit application to
the Federal Energy Regulatory Commission (FERC) for the development of a micro-hydro
project at the existing Maroon Creek diversion structure. This is consistent with the direction of
Resolution #23, Series of 2015, adopted on February 23, 2015. Subsequent to the permit
submission, FERC indicated that a Preliminary Permit, which is specific and exclusive to a new
micro-hydro facility at this location, would require the City acting in a partnership with other
parties, not as a "sole applicant".
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Previously, the City worked with the T-Lazy-7, the Deane family in development of the City’s
existing Maroon Creek hydroelectric facility in operation since the 1980’s.
DISCUSSION:
Since the June 27, 2016 Council meeting, City staff and its consultants, and the T-Lazy-7 Ranch
(the owners of the land on which the City's existing diversion structure sits) have continued
discussions to identify key aspects essential to creating a legal entity for the ownership,
operation, costs and revenue sharing. A draft Memorandum of Understanding (Attachment A)
was developed to guide and inform the next steps necessary to create the responsible legal entity
and an operating agreement.
Staff continued to work with Percheron* to investigate the use and demonstration of the
Archimedes Hydrodynamic Screw technology at this location. Ongoing research regarding
equipment specifications including operating capacity (kW size, CFS operating range), power
generation output, equipment size and installation requirements. Staff met on site with T-Lazy-7
Ranch owners to review potential site installation location and criteria. Previously, this group
also met with Holy Cross Energy on site regarding the extension of electric facilities to connect
the generator to the grid and the options for the sale of electric energy produced.
In addition, staff continues its engagement with and updates to FERC for the permitting process
associated with this project.
*Background on Percheron: Percheron Power, a Washington State company, is pioneering the
use of composite materials and U.S. manufacturing for a more efficient micro-hydro turbine
design. Percheron was successful in winning a grant, currently underway, from the U.S.
Department of Energy (DoE) to develop and prove this technology approach. Percheron is
interested in providing to the City their product to demonstrate the “Archimedes Screw” turbine
design at the Maroon Creek site. As such, a significant portion of the capital costs would be
avoided by using Percheron's prototype Archimedes turbine technology, which would be donated
to the partnership, and would be paid for by the DoE grant money.
CITY MANAGER COMMENTS: _______________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
ATTACHMENTS:
Attachment A - Draft Memorandum of Understanding between the City of Aspen and the T-
Lazy-7 Ranch Corporation
Attachment B - Resolution #23 Series of 2015
Attachment C - Resolution # 88, Series of 2016
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MEMORANDUM OF UNDERSTANDING (“MOU”)
BETWEEN
THE CITY OF ASPEN (“COA”) AND T-LAZY-7 RANCH CORPORATION (“TL7”)
1. Purpose. This MOU intends to certify and memorialize the intentions of COA and TL7, signifying
agreement between both parties to willfully enter into an Operating Agreement for a limited liability
company, to be organized under Colorado law and named the Aspen Clean Energy Microhydo Company
(the “Company”), to submit an amended preliminary permit to FERC, continue investigating the
feasibility of a facility, apply for a License, and if a License is granted, install and operate a microhydro
project--independent of the City’s existing hydroelectric facility on Maroon Creek. Both parties have a
desire to produce clean energy for the area and wish to protect and preserve water rights in Maroon
Creek.
2. Understandings and Agreements. The COA and TL7 agree to the following terms in connection with
the formation and operation of the Company and the membership interests therein, subject to approval
of their respective legal and tax advisors:
2.1 Contributions for membership interest in the Company.
a. COA will contribute services to the Company for all project coordination and project
components including permitting, engineering, design, facilities installation, electric
extension components except those provided by TL7, and negotiating an agreement on
behalf of Company with Holy Cross Electric (HCE) for the sale of electricity to be
generated by the facility. Further COA shall negotiating an agreement with Percheron
and/or others to obtain equipment and/or grants for the equipment for the facility.
b. COA and TL7 will each will enter into a separate operating agreement with the
Company to allocate responsibilities for ongoing routine maintenance and operations. It
is understood that COA will operate the facility, and that TL7 and COA both will have
some ongoing responsibilities concerning maintenance.
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c. TL7 will contribute services to the Company for excavation of the trench, backfill, and
restoration for the installation of the electric line from the existing overhead pole to the
microhydro installation electric facilities.
d. COA will contribute property to the Company in the form of a lease, or other
appropriate agreement, to the Company for its water rights necessary for the operation
of the facility, for a 20-year term which may be extended.
e. TL7 will contribute property to the Company in the form of a lease, or other appropriate
arrangement, for the minimum amount of land necessary for the installation and
operation of the facility to Company, for a twenty-year term which may be extended.
This assumes access for COA and TL7 staff, guests, and limited access to others as
appropriate. The lease will address public access and other potential impacts.
2.2 Sale of power. The parties understand that at present it is not possible for TL7 to directly
receive power from the project and that the current plan is to negotiate an agreement between
the company and HCE to sell all the power generated to HCE. The power produced from the
project will be valued at the HCE feed-in tariff rate, currently $0.107/kWh (escalated at X%/yr.),
the proceeds of which will be paid to Company and subsequently distributed to its Members,
depending on facility production, as follows:
o TL7 shall receive a minimum guaranteed distribution of $5,000/yr.
o TL7 shall receive a minimum of an additional $5,000 from the first 50% of the gross
production of 0 – 100,000 kwh at the then-current rate from Holy Cross Energy.
o TL7 shall receive 50% of the gross production revenue for energy production exceeding
100,000 kwh/yr., up to 200,000 kwh/yr. at the then-current rate from Holy Cross
Energy.
o All remaining energy proceeds will be distributed to COA.
2.3 Both parties are responsible for their legal costs associated with review and creation of the
partnership.
2.4 The parties hope to obtain the FERC preliminary permit within six months and proceed as quickly
as possible to obtain the License after completing all feasibility studies and other necessary
investigations.
3. Duration. This MOU will be in force So long as the Company exists and its Members consist of the
parties to this MOU.
4. Performance. Failure of either agency to perform. THIS SECTION TO BE COMPLETED.
5. Effective Date. This MOU will be effective upon the signatures of both named COA and TL7
representatives.
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SIGNATURE BLOCK
XXXXXXXX, XXXX
XXXXXXX, XXXXXX
SIGNATURE BLOCK
XXXXXXXX, XXXX
XXXXXXX, XXXXXX
(Date)
(Date)
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MEMORANDUM
TO: Mayor and City Council
FROM: Dave Hornbacher, Director Utilities and Environmental Initiatives
Margaret Medellin, Utilities Portfolio Manager
THRU: Scott Miller, Director of Public Works;
Jim True, City Attorney;
Debbie Quinn, Assistant City Attorney
DATE OF MEMO: September 16, 2016
MEETING DATE: September 20, 2016
RE: Conditional Water Rights (Maroon Creek Reservoir and Castle Creek Reservoir)
REQUEST OF COUNCIL: Council is requested to provide guidance to staff regarding a water
court application that must be filed on or before October 31, 2016, in order to maintain its
conditional storage rights for the Castle Creek Reservoir and the Maroon Creek Reservoir for
another six-year period.
PREVIOUS COUNCIL ACTION: Since the City first obtained decrees for these conditional
water rights in 1971, the Council has maintained these rights by returning to water court at
required intervals to demonstrate diligence in the development of these rights. The current
diligence period ends October 31, 2016. Prior to filing an application for the 2016 cycle, Council
directed staff at its May 9, 2016 meeting to enter into a public process with the intent of engaging
the public and stakeholders regarding their questions, concerns, and support for maintaining
these rights, as well as soliciting ideas for consideration in ensuring the City can provide a legal,
reliable, and viable water supply into the future.
BACKGROUND: A conditional water right is a place holder in Colorado’s priority system for
water rights, and allows project planning and development to take place with the assurance that a
water right exists for the project. It is not a proposal to actually build the reservoirs at this
time. If the City fails to submit required documents to the Court, then it will relinquish these
rights. If at a later date, the City decides to pursue the development of storage on either Castle or
Maroon Creek, it will need to re-initiate a water court proceeding for new rights. There are no
guarantees that the City will be successful in obtaining new storage rights, and even if it is, the
priority date of these new rights will be junior to the conditional storage rights the City now
holds.
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With its long history of commitment to protection of the environment, in 2005, the City adopted
the Canary Initiative recognizing the significant threat that global warming poses to our valley,
its quality of life and to the global community. Since that time, the City established the Canary
Action Plan in 2007, set emission reduction goals, monitors and reports on Aspen’s carbon
emissions, has initiated a sustainability dash board, and is currently working on Energy
Benchmarking (Council Goal # 8), as well as other programs. This monitoring, data research and
reporting affirm that the temperatures in Aspen continue to increase, and in fact there are 23
more frost free days in Aspen than there were in 1980. These warmer days demonstrate that
local snowpack, the primary source of the City’s water supply, is decreasing.
In 2016, City Staff completed a Source Water Protection Plan and a Water Supply Availability
Report (adopted via Resolution 81, series of 2016). The Availability Report projects the
community water requirements and available supply 50 years into the future. The two variables
used in these projections are climate and population.
In the summer of 2016, the City initiated a public process to solicit feedback on its upcoming
diligence filing for conditional water storage rights on Castle Creek and Maroon Creek. The
independent services of Common Ground Environmental Consulting, LLC were retained to
provide an unbiased facilitation of these meetings. CGEC’s summary of these proceedings is
contained in Attachment A—Common Ground Environmental Consulting, Summary of Public
Process.
Staff has planned a two-step process for presenting information to assist Council in providing
direction regarding the City’s conditional water rights.
• Step One: Work Session on 9/20/2016 for staff and consultant presentation and to request
additional data,
• Step Two: Work Session on 9/27/2016 to review additional data and arrive at a decision.
• October 10th Council Meeting – finalize actions per Council direction from work sessions
as applicable.
DISCUSSION: Typically, filing the required diligence applications for these conditional water
rights is a task that staff has been directed to undertake as a part of its on-going mission to
provide a legal, safe and reliable water supply. In 2016, the City’s heightened efforts related to
water planning focused attention on future water needs and future supplies, including these long-
held reservoir storage rights. In its ongoing efforts to encourage community participation and
transparency, Council directed staff to initiate a public process in the very complex analysis
required to respond to climate change and to plan for an unknown future. Staff is heartened by
the response of the community to its water supply planning efforts. The support and involvement
of the community helps to ensure that Aspen’s future water needs will be met in a well-planned
and environmentally conscious manner. The public process reaffirmed that our community holds
existing wilderness and other environmental values in high regard. In addition to local input,
these conditional water rights received attention from outside groups, such as the Washington
D.C. based American Rivers advocacy group.
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Recommendations for path forward
The City has embraced an integrated water supply approach to planning which aims to increase
system resiliency while decreasing vulnerability during times of shortage through the use of all
available tools. Staff continues to diligently identify, develop and implement these tools to meet
its mission of providing a safe and reliable water supply for current and future citizens of Aspen,
while remaining sensitive to environmental values and impacts. The City’s integrated water
supply plan relies on the Maroon and Castle Creek storage rights as a tool to reliably satisfy
future water needs. Water retained in the valley through storage can be released to bridge the gap
between available water in the streams and community demand, while maintaining minimum
instream flow requirements. Additionally, the impact to the community during periods of
extended drought will be less if stored water is available.
Recent studies, climate research and modeling, validated by local data, indicate a future with
increasing temperature. This trend suggests earlier snowpack melt and runoff, which will lessen
the available streamflow in late summer and fall. Warmer temperatures will also lengthen the
growing season and increase transpiration rates of vegetation. Further, projected population
increases, potential extended use by 2nd homeowners, and likely increased tourism place further
demand on a finite water resource.
Climate and growth uncertainties will influence the future of year 2066 in ways beyond those
which can be fully contemplated in year 2016. However, given what we know now about
changing climate and other variables and influences, it is prudent to retain our conditional water
storage rights. More immediately, the City should actively and aggressively identify and develop
new, reliable water sources and tools and forge partnerships whose impacts can diminish the
scope and perhaps the necessity of these water storage projects.
Staff is requesting that Council consider adoption of the attached draft Resolution which directs
staff to:
• Continue implementation of its integrated water supply system, including Water
Conservation Measures (including, but not limited to, rate revisions and a new landscape
ordinance); the Reuse Project, the well system, and other current plans for development
of water supplies.
• Initiate a collaborative process to evaluate existing and identify new alternatives and any
other necessary actions to fill the projected future water supply and demand gap.
• Investigate alternative locations and sizing requirements of the Maroon Creek Reservoir
and/or Castle Creek Reservoir, and, and to report its findings back to City Council for
further consideration and action as appropriate.
• Proceed with the filing of the diligence application for the City’s conditional water
storage rights on Castle Creek and Maroon Creek.
FINANCIAL/BUDGET IMPACTS: Costs to file the diligence application are already
included in the 2016 budget.
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Page 4 of 4
ENVIRONMENTAL IMPACTS: There are no environmental impacts associated with filing
the diligence application. Prior to constructing the reservoirs, careful and thorough environmental
studies will be required as a part of the approval process, including evaluation of alternatives.
RECOMMENDED ACTION: Staff recommends that Council adopt Resolution XX, Series of
2016 (Attachment B) at the 1st regular Council meeting in October and direct staff and its legal
counsel to submit appropriate documentation to the Court to retain the City’s conditional water
rights.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Attachment A—Common Ground Environmental Consulting, Summary of Public Process
Attachment B—Resolution Number XX, Series 2016 (DRAFT)
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COMMON GROUND
ENVIRONMENTAL CONSULTING, LLC
Larissa Read 970-633-0399
PO Box 267 www.commongroundenv.com
Edwards CO 81632 larissa@commongroundenv.com
Executive Summary
Conditional Water Storage Rights Stakeholder and Public Process
September 15, 2016
Since 1965, the City of Aspen has maintained conditional water rights for a reservoir on Castle
and on Maroon Creek to plan for this community’s future water needs. To keep these rights,
Aspen must submit a diligence filing this October. While this is a routine filing that occurs every
six years, it is not a proposal to actually build the reservoirs. A conditional water right is a place
holder in Colorado’s priority system for water rights. In summer 2016, the City of Aspen held a
stakeholder and public process to solicit feedback on its upcoming diligence filing for
conditional water storage rights on Castle Creek and Maroon Creek. The process included three
components:
1. Stakeholder interviews and meeting: Sixteen stakeholders from nine organizations were
interviewed in July and August 2016. The group met on August 3, 2016 for 2 ½ hours to di scuss
the background and technical issues, and participate in a scenario planning exercise.
2. Public meeting: A public open house was held on August 4, 2016 to share information and
solicit feedback. Approximately 40 members of the public, plus 10 city and county employees
and 3 members of the press attended the 90-minute meeting. About half the meeting was
devoted to an informational slideshow, background, and technical Q&A discussion. The
remainder of the meeting was spent in small group discussions, which resulted in a spectrum of
feedback ranging from retention to relinquishment of the city’s conditional water storage
rights.
3. Public comment period: The city hosted a public comment period from August 4-19, 2016.
Over 50 emails from individuals and 5 emails from organizations were received. All letters were
in support of relinquishing the city’s conditional water storage rights.
The following packet contains detailed summaries of the process, discussions, and outcomes
from the entire stakeholder and public process, which was conducted by an independent
contractor, Larissa Read of Common Ground Environmental Consulting, LLC, during summer
and fall 2016.
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Stakeholder Process for Feedback on Conditional Water Storage Rights
Process summary: A stakeholder meeting to discuss the City of Aspen’s conditional water storage rights on Castle
Creek and Maroon Creek was held on August 3, 2016. During the two weeks prior to the meeting, facilitator Larissa
Read conducted stakeholder interviews with the attendees. The interviews included several open-ended questions
intended to generate discussion and were each approximately 45 minutes in length.
The stakeholder meeting was held from 11:30 a.m. to 2:00 p.m. at the Eagle County Community Center in Basalt,
Colorado. The first half of the meeting included an overview slide show of the history, current status, informational
maps, and a discussion about technical and legal matters regarding the conditional water storage rights. The
second half of the meeting included a scenario planning exercise to consider possible futures for the Aspen
community with respect to the conditional water storage rights. The following persons were in attendance:
Table 1. List of stakeholder meeting attendees*
Name Organization
Laura Armstrong City of Aspen (note-taker)
Hunter Causey Colorado River Water Conservation District
Mark Fuller Reudi Water and Power Authority
David Graf Colorado Parks and Wildlife
Dave Hornbacher City of Aspen
Chris Lane Aspen Center for Environmental Studies
Rick Lofaro Roaring Fork Conservancy
April Long City of Aspen
Margaret Medellin City of Aspen
Ashley Perl City of Aspen
Thomas Probert US Forest Service
Larissa Read Common Ground Environmental Consulting, LLC (facilitator)
Matt Rice American Rivers
Will Roush Wilderness Workshop
Karen Schroyer US Forest Service
Sloan Shoemaker Wilderness Workshop
Jamie Werner Aspen Center for Environmental Studies
*John Currier of the Colorado River Water Conservation District was also interviewed, but was unable to attend the
stakeholder meeting.
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Major themes: The following themes emerged from the stakeholder interviews and the discussion during the
stakeholder meeting. In many cases, a question was raised by one member of the stakeholder group with other
members of the group chiming in to answer the question and share their expertise. In this way, many but not all of
the technical questions that came up were sorted out among the group themselves.
Conditional water storage rights and the diligence filing
The stakeholders were concerned about understanding what the implications would be if the conditional water
rights were given up. They came to the conclusion that the main implication is that the city would have to “get in
line” again in the future if they ever wanted water rights on those creeks again. They discussed how nothing would
stop the city or a private owner from reapplying for these or similar water rights. They felt that a future filing might
not be much different functionally than the current rights, but would be very different from a legal standpoint due
to a change in priority.
The group also discussed the implications of the current water rights, which are senior to many other rights at this
time. They wanted to know what other entities have water rights on these creeks, and what those junior rights are
decreed for. They realized that in the absence of these conditional water rights, instream flow would become a
more senior water use, but that the city already honors instream flow as a matter of practice. There was a question
about whether the rights could be used for underground rather than surface storage. The stakeholders also
discussed the decree for the recreational instream flow for a kayak park.
Several stakeholders wanted to know if the only way to retain the rights (for any future beneficial use) is to
complete the diligence filing that would specify building the dams as proposed in 1971. They also discussed what
other uses the potential reservoirs could be used for in addition to or in lieu of storage, such as wildlife habitat,
surface recreation such as fishing or boating, keeping water in the stream, etc. One stakeholder shared an example
of a study that indicated beaver dams can create an abundance of natural storage in lieu of dams or reservoirs.
Some stakeholders focused their interview answers on restraint and conservation values, while others were
concerned about the uncertainty about climate change and the possible future demands of users. Several
suggested that if designed correctly, potential reservoirs could convey benefits to instream flow, wildlife, and other
beneficial uses (such as recreation). Others felts strongly that ecologically intact stream corridors would provide the
most overall benefits and remain in concert with community values.
Public communication and education
During the stakeholder interviews, a question was posed about what the most hopeful outcome of this process
(summer and fall 2016) would be. Many of the stakeholders responded that education of the public about water
rights and clear communication were important and hopeful outcomes. Several stakeholders commented that the
process should build community understanding about water rights, how they affect a community, and what
decisions managers are facing about water rights. The theme of public understanding and education was also
raised during the stakeholder meeting, in the context of clear communication at the public meeting and afterwards.
One person hoped that community members would gain enough knowledge to translate their education to help
change local environmental and water policy.
A number of stakeholders raised the issue that on one hand, the city has said they are not proposing or building
these reservoirs at this time, while on the other hand, they must prove “can and will” during the diligence filing
process. Some stakeholders felt this was duplicitous of city managers; others did not feel this way per se, but did
agree that clarity with the public was of utmost importance. One mentioned that the issue of Castle Creek and
Maroon Creek reservoirs surfaces every few years but then dissipates, as the city has never actually made a
proposal to pursue construction. This stakeholder also suggested that tying a possible future proposal to water
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resource thresholds might help the public feel there is a real, not arbitrary, trigger for a future decision. Another
stakeholder reminded the group that from the public’s perspective, the character of the valleys may be of high
importance, as well as an understanding of how these potential reservoirs would impact their character.
Secure water supply
The group discussed the security of adequate water supply for Aspen now and in the future. There was a great deal
of conversation about the recent water supply availability study for the city, and whether it indicated or did not
indicate a need for possible future storage. There are a number of possible futures that indicate Aspen would not
need that water (to satisfy instream flow as well as needs of customers), but there are also some scenarios in which
Aspen would need stored water and/or it would provide important redundancies in the system. The group was
interested in understanding the relationship between possible future needs of the community, and the amount of
water that could be stored in these potential reservoirs. One stakeholder summed up the question by saying that
“water stored for drinking is one thing; water stored for green lawns is another.”
Though it was not addressed at length during the stakeholder meeting, a number of stakeholders brought up the
importance of considering agricultural and irrigation water now and in the future during the stakeholder
interviews. One expressed concern that the conversation is so focused on potential future water needs, that the
city might be overlooking the current needs such as “holes” (dry areas) in the Roaring Fork that appear each
summer. Another reminded the group that the irrigation season will change in unknown ways with climate change;
at the least, peak runoff will occur earlier so the irrigation season may have to start sooner. Another stakeholder
reminded the group to consider the scale of these potential reservoirs and that community values vary with the
scale at which you look at this situation.
The stakeholders briefly discussed water availability in case of emergency, and whether or not Castle Creek and
Maroon Creek would actually be the right locations for emergency storage. The group also wanted to know when
and if Aspen water managers ever felt “pinched” for municipal water supply; the answer was that around 4th of
July, with visitors and high occupancy, is when demand is highest. The group had a robust discussion about whether
voluntary water conservation measures could adequately meet future needs, or if more prescriptive efforts were
needed.
Water resource planning efforts were also discussed, including the 2012 Roaring Fork Watershed Plan, the recent
water supply availability study, and the upcoming Roaring Fork River Management Plan. The stakeholders learned
how Aspen pulled its list of priority storage areas out of the State of Colorado Water Plan, and instead included
them as possible actions in the Roaring Fork Watershed Plan instead. The resilience planning effort led by the city
was also shared with the group, including the fact that water resources were at the top of the list of priorities by
city managers concerned about resiliency.
Relationship of these rights to the water supply in Colorado and beyond
It was generally agreed among the stakeholders that these water rights do not directly relate to water supply or
potential trans-basin diversions in the larger region. The reasons mentioned were two-fold: that the flow in these
rivers is smaller than in others regionally, and there are no other water bodies upstream of these two potential
reservoir locations. However, several stakeholders felt strongly that due to the complexities of western water law
and the “dire” situation of the Colorado River, water is best retained in its home watershed, and that maintaining
flexibility is important since the future necessity to move water around the state and region is unknown. There was
discussion about how in the current situation with water in the Western U.S. the past does not always dictate the
future, and predictions do not always turn out to be very accurate. Flexibility in the face of future uncertainty was
mentioned by many stakeholders during the interviews.
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Scenario Exercise: The stakeholders participated in an exercise to discuss plausible futures for the City of Aspen in
relation to its conditional water storage rights on Castle Creek and Maroon Creek. The exercise prompted the
stakeholders to look at two spectrums (indicated below by axes), one for local support for water storage (low to
high) and the other for intensity of climate change in the future (low to high), for a total of four scenarios. The
stakeholders were first asked to describe what the four scenarios would “look like” in the future (table 2), and then
to discuss what actions should be taken in each scenario (table 3). The intent of this activity was to have the
stakeholders consider likely futures (e.g., climate change impacts) as well as unknown futures (e.g., community and
political support for traditional water storage facilities), and what management implications might be reasonable
under each situation.
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Table 2: Scenario Exercise Part One: What the Future Looks Like If…
- Continue to educate: potential to need to educate the public in perpetuity
- Public is willing to take more voluntary actions for water conservation
- Less regulation from government
- River health may be worse due to water storage
- Public understands climate change and water resources
- People are willing to act on their own, e.g. for water conservation
- Resiliency education and efforts are not working
- Year-round population has grown
- People use storage as a “crutch” and don’t conserve as well
- Summer uses increase in National Forest and in Aspen
- Changes in seasonality of visitors; more in the shoulder seasons
- Demand for flat-water recreation increases (boating, fishing, SUP)
- Easier to educate the public if climate change is very bad
- Government more willing and able to regulate
- With extreme climate disruption: people might not be as willing to
move or visit Aspen given food security concerns, isolation, etc.
- Continue to educate: potential to need to educate the public in perpetuity
- Public is willing to take more voluntary actions for water conservation
- No one sees need for water storage: apathetic public
- Less regulation from government
- River health may be best here
- People are willing to act on their own, e.g. for water conservation
-Resiliency education and efforts are working
- Year-round population has grown
- Summer uses increase in National Forest and in Aspen
- Changes in seasonality of visitors; more come in the shoulder
seasons
- Economic impacts on city such as increased utility prices; can’t
make snow in the late fall so resort isn’t open as long, etc.
- With extreme climate disruption: people might not be as willing
to move or visit Aspen given food security concerns, isolation, etc.
- Government more willing to regulate
- Need to explore and act on alternatives to water storage
- River health may be compromised
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Climate change intensity and impacts HIGH
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Table 3: Scenario Exercise Part Two: What Actions Should Be Taken in these Possible Futures?
- Complete diligence filing but don’t construct reservoirs
- Research and pursue alternatives to surface storage
- Develop ways to capture peak flows (including surges)
- Support regional planning downstream (Aspen is a headwater city)
- Personal actions are more voluntary as surface storage provides
needed water
- Perfect rights on Castle Creek and Maroon Creek
- Look for water rights elsewhere
- Maintain a diversity of “beneficial uses”
- Research non-traditional alternatives to surface storage (e.g.
subsurface storage, natural storage such as beaver dams)
- Focus less on regional planning; focus more on Aspen water
storage
- River health may decline due to storage; depends on design and
implementation of reservoirs (some people felt stream health could
be improved, i.e. instream flow maintained)
- Research and pursue alternatives to surface storage
- Evaluate whether to abandon conditional water storage rights
- Pursue land management practices to hold snowpack
- Push for changes in state law and policy
- More regulation for conservation measures
- Support regional planning downstream (Aspen is a headwater city)
- Research and pursue alternatives to surface storage
- Research non-traditional alternatives to surface storage (e.g.
subsurface storage, natural storage such as beaver dams)
- Evaluate if City Government have to fight public opinion and
pursue water right or wants to give up the water right.
- Evaluate whether to abandon conditional water storage rights
- Push for changes in state law and policy
- Increase in water sharing
- Support regional planning downstream (Aspen is a headwater city)
- Pursue water sharing agreements, such as ditch non-
irrigation/diversion agreements.
- Pursue stronger regulations for landscaping conservation and
efficiency, xeriscaping, etc. (will need to make up for surface
storage deficits)
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Climate change intensity and impacts HIGH
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Summary of Public Open House for Feedback on Conditional Water Storage Rights
Process Summary: A public open house to discuss the City of Aspen’s conditional water storage rights on Castle
Creek and Maroon Creek was held on August 4, 2016. The public meeting was held from 5:00 p.m. to 6:30 p.m. at
the Pitkin County Library (Community Room) in Aspen, Colorado. The first half of the meeting included an overview
slide show of the history, current status, informational maps, and a discussion about technical and legal matters
regarding the conditional water storage rights. The second half of the meeting included a group breakout exercise
for the public to discuss and consider possible futures for the Aspen community with respect to the conditional
water storage rights.
Approximately 40 members of the public attended the open house (about ten of whom declined to sign in).
Approximately 10 city and county staff members attended as well. Some members of the public left after the
informational overview and Q&A session. Several members of the press attended the meeting (Aspen Times, Daily
News, and Aspen Public Radio).
Larissa Read of Common Ground Environmental Consulting, LLC, facilitated the meeting and presented the
informational overview. Q&A and parts of the technical presentation were covered by Dave Hornbacher and Ashley
Perl of the City of Aspen. Eight City of Aspen employees assisted with the group breakout session in teams of two
(CJ Oliver and Matt Kuhn, Stacy Keating and Mitch Osur, Karen Harrington and Cameron Doelling, and April Long
and Linda Giudice).
Open Discussion: Following the informational overview slide show, city staff answered questions from the public.
Most of the questions related to the conditional water storage rights and the diligence filing. Other questions
related to the recent water supply availability study and instream flows. The staff were asked about how the
modeling for the water supply availability study and some of the climate action planning were conducted (e.g. how
was population growth estimated). Others asked about how much potential reservoirs on Castle Creek and
Maroon Creek would contribute to the City of Aspen’s need (need vs. storage potential).
Group Discussion Exercise: The members of the public distributed themselves into four groups of approximately six
people each. Each group was facilitated by a team of two city staff (see above) to administer questions and take
notes. Three questions were asked of the public (see below). The first two questions posed a plausible future for
the City of Aspen and asked the public what this would look like and what actions should be taken by the city in
that situation. The third question was more direct, asking the public what they felt City Council should consider
when making the decision to retain or not retain the conditional water storage rights on Castle Creek and Maroon
Creek. A summary of the public input on these questions follows.
Feedback on Question 1 (drastic climate change impacts): The public shared concerns about more frost-free days,
a shorter ski season, and changes to visitation that might affect the economy. Some supposed that irrigation needs
would also increase in this scenario, placing greater demands on instream flow. Some felt that conservation would
not be enough, and the city should aggressively protect its water rights. There were concerns about whether other
water users could capture the water and take it elsewhere in the state if the city were to relinquish its rights on
Castle and Maroon Creeks. Others felt that diversions to far-off locales would be unlikely and that there would be
nothing to fear in others taking the water rights. There was discussion of other communities in Colorado where in-
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stream flow in August can now only come from reservoirs, whether people like it or not. Some expressed concerns
that the city might have to haul water into city limits if needs were drastic.
Possible actions generated by members of the public:
Develop stricter water conservation measures for irrigation
Develop new wells
City should aggressively protect its water rights
Look at alternatives to traditional storage, such as smaller dams/reservoirs rather than one or two large
reservoirs
Increase water usage fees
Buy agricultural water rights
Feedback on Question 2 (population growth in Aspen): The public shared concerns about whether population
growth would ever occur. Some felt population would never change and that the City Council should research
whether population growth would ever really occur in Aspen. Others believe that population will grow, and some
believe that controls on growth are needed. They suggested implementing stricter conservation measures and
population / growth controls rather than building reservoirs. Those who felt population would grow mentioned a
longer ski season at Aspen compared to elsewhere due to elevation, and cooler temperatures compared to
elsewhere for habitation.
Some felt that protecting stream flows in this scenario is very important, but did not specify if that would be better
managed with a reservoir or with free-flowing creeks. Others felt strongly that agricultural use of water, not
municipal use, is the main problem.
Possible actions generated by members of the public:
Water itself should be used as a restriction on development (e.g. by restricting water to developers, less
development and thus less population growth would occur)
Aspen should set an example about what it takes to enact very strict conservation measures
Feedback on Question 3 (feedback to Aspen City Council regarding the conditional water storage rights): The
public shared a full spectrum of opinions. Some felt that the water rights should be relinquished now, so that there
would be no future possibility of reservoir construction, in order to protect the ecological integrity and beauty of
the creeks/valleys. These participants were concerned about the wilderness and pristine nature of these
creeks/valleys, and felt the conservation values were of highest concern.
Others felt that the rights should be retained for a variety of reasons: future water supply for Aspen, unknown
climate change impacts, and unknown need for diversions into other parts of Colorado. Some mentioned the
“Great and Growing Cities Doctrine” that would support the city retaining the rights into the future.
The suggestion to sharply curtail irrigation was voiced by many people during the meeting, regardless of whether
they supported maintaining or relinquishing the water rights. Some felt that conservation measures beyond
irrigation should also be mandated with new policies aimed at water consumers. Others support research on
natural storage solutions such as underground storage, beaver dams, or small reservoirs on golf courses. Some
suggested that stricter conservation measures would be another opportunity for education of the public.
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Some members of the public felt strongly that more data was needed to address the question of consumption
versus the storage in these potential reservoirs, and how much impact stricter conservation efforts would have on
water supply. Others felt strongly that enough data had been collected and enough studies have already been
done. Some suggested building a water re-use facility. Some felt the city should maintain the right for another six
years in order to do more research into other beneficial uses of the water rights other than traditional storage.
A few people felt the city is using fear as a tactic (fear of need for storage in the future) as a way to convince the
public to retain the conditional water storage rights. Some felt that the city would never build the reservoirs, so
maintaining the rights is disingenuous. Others felt the process was open and appreciated the opportunity to share
feedback with City Council. Some expressed concern about the objection process if a diligence filing were to occur
(e.g. would the city be ready to defend “can and will”). Others discussed the “Great and Growing Cities Doctrine”
as paramount to “can and will”, stating that the city has the legal right to maintain the rights as it projects future
needs.
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Facilitation Questions for City of Aspen Conditional Water Storage Rights Open House – 8/4/2016
Facilitation note-takers: Write the answers on separate paper; please number the answers with the corresponding
“1b, 2c, etc” so we can collate them later.
Question 1: Imagine a future in which water conservation measures in the community continue to be effective. For
example, household and commercial use of water was considerably reduced due to all sectors of the community
chipping in. Yet, due to climate change, severe drought, more frequent wildfire, and high temperatures affected
the Roaring Fork Valley. Right now, climate change in Colorado is at the upper end of the spectrum of predictions
for temperature increases over time. We know that we will have less snowpack, fewer days with freezing
temperatures, and earlier snowmelt in Aspen. Remember, Aspen is a community that doesn’t have defined water
storage; winter snowpack is the community’s water source.
1a. What would this look like? What would be happening in our community in this possible future?
(For facilitator: What might change about water needs for homes, businesses, agriculture; what about city services
needed?)
1b. What actions should City of Aspen take in this possible future?
1c. In this situation, under what conditions would it be important to have conditional water storage rights, in case
future storage were needed? Why or why not?
Question 2: You have probably heard that our state population is growing to 7.8 million by 2040; that’s 2.3 million
new people. Here at home, Aspen has the capacity to have a much larger population and tourism continues to
grow. Let’s imagine what happens if the homes that are now empty most of the year have occupants 6 or 9
months of the year. Remember, Aspen is a community that doesn’t have defined water storage; winter snowpack
is the community’s water source.
2a. What would this look like in Aspen? What would be happening in our community in this possible future? (For
facilitator: All those people require city services, like water for drinking, roads, locally grown food, and energy, and
all the businesses who support them need the same things.)
2b. What actions should City of Aspen take in this possible future?
2c. In this situation, under what conditions would it be important to have conditional water storage rights, in case
future storage were needed? Why or why not?
Question 3: Let’s think about the City Council’s upcoming decision about retaining the conditional water storage
rights for another six years.
3a. What do you think they should be thinking about? For example, should they be thinking about climate change,
wilderness protection, population growth, water supply for in-stream flows, recreation, and wildlife?
3b. Are there any adjustments or changes you would suggest to the possible future reservoirs that would make
them more acceptable to you? (Try to listen for options, not just “Yes” or “No”.)
3c. What actions or studies should be undertaken over the next decade or so, to inform future councils and reduce
/ understand uncertainty?
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Summary of Public Email Comments on Conditional Water Storage Rights
Process Summary: Public comment on the City of Aspen’s conditional water storage rights on Castle Creek and
Maroon Creek was welcomed between August 4 (following the public meeting) and August 19, 2016 (though all
letters that were received after the end of the comment period were included here as well). A separate city email
box was set up (waterrights@cityofaspen.com). As of August 23, 2016, 54 letters to the email box had been
received. An additional five letters were received by the following organizations: American Rivers, Pitkin County
Healthy Rivers, Roaring Fork Conservancy, Western Resource Advocates, and Wilderness Workshop. An additional
letter was received from Attorney Craig Corona on behalf of individual clients. A letter requesting additional public
meetings was also sent by Wilderness Workshop and Aspen Center for Environmental Studies on August 12, 2016.
All of these letters, except the attorney’s letter, are included in this packet.
Where the sender’s location was attributed, the vast majority were from Pitkin County locations, while a handful of
emails came from other parts of Colorado. About one-quarter of the emails referenced the wilderness area
specifically. About two-thirds of the comments mentioned dam construction, not merely retention or
relinquishment of conditional water storage rights. Letters from individuals ranged from empty emails sent from
phones to several sentences in length.
Public Comment Summary: All of the letters received, whether from individuals or organizations, were in
opposition to the City of Aspen retaining its conditional water storage rights and potentially building dams in the
future.
Reasons to give up the conditional water storage rights or not to build dams/reservoirs included:
Natural and scenic beauty
Pristine nature of the creeks / valleys
Ruining what brings visitors to Aspen
Ruining what brings / keeps residents in Aspen
Overlap and damage to a designated wilderness area
City’s recent water supply availability study does not indicate need
Keeping the rivers “free”, “wild”, “pristine”
Maintaining the character of the two valleys
Maintaining “free flowing rivers”
Protecting ecological values
Protecting wildlife, wildlife habitat, and vegetation
Population growth is uncertain 50+ years in the future
Climate change / need for water is uncertain 50+ years in the future
There is not a current water shortage
The community has rebuilt itself from resource extraction already; don’t mar it again
Concerns directed at the City of Aspen from the public included:
City must not care about beauty
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City is not demonstrating fiscal or environmental responsibility
City cannot succeed in proving in water court that is proceeding diligently, nor that it can and will put water
rights to beneficial use
City doesn’t need to be planning 50+ years in advance for water
City’s recent water supply availability study does not indicate need
Maintaining these rights are at odds with city / community values
Municipal use is the problem causing a water shortage
City wants dams / reservoirs so that “people can water their lawns”
Ideas from the public included:
There are “much less pristine” locations where dams could be built
Build dams downstream of Aspen
Control population growth
Control municipal growth (development, building)
Conserve more water
Work with others for increased stream flow
The future will bring new / improved ways of conserving water
City has “many other ways to conserve and attain water”
Make the public golf course use native drought-resistant plant species
Misunderstandings shared by the public:
About two-thirds of the emails cited dam construction as if it were imminent or the city had proposed
building dams, rather than focusing on the question facing city council about retaining or relinquishing
conditional water storage rights.
Some members of the public are misinformed that if the city gives up these rights, no others can have or
claim the water. One person wrote, “Perhaps the more significant result is that if the city chooses to
abandon these water rights they do not become available to another party.”
Some people believed that municipal use of water was the cause of water shortages. One person wrote,
“We know that it has to do with municipal use and not with residential, corporations are use the bulk of
water, which is why we have a shortage.”
Some people felt that the city wants reservoirs so that “people can water their lawns” or similar
sentiments.
One letter mischaracterized the decision as a “proposed ordinance” of the City of Aspen.
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August 12, 2016
David Hornbacher
Director of Utilities and Environmental Initiatives
City of Aspen
Dear Mr. Hornbachar
This letter concerns the conditional water rights that the City of Aspen holds for
reservoirs on Castle and Maroon Creeks. We want to thank the City for providing the
opportunity for public feedback on these water rights and recognize that it is rare, if not
unprecedented, for the public to have a chance to participate in the decision to file a
diligence filing on a conditional water right. We appreciate the city hosting both a
smaller stakeholder meeting and a public open house. Larissa Reed did an excellent job
facilitating both meetings and we are glad she will be providing a written report to City
Council summarizing public input from those meetings.
We believe the complexities of water rights in general and the particulars of the City’s
conditional rights on Castle and Maroon Creeks merit a robust community discussion
and examination. Providing a forum for the public to ask questions and a understand the
full context of the City’s water rights will be key for City Council to make an informed
decision that represents the will and best interest of the community. The two meetings
the City held on August 3rd and 4th addressed the basics of the conditional water rights,
proposed reservoirs, and made the valid point that Aspen and the Roaring Fork Valley
are likely to face a hotter, dryer, more populated future. However, in our opinion, many
questions remain unanswered and several key issues were not adequately discussed.
The press also recognized the desire for a more thorough public discussion of the issues
surrounding the city’s water rights. Aspen Public Radio reported that the public meeting,
“provided few answers to questions about what these complicated water rights actually
mean for the community,” and noted, “at the end of the meeting, many questions and
concerns remained.” (Aspen Public Radio August 7, 2016. Questions about water rights
remain after city’s open house). Similarly, the Aspen Daily News described both the
facilitated and public meetings as providing “limited time for questions” (Aspen Daily
News, August 8th, 2016. Opposition likely to city’s Castle and Maroon water rights).
We believe that, before City Council makes a decision on this critical issue, more public
discussion and further opportunity for questions of City staff and Council are warranted.
Specifically, we think it would be productive for the City to provide information to the
public regarding the following issues:
Whether the City’s conditional rights provide any protections for the two creeks;
Whether the City’s conditional rights could be converted from storage rights to
in-stream flow rights;
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How much water the City currently uses and how much it anticipates using in the
future for municipal and irrigation purposes;
Other options for storing water besides the proposed reservoirs on Castle and
Maroon Creeks;
Alternatives to water storage to resolve any projected short-fall in municipal and
irrigation water use;
The ecological impacts construction of the two reservoirs would have on Castle
and Maroon Creeks;
Regulatory hurdles to building the two reservoirs;
The cost to complete similarly sized and located water storage projects; and
A comparison of the amount of water these two reservoirs would store with the
amount of water the City of Aspen uses and anticipates using in the future.
Recognizing the potentially controversial nature of the issue, we are not requesting that
the City hold a forum for the public to express their opinions and we do not assume this
will occur at the City’s work session scheduled for late September. Rather, we are
writing to request the city help ensure a more informed citizenry on a complex issue,
allow the public to ask thoughtful questions, and provide more information regarding
the larger context of the water rights and reservoirs. Specifically we request:
An open house to allow the public to ask further questions;
Dissemination of information, either written or at a public open house of the
issues described above;
A public site visit to one or both proposed dam locations.
We would be more than happy to help the city with this work in any way we can.
We recognize that the City of Aspen is going above and beyond what is legally required
and historically conducted regarding diligence filings of conditional water rights and we
commend the city staff for the outreach and public meetings already conducted.
However, given the importance of the Castle and Maroon Creek Valley’s to city and area
residents we believe more public outreach and information is critical for residents and
City Council alike.
Sincerely,
Will Roush,
Conservation Director, Wilderness Workshop
Chris Lane,
CEO, Aspen Center for Environmental Studies
Cc: Larissa Reed, Steve Skadron, Ann Mullins, Art Daily, Bert Myrin, Adam Frisch
P37
IV.
Major Skadron and Aspen City Council
Aspen City Hall
130 South Galena St.
Aspen, Colorado 81611
Dear Major Skadron and Aspen City Council,
American Rivers strongly encourages the City of Aspen to not file to maintain its conditional water rights
for new dams on Castle and Maroon Creeks. Aspen does not need these dams for municipal water
supply, climate resiliency, or for stream protection now or at any time in the foreseeable future. Aspen
cannot demonstrate that it can and will build these dams in a reasonable amount of time. The
conditional water rights for these dams do not provide any legal protection from new and extremely
unlikely trans-mountain diversion proposals. Citizens of Colorado will not accept the development of
these dams and the subsequent flooding of one of the state’s most iconic mountain landscapes.
Aspen holds senior water rights in excess of 100 cubic feet per second (cfs) that are used for municipal
water supply and municipal irrigation. These rights greatly exceed Aspen’s current and future demand.
Aspen currently diverts between approximately 4cfs and 20cfs for all municipal uses. If Aspen’s future
water demand tracks with other municipalities in the region, demand should decrease even if the city
experiences small to moderate growth. In the event that water supplies significantly diminish in the
future because of climate change, according to the city’s own water availability report, it will still be able
to meet its water demands without jeopardizing current in-stream flow protections. The city does not
need these paper water rights; therefore the rights have little monetary or practical value.
The 150 foot tall concrete dams on Castle and Maroon Creeks will cost hundreds of millions of dollars to
build, will degrade two free flowing streams, and will flood some of the most valuable wilderness in the
country. Aspen will not be able to secure the necessary state and federal permits to build the dams nor
can they afford to pay for them. Conditional water rights are placeholders in priority. Aside from the
questionable value of a 1965 junior water right in the Roaring Fork Valley, these right are not “absolute”
and therefore do not provide any legal protection from outside trans-mountain diversion proposals. As
the council is aware, the threat of a new trans-mountain diversion on Castle and Maroon Creeks is not
based in reality. Any new project would have to pass two mountain ranges, would likely cost billions of
dollars, and would be junior to all the other water rights in basin including the instream flows and the
recently appropriated recreational In-channel diversion on the Roaring Fork near Basalt. There is simply
not enough water to justify a project of that scale.
Politically, the people of Colorado will never allow the construction of new dams and the flooding of the
Maroon Bells, Colorado’s most beloved wilderness area. It is not far-fetched, because of the Aspen’s
status and global platform, that a debate to build new dams in pristine wilderness will extend far beyond
the Colorado State line. The national trend is to remove dams in places like the Maroon Bells, not
construct them.
P38
IV.
Aspen has the opportunity to do the right thing and let go of its conditional water rights for new dams
on Castle and Maroon Creeks. Abandoning conditional water rights is not unprecedented. In recent
years, the Colorado River Water Conservation District has abandoned several conditional rights in places
they knew could never be developed. If and when climate change results in periodic severe reductions
in water availability, Aspen has several options to increase its water security and build community
resilience for a hotter drier future including increased conservation, curtailment of diversions for
irrigation water, increased reuse, increased instream flow protections, sustainable groundwater
development, water sharing agreements, and possibly natural storage solutions such as high elevation
beaver ponds or aquifer recharge. In fact, the City’s recent water availability study concludes that these
tools will be sufficient to address Aspen’s future water needs in the face of a changing climate, without
the need for the new dams.
If Aspen chooses to file its diligence for the dams on Castle and Maroon Creeks in October, the city will
have to demonstrate to water court that there is in fact demand for the projects and that they are
diligently working towards building them. The city will have to tell water court the opposite of what it
told the public during recent public meetings on this topic- “While this is a routine filing that occurs
every six years, it is not a proposal to actually build the reservoirs.” This is no longer a routine water
rights filing and it is a proposal to build the reservoirs. Aspen cannot file with caveats, stipulations, or
commitments to further study and review. The city will have to prove that it is a proposal and that it will
build the dams despite the number of reasons highlighted above that demonstrate that it cannot.
For all of these reasons, we hope that you can recognize that the right choice is to acknowledge that
damming the Castle and Maroon Creek valleys is not in line with Aspen’s environmental values, is
unnecessary, and is also legally and practically infeasible. We appreciate your considered thought to the
decision you must make on whether to file, and I am available to discuss the issue if you wish.
Sincerely,
Matt Rice
Director, Colorado River Basin Program
American Rivers
mrice@americanrivers.org
303-454-3395
P39
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August 25, 2016
Dave Hornbacher
Utilities Director
City of Aspen
RE: Diligence filing for conditional storage rights on Castle and Maroon creeks
Dear Dave,
Roaring Fork Conservancy (RFC) recognizes and appreciates all of the work the City of Aspen (City)
does to help maintain healthy rivers and streams in the Roaring Fork Watershed. The City has
provided great stewardship in protecting the many tributary streams and the main stem of the
Roaring Fork in the Aspen area. RFC also appreciates the City's willingness to listen to public input
related to its conditional water storage rights on Maroon Creek and Castle Creek.
While RFC understands the City's need to maintain flexibility in its municipal water supply, we have
several concerns with the conditional water rights for (and ultimate development of) reservoirs on
Maroon Creek and Castle Creek, including:
Based on the completed engineering and water availability study, the City appears to have
sufficient water supply to meet its forecasted demand, without development of these
reservoirs.
As the reality of climate change could likely result in a shorter runoff period, the
construction of large dams on Maroon Creek and Castle Creek pose a greater threat to the
ecological integrity and the iconic natural beauty of these drainages.
Alternative demand and supply side solutions currently exist to enhance the City's water
security, including smaller scale storage projects, increased efficiencies and diversion
reductions.
The construction of dams would result in needless, drastic alteration of the natural
landscape of two of our State's most scenic places.
RFC supports the City of Aspen exploring all of its water resources in a changing climate. Additional
natural storage centers, water preservation, water re-use initiatives, and other mechanisms that we
understand are also long term commitments of the City of Aspen should be given serious
consideration in place of the potential future reservoirs.
In short, RFC believes the concerns/risks outweigh the benefit in maintaining diligence on these water
rights. Rather than prolong this debate for another 6-year diligence cycle, RFC believes that now is
the appropriate time to cancel these conditional water rights and for the City to pursue any other
water demand and supply initiatives.
We appreciate your consideration of our comments.
Sincerely,
Rick Lofaro
Executive Director
BOARD OF DIRECTORS
Pat McMahon
President
Diane Schwener
Vice President
Jennifer Sauer
Treasurer
Jeff Conklin
Secretary
Ted Borchelt
Stephen Ellsperman
Jim Light
Rick Lofaro
Executive Director
Rick Neiley
Don Schuster
Larry Yaw
PROGRAM STAFF
Rick Lofaro
Executive Director
Heather Lewin
Watershed Action
Director
Christina Medved
Watershed Education
Director
Liza Mitchell
Education & Outreach
Coordinator
Chad Rudow
Water Quality
Coordinator
Sheryl Sabandal
Development Associate &
Office Manager
Sarah Woods
Director of Philanthropy
P42
IV.
August 19, 2016
Sent via email to waterrights@cityofaspen.com
Aspen City Council
c/o the Aspen City Water Department
130 S. Galena St.
Aspen, CO 81611
Re: Upcoming Decision on Whether to Build Dams on Maroon and Castle Creeks
Dear City Council Members,
Western Resource Advocates appreciates this opportunity to comment on whether the City of
Aspen should seek to renew its conditional water rights for large dams on Maroon and Castle
Creek. Western Resource Advocates is a nonprofit conservation organization dedicated to
protecting the Interior West’s land, air, and water. Since the year 2000, Western Resource
Advocates has engaged with utilities, state, and federal government agencies to find solutions to
meet growing urban water demands while protecting stream flows, endangered fish, and critical
habitat.
It is highly unusual for a municipality to solicit the public’s in put regarding a decision to renew
conditional water rights. You and City staff are to be commended for exhibiting an exceptional
degree of openness in making this important and impactful decision. Because filing a diligence
application would be an assertion of intent1 to build these destructive and unnecessary dams in two
of the most iconic alpine valleys in Colorado, we respectfully urge the City Council to pursue the
many feasible and practical alternatives to these dam projects.
There are many reasons why the City should not seek to build these skyscraper-sized dam
structures on Maroon and Castle creeks; among them:
The City of Aspen can more than meet its foreseeable future water needs without building
the proposed dams. As stated by Wilson Water, its analysis indicates that “the City can
always provide sufficient potable and raw water supplies under [its] modeled demand and
hydrology scenarios.”2
1 For the reasons stated below, it appears that the City lacks the requisite legal intent necessary to maintain these
conditional water rights. See C.R.S. § 37-92-103(3).
2 Wilson Water Group, City of Aspen Water Supply Availability Study (2016 Update) at 22 (emphasis added).
P43
IV.
2
The proposed use of new reservoirs to meet instream flows won’t work and doesn’t make
sense.
The City and other local stakeholders should partner with the Colorado Water Conservation
Board to pursue additional meaningful instream protections on Castle and Maroon Creeks.
The City is unlikely to qualify for a diligence decree before the water court.
The City’s time, energy, and funds would be much better spent pursuing less impactful water
supply alternatives and real streamflow protections for these creeks. The proposed dams, rendered
below, represent an outdated concrete-and-steel approach to meeting water needs. Western
Resource Advocates seeks to engage in a partnership with the City in pursuing a 21st Century
vision for its water future.
Renderings of the proposed reservoirs:3
I. The City of Aspen can more than meet its foreseeable future water needs without
building Maroon and Castle Creek dams.
The City of Aspen can more than meet its foreseeable future water needs without building these
dams. A close review of the City of Aspen Water Supply Availability Study (2016 Update) by the
Wilson Water Group, reveals that “the City can always provide sufficient potable and raw water
supplies under [its] modeled demand and hydrology scenarios.”4
3 Available at www.wildernessworkshop.org.
4 Wilson Water (2016) at 22 (emphasis added).
P44
IV.
3
II. The proposed use of reservoirs to meet instream flows won’t work and doesn’t make
sense.
The 2016 Update also reveals that the report’s projected water shortage is based not on the City’s
municipal water needs but on a voluntary decision to not divert water in order to help meet and
exceed the Colorado Water Conservation Board’s (CWCB) decreed instream flow water rights on
Maroon and Castle creeks.5 As an initial matter, this would be an illegal use of the city’s
conditional water storage rights. Under C.R.S. section 37-92-102(3), the CWCB has the
“exclusive authority” to appropriate water for the state’s instream flow program. Colorado law
does not recognize conditional water storage rights for use in the state’s instream flow program.6
The City cannot, on its own, use water stored in the proposed reservoirs to meet a CWCB decreed
instream flow water right.7 Most importantly, while the city’s desire to maintain minimum flows
in Castle and Maroon creeks is admirable, it does not justify the construction of large and
environmentally damaging reservoirs.
When the CWCB approves applications for instream flow water rights, it assumes that the right
will not meet be met 100% of the time. In recent years, as a rule of thumb, the Board usually
approves water rights that will be available at least 50% of the time.8 In other words, the Board’s
determination to set a flow volume incorporates a judgment by expert fishery biologists that the
natural environment in the subject creek can survive some period of time where the d ecreed flow
rate is not met.
Here, even the most extreme demand and climate scenarios in the 2016 Update show that the
decreed instream flow water rights in Maroon and Castle creeks would be met in over 75% of
years.9 This worst-case anticipated flow is consistent with the performance expectations that the
CWCB usually has of its instream flow water rights. In addition, even under this most extreme
water demand and climate scenario, the 2016 Update concludes that “all but 1.2 cfs [of the
maximum anticipated instream flow deficit] can be mitigated via Stage 3 water restrictions,
implementing the City wastewater reuse program and pumping the assumed maximum well
diversion of 5.0 cfs.”10 While we encourage the City to consider additional ways to ensure healthy
flows in Castle and Maroon Creeks, the analysis in the 2016 Update does not, factually or legally,
justify the construction of environmentally destructive dam projects.
5 Wilson Water (2016) at 2, 11.
6 C.R.S. § 37-92-102(3)(c.5) (“[T]he board may not acquire conditional water rights or change conditional water
rights to instream flow uses.”).
7 Accordingly, the City cannot invoke this use to demonstrate to the water court that it has a non -speculative intent
to build the proposed reservoirs. C.R.S. § 37-92-103(3).
8 See, e.g., CWCB Staff Instream Flow Recommendation for Schaefer Creek at 7 (concluding that water is available
for appropriation because the amounts claimed are generally lower than median flows, as estimated by a
combination of gage data and a statistical hydrological model), available at
http://cwcb.state.co.us/environment/instream-flow-program/Pages/2015ContestedISFAppropriations.aspx.
9 Wilson Water (2016) at 12-17 (under any scenario or year type, the percentage of years with an instream flow
deficit never exceeds 25%).
10 Id. at 20-21.
P45
IV.
4
III. A partnership with the Colorado Water Conservation Board could provide additional
meaningful and effective instream protections on Castle and Maroon Creeks.
The best way to protect these flows would be an instream flow water right. A conditional water
right, like the ones at issue here, provides no legal protection against an outside entity seeking to
appropriate water in Castle and Maroon creeks.11 To the extent that the existence of these “paper”
rights might deter a potential appropriator, the deterrence effect of these reservoirs is nearly non-
existent because, by Wilson Water’s own reckoning, the City does not need them to meet its
foreseeable legal municipal uses.12 It follows that these rights would likely never mature into an
enforceable absolute water right. These conditional reservoir rights cannot protect the natural
environment in Maroon and Castle Creeks, and it appears that they would in fact inundate or fill
significant portions of these protected instream flow reaches.13
If the City believes, as we do, that the current instream flow water rights in Maroon and Castle
creeks are inadequate to protect the natural environment to a reasonable degree, it should seek
additional appropriation or acquisition of water through the CWCB’s instream flow program. The
original instream flow appropriations on Maroon and Castle creeks pre-date the CWCB’s current
methodology for determining instream flow volumes and, as a result, failed to appropriate a peak
flow that would better reflect the natural hydrograph on these creeks. A new appropriation
protecting these peaks would provide real, legally enforceable protection and could help ensure
that the natural environment in these streams is adequately preserved for generations to come.
IV. The City is unlikely to qualify for a diligence decree before the water court.
It appears unlikely – if not impossible – that the City will be able to demonstrate that it qualifies
for a diligence decree for its conditional water rights on Castle and Maroon Creeks. The reasons
why the City’s application appears likely to fail include:
Wilson Water’s 2016 analysis shows that the City does not need these water rights for
their legally decreed purposes. As noted above, instream flows are the exclusive province
of the CWCB.
It appears that both proposed reservoirs would occupy parts of the Maroon Bells
Wilderness Area.
11 Board of County Commissioners of County of Arapahoe v. United States, 891 P.2d 952, 970-71 (Colo. 1995)
(existing conditional water rights may not be considered when determining water availability for new conditional
water rights).
12 Wilson Water (2016) at 22.
13 See Case No. 5-76W2947 (the Castle Creek instream flow of 12 c.f.s. year-round extends from the headwaters to
the confluence with the Roaring Fork River), and Case No. 5-76W2945 (the Maroon Creek instream flow of 14
c.f.s. year-round extends from the confluence of East and West Maroon creeks to the confluence with the Roaring
Fork River).
P46
IV.
5
It appears that the City lacks a non-speculative specific plan and intent to place all of the
claimed water to specific beneficial uses.
Based on publically available analyses and statements, it does not appear that the
proposed reservoirs can and will be completed with diligence and within a reasonable
time.
Therefore, it appears that granting the City’s application would, among other things, violate the
anti-speculation doctrine,14 and the “can and will” statute15. In our view, the City has the
opportunity to move past outmoded dam proposals and instead show leadership by pursuing
innovative and realistic strategies to secure its water future and protect the natural environment in
Maroon and Castle Creeks. Several of these strategies are outlined in documents on Western
Resource Advocates’ website and being utilized by other water providers.
Thank you for your consideration of these comments. Again, we commend you and your staff for
your remarkable willingness to solicit public comment on this important decision. Western
Resource Advocates would be happy to discuss alternatives to the dam projects with you and your
staff at your convenience.
Sincerely,
Robert Harris
Senior Staff Attorney
Western Resource Advocates
rob.harris@westernresources.org
(720)763-3713
14 C.R.S. § 37-92-103(3)(a)(II). The anti-speculation doctrine applies to diligence applications. Municipal Subdist.
N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 708 (Colo. 1999).
15 C.R.S. § 37-92-305(9)(b).
P47
IV.
1
PO B OX 1442, C ARBONDALE, CO 81623
www.wildernessworkshop.org
970.963.3977
August 19, 2016
Aspen City Council
c/o the Aspen City Water Department
130 S. Galena St.
Aspen, CO 81611
Sent via email to waterrights@cityofaspen.com
Re: Diligence Filing on the City of Aspen’s Conditional Water Rights for
Reservoirs on Castle and Maroon Creeks
Dear Mayor Skadron, members of the Aspen City Council and Mr. Hornbacher,
Thank you for the opportunity to comment on the City’s upcoming decision
concerning whether to maintain it’s conditional water rights to build reservoirs on
Castle and Maroon Creeks. Wilderness Workshop recognizes and commends
the City for the unusual, if not unprecedented, step of allowing public feedback
and comment on a decision regarding whether to submit a diligence filing. We
also understand the City has a duty to provide water to its citizens; is attempting
to plan for the future in the face of climate change and population growth; and is
committed to protection of these two creeks most notably through maintaining
instream flows. We understand the City is considering its decision in the context
of these larger issues. We encourage the city to consider other issues as well as
they make this important decision.
Wilderness Workshop has been working to protect and manage the Maroon Bells
–Snowmass Wilderness Area for nearly half a century, similar to the length of
time the City has held its conditional water rights on Castle and Maroon Creeks.
Following Congressional designation of the Maroon Bells-Snowmass Wilderness
Area (MBSW) in 1964, our organization was instrumental in more than doubling
the size of the MBSW in the Colorado National Forest Wilderness Act of 1980.
P48
IV.
2
We then worked closely with the Forest Service to develop a management plan
for the wilderness area and have partnered with Forest Service on monitoring to
inform management for over three decades. We were critical partners in
establishing the bus system on Maroon Creek Road to provide sustainable
access to the Wilderness area and we continue to conduct restoration projects
and lead hikes into the MBSW. Our members have a deep and longstanding
interest in protecting the MBSW and the adjacent public lands and waters.
Wilderness Workshop understands that a municipality has an obligation to plan
for the future and to ensure an adequate and secure source of water for its
citizens. However, we strongly object to any progress towards damming Castle
and Maroon Creeks and creating reservoirs (depicted in the visualizations below)
that would inundate lands in these two iconic valleys. The reservoirs are
completely out of synch with the character of the two valleys and the community’s
values. The City’s contemplated diligence filing to maintain its conditional water
rights suggests the City fully intends to build these two reservoirs, using the filing
itself to demonstrate progress towards that goal. Per Colorado water law, the City
must also demonstrate in water court that it “can and will” build these reservoirs
in a “reasonable” amount of time to maintain its water rights1. For these reasons
and others described below we urge the City not to submit a diligence filing and
to abandon these water rights. Instead we hope you will pursue one or more of
the several alternatives to these projects that can achieve the same goal: a
reliable source of water for the citizens of Aspen. We would be happy to partner
with you in achieving this goal.
1
C.R.S.
§
37-‐92-‐103.
P49
IV.
3
Reservoirs on Castle and Maroon Creeks are inferior to numerous other
solutions to providing the citizens of Aspen with a reliable source of water.
The City’s recently completed Water Supply Availability Study (2016 Update)2
makes no mention of potential dams on Castle or Maroon Creeks but outlines
several other options and alternatives to ensure a reliable source of water for
Aspen including continued efforts at water conservation, a wastewater reuse
program and additional municipal wells. All three of these options could provide
viable alternatives to the reservoirs. Additionally, if the City is specifically
concerned with opportunities for water storage we recommend the City consider
non-traditional storage opportunities including underground storage and
increasing the number of beaver dams on the two streams. While this might
seem an odd solution, beaver dams hold on average between 17 and 35 acre-
feet of water above and below ground and suitable beaver habitat will support 11
dams per mile of stream (Walker et al., 2010, attached). These dams hold water
into the late summer and early fall and due to their leaky nature, release water
into streams throughout the period the city is most concerned about shortages.
Depending on the amount of unoccupied suitable beaver habitat, increasing the
number of beaver dams in Castle and Maroon Creeks could partially address the
City’s concerns about a lack of water storage.
In addition to having several options to building dams on Castle and Maroon
Creeks the City has ample time to study and put these solutions in place as the
City’s own Water Supply Availability Study (2016 Update) concludes that “the
City can always provide sufficient potable and raw water supplies”3 even taking
into account population growth and climate change impacts. Therefore we see no
risks concerning the City’s ability to continue supplying water to its citizens were
the city to abandon its conditional water rights.
Not only would other solutions have far less ecological and soci-cultural impacts,
other strategies are also much more reliable than the potential reservoirs.
Frankly, we reject the notion that these reservoirs will ever be built despite the
City’s representations otherwise. We believe these barriers would prove
insurmountable:
• The a massive public opposition from locals and people and organizations
across the country,
• The significant cost,
• The lengthy and unlikely approval process required by various federal and
state laws.
In sum these conditional water rights are in fact a very poor and unreliable source
of future water due to their location, expense and lack of social license.
2
Wilson
Water
Group,
City
of
Aspen
Water
Supply
Availability
Study
(2016
Update)
3
Wilson
Water
Group,
City
of
Aspen
Water
Supply
Availability
Study
(2016
Update)
page
22.
P50
IV.
4
Reservoirs on Castle and Maroon Creeks would create significant
ecological impacts.
While we commend the City for its commitment to maintaining instream flows in
both Castle and Maroon Creeks, this commitment is neither a legal nor rationale
justification to build dams on Castle and Maroon Creeks. First, the Colorado
Water Conservation Board alone is delegated the authority to establish and
administer instream flows, not municipalities. Second, while the instream flows
are an important part of protecting these two streams, there are many other
components necessary to ensure a protected and healthy stream with adequate
water quality and quantity. These include:
• A connected stream corridor with no dams to fragment the habitat and
prevent movement of aquatic organisms,
• An intact and connected riparian area,
• Extensive wetlands,
• A natural hydrograph
Building the two dams would constitute a significant degradation to both streams,
impacting all these components of stream health. Put another way, building the
dams to justify maintaining the minimum in steam flow for a portion of the year
would be akin to the Vietnam era mentality of “burning the village to save it.”
Protecting Castle and Maroon Creeks.
The City’s conditional water rights for reservoirs on Castle and Maroon Creeks
provide no actual protection for the two creeks. Case law is clear that conditional
water rights cannot be used to stop another water project from being built. This
means that for the city to use their water rights to stop another party from
diverting water out of the streams or building dams they would have to build the
reservoir(s) to do so. While the presence of the City’s conditional water rights
might give a moment’s pause to an outside party attempting to establish new
water rights, they are highly unlikely to actually deter establishment of new water
rights, since the City’s own Water Supply Availability Study (2016 Update)
concludes that the City will always be able to provide water to its citizens and
therefore, there will never be a need to build the reservoirs.
Instead, if the City is sincere about enhancing stream protections, the best
approach would be to work with Pitkin County and other local stakeholders to
create a new instream flow that mimics the natural hydrograph and incorporates
peak flows. Because the original instream flows on the two creeks pre-date
current methodology for determining the minimum flows necessary to protect the
environment, the City has an opportunity to update minimum instream flow
requirements to seasonally mimic natural flow patterns. Wilderness Workshop
would be happy to partner with the City in this effort.
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5
Conflict with the Wilderness Act
While there are numerous reasons why it is unlikely the two reservoirs will ever
be built, due both to the reasons described above and the fact that they are
greatly out of scale with any projected future water needs, our experience with
the Wilderness Act compels us to highlight an additional hurdle to actually
constructing the dams. As currently contemplated, both reservoirs would
inundate portions of the Maroon Bells –Snowmass Wilderness Area and the
Maroon Creek dam would actually be constructed partially inside the wilderness
area. While this certainly violates the spirit of the law and would be loathed by
wilderness lovers local and guests, the legal implications are worth discussing in
more detail.
Section 4(d)(4)(1) of the Wilderness act specifies that: “the President may, within
a specific area and in accordance with such regulations as he may deem
desirable, authorize prospecting for water resources, the establishment and
maintenance of reservoirs, water-conservation works, power projects,
transmission lines, and other facilities needed in the public interest, including the
road construction and maintenance essential to development and use thereof,
upon his determination that such use or uses in the specific area will better serve
the interests of the United States and the people thereof than will its denial.4”
While the Wilderness Act generally prohibits roads and permanent structures
(two certain components of these two reservoirs), it is technically possible that
the City of Aspen could petition the President for permission to build these two
reservoirs. But if members of the City Counsel are committed to doing so, it will
have to be while recognizing two issues:
• The City would have to argue that building these two reservoirs better
serves the national interests and people of the United States than not
building them – a high bar indeed. Or put another way, the City would
have to convince the President of the Unites State that the ability of Aspen
residents and second homeowners to water their lawns in late summer
was of a greater national interest than the internationally recognized
ecological and scenic values of the Maroon Bells- Snowmass Wilderness.
• This provision of the Wilderness Act has never before been invoked. Thus,
the City of Aspen, globally recognized for it’s environmental leadership,
would be setting a precedent that would open one of the country’s most
treasured environmental laws to dam building, power line construction,
road building and energy generation.
For these reasons alone it seems reasonable for the City to recognize it will
never build these reservoirs and it therefore should and must abandons its
conditional rights to do so.
4
Public Law 88-577 (16 U.S.C. 1131-1136) Emphasis added.
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6
In conclusion, Wilderness Workshop recognizes the challenging position the City
is in as it contemplates the best way to provide water for its citizens in the face of
climate change and population growth and works to remain committed to
preserving the local environment. Building reservoirs on Castle and Maroon
Creeks would indeed ensure more water for the City, but at what cost? There are
many other ways to mitigate and plan for the future that don’t involve damming
two of the valley’s most treasured locations. Just as the City faces the challenge
of providing affordable housing in Aspen but would never consider converting the
Wheeler Opera House into affordable housing, we hope the City will recognize
the importance of these two valleys to our community and indeed to our nation.
The pristine and natural experience and the economic, ecological, and spiritual
values Castle and Maroon Creeks provide for locals and visitors alike, far
outweigh any of the benefits of these ill-conceived reservoirs. We encourage the
City to recognize these existing natural values and permanently eliminate the
possibility of damming Castle and Maroon Creeks by abandoning these
improbable conditional water rights.
Sincerely,
Will Roush
Conservation Director
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IV.
DRAFT Resolution # XX
(Series of 2016)
September, 2016
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, DIRECTING THE CITY MANAGER TO IMPLEMENT
CERTAIN WATER MANAGEMENT MEASURES TO IMPROVE
RESILIENCY AGAINST FUTURE CLIMATE CHANGE AND OTHER
SYSTEM CHANGES WHILE CONTINUING EFFORTS TO MAINTAIN
DILIGENCE FOR TWO CONDITIONAL WATER STORAGE RIGHTS ON
CASTLE AND MAROON CREEKS ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
Whereas, the City holds conditional water rights for the Maroon Creek
Reservoir and the Castle Creek Reservoir, both of which were decreed in 1971,
with 1965 appropriation dates; and
Whereas, when these water rights were appropriated, this reservoir storage was
an important component of Aspen’s long term water supply plan, particularly
since the Fryingpan-Arkansas project was proceeding without the originally-
planned compensatory storage reservoir on the upper Roaring Fork River; and
Whereas, the purpose of conditional decrees like these conditional storage
rights is to allow the City to proceed to perfect the water rights with the
decreed priority dates, thereby allowing planning and development to proceed
in an orderly progression with the assurance of decreed water rights prior to
substantially investing in costly projects; and
Whereas, preliminary site-specific work was conducted with regard to these
conditional water rights, and they have been included in the City’s long-range
water supply planning; and
Whereas, the City has maintained these conditional water rights at the
intervals required by law; and
Whereas, the City has utilized an integrated water supply development
approach both before and since the 1980 Water Management Plan, and these
reservoirs have been included as part of the planning and development of the
City’s integrated water supply system; and
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IV.
Whereas, the City, as a municipal water provider, must plan responsibly for
the future water needs of its customers, and must develop a legal, reliable water
supply to meet those demands; and
Whereas, Colorado law and the diligence decrees heretofore entered for these
conditional storage rights confirm that the City’s work on other features of its
integrated water supply system demonstrates diligence in the development of
these conditional water rights; and
Whereas, the City has determined that it is responsible and prudent to continue
to develop needed water rights and supplies in an orderly progression, as part
of its integrated water supply system; and
Whereas, in view of the significant undertaking necessary to develop these
reservoirs, the City has performed and will continue to perform work on
numerous other features of its integrated water supply system prior to
undertaking the permitting and construction of these reservoirs; and
Whereas, the City’s planning and phased development of its integrated water
supply system continues to demonstrate its diligence in development of these
conditional storage rights; and
Whereas, in recent years, development of the City’s water rights and supplies
has been informed by consideration of the impacts of global climate change, as
well as anticipated water demands; and
Whereas, during 2013 - 2015, the City participated in development of a Water
Efficiency Plan for the Roaring Fork River basin, and developed its own Aspen
Municipal Water Efficiency Plan, both of which contain strategies for
addressing climate change; and
Whereas, the City’s 2016 Water Supply Availability Study considers future
water supply needs under different potential climate and population scenarios,
and identifies supply gaps under certain scenarios, so long as the City
maintains its long-held policy of instream flow protection; and
Whereas, the City supports and was an active participant in the Colorado
Basin Implementation Plan, which identified the continued due diligence for
the preservation of the Castle Creek and Maroon Creek storage rights as an
important project for securing safe drinking water in the region; and
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IV.
Whereas, Climate change scenarios considered in the 2016 Water Supply
Availability Study were selected to capture a range of the current
understanding of potential changes over next 50 years and offer no guarantee
that climate change impacts will not be more severe; and
Whereas, the City intends to provide a legal and reliable water supply and to
that end can and will develop all necessary water rights, including but not
limited to, Maroon Creek Reservoir and Castle Creek Reservoir.
Whereas, the City should also continue to further investigate alternative
locations and sizing requirements of the Maroon Creek Reservoir and/or Castle
Creek Reservoir, and, if appropriate, seek water court approval for
modification of one or both conditional decrees, with their existing
appropriation dates; and
Whereas, the City has conducted a public process to solicit input and promote
collaboration and transparency regarding the required diligence applications for
the conditional water storage rights; and
Whereas, the City is dedicated to being a leader in developing and
implementing innovative strategies for maintaining safe and reliable water
supplies for a vibrant community while minimizing impacts to its surrounding
natural environment,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby directs staff to:
1. File and pursue an application for finding of reasonable diligence in the
development of the Castle and Maroon Creek conditional water rights on
or before October 31, 2016.
2. Continue implementation of the City’s integrated water supply system,
including Water Conservation Measures (including, but not limited to,
rate revisions and new landscape ordinance); the Reuse Project, and
other current plans for development of water supplies.
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IV.
3. Initiate a collaborative process to evaluate existing and identify new
alternatives and any other necessary actions to fill the projected future
water supply and demand gap.
4. Investigate alternative locations and sizing requirements of the Maroon
Creek Reservoir and/or Castle Creek Reservoir, and to report its findings
back to City Council for further consideration and action as appropriate.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby directs staff to file and
pursue application for finding of reasonable diligence in the development of its
conditional storage rights on Castle and Maroon Creeks, and does hereby
authorize the City Manager to continue with the development and implementation
of the City’s integrated water supply system, and to initiate a process to evaluate
existing and identify new alternatives to meet its projected water supply and
demand gap, and to investigate alternative locations and sizes for the Castle Creek
Reservoir and/or Maroon Creek Reservoir.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 10th day of October, 2016.
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, October 10, 2016.
Linda Manning, City Clerk
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IV.