Pitkin County and the Colorado Water Conservation Board (CWCB) are finding it’s not easy to leave water in a river for environmental purposes.
The two entities have been working since mid-2010 to reach agreements with various opponents to a plan that would leave 4.3 cubic feet per second (cfs) of county water in lower Maroon Creek and the Roaring Fork River, instead of diverting it for irrigation purposes to the Stapleton Brothers Ditch near the base of Tiehack.
They’ve reached agreements with 10 opponents so far, but the 11th, an entity controlled by the city of Colorado Springs called the Twin Lakes Reservoir and Canal Co., is proving to be challenging.
On Thursday, attorneys for Pitkin County asked a judge in Division 5 Water Court in Glenwood Springs to set a trial date as the parties have not yet resolved their differences. Judge James Boyd set the trial for Feb. 3, 2014.
Earlier this month, Pitkin County Attorney John Ely and Linda Bassi, the head of CWCB’s instream flow program, both said they thought an agreement could be reached with Colorado Springs within the next several months.
“We’ve gone through a lot of negotiations,” Bassi said.
And while talks between the county, the state and the city are expected to continue, they will now do so against a date in court.
“We have been in active settlement discussions with the applicants and have every intention of reaching agreement prior to trial,” said Kevin Lusk, a principal with Colorado Springs Utilities, the city’s water utility that controls Twin Lakes. “We believe that we have made significant progress and do not feel that the remaining issues are in any way insurmountable.”
Lusk also serves as president of the Twin Lakes Reservoir and Canal Co., which diverts significant amounts of water off the top of the Roaring Fork River basin each year, sending it in tunnels underneath the Continental Divide to Twin Lakes and eventually the Front Range.
“Twin Lakes has a fiduciary responsibility to its shareholders to protect its interests,” Lusk said. “Because of this, Twin Lakes routinely objects to water rights cases on the Roaring Fork when they are of significant size or if there is significant precedent involved.”
Lusk said Twin Lakes is concerned that a change to the county’s water right from irrigation to an instream-flow right may indirectly lead to a situation where Twin Lakes is allowed to divert less water off the top of the Roaring Fork River basin.
But the county and state say there will be no injury to Colorado Springs’ water rights if the 4.3 cfs is left in the river instead of being used for irrigation, especially as monthly flow limits have been placed on the water right consistent with its historic use.
“The maximum and average uses proposed ... will prevent any expansion of use of the Stapleton Brothers Ditch water right,” stated engineers from Bishop-Brogden Associates, Inc., the firm working with the county and the CWCB, in a report submitted to the court.
The county owns a total of 8 cfs of water in the Stapleton Brothers Ditch, which diverts that amount and more from Maroon Creek near the base of Tiehack and takes it some 3 miles across the base of Buttermilk Mountain to Owl Creek.
The county’s water right in the Stapleton Brothers Ditch of 4.3 cfs has a 1904 priority date and was used by the Stapleton family to irrigate 163 acres of hay and alfalfa fields on land along Owl Creek.
Most of that land is now occupied by the lower half of the runway at the Aspen-Pitkin County Airport. And since the county no longer uses all of the water for irrigation, it wants to leave about half of it — or 4.3 cfs — in the river for the benefit of the riparian ecosystem.
If successful, Pitkin County would become the first entity in the state to legally leave its water in a river for environmental purposes via a long-term trust agreement with the CWCB, as allowed by a state law enacted in 200 via House Bill 08-1280.
“It is significant because it is the first long-term agreement since HB 1280,” said Bassi of the CWCB.
The county reached an agreement in 2009 with the CWCB to hold the county’s right to 4.3 cfs of water in a flexible trust for 10 years, as the state agency is the only entity in Colorado that can legally leave water in a river to protect the natural environment.
In 2010, Pitkin County and the CWCB then jointly filed an application in water court to officially change the nature of the water right.
Editor’s note: Brent Gardner-Smith of Aspen Journalism is collaborating with the Aspen Daily News on coverage of Pitkin County.