County deal to protect water in two rivers is nearly complete
by Brent Gardner-Smith, Aspen Journalism
Monday, June 24, 2013
It has cost $200,000 and taken four years, but Pitkin County is poised to become the first county in Colorado to sign a long-term lease with the Colorado Water Conservation Board (CWCB) to leave water in a river for environmental purposes and also have the deal sanctified in state water court.
The deal will allow Pitkin County to legally let up to 3.83 cubic feet per second (cfs) of water run freely past the Stapleton Brothers ditch headgate on Maroon Creek near Iselin Field. The water, part of a senior water right the county holds on Stapleton Ditch, will be protected for the benefit of the riparian ecosystem as it flows to lower Maroon Creek and into the Roaring Fork River as far as Owl Creek.
Pitkin County Attorney John Ely has been pioneering this two-step approach since early 2009 and now says the county has reached consensus with opposing water rights owners in water court.
The proposed decree “has been accepted in principal by all the opposers and is currently being circulated for execution,” Ely wrote in a June 20 memo.
The ditch was built to deliver irrigation water to land homesteaded by the Stapleton family in 1881, including 136 acres of pasture land now owned by Pitkin County and sitting under the paved runway and taxiways at the Aspen/Pitkin County Airport.
In practice, the county has not been diverting about half of the 8 cfs of water it owns in the Stapleton Ditch for years. It initially pursued protection for 4.3 cfs of the Stapleton ditch water, which has a senior water right dating to 1904.
Ely said the county’s water was not legally protected as an environmental flow right and the county was potentially vulnerable to abandonment claims in water court since it was not using the water as decreed for irrigation.
The county’s efforts started in 2008 after the passage of Colorado House Bill 1280, which reduced the long-term financial downside to using water for environmental purposes.
In November 2009, the county approved a long-term trust agreement with the CWCB, becoming the first, and still the only, county to do so after the passage of HB 1280. The CWCB is the state entity in charge of overseeing environmental instream-flow rights in Colorado streams, rivers and lakes.
“This is the first county that we’ve entered into this type of relationship with and we hope it is a template for other counties to follow,” said Linda Bassi, the section chief of the CWCB’s stream and lake protection division.
The county and CWCB then jointly filed a “change of use” application in water court in June 2010.
The county wanted to help protect the rivers’ ecosystems, but it also wanted to establish a new process under Colorado law, retain its water rights, and have the option to terminate the lease — after an initial 10-year period — and take back its water rights, Ely said.
“The water is physically committed and it cannot be taken away without the county’s consent,” Ely said.
All the county’s effort, though, will result in a relatively small amount of water being left in the rivers.
The most water the county will be able legally leave in lower in Maroon Creek is 3.83 cfs and the average amount is 1.22 cfs from May to October. The CWCB has a 1976 instream-flow right of 14 cfs on Maroon Creek, which due to its relatively young age has a lower priority than many other rights.
And between the confluence of Maroon Creek and the confluence of Owl Creek, the county can leave up to 3.54 cfs water (1.13 cfs on average) in the Roaring Fork River, where the CWCB has a summer flow right of 55 cfs and a winter flow right of 30 cfs. Those protective rights date to 1985.
“It still can have meaningful benefits by helping with temperature issues,” Bassi said about the water in the Fork just below Maroon Creek. “And it provides an incremental level of usable habitat for fish and other organisms. It is definitely going to be a benefit.”
Ely said the county also showed that securing both a long-term lease and a change decree in water court is possible, since it has never been done before in this manner.
On the down side, Pitkin County also showed it took over a year and $100,000 to obtain the CWCB lease it and took another three years and an additional $100,000 in water court to cover legal, engineering and hydrologic consulting fees.
And, according to Ely and Bassi, that’s probably what it will take for another entity to pursue such an arrangement.
The CWCB board process can be uncertain, Ely said, as the revolving board is politically appointed. The county’s experience in water court was standard — protracted and expensive.
But overall, Bassi said Pitkin County’s procedural efforts have been productive and bode well for additional efforts to protect river ecosystems.
“It always helps to have an example of how these tools work in the real world, that the sky didn’t fall when they did it, and that it really can work,” Bassi said. “We’re really happy that we’re finally close to a decree.”
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of land, water and wealth in Pitkin County.