A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO DIRECTING STATEMENTS OF OPPOSITION TO CITY OF ASPEN APPLICATIONS OF DILIGENCE PERTAINING TO MAROON CREEK AND CASTLE CREEK RESERVOIRS Resolution #_________-2016 1. The City of Aspen currently holds conditional water rights to two reservoirs, one located on Maroon Creek and the other on Castle Creek. Both of these conditional rights were decreed in 1971 based upon earlier appropriations in 1965. The Maroon Creek reservoir has a storage capacity of 4567 acre feet. The Castle Creek reservoir has a storage capacity of 9062 acre feet. 2. The City has filed filled applications for a finding of reasonable diligence in two separate water court applications (Case Nos. 16CW3128 and 16CW3129) to maintain these conditional water rights. 3. Both of these reservoir sites are located, in part, within the Maroon BellsSnowmass Wilderness. As such, both reservoir sites implicate the destruction of sensitive environmental areas as well as impacting the iconic and treasured view sheds of both the Maroon Creek and Castle Creek Valleys. 4. Additionally, the Castle Creek site will necessitate the acquisition of several private properties and the relocation of Castle Creek Road, a Pitkin County operated and maintained roadway, onto the hillside above the proposed reservoir site. 5. Pitkin County appreciates the City’s need to insure to continued water service to its citizens and customers, however the City’s own Water Supply Availability Study and system demands for the future do not indicate any problem with future water supplies and do not consider these two reservoirs as integral system components. 6. Statements from City officials indicate that there is no intent to build these reservoirs until such time in the future as the reservoirs are needed, however if such facilities would be needed, construction, design, permitting and legislative steps would of necessity, have to begin many years in advance of such need. 7. Upon review of the City plans, absence of inclusion of or reliance upon these two reservoirs in the City’s own planning studies, and the filed diligence applications, the Pitkin County Healthy Rivers and Streams Board has recommended to the BOCC that oppositions statements be filed in both diligence applications of the City. 8. The BOCC finds that adoption of this resolution is in the best interests of the citizens of Pitkin County. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado that the County Attorney’s Office is directed 1 to file statements of opposition in both City of Aspen diligence applications, 16CW3128 and 16CW3129. Further, the BOCC directs the County Attorney’s Office to work with the City of Aspen to the extent possible to explore alternative strategies to meet the City’s potential future water supply needs. INTRODUCED, READ AND ADOPTED ON THE 20TH DAY OF DECEMBER 2016. ATTEST: BOARD OF COUNTY COMMISSIONERS By _________________________ Jeanette Jones Deputy County Clerk By: _____________________________ Rachel E. Richards, Chair Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ John Ely, County Attorney _________________________________ Jon Peacock, County Manager 2 7 If - vi?v 3 -1 BELLS-SNOWMASS WILDERNESS Cas?e Creek Reservoir PohtLoca?on Castle Creek ResewolnArea Tralls Roads 4v? Rivers/Stems j? Lakes/Ponds "?Wlldemess Boundary A V, WildemassArea . ?mun-1.1m Parcel Boundaries 1.000 1 inch feet x? if, 1&3 i? protect. defend. enhance. November 17, 2016 Board of County Commissioners of Pitkin County 123 Emma Road, Suite 106 Basalt, CO 81621 RE: Pitkin County Healthy Rivers & Streams Board Recommendation to Oppose Diligence Applications of City of Aspen for Maroon & Castle Creek Impoundments Dear Commissioners: The Pitkin County Healthy Rivers and Streams Board is tasked with tl1e mission of maintaining and improving water quality and quantity within the Roaring Fork watershed and advising tl1e Board of County Commissioners on tl1e expenditures and administration of the Healthy Rivers and Streams Fund. The Healthy Rivers and Streams Board unanimously recommends tl1e Board of County Commissioners vigorously oppose tl1e diligence filings of the City of Aspen in Case Nos. 16CW3128 & 16CW3129. These applications request diligence for reservoirs which appear, by the City's own calculations, to be wholly unnecessary to meet Aspen's present and future anticipated water needs. Future needs can be met by alternative municipal water supply sources and conservation measures. The Healthy Rivers and Streams Board recommends utilization of county resources to assist and participate witl1 the City of Aspen in vetting alternative strategies to satisfy the city's potential domestic water supply needs. Construction of the dams necessary to effectuate these water rights could inundate wilderness and irreparably harm the sense of place and values essential to our community conduced by tl1e scenic environment. Construction of the structures inextricably linked to the diligence filing would have immense negative impacts on the watershed and natural environment. This Board does not support new construction of impoundments on these creeks. Our Storage Water Use Policy Statement is attached and outlines our analysis of the impacts impoundments have on watersheds while recognizing the need for active management strategies in the face of climate change. 123 Emma Rd Suite 204 Basalt, CO 81621 • Phone: 970-920-5190 • Fax: 970-920-5198 p,-otect. defend. enhance. We urge the Board to file statements of opposition in these cases and Yigorously oppose the continuation of these conditional water rights. PITKIN COUNTY HEALTHY RIVERS AND STREAMS CITIZEN ADVISORY BOARD Sincerely, ~-rMII/J~,.,.__---Lisa Tasker, Chair Attachment: Pitkin County Healthy Rivers Storage Water Use Policy Statement 123 Emma Rd Suite 204 Basalt, CO 81621 • Phone: 970-920-5190 • Fax: 970-920-5198 Storage Water Use Policy Statement Adopted June 21, 2016 protect. defend. enhance. P TK "JCOUNT'r' C C.,"1 HFAL 1-'YRIVE'\S lmpoundment of water is an active management strategy for a scarce resource which can allow for its use during times of shortage. However, storage substantially changes the natural hydrograph of rivers and profoundly changes watersheds. Numerous ponds and reservoirs have been constructed within Pitkin County, often not where hydrologically or environmentally sensible, resulting in degradation to the environment where the structures are sited. Additionally, storage water rights are associated with increased evaporation, as well as changes to water temperature, wildlife habitat, and water quality. Recognizing the harm associated with development of new storage facilities, as well as the potential of storage to provide needed water supply resiliency during times of shortage, use of existing storage structures should be fully utilized before construction of new storage. Climate change is occurring and will exacerbate the stochastic nature of water supply timing and allocation. Given that the effects of climate change are unknown, there is a need for flexibility and varied response to expected changing hydrologic conditions. Use of existing storage facilities presents a resource to address such changes. Accordingly, the Healthy Rivers Board: 1. Supports using storage water rights to benefit in-channel protective flows only if adverse 2. 3. 4. 5. 6. 7. impacts are adequately mitigated. Supports action by the State and Division Engineer requiring decrees and decree compliance for storage water rights. Supports the expansion of existing storage facilities prior to the development of new storage facilities. Opposes the construction of new storage facilities within the Crystal River watershed. Opposes the diversion of water for out of basin storage. Opposes the use of water stored in basin for later out of basin use. Discourages the construction and use of aesthetic water features. DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 8th Street, Suite 104 Glenwood Springs, Colorado 81601-3361 ______________________________________________ CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE CITY OF ASPEN, COLORADO IN PITKIN COUNTY, COLORADO ______________________________________________ ▲ COURT USE ONLY ▲ John M. Ely, Pitkin County Attorney Laura C. Makar, Assistant Pitkin County Attorney ____________________________ Richard Y. Neiley, Assistant Pitkin County Attorney 123 Emma Road, Suite 204 Case No. 16CW3128 Basalt, Colorado 81621 970-920-5190 970-920-5198 (FAX) John.Ely@pitkincounty.com Laura.Makar@pitkincounty.com Atty. Reg. #14067 Atty. Reg. #41385 Atty. Reg. #45848 STATEMENT OF OPPOSITION 1. Name, mailing address and telephone number of opposer: Board of County Commissioners of Pitkin County (“Pitkin County”) c/o Pitkin County Attorney’s Office 123 Emma Road, Suite 204 Basalt, Colorado 81621 (970) 920-5190 2. State facts as to why the application should not be granted or why it should be granted only in part or on certain conditions: A. Applicant must be placed on strict proof with respect to each element of each claim for conditional water right, including, but not limited to, the following: i. Applicant’s ownership of or enforceable property interest in the structures and water right included in the application; a. This water right is located within a designated wilderness area and the Applicant’s ability to obtain the property interest necessary to construct the structure, as decreed, within this wilderness area is unproven. In re: City of Aspen, Colorado Case No. 16CW3128 Page 2 ii. That the water can and will be diverted or otherwise captured and controlled and will be beneficially used; a. Applicant’s Water Supply Availability Study 2016 Update by the Wilson Water Group demonstrates that this water right is unnecessary to meet current and future demand within a reasonable planning period using normal population growth assumptions. b. Applicant’s claim for “other beneficial uses” of the water right is ambiguous and Applicant must show what “other beneficial uses” were contemplated at the time of appropriation and adjudication. c. Statements by Applicant’s council members and mayor indicate that Applicant does not intend to effectuate these water rights in a reasonable time period. iii. That the Applicant has steadily applied effort to effectuate the water right in a reasonably expedient and efficient manner; a. The appropriation date of this water right is more than 50 years ago and Applicant appears to be speculating with no reasonable demonstration of need. iv. The protective terms and conditions which must be imposed on Applicant to prevent injury to Pitkin County; and v. The measurement, recording, and water handling obligations that must be assumed by the applicant in order to assure proper compliance with all the terms and conditions in any decree ultimately entered herein. B. Pitkin County owns surface water and ground water rights and has contractual interests, conservation easements and agreements pertaining to water rights and water use throughout the Roaring Fork River Basin that may be materially injured or impaired if the application is granted without appropriate limitations and protective conditions. C. The application does not provide sufficient information for Pitkin County to determine whether other grounds for objection exist and, therefore, Pitkin County reserves the right to state further grounds for objection as more information becomes available. In re: City of Aspen, Colorado Case No. 16CW3128 Page 3 3. This statement of opposition is continuing in nature and shall apply equally to any amended application that may be filed herein, so that the filing of separate statements of opposition to any such amended application will be unnecessary. DATED this ___ day of _____________ 2016. PITKIN COUNTY ATTORNEY’S OFFICE By: /s/ Laura C. Makar Attorney for Opposer Board of County Commissioners of Pitkin County CERTIFICATE OF SERVICE I hereby certify that on this ___ day of ____________ 2016, a true and correct copy of the foregoing STATEMENT OF OPPOSITION was filed with the clerk of the District Court, Pitkin County and served on the following via the Integrated Colorado Courts E-filing System (ICCES): Cynthia F. Covell, Esq. Andrea L. Benson, Esq. Alyson K. Scott, Esq. Alperstein & Covell, P.C. 1600 Broadway, Suite 900 Denver, CO 80202 State Engineer 1313 Sherman Street, Room 818 Denver, CO 80203 Division 5 Water Engineer 202 Center Drive Glenwood Springs, CO 81601 By /s/Jane Achey In re: City of Aspen, Colorado Case No. 16CW3128 Page 5 VERIFICATION AND ACKNOWLEDGMENT OF PERSON HAVING KNOWLEDGE OF THE FACTS STATED IN THIS STATEMENT OF OPPOSITION Being first duly sworn, I hereby state that I have read this Statement of Opposition, that I have personal knowledge of the facts stated and verify its contents to the best of my knowledge, information, and belief. ____________________________________________ Jon Peacock Date The foregoing instrument was acknowledged before me in the County of Pitkin, State of Colorado, this ___ day of ______________, 2016, by the person whose signature appears above. My Commission Expires: ______________ ____________________________________ Notary Public/Deputy Clerk The person signing this verification is: Pitkin County Manager. DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 8th Street, Suite 104 Glenwood Springs, Colorado 81601-3361 ______________________________________________ CONCERNING THE APPLICATION FOR WATER RIGHTS OF THE CITY OF ASPEN, COLORADO IN PITKIN COUNTY, COLORADO ______________________________________________ ▲ COURT USE ONLY ▲ John M. Ely, Pitkin County Attorney Laura C. Makar, Assistant Pitkin County Attorney ____________________________ Richard Y. Neiley, Assistant Pitkin County Attorney 123 Emma Road, Suite 204 Case No. 16CW3129 Basalt, Colorado 81621 970-920-5190 970-920-5198 (FAX) John.Ely@pitkincounty.com Laura.Makar@pitkincounty.com Atty. Reg. #14067 Atty. Reg. #41385 Atty. Reg. #45848 STATEMENT OF OPPOSITION 1. Name, mailing address and telephone number of opposer: Board of County Commissioners of Pitkin County (“Pitkin County”) c/o Pitkin County Attorney’s Office 123 Emma Road, Suite 204 Basalt, Colorado 81621 (970) 920-5190 2. State facts as to why the application should not be granted or why it should be granted only in part or on certain conditions: A. Applicant must be placed on strict proof with respect to each element of each claim for conditional water right, including, but not limited to, the following: i. Applicant’s ownership of or enforceable property interest in the structures and water right included in the application; a. This water right is located within a designated wilderness area and the Applicant’s ability to obtain the property interest necessary to construct the structure, as decreed, within this wilderness area is unproven. In re: City of Aspen, Colorado Case No. 16CW3129 Page 2 b. The Castle Creek Reservoir, as decreed, would inundate Castle Creek oad a county road Applicant’s ability to obtain the property interest necessary to construct the structure in a manner which would submerge Castle Creek Road is unproven. ii. That the water can and will be diverted or otherwise captured and controlled and will be beneficially used; a. Applicant’s Water Supply Availability Study 2016 Update by the Wilson Water Group demonstrates that this water right is unnecessary to meet current and future demand within a reasonable planning period using normal population growth assumptions. b. Applicant’s claim for “other beneficial uses” of the water right is ambiguous and Applicant must show what “other beneficial uses” were contemplated at the time of appropriation and adjudication. c. Statements by Applicant’s council members and mayor indicate that Applicant does not intend to effectuate these water rights in a reasonable time period. iii. That the Applicant has steadily applied effort to effectuate the water right in a reasonably expedient and efficient manner; a. The appropriation date of this water right is more than 50 years ago and Applicant appears to be speculating with no reasonable demonstration of need. B. iv. The protective terms and conditions which must be imposed on Applicant to prevent injury to Pitkin County; and v. The measurement, recording, and water handling obligations that must be assumed by the applicant in order to assure proper compliance with all the terms and conditions in any decree ultimately entered herein. Pitkin County owns surface water and ground water rights and has contractual interests, conservation easements and agreements pertaining to water rights and water use throughout the Roaring Fork River Basin that may be materially injured or impaired if the application is granted without appropriate limitations and protective conditions. In re: City of Aspen, Colorado Case No. 16CW3129 Page 3 C. 3. The application does not provide sufficient information for Pitkin County to determine whether other grounds for objection exist and, therefore, Pitkin County reserves the right to state further grounds for objection as more information becomes available. This statement of opposition is continuing in nature and shall apply equally to any amended application that may be filed herein, so that the filing of separate statements of opposition to any such amended application will be unnecessary. DATED this ___ day of _____________ 2016. PITKIN COUNTY ATTORNEY’S OFFICE By: /s/ Laura C. Makar Attorney for Opposer Board of County Commissioners of Pitkin County CERTIFICATE OF SERVICE I hereby certify that on this ___ day of ____________ 2016, a true and correct copy of the foregoing STATEMENT OF OPPOSITION was filed with the clerk of the District Court, Pitkin County and served on the following via the Integrated Colorado Courts E-filing System (ICCES): Cynthia F. Covell, Esq. Andrea L. Benson, Esq. Alyson K. Scott, Esq. Alperstein & Covell, P.C. 1600 Broadway, Suite 900 Denver, CO 80202 State Engineer 1313 Sherman Street, Room 818 Denver, CO 80203 Division 5 Water Engineer 202 Center Drive Glenwood Springs, CO 81601 By /s/Jane Achey In re: City of Aspen, Colorado Case No. 16CW3129 Page 5 VERIFICATION AND ACKNOWLEDGMENT OF PERSON HAVING KNOWLEDGE OF THE FACTS STATED IN THIS STATEMENT OF OPPOSITION Being first duly sworn, I hereby state that I have read this Statement of Opposition, that I have personal knowledge of the facts stated and verify its contents to the best of my knowledge, information, and belief. ____________________________________________ Jon Peacock Date The foregoing instrument was acknowledged before me in the County of Pitkin, State of Colorado, this ___ day of ______________, 2016, by the person whose signature appears above. My Commission Expires: ______________ ____________________________________ Notary Public/Deputy Clerk The person signing this verification is: Pitkin County Manager.