Guest Commentary: Bottom line: Aspen government wants to build dams
November 29, 2016
The city of Aspen recently filed for due diligence with Colorado's Water Court to preserve 51-year-old conditional water rights to build dams on Castle and Maroon creeks. The city also holds a large portfolio of "absolute" senior water rights on both Castle and Maroon creeks dating from the 1880s. It currently only takes a small fraction of this water to supply its needs.
Given the public attention to the issue of the city's conditional water rights for the dams, it's worth making sure there is a common understanding of the difference between absolute and conditional water rights and the city's two very different sets of water rights on Castle and Maroon creeks.
To begin, the city just completed an analysis of its ability to provide water to the residents of Aspen in the face of climate change and population growth and concluded, "The city can always provide sufficient potable and raw water supplies" without building either reservoir.
Why then is the city taking legal steps to pursue the construction of environmentally harmful dams — dams their own study shows they'll never actually need?
The city's filings are for conditional water rights, not real or absolute water rights. This means they are conditioned on the city building these dams. The main purpose of a conditional right is to hold a place in line within the priority system. Aspen can only obtain a genuine absolute water right if the dams are built. Aspen's existing portfolio of senior absolute water rights are not, and never have been, in jeopardy. Regardless of what happens to the conditional water rights for the two dams, Aspen will always have the rights they hold now to provide water to the citizens.
Several city officials have alluded to the idea that if Aspen abandons its conditional water rights for the dams, someone else could then take those water rights and build similar or equally damaging projects. That cannot happen. When conditional water rights are abandoned, they simply disappear. Similarly, conditional water rights like these do not provide any legal protection from someone else trying to take water from these streams. They can only be used for a single purpose, to build two large dams on Castle and Maroon creeks.
Being confused about these two types of water rights is understandable. Nearly everyone in this community wants to see the two creeks protected. Conditional water rights unfortunately don't provide that solution.
To maintain a conditional water right you must demonstrate to the water court that you "can and will" build the project. In this case, Aspen must show legitimate progress toward the goal of constructing the dams. But the city is trying to have it both ways, telling concerned citizens it will probably never build these dams while giving the water court legally required assurances that it will build the dams.
Moreover, it is against Colorado law to "speculate" with water. Holding these conditional rights just to preserve the "option" to build them is not allowed. Municipalities like Aspen do have more leeway than others, with the idea that they will grow into an enlarged water supply. But Aspen already has that in its large portfolio of absolute water rights. To maintain a filing for rights already nearly 50 years old for another 50 years goes too far. The Colorado Supreme Court has already ruled that such longevity, even for a municipality, is simply too much (Pagosa Springs v. Trout Unlimited, 2009).
The city has legitimate concerns about water supply and the potential impacts from future climate change. Mayor Steve Skadron wrote in a letter to the editor on Nov. 1 that "Without knowing more about viable alternatives for water storage, it simply would not be prudent … to give up these rights." But again, according to the city's own study, Aspen's existing senior water supply is more than sufficient to meet any worst case scenario.
More importantly, Aspen already has begun to develop environmentally sound water-supply solutions that preclude the need for dams. American Rivers would welcome the opportunity to work with the city in these efforts to ensure a legal and reliable water supply for Aspen's future. But that future should not, and need not, rely on damming two of the community's most beloved creeks resulting in significant ecological loss to the Castle and Maroon Creek valleys.
Ken Neubecker is associate director of Colorado River Basin Program in Glenwood Springs.