Aspen officials hesitant to respond to court-raised issues about potential dams
August 23, 2017
A water court referee has advised the city of Aspen it must provide "substantive" responses to issues raised by the division engineer and the court before she issues a ruling in two water court cases tied to the potential Maroon and Castle creek dams and reservoirs.
The issues raised include whether the city can get a permit for the dams, if it can build the dams in reasonable time, if it has a specific plan to build them and if it needs the water.
The referee, Susan Ryan, wants the city's responses to those outstanding questions even if the city reaches a settlement agreement with the 10 parties currently opposing the city's applications.
"Regarding the response to the summary of consultation, I think it would be useful to see a substantive response prior to the next status conference in this case," Ryan said at the start of an Aug. 10 status conference on the two cases.
But Cindy Covell, the water attorney for the city, said the city does not want to make its case to the court at this stage of the proceedings.
"Obviously the reason this case is so highly opposed, among other reasons, is that there is a lot of people who think we can't meet the burden of proof, and that would be the subject of the trial," Covell said in response to Ryan. "And to the extent that we are putting our case out there ahead of time, it just may make it that much harder to reach a settlement from Aspen's standpoint, because we know it is a difficult case."
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On July 19 the city issued a statement saying it was seeking "a way to transfer decreed storage rights to locations other than the decreed locations on Castle Creek and Maroon Creek."
Maroon Creek Reservoir would hold 4,567 acre-feet of water on 85 acres of land, all owned by the USFS. It also would encroach on portions of the Maroon bells-Snowmass Wilderness. Castle Creek Reservoir, as currently decreed, would hold 9,062 acre-feet on 120 acres of mostly private, high-end residential property, but also flood some USFS land and cross the wilderness boundary.
The city has maintained conditional water-storage rights for both reservoirs since 1965.
"To the extent that you feel that the summary of consultation is asking you to lay out all your evidence, I don't really see that it is," Ryan told Covell during the status conference. "I think it is more asking to make sure we have something in the record to support that you've met your burden of proof here, before any ruling is entered."
As water court referee, Ryan's also charged with investigating the factual and legal aspects of water rights applications before making a ruling.
The issues facing the city were raised in two "summaries of consultation" that Alan Martellaro, the division engineer, filed with the water court in January after consulting with Ryan about the city's applications.
Both summaries of consultation filed in response to the Castle and Maroon applications said the city "must demonstrate that it will secure permits and land-use approvals that are necessary to apply the subject water rights to beneficial use."
They said the city must show that it "will complete the appropriations within a reasonable time" and that "a specific plan is in place to develop the subject water rights."
They also said the city "must demonstrate substantiated population growth in order to justify the continued need for these water rights" and that it must show it is "not speculating with the subject water rights."
The U.S. Forest Service, one of 10 parties opposing the city in water court, has told the court it cannot issue a permit for the reservoirs, and so the city cannot complete the reservoirs in a reasonable time. Pitkin County, another opposer, told the court the city has not demonstrated it needs the water and that the city appears to be speculating.
The summaries of consultation required a response from the city to the court, and on July 10, the city submitted only a limited response.
During the Aug. 10 status conference, Ryan told Covell she did not find Aspen's answers in July to the summaries of consultation "substantive."
"We're not trying to play hide the ball here," Covell then told Ryan, "but a lot of those questions were legal questions, basically asking the city to put out the evidence it is going to use to prove its case at trial, and we just don't think that's an appropriate use of the summary of consultation process."
But Ryan, the water court referee, disagreed.
"I think the purpose of the summary of consultation is to make sure the applicant can support any ruling that is entered in this case. And here the issues raised in the summary of consultation were 'can and will' — can the applicant develop this water right within a reasonable amount of time?" Ryan said. "And I do think that is something that needs to be in the record before I can enter any ruling in this case."
If Ryan is dissatisfied with the city's responses, she could issue a ruling denying the city's applications. And the city could then appeal her ruling and take the case to trial before a water court judge. Ryan also can accept the city's responses and issue a ruling that would maintain the city's water rights for another six years.
During the Aug. 10 status conference, Ryan agreed to give the city more time (90 days) to respond to the issues raised in the summaries of consultation. The next status conference is set for Nov. 9.
Sometime after that, the city will need to file a substantive response, Ryan said.
Editor's note: Aspen Journalism is collaborating with The Aspen Times on coverage of water and rivers. More at http://www.aspenjournalism.org.