By Heather Sackett
A section of the Blue River as seen Jan. 7, 2020, near the Gold Hill Trailhead in Breckenridge. Colorado Springs Utilities is fighting to keep conditional water rights tied to three small reservoirs in the headwaters of the Blue River.
COLORADO SPRINGS — A Front Range water provider is entering its eighth year of trying to keep water rights alive for three small reservoirs in the headwaters of the Blue River in Summit County to take more water from the Western Slope.
Colorado Springs Utilities has been mired in water court since 2015, fighting for its conditional water rights, which date to 1952 and are tied to three proposed reservoirs: Lower Blue Lake Reservoir, which would be built on Monte Cristo Creek with a 50-foot-tall dam and hold 1,006 acre-feet of water; Spruce Lake Reservoir, which would be built on Spruce Creek with an 80- to 90-foot-tall dam and hold 1,542 acre-feet; and Mayflower Reservoir, which would also be built on Spruce Creek with a 75- to 85-foot-tall dam and hold 618 acre-feet.
An acre-foot is the amount of water needed to cover an acre of land to a depth of 1 foot.
The water rights case has eight different opposers, including the town of Breckenridge; Summit County; the Colorado River Water Conservation District; agricultural and domestic water users in the Grand Valley; the Lower Arkansas Water Conservancy District; and a private landowner who has mining claims in the area. Most of the opposers say they own water rights in the area that may be adversely impacted if the Blue River project’s conditional rights are granted.
Representatives from the town of Breckenridge, Summit County and Colorado Springs Utilities all declined to comment on the case to Aspen Journalism.
The proposed reservoirs would feed into Colorado Springs’ Continental-Hoosier system, also known as the Blue River Project, which takes water from the headwaters of the Blue River between Breckenridge and Alma, to Colorado Springs via the Hoosier Tunnel, Montgomery Reservoir and Blue River Pipeline. It is the city’s first and oldest transmountain diversion project. The Hoosier Tunnel takes an average of about 8,000 acre-feet of water a year, according to state diversion records.
Each year, transmountain diversions take about 500,000 acre-feet from the Colorado River basin to the Front Range. Colorado Springs is a large part of this vast network of tunnels and conveyance systems that move water from the west side of the Continental Divide to the east side, where the state’s biggest cities are located.
Colorado Springs Utilities, which serves more than 600,000 customers in the Pikes Peak region, takes water from the headwaters of the Fryingpan, Roaring Fork, Eagle and Blue rivers — all tributaries of the Colorado River. Colorado Springs gets 50% of its raw water supply — about 50,000 acre-feet annually — from the Colorado River basin, according to Jennifer Jordan, public affairs specialist with Colorado Springs Utilities. The existing Blue River system represents about 9% of Colorado Springs’ total raw water supply, she said.
Colorado Springs Utilities and the city of Aurora are working on another potential transmountain diversion project: a reservoir on lower Homestake Creek in the Eagle River basin that would hold between 6,850 acre-feet and 20,000 acre-feet.
The River District, which was formed in 1937, in part, to fight transmountain diversions that take water from the Western Slope, is opposing the Blue River water rights case.
“We are open to hear what the applicants have to say about the project, what their needs are and if they can provide meaningful compensation and mitigation of the impacts,” said Peter Fleming, River District general counsel. “At the end of the day, there might be a deal where the West Slope gets a result that hopefully makes sense.”
A water rights place holder
In Colorado water law, the prior appropriation doctrine reigns supreme. Those with the oldest water rights get first use of the water, making the oldest rights the most valuable, or senior. Under the prior appropriation system, a water user has to simply put water to “beneficial use” — for example, irrigating land or using water in a home — to get a water right. The user can then ask a court to make it official, securing their place in line.
Conditional water rights are an exception to this rule, letting a water user, such as Colorado Springs Utilities, save their place in line in the prior appropriation system while they work to develop big, complicated, multiyear water projects. But they must file a “diligence” application with the water court every six years, proving that they have, in fact, been working toward developing the project and that they can and will eventually put the water to beneficial use. Hoarding water rights with no real plan to put them to beneficial use amounts to speculation and is not allowed.
In its 2015 diligence filing, Colorado Springs Utilities said during the previous six years that it had hired consultants — Wilson Water Group and its subcontractors — to do a water supply assessment; an engineering and geotechnical evaluation of each reservoir site; and an investigation of potential environmental effects of development of the reservoirs. Colorado Springs Utilities said it also acquired 28 undeveloped parcels of land to protect the project’s infrastructure and also performed maintenance work on other parts of the Blue River system that contributed to more than $4.2 million in spending on the overall Blue River Project.
Assistant Pitkin County Attorney Laura Makar is not involved in the Blue River case, but she is a legal expert in conditional water rights.
“The idea is that every six years, you address what the needs are, so you don’t have someone out there parking themselves in line for 100 years,” Makar said. “They must show that the project can and will be completed with diligence in a reasonable time and applied to the beneficial uses in the amounts they have claimed.”
The Wilson Water Group study concludes there is enough water physically and legally available to fill the reservoirs.
Ancient fens and endangered species
According to the Wilson Water Group study, there are several environmental considerations. Soil samples indicate that at least a portion of the wetlands near the Lower Blue Lake Reservoir site contain fens, ancient and fragile groundwater-fed wetlands with organic peat soils.
“The presence of fen wetlands may result in permitting challenges,” the report reads.
The report also says the three reservoir sites may be home to endangered species, including Canada lynx and Greenback cutthroat trout. Construction access to the Spruce Lake Reservoir would be challenging and would require a new 2-mile-long road. A new 1.5-mile-long road would be needed for access to Mayflower Lake Reservoir.
The project would need permits from the U.S. Army Corps of Engineers, the Colorado Department of Public Health and Environment and the U.S. Forest Service, and a 1041 permit from Summit County.
Kendra Tully, executive director of the Blue River Watershed Group, said her organization’s main concern with the project is its potential impacts to the already-low flows in the Blue River.
“We do feel like there is an environmental concern already with how much water is allotted for environmental flows in the river, and if we remove anymore from the very, very top, we are just going to affect everything downstream,” she said.
Although the Blue River Watershed Group is not an opposer in the water court case, Tully said the group is encouraging Summit County to do its own environmental impact study of the project and to potentially use their 1041 powers, which allow local governments to regulate development. In 1994, Eagle County stopped Colorado Springs and Aurora from building the Homestake II reservoir project using its 1041 powers to deny permits.
“What we are asking (Summit County) to do is make sure they are really taking into consideration all the power they have with the 1041 permit, which is what (Colorado Springs Utilities) will need to actually develop any of their water right,” Tully said.
But before permitting and construction of the reservoirs could begin, Colorado Springs Utilities first has to secure another six-year extension on its conditional storage rights. It has been eight years since Colorado Springs Utilities filed the diligence case — a lengthy but not totally unusual period of time, according to Makar. If Colorado Springs Utilities can’t work out agreements with each of the opposers with the help of a water referee, the case may go to a trial, which is not an ideal situation for any water user, Makar said.
“When you get on a trial track, then you are forced into discovery and a standard litigation posture, you’re taking depositions of everyone’s witnesses, and it tends to make people clam up,” she said. “It’s not a great model to allow for discussion and resolution of issues.”
The next status conference in the case is scheduled for April 13.
FOR MORE INFROMATION: https://www.summitdaily.com/news/colorado-springs-seeks-to-keep-water-rights-tied-to-dams-and-reservoirs-the-town-of-breckenridge-and-summit-county-government-oppose-the-move/