Pitkin County’s effort to place 4.3 cubic-feet-per-second of water into a trust managed by a state agency, for the benefit of the Roaring Fork River, has been challenged and delayed by the Basalt Water Conservancy District and the Starwood Metropolitan District.

The two districts have asked for a formal hearing on the county’s proposal before the Colorado Water Conservation Board.

“We just had concerns,” said Art Bowles, a board member of the Basalt Water Conservancy District. “We are not at all opposed to them donating water, but we want to just make sure it doesn’t affect us down river.”

Pitkin County Attorney John Ely said, “It is anybody’s option to request a hearing and that’s what they’ve done.” Ely said he has held meetings with the local districts to try and address their concerns.

The county was hoping its proposal to put water into a trust to help protect the river environment would be approved by the CWCB in March. Now it appears that a hearing on the issue will be held in November.

“This is the first time that the board has received a request to hold a hearing on a proposed water acquisition,” Linda Bassi, the head of the CWCB’s Stream and Lake Protection section, wrote in a March 9 memo to the CWCB board of trustees.

On the other hand, the county’s innovative proposal to place water into a trust agreement administered by CWCB is also the first one the CWCB has received. The proposal was made possible by legislation passed in 2008 which strengthened the state agency’s ability to hold water rights for environmental purposes.

The CWCB is the only entity in the state that can legally hold what are called “instream flow rights” that are designed to keep rivers from going below a set “minimum stream flow.” The CWCB can hold these rights in an effort “to protect the natural environment to a reasonable degree.”

Pitkin County first proposed putting 4.3 cfs of water from the Stapleton Brothers Ditch into a trust agreement with the CWCB late last year. In January, a hearing was held before the CWCB board. At the time, Bassi said the meeting was “very positive.”

If the trust agreement is approved by the CWCB board, it would set up an arrangement where Pitkin County would be able to easily put under the trust an additional 34 cfs of water rights it owns — primarily from its open space purchases — to the benefit of the river.
However, in February, attorneys for the Basalt Water Conservancy District and the Starwood Metropolitan District, sent a letter requesting a formal hearing to review the potential water acquisition.

“The Basalt Water Conservancy District supports the minimum stream flow program and it supports instream flows that have designated historical use and are appropriate for that purpose,” said Christopher Geiger, an attorney Balcomb & Green, P.C. in Glenwood Springs.

But Geiger, who also represents the Starwood metro district, was critical of the CWCB process to date.

“They haven’t provided anyone with the explanation with how the water right is going to be measured or administered in the river for instream flow purposes,” Geiger said. “They haven’t shown that it is going to have any appreciable benefit to the natural environment. At the same time, based on how the CWCB chooses to operate the water right, it might prevent the district from exercising its water rights.”

The Basalt Water Conservancy District was created in 1963 and provides water for users in the mid and lower Roaring Fork River valley.

According to the district’s Web site, “the District’s water rights are used to benefit its contractees, by allowing them to continue to divert water at their well, spring, or surface diversion in times of shortage when their use would otherwise be curtailed. The District owns substantial domestic, municipal, and agricultural water rights, and maintains several reservoir storage contracts with the US Bureau of Reclamation for the release of water from Ruedi and Green Mountain Reservoirs.”

“We have a statutory obligation to represent the interests of our constituents, and they are relying on us for their water supply, and we need to know the potential impacts on the water supply,” Geiger said about the county’s proposal.

The Town of Basalt initially raised concerns about the county’s proposal but after a meeting with Ely, subsequently wrote a letter in support of the trust agreement as long its concerns were met by the CWCB review.

Geiger has also met at length with Ely, but is still pursuing a formal hearing of the proposal in front of the CWCB board. The hearing officer is likely to be the deputy attorney general for the state.

One of the results of the Basalt and Starwood request for a hearing is an additional physical analysis of the stretch of the Roaring Fork River that the county’s water right would flow through. The analysis is to provide better information about the actual minimum amount of water needed in late summer to “protect the environment to a reasonable degree.” That analysis is best accomplished by looking at the river in late August.

Pitkin County has agreed to an extension of the normal CWCB timelines so the data can be gathered and analyzed.

Bassi, the head of the CWCB division charged with managing in-stream flow rights, and the process to acquire them, said the Basalt and Starwood district’s unusual request for a hearing is adding time to the review of Pitkin County’s offer of water.

“We’re having to do additional analysis of the proposal,” Bassi said. “And we’re trying to answer more questions up front, which isn’t a bad thing, such as how the acquired water rights would be administered along with our other water rights in the instream flow program.”
But many of the questions raised by the Basalt water district and the Starwood metro district are questions normally required to be asked by the CWCB staff when reviewing a potential acquisition.

“Administrative agencies are entitled to a significant amount of deference in their decision making process,” said Amy Beatie, the executive director of the Colorado Water Trust, which has worked in support of Pitkin County’s decision. “They are asking for water court-type preparedness in order for a preliminary decision to be made.”

Beatie said many of the concerns raised by Basalt and Starwood are typically covered in water court, which is a required next step after a CWCB review and approval.

When asked if she felt the request for hearing by the Basalt and Starwood districts, and the subsequent delay, was significant, Beatie replied “You are familiar with the idea that time is money, yes? We’re spending a ton of time and energy trying to work on this hearing and working on bringing this water right into the instream flow program while other good work could be done.”

Aspen Daily News
Brent Gardner-Smith
Original article