Gypsum neighborhood’s plan to preserve water rights while protecting cutthroat trout is being opposed by city of Aurora
July 8, 2018
GYPSUM – As a neighborhood project to protect rare fish approaches its conclusion, opposition is coming from an unexpected place – the city of Aurora.
Homes in The Buckhorn Valley Metropolitan District have always received their water from a hand-dug ditch that diverts flows from Abrams Creek on nearby Hardscrabble Mountain, but the district is currently constructing a pipeline to make water collection more efficient than the ditch diversion method. The discovery in Abrams Creek of a genetically pure green-lineage cutthroat trout – one of only a few indigenous populations left in the Upper Colorado River Basin – is spurring the effort.
The fish are endangered by the fact that the ditch diversion into the Buckhorn Valley neighborhood can reduce Abrams Creek flows to a trickle. The Buckhorn Valley Metropolitan District, through the construction of the pipeline to replace the ditch, has found a way to create more water in Abrams Creek while still receiving the water needed for the neighborhood.
In the process, however, the Buckhorn district wants to make sure their water rights are protected. The district's water rights pre-date the 1922 Colorado River Compact, as the ditch was constructed in 1906.
Attorney Steve Bushong is representing the Buckhorn district. He says the district’s best assurance is to undergo water court proceedings in an effort to obtain a determination from a judge saying the pipeline project and agreement to leave water in the creek does not create a change in water rights.
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The Buckhorn district wants to ensure that the pipeline “is just an operational condition,” Bushong says. “We want to come out of this process with a decree that says ‘this project can go forward, this doesn’t impact your water rights.'”
To obtain such a decree in water court, an application must be filed and published.
“Once you go into water court, anybody with a water right can oppose,” Bushong said.
That’s where Aurora comes in.
“Nobody around Buckhorn or the town of Gypsum opposed, they’re all aware of the project, everybody is supportive of the project,” Bushong said. “But the one opposer we got is a trans-basin diverter that must be 50 miles, at least by road, upstream … and that’s the city of Aurora.”
POTENTIAL FOR PRECEDENT?
The city of Aurora has water rights in Homestake Reservoir, which – while it is located in Eagle County – does not receive water from Abrams Creek.
“I can’t fathom any way they could conceivably be injured by this project,” Bushong said.
On July 2, Aurora public relations manager Greg Baker said while he was aware of the city's involvement, he could not comment on it with clarity, and those who can were out of town.
Bushong said he has talked to the attorney on Aurora’s side, and believes their concern comes from the potential for any precedent that could be set as a result of the decree the Buckhorn district is seeking.
“It could become some level of precedent, but I think we have very unique circumstances here,” Bushong said.
Also, “I put in, effectively, what would be called a ‘no precedent clause,'” Bushong added.
As a result, “we’re optimistic that they’re going to get out of this case, and we’re never going to have to go to trial or anything like that,” Bushong said.
TIME TO ACT
While Buckhorn waits on a court-issued assurance that their water rights will not be affected by the project, the project itself is nearing completion.
On a recent trip to the site of the Buckhorn district’s diversion at Abrams Creek, Water Services Manager Kenny Slaughter said efforts to put the pipeline into the ground had been going well.
“For a while, we were ahead of schedule, as the dirt in the sagebrush habitat was fairly easy to dig,” Slaughter said. “Then, as expected, it slowed down as we hit the heavier rock areas.”
Several entities have contributed to the effort and are helping oversee the construction, including the U.S. Bureau of Land Management, the U.S. Forest Service, the town of Eagle and Trout Unlimited.
The project is located on a portion of Abrams Creek that is within lands managed by the Bureau of Land Management, and the lower portion of the creek is on private lands and lands managed by the Town of Eagle.
John Hill with the Buckhorn district said while the district has known about the fish for some time, in recent years he perceived a new level of motivation to do something to help protect them.
“We decided now was the time,” Hill said.
The pricetag on the effort to install the 21,790 linear feet of pipe and its related structures came in at over $1 million, and funds were raised through outreach from Buckhorn, Trout Unlimited, Colorado Parks and Wildlife and the Eagle River Watershed Council, who secured grants from the Colorado Water Conservation Board, Colorado River Basin Roundtable, Bureau of Reclamation and the town of Gypsum. Donations also came in from from the Bureau of Land Management, Colorado’s Species Conservation Fund and local businesses Fortius Realty, NAI Mountain and Alpine Bank.
Hill said the contractors who won the bid on the project, Scott Green Excavating, were the main reason the project was able to stay ahead of schedule.
“The agencies involved couldn’t believe he got it done as fast as he did,” Hill said. “He had guys who were familiar with the area and accustomed to working in mountain conditions, they got it done faster than the experts had anticipated.”
Trout Unlimited, a national organization dedicated to the conservation of freshwater streams, has taken a close interest in the Abrams Creek project.
"In a world of less water, there's hope for preserving the health and quality of our rivers, fish and wildlife if we dig in and work together on solutions," Randy Scholfield, Trout Unlimited's director of communications for the southwest, wrote of the effort.
The main driver in realizing those solutions, of course, was the Buckhorn Valley Metropolitan District. As a final commitment to the solutions mentioned by Scholfield, the Buckhorn district has agreed to take less than what is legally allotted to the district if flows drop to dangerous levels for the fish.
While they are entitled to 3 cubic feet per second, which could be the entire flow of the creek, the Buckhorn district has agreed to only divert 60 percent of the water available in Abrams Creek at any one time up to a maximum of 3 cubic feet per second, and agreed to further limit those diversions as needed to help keep water levels at or above 1.25 cubic feet per second.
“If there’s 2 CFS at their head gate, they’re not going to take their 60 percent of that, because then there wouldn’t be 1.25 in the creek,” Bushong said.
While the process was expected to be complete in July, Aurora’s involvement could delay things a bit.
“Once they get involved, we have to go through the process of getting them out,” Bushong said. “It really comes down to how slow they are in responding. I’m hoping we’ll have it done here in the next couple of months, I just can’t fathom why they would stay in the case.”