In December of 2023, Eldora Enterprises LLC filed an application with the District Court, Water Division I, and the Office of the Water Clerk for conditional storage rights and change of water rights for three new reservoir structures as well as three enlargements for storage of existing water reservoirs. Three entities have filed statements of opposition to Eldora’s application, including Save the World’s Rivers, the Water Users Association of District 6, and the Town of Nederland.

According to Eldora’s application, the three existing reservoir structures that are proposed to be expanded are Kettle Pond, Peterson Lake, and Lake Eldora. The request is for Kettle Pond to be raised from 10 feet to 15 feet to create 15 acre-feet of water storage; the dam at Peterson Lake to be raised from two feet to eight feet, creating 100 acre-feet of storage; and the dam at Lake Eldora to be raised from nine feet to 11 feet to add 45 acre-feet of storage.

The three new reservoir structures that Eldora is seeking are Boneyard Pond, Little Hawk Pond, and Lake Theo. Both Boneyard and Little Hawk Ponds are kettle ponds, which are defined as depressions naturally formed by receding glaciers or the draining of floodwaters, that will be excavated and lined to create up to 40 acre-feet of water storage.

Lake Theo is described within Eldora’s application as “a natural depression that fills from surface overflows and seepage and may be lined for storage purposes,” which, when excavated and lined, would create 30 acre-feet of storage.

Eldora listed the potential uses of these new and expanded structures as “in-house potable and commercial uses, snowmaking, domestic, irrigation, stock watering, fire protection, wildlife, piscatorial, industrial, recreation, augmentation, replacement, and exchange, with the right to use, reuse, and successively use to extinction, including recapture and reuse of return flows.”

Save the World’s Rivers is a nonprofit organization formed in 2021 with the aim to support the “Rights of Nature,” the legislation which provides natural corridors and watersheds with “fundamental and inalienable rights,” through education of the public and through fighting proposed dam creation and expansion. The organization filed their statement of opposition in late February of 2024.

Their opposition to Eldora’s application is based on the potential environmental impacts to Boulder Creek, the watershed, and the small tributaries in the Eldora area from dam building, expansion, and water diversions.

“Through this opposition process, we are not necessarily trying to stop Eldora from claiming these new water rights, but we will seek as much information as possible to help inform the local community,” said Gary Wockner of Save The World’s Rivers in a press release. “Water rights are generally a backroom deal-making process carried out by highly specialized water attorneys. More transparency, as well as community engagement, will serve the public’s interest in Nederland and Boulder County.”

The Water Users Association of District 6 (WUA) defines themselves as an association of senior water owners and members, including agricultural, industrial, and municipal users, who own “almost all of the senior water rights decreed from Boulder Creek and its tributaries.” They listed in their letter of opposition to Eldora’s application that the conditional water rights owned by the WUA may be injured if the application were to be granted, and stated that the application did not contain enough information to sufficiently assess for further opposition.

The WUA also stated that in order for Eldora’s application for conditional water rights and for the change of water rights to be considered, they “must be placed on strict proof with respect to each element of its claims” in terms of whether Eldora has the right to fully consume the water, has a defined plan for the use of the water, and will adhere to imposed terms and conditions to protect the WUAs members’ water rights.

Eldora has been engaging in discussions with Boulder County and with the US Army Corps of Engineers (ACE) concerning their proposals for action on the six locations in question. Eldora submitted a request to ACE for their jurisdictional determination on the ponds and lakes, which was received on May 3, 2023. A jurisdictional determination is the process that helps landowners identify aquatic resources and ascertain whether those resources are regulated by ACE.

“Based on our evaluation of the information provided and other available information, including a site visit conducted on October 3, 2023, we have determined that the following aquatic resources within the review area are non-jurisdictional,” the determination letter from ACE reads.

“The attached approved jurisdictional determination provides rationale for why these aquatic resources do not meet the definition of waters of the United States. Based on this determination, a Department of the Army permit is not required for the discharge of dredged or fill material into these aquatic resources.”

The Town of Nederland adopted the Rights of Nature resolution in July of 2021, and appointed Alan Apt and Rich Orman of the Sustainability Advisory Board as the “environmental guardians” who speak for the Rights of Nature, and who monitor claims such as Eldora’s which pertain to Nederland’s 448-square mile watershed.

With the concern raised about how Eldora’s proposed plans would affect the downstream water flow of Middle Boulder Creek, and therefore affect Nederland’s own water supply, the guardians have begun collecting what information is available regarding those plans.

In further assessment of the proposed plans and of the sites themselves, a list of potential impacts and concerns were compiled by an expert in that field who is close to the projects and who reported his findings to Nederland’s guardians.

Of the three existing reservoir structures that are proposed to be expanded, Kettle Pond had wetlands that were lost when the reservoir was originally created. Its expansion could result in the loss of some coniferous forest. Wetlands at the west end of Peterson Lake could be lost in the expansion and there was also worry about the potential change to its outflow and potential impact to the Capshell Snail species.

Wetlands around Lake Eldora could also be lost from its expansion, and a concern was indicated regarding the clay lining that would be installed if Eldora’s application is accepted.

“If lined to the surface the lake becomes a sterile bathtub with no perimeter or emergent vegetation. Lining alters the hydrology of the immediate area. The lake is a mixing point between groundwater and surface water with each influencing the other,” the report to the guardians reads.

Of the three new reservoir structures that are proposed, the creation of Boneyard and Little Hawk ponds will result in a net loss of contained wetlands, and the lining of all three new ponds, including Lake Theo, will result in the alteration of hydrology.

Additional concerns were raised about the impacts to the hydrology and ecology of Jenny Creek, a tributary to South Boulder Creek via the Jenny Creek pipeline. With the understanding that spring runoff will create the most return flow for Eldora to collect, more data is required to show the average monthly flow of the creek and the percentage which is taken by Eldora for their uses.

Though the report to the guardians did mention these concerns pertaining to Jenny Creek, concerns about the flow into Middle Boulder Creek were not mentioned, and it was stated that downstream impacts were not the focus of the report.

“I am focused on the site impacts at the ski area; I am not dealing with the downstream impacts, particularly on Jenny Creek. The groups opposing the application will probably deal more with that issue.”

The Mountain-Ear will continue to report on Eldora’s progress in receiving these conditional water rights as the matter develops.