Creek or ditch? A new development being planned in Beaver Creek hinges on the answer

A Front Range developer is getting his feet wet on an idea to bring housing to an area once considered unbuildable by nearby homeowners in Beaver Creek.

But where the property’s water originates is up for debate.

Aidan Group principal John Niemi said he realizes that the development he’d like to build, which the Denver-based Aiden Group calls “the Arcadian on Beaver Creek,” would be constructed on land that has always been vacant, and that the neighbors in the area have been enjoying that open space.

“That is why we have taken great care with community outreach and local planning expertise to propose a development that is within our rights but also with a considerable nod to only enhancing the neighborhood with a small number of units and maintaining a wide swath of open space,” said Niemi, who is seeking to build 12 homes that would include single-family, duplex and triplex units.

But homeowners in the area say the Aidan Group is attempting to mislead Eagle County’s planning department as to what their rights are by incorrectly labeling a watercourse that runs through the property.

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Both Niemi and the Beaver Creek Property Owners Association agree that to develop the land, the waterway moving through the property would need to be altered, and that waterway eventually leads to Beaver Creek and the Eagle River. But they differ in the labeling of that water, with Niemi and the Aidan Group saying the watercourse is a manmade irrigation channel known as Townsend Ditch, and the Beaver Creek Property Owners Association saying it’s a natural stream known as Wayne Creek. Both groups have hired consultants to help make their respective cases.

David Blauch, the vice president and senior ecologist from Ecological Resource Consultants, LLC is the consultant to the developer. Blauch says his group has conducted an extensive evaluation of the project site over the past two years, specifically related to natural resources and water features. 

“As part of these evaluations a ditch was identified that traverses the project site commonly referred to as Townsend Ditch,” Blauch said. “Based on historic review, it was determined that a section of the Townsend Ditch was re-aligned through the project site as part of the Beaver Creek Golf Club construction after 1983.”

Blauch says before to 1983, no ditch or water feature was present on the project site.

“The ditch was also identified to be part of a diversion system and does convey dedicated water for end use through a headgate to Beaver Creek, and also flows into the storm drain system along Village Road,” Blauch said. “The Department of Army Corps of Engineers confirmed proposed development plan compliance under the Clean Water Act Section 404. No other formal creeks or streams are identified on the project site (except Beaver Creek) by any other typical sources including: USGS topographic maps, Eagle County Stream List, USGS national hydrography dataset, FEMA floodplain mapping or USFWS NWI mapping.”

‘Pig-in-a-poke site’

But the consultants for the Beaver Creek Property Owners Association said there was water flowing through the property before 1983, and they have submitted to the county a 1975 map from Vail Associates showing Wayne Creek flowing down the mountain before Village Road and the golf course were built.

“The water source of Wayne Creek has never changed in any recorded history we have seen,” said Bruce Kiely, president of the Beaver Creek Property Owners Association. “The path on the golf course may have changed with the development of Village Road as a culvert was built to assure the free flow of Wayne Creek. The path of Wayne Creek also changed as the golf course was designed and developed so that instead of running directly to the Eagle River, it ran across the golf course down through the proposed construction site down to the Beaver Creek.”

Aiden Group acquired the land from Vail Resorts in 2023. Homeowners in the area said they had been aware of attempts from Vail Resorts to develop the land before Aiden Group stepped in, but with Vail Resorts not receiving approvals on the project, they now see Aiden Group as a second attempt to revive a development idea once thought to be impossible.

“The developer willingly bought the pig-in-a-poke site from Vail Corp in August 2023 before having the facts — which he hoped would not be deter him,” said Mac Slingerlend, who owns a home near the site. “His revised (Land Use Application) from December 2023, as modified but ignoring the Wayne Creek facts, is currently deemed ‘sufficient’ by the county to ask interested parties (other than adjacent homeowners) to comment on.”

Slingerlend is a member of the Beaver Creek Metro District, a separate board from the Beaver Creek Property Owner’s Association. The metro district provides public services and utilities to Beaver Creek properties and holds public meetings on the last Wednesday of every month. The metro district has discussed the Arcadian project in 2024, but Slingerlend has been recused from those portions of the meetings due to his home’s proximity to the project.

But the Metro District, nonetheless, had adopted a position similar to Slingerlend’s, saying the developer’s assertion that the property is not a live stream is not substantiated by sufficient support.

“First the application does not provide enough information to reasonably conclude that the watercourse on the property is not Wayne Creek,” the Metro District stated in a response to the county. “Second, regardless of whether the watercourse is Wayne Creek or the Townsend Ditch, the watercourse is tributary to Beaver Creek and thus meets the county’s definition of a stream.”

The Metro District says water that is tributary to a natural stream such as Beaver Creek or the Eagle River is part of the public’s water resource.

“Based on this, the applicant needs to provide additional evidence that it has the legal right to alter the watercourse from its current location,” the Metro District said in a May 13 letter to the county.

The Clean Water Act and its setbacks

With two different consultants offering two differing opinions, Slingerlend said he thinks the property’s owners associations’ consultant is more credible than the developer’s consultant because the property owner’s association is based on the Western Slope as opposed to the Front Range.

Slingerlend said the association’s consultant demonstrated its credibility by filing a signed affidavit with the county, demonstrating that the primary source of water for Wayne Creek comes from a natural outflow from the mountain on the west side of Beaver Creek, which flows into Wayne Creek across the golf course and down the proposed construction site.

The consultant also confirmed that the characteristics of Wayne Creek legally qualify it as a waterway of the United States under the Clean Water Act, Slingerlend points out. He added that the U.S. Army Corps of Engineers, if presented with this information about Wayne Creek, would not have deemed the project compliant under the Clean Water Act.

“I suspect the Army Corps of Engineers were told this watercourse was just an irrigation ditch being used to water the golf course,” he said. “It is not that, of course, and that’s been well known to anyone associated with this golf course over the last 40 years … I don’t believe the developer started out to bamboozle the county, but when kneedeep in the proposal, he began scrambling for sleight-of-hand ideas that would turn the county’s necks away from the provable truth as to the water source.”

Slingerlend said while the process of demonstrating Wayne Creek to be a live stream has been exhausting, he doesn’t expect it to persist much longer.

“The county commissioners, the planning department, the new lead attorney, now they all have the factual engineering reports from the experts here on the Western Slope,” he said. “We know they care about Eagle County’s waters and want to do the right thing where established jurisdictional waters are involved, and that begins with recognizing there should be construction setbacks from Wayne Creek.”

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It’s a statement being echoed by the Beaver Creek Property Owners’ Association.

“Based on this research about the nature and history of Wayne Creek, the BCPOA is asking the county to do its job, follow the law — the Clean Water Act — and all applicable rules and regulations for any decision regarding permitting of Arcadian’s construction application,” Kiely said.