Dave Hornbacher's recent letter "clarifying" the city's water-rights issue is part right, part misleading and part very wrong.
Dave is correct that if the city's water right for hydropower is found abandoned, the junior rights will get a step up in the priority system. But that is not the same thing as "taking" Aspen's water. Saying otherwise is misleading and fearmongering.
If the hydro right is found abandoned, Aspen will still hold, by far, the largest and most senior portfolio of water rights on Castle and Maroon creeks. The rights of the plaintiffs will still be junior to Aspen's. They will not gain a drop of water from it. Aspen will still hold rights to more water than actually exists in either stream most of the time.
Dave is also right that a new "consumptive" right could be filed. But that could happen regardless of the lawsuit and be filed by anyone, including Aspen. In Colorado, the right to divert water from any natural stream "shall never be denied" (Colorado Constitution). Any new diversion is no threat to Aspen or the minimum streamflow.
But then Dave goes off base by saying water diverted for "consumptive" use "wouldn't come back - ever." That is not true, and he knows it. Most water diverted for "consumptive" needs does, in fact, return to the stream. With agriculture, generally 80 percent or more of the diverted water returns. Municipal diversions return about 95 percent of the diverted water.
If Dave's claim were true, that "consumptive" uses permanently removed all the water they divert, the rivers of Colorado would be quickly sucked dry. Trans-basin diversions are the one type of diversion that does what Dave claims. But only Aspen is trying that with Maroon and Castle creeks.
Ironically, the only new trans-basin diversion ever likely to occur on either stream will be the city's proposed "nonconsumptive" diversion from Maroon Creek to Castle Creek. The city's trans-basin diversion will do exactly what Dave wants you to fear most: permanently dewater the lower portion of Maroon Creek.
Most of the small diversions on Castle Creek take water for ponds, irrigation and other outdoor "consumptive" uses. Most of this water returns to the streams relatively quickly. Aspen's proposed diversions will dewater a much longer reach. And never back to Maroon Creek - ever.
I applaud Aspen's subordination of its rights to the minimum flows in Castle and Maroon creeks and the water it contributed to Hunter Creek. Others should follow Aspen's lead if they can. Our rivers are at historic low flows, and continued persistent drought is forecast. We face another year when the hydro plant, if operating, wouldn't provide much electricity.
Rather than a back and forth in the papers like this, we need an open, collaborative community discussion for rethinking the Castle Creek project. I hope the city agrees and that it isn't just building a case for a decision that's already been made.