Aspen files motion to dismiss lawsuit against hydro project | AspenTimes.com

Aspen files motion to dismiss lawsuit against hydro project

Andre SalvailThe Aspen TimesAspen, CO Colorado

ASPEN – The city of Aspen earlier this week filed a motion in state water court to dismiss a lawsuit alleging that it abandoned the right to use water from Castle and Maroon creeks for a proposed hydroelectric facility.The Oct. 5 motion states that Saving Our Streams, a nonprofit group made up of several local landowners that filed its complaint with the court in mid-September, has failed to “allege facts sufficient” to back up its claim. According to the city’s motion, the SOS suit seeks a court judgment that Aspen abandoned one particular component – hydroelectric power production – of the municipal uses that accompany three separate water rights for Castle, Maroon and Midland creeks. The city’s motion states that the three water rights were granted to various companies in the late 19th century for “municipal customers” and that the city acquired those rights in 1956. Those rights included “hydroelectric generation and domestic purposes” for Castle and Midland creeks, and were confirmed through a court decree in 1949.The 1949 decree also confirms a water right for a diversion from Maroon Creek “in the amount of 65 cfs [cubic feet per second]” stemming from an appropriation in 1892, according to the motion. The motion states that the SOS suit “does not identify which plaintiffs own water rights, what water rights they may own or how those water rights are or may be affected with respect to the alleged abandonment of the hydropower component” of the city’s water rights. Further, “plaintiffs tacitly admit that some of them do not own or control any water rights,” the motion says. “If a plaintiff fails to allege or demonstrate that its rights, status or other legal relations will be affected, the plaintiff has no standing … and a declaratory judgment should not be entered.”Also, the SOS suit fails to meet the law’s “injury-in-fact requirement” in which the challenged conduct of a defendant causes or threatens to cause injury to the plaintiff’s present or imminent activities.”… They have failed to allege, much less show, that they have sustained or will sustain injury to any right. Therefore the complaint must be dismissed,” the motion says.The motion also seeks reimbursement for the city’s legal costs.The Castle Creek hydroelectric project aims to divert water from Castle and Maroon creeks to the plant. The city wants to build what it calls the Castle Creek Energy Center at Power Plant Road a few miles south of town. In 2007, Aspen voters approved a $5.5 million bond issue to initially fund the project. Opponents claim that the language in the referendum was vague and voters didn’t know exactly what they were supporting.The SOS lawsuit states that the plaintiffs are not challenging the city’s municipal water rights for any use other than generating hydropower. The nonprofit is concerned that the city’s plan will cause serious environmental harm to Castle and Maroon creeks, especially when streamflows are low, according to a statement the group released last month.The suit also claims that the city cannot resurrect its water rights after deciding to start shutting down its former Castle Creek hydroelectric plant in the late 1950s. But the plant was restarted in winter 1961 during an emergency caused by a snowstorm that had knocked out power from downvalley sources.Plaintiffs in the lawsuit are listed as Dick Butera, Yasmine Depagter, Maureen Hirsch, Joseph and Sheila Cosniac, Kit Goldsbury, Elk Mountain Lodge LLC, Crystal LLC, American Lake LLC, Ashcroft LLC, B&C LLC and the Bruce E. Carlson Trust. Each owns property along or near one of the creeks.The city’s motion was filed by Denver water-rights attorney Cynthia Covell and Aspen City Attorney John Worcester.asalvail@aspentimes.com