Aspen, hydro foes opt for mediation over trial

Karl Herchenroeder
The Aspen Times

A trial over the city of Aspen’s water rights on Castle and Maroon creeks has been set aside — for now — so that Aspen and the group claiming the city abandoned its rights can attempt a compromise.

Aspen and Save Our Streams, a local nonprofit that sued the city in state water court in September 2011, have agreed to re-examine — through a mutually agreed-upon consultant — the impacts of the proposed hydroelectric facility on Castle Creek. The agreement, which was filed in state water court Friday, states that each party will pay half the consultant fee, as much as $150,000, though that amount can be increased. If they can’t agree on the consultant or on the scope or terms of the study, the case will go to trial.

In November, Aspen voters rejected an advisory question designed to move the Castle Creek hydroelectric project forward. Totals showed that 2,044, or 51.38 percent, voted against the project, while 1,934, or 48.62 percent, supported the city’s intention to finish it. While the city was never legally bound to adhere to the result, observers said that to ignore the will of the voters would be a gigantic political misstep.

Maureen Hirsch, one of the plaintiffs, said that the city’s study on hydroelectricity is incomplete, arguing they need to look at the ecosystem as a whole, not just streamflows at Castle Creek.

“I can’t support the hydro plant, not at all,” she said. “I don’t believe that is the right thing to do on wild mountain streams. But we’re trying to act in good faith and benefit the community by suggesting that the streams be further studied in a very comprehensive way.”

Aspen City Manager Steve Barwick said it’s his understanding that Save Our Streams wants to bring its own experts to the table, which would begin the bidding process for a consultant they can both agree on. On whether they reach an agreement on all terms of the study, he said, “I certainly hope so.”

Barwick said it has been Aspen’s stance from the beginning to operate hydroelectricity on Castle Creek only if it would not compromise stream health.

“We feel that for the benefit of the community, we need to have more information,” Hirsch said. “The city seems to be quite hell-bent on putting this hydro plant in, but I hope they don’t. But if they were to do that, I think it’s important for the community to have some really good information.”

Along with Hirsch, plaintiffs are listed as T. Richard Butera, Christopher Goldsbury Jr., Elk Mountain Lodge LLC, Crystal LLC, Ashcroft LLC, American Lake LLC and the Bruce E. Carlson Trust. Each plaintiff owns property along or near Castle Creek or Maroon Creek.

The lawsuit claims that Aspen cannot resurrect its water rights, after it shut down the former Castle Creek hydroelectric plant in the late 1950s. But the plant was restarted in the winter of 1961 during an emergency caused by a snowstorm that knocked out power from downvalley sources.

A month after the lawsuit was filed, Aspen filed a motion in state water court to dismiss the lawsuit, stating the plaintiff had failed to “allege facts sufficient” to back up its claim. The motion further states that the 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. The lawsuit was not dismissed, and the two sides have been in talks since.

Barwick said policy discussions concerning Aspen’s hydroelectric and renewable-energy goals will begin in November.

If agreed upon, the study will determine a bypass amount of water to be left in the streams when and if the Castle Creek hydroelectric plant is operating. The study also will “evaluate the effects of Aspen’s Castle Creek Energy Center diversions of water on Castle Creek (a) from the point of diversion to the point of return on Castle Creek and (b) on Maroon Creek from the point of diversion to the confluence of Maroon Creek and the Roaring Fork River,” according to the statement Aspen issued Tuesday.