Group files suit to stop Aspen effort for hydropower | AspenTimes.com

Group files suit to stop Aspen effort for hydropower

Andre SalvailThe Aspen TimesAspen, CO, Colorado

Aspen Times fileA lawsuit filed in state water court challenges Aspen's plan to harness the flowing water in Castle Creek for hydropower.

ASPEN – A local nonprofit group filed a lawsuit in state water court Thursday that seeks a ruling on whether the city of Aspen abandoned its right to use water from Castle and Maroon creeks for its proposed hydroelectric facility.Saving Our Streams, an environmental organization whose stated mission is to support local streams and to ensure that diversions of water do not compromise the health of fragile ecosystems, filed the lawsuit. The group was formed in February.The lawsuit, which seeks to stop the city from moving forward with plans for a hydroelectric plant, was not unexpected. One of the plaintiffs, Aspen businessman Dick Butera, suggested during a City Council meeting in late June that it was likely.Other plaintiffs are: 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. They all own property along or adjacent to the creeks.The project aims to divert water from the two 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.City Attorney John Worcester said the lawsuit is without merit. The city’s Denver-based water attorney, Cynthia Covell, has previously stated that her research and knowledge of water-rights law indicates that Aspen still has the legal right to draw water from Castle and Maroon creeks for hydroelectric use.”It’s a shame that citizens have to sue each other and attack our water rights since they belong to everybody,” Worcester said.The lawsuit states that SOS is 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 prepared statement from the group.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. The plant was restarted in winter 1961 during an emergency; a snowstorm had knocked out power from downvalley sources, and the Castle Creek power facility was able to supply power to the community for a brief time.At that time, Aspen officials determined that they could purchase power more cheaply from another source. The new city energy center would be adjacent to the historic plant, said Aspen utilities director David Hornbacher.”The proposed Castle Creek Energy Center does provide protection for the stream to ensure a healthy stream and renewable energy,” Hornbacher said. “It’s unfortunate that this small group chose not to work collaboratively with the city for a positive community benefit.”Saving Our Streams President Maureen Hirsch thinks otherwise.”More than 50 years have passed since Aspen shut down hydropower operations at the old plant,” she said. “Now the city thinks it can just pick up where it left off without taking into account Colorado law and the direct impact on the streams’ ecosystems, other water-rights owners and the surrounding residential community.”The proposed hydroelectric project has caught the attention of such national environmental organizations as American Rivers and Trout Unlimited, the Saving Our Streams news release says.”We were not surprised to hear of SOS’s lawsuit against the city of Aspen,” said Matt Rice, conservation director at American Rivers Colorado. “While the city’s commitment to emission-free energy is commendable, dewatering the creeks so significantly could cause significant damage to the function of the aquatic and riparian ecosystems. Both creeks should be maintained in their current state. There are hydropower alternatives that can better balance the city’s energy needs while maintaining a healthy environment.”The city’s plan has sparked controversy for other reasons, as well. Saving Our Streams, American Rivers and others charge that the city has skirted important environmental checks with its application for a “conduit exemption” from the Federal Energy Regulatory Commission.Instead of submitting to a full environmental review by the commission, the city has sought a conduit exemption, claiming that a pipeline currently under construction from Thomas Reservoir to the proposed plant is necessary for the safety of the surrounding community – thus exempting the city from the lengthy environmental review process the federal agency normally requires. In April, the City Council voted to withdraw its “conduit exemption” application, saying they would instead go through the more stringent regulatory process to gain project approval from the energy commission. But the city has yet to follow through on that plan, the Saving Our Streams news release said.The group says it has no interest in obtaining Aspen’s abandoned water rights and that it only wants to protect the free-flowing nature and outstanding values of creeks.”The community’s concerns with the project have fallen on deaf ears,” Hirsch said. “We have spent two years trying to work with the city toward the goal of protecting Castle and Maroon creeks, and have gotten nowhere. The city has made it clear that it is bent on dewatering the creeks, so we are left with no other option. SOS is committed to defending these creeks.”According to Saving Our Streams, the city must respond to the filing in 20 days.Butera chided council members at the June 27 meeting just before they voted to support a small increase in the budget authority for the hydroelectric project. “The city of Aspen water department does not have water rights for a hydro plant on Castle Creek – period,” said Butera, who lives near the creek. “Two of the leading water attorneys in the state of Colorado have both said to our committee that we have a 90 percent chance of winning the case to prove that the water department does not even have the water rights.”We haven’t filed that lawsuit because of all this spirit of mediation; everybody’s trying to get along and figure this out,” he said at the time. “We haven’t filed it, but we’re going to have to, to stop this out-of-control, reckless, reckless project that we can’t afford.”asalvail@aspentimes.com