Nobody can take Aspen’s water
November 20, 2012
There has been a lot of talk that if the hydro plant isn’t built, some outside evildoer will “take” Aspen’s water right. This assertion is simply incorrect, according to Colorado water law. Nobody can take Aspen’s water – nobody.
Yes, there is a lawsuit in the Water Court where a number of plaintiffs are claiming that the city of Aspen has abandoned its right to use water for hydropower generation. The city bought the old hydro plant in 1956 for the water rights it held, not for the power it generated.
In 1956, the city needed a source of dependable, clean and senior water rights for all its needs. The power plant had them. The city wouldn’t have shut down the plant two years later if all it wanted was the electricity. The city later pulled everything out, the penstocks, turbines, transmission lines – everything – and turned the building into a maintenance garage. That is the foundation of the claim that the right to use water for hydropower was abandoned.
So if these plaintiffs win, will they get to “take” Aspen’s water? Absolutely not. If the court rules that the right was abandoned, any real water associated with it will simply return to the stream, period. No one can just “take” it. Water law doesn’t allow for this. Abandoned water rights return to the stream.
But hydropower use is mostly nonconsumptive, so the chances that the city will actually lose any real water are pretty small. There isn’t any real water to lose, and the hydropower right is just one of many “beneficial” rights that the city’s decreed water is for. Win or lose, the city will retain all of its water rights for municipal, domestic, irrigation and other rights for water use. These aren’t being challenged.
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There is also the absurd idea that some transmountain diversion interest could swoop in and claim that water. Again, that just won’t happen because:
1) There isn’t any real water to “take.”
2) Any new water rights filed on the streams will be hopelessly junior, even to the state’s minimum streamflow rights.
3) There would be so little water, it would not be worth the cost.
4) The permitting and environmental-review process to build a new infrastructure under wilderness areas is an insurmountable hurdle. (There weren’t any wilderness areas when the current infrastructure was built.)
5) Add to this the need for a Pitkin County 1041 permit, and any thought of a new transmountain diversion evaporates.
Hunter Creek, the upper Roaring Fork and the Fryingpan, with their existing transmountain diversion infrastructure, will be the real targets. Those streams are the ones to worry about, not Castle and Maroon creeks. Any claims to the contrary are fearmongering fantasies.