Letter: Setting the record straight
Responding to Scott Writer’s guest column (“When you’re in a hole, stop digging,” May 22, The Aspen Times), first, I for one never claimed that Castle and Maroon creeks would be “destroyed.” Changed, yes, but nature abhors a vacuum. There will still be plants on the stream edge, and fish, but it won’t be what stream ecologists call a healthy riparian gravel-bed stream system.
In 30 years, you probably would see some major changes, but the streams would still be there, along with dry-land plants, a lot fewer birds and less wildlife. It’s like the current beautiful and bucolic landscape of the Colorado River Valley above Kremmling, collapsing stream ecosystem and all. People have forgotten, or never knew, what it used to be like.
Second, you need to read more carefully. I never said, nor would I ever say, that an “ascribed beneficial use of water rights can never change.” They change all the time, sometimes involuntarily. What I said was that it can be a lengthy and expensive process, involving lawyers, engineers and the water court. The one thing you can’t change is an existing, senior nonconsumptive use to a senior consumptive use. If Aspen wants to convey or change the hydro right, it will have to be for another nonconsumptive use, like an instream-flow right. The city can’t just make it into a “consumptive” right. No water, or very little, was consumed in the exercise of that right so long ago.
Consumptive rights are by far the most valuable. A consumptive right, however, can be changed to a nonconsumptive-use right. The actual volume and seniority it retains is up to the use-change proceedings and the water court. This happens when a rancher donates a consumptive agricultural water right from growing hay to a nonconsumptive instream-flow right. You just can’t go the other way. If Aspen has valuable water rights, they lie mainly in the city’s consumptive rights.
The city has never responded to my repeated question about how it will ensure the minimum streamflow recommended by Bill Miller. The city can’t legally ensure anything above the current decreed 12 cubis feet per second without conveying the additional water to the Colorado Water Conservation Board. If it doesn’t, and just leaves the water in the stream undiverted, it could lose it.
Every 10 years, the state engineer compiles a list of water rights that haven’t been used and appear to be abandoned. This list is passed on to the water court, where it is published. If a particular volume of water hasn’t been used for the “ascribed beneficial use,” the court may rule it abandoned and return the water to the stream so someone else can file for a new right on it. But it’s more than just non-use. There also has to be intent to abandon. That can be shown in a variety of ways, but again, its up to the water court to determine the validity of the claims.
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