Property owners along local creeks that would be affected by the city’s proposed Castle Creek hydroelectric power plant have sued to stop the project.
The suit, filed Thursday on behalf of 11 plaintiffs, claims the city has “abandoned” its water rights for hydropower. The six-page complaint, filed in state water court in Glenwood Springs by Aspen attorneys Paul Noto and Danielle Luber, cites the decommissioning of the city’s original Castle Creek hydropower station, which was in use from about 1893 until 1958.
“Aspen has shown its intent to abandon the hydropower use decreed [to the Castle and Maroon creek water rights] by not using the water right for this purpose for over 50 years,” the complaint says.
The city is seeking to build a 1.1 megawatt hydropower plant that would take up to 27 cubic feet per second (cfs) of water from Maroon Creek and 25 cfs from Castle Creek. The project currently has a budget of $8 million, $3 million of which is for a pipeline that would carry water from Thomas Reservoir at the city’s water treatment plant to the proposed site of the hydropower turbine located underneath the Castle Creek Bridge. The city claims this pipeline is also necessary so it can act as an “emergency drainline” for the reservoir.
The city applied for a “conduit exemption” for the project from the Federal Energy Regulatory Commission last October, a move that has been criticized because it could mean a less stringent environmental review. City Council members have said they intend to convert that application to a “small project license,” which would require a review under the National Environmental Policy Act, but that conversion is still pending.
City officials said the suit is without merit. Cynthia Covell, a Denver lawyer who works on water rights issues for the city, was out of town Thursday, but she has looked into questions on the validity of the city’s water rights for hydropower in the past.
“We are confident that our water rights have not been abandoned,” City Attorney John Worcester said, adding that discussions about developing hydropower again on Castle Creek “have been kicked around for the 20-plus years I’ve been here.”
The city has 20 days to respond to the suit.
The city’s water rights on the creeks date back to the 1880s in some cases. The lawsuit cites three separate water rights — the Castle Creek Flume Ditch, the Midland Flume Ditch and the Maroon Ditch — that together account for 160 cfs on Castle Creek and 65 cfs on Maroon Creek, that the city is entitled to use for domestic and hydropower purposes, among other municipal uses. These are the water rights that the city uses for its drinking water.
The city decided in the 1950s that it would be cheaper to decommission the Castle Creek hydro plant and buy power from the grid than make necessary repairs to the deteriorating hydropower infrastructure. By taking the plant offline, dismantling the generation equipment and allowing the original water delivery system to deteriorate, the city abandoned its right to use the water rights for hydropower, the suit claims.
The plaintiffs say they have no interest in challenging municipal water rights for domestic or irrigation uses — only hydropower. State water courts in the past have declared specific decreed uses within a larger water right abandoned.
Saving Our Streams, a nonprofit group started by Maureen Hirsch and Yasmine Depagter, is listed as a plaintiff, as are Hirsch and Depagter individually. The other plaintiffs are: Dick Butera, Joseph and Sheila Cosniac, Kit Goldsbury, the Bruce E. Carlson Trust, B&C LLC, Elk Mountain Lodge LLC, Crystal LLC, Ashcroft LLC and American Lake LLC.
The Bruce E. Carlson Trust and B&C LLC own property on Maroon Creek.
The last four LLCs are all tied to William Koch, brother of the notorious “Koch brothers,” who are Charles and David Koch and are known for their behind-the-scenes conservative political activism (the term “Koch bothers” in common usage does not refer to William). William Koch has interest in Oxbow Mining, which owns coal mines in Somerset, Colo. near Paonia. Koch’s LLCs involved in the case own the Elk Mountain Lodge and other properties in the upper end of the Castle Creek Valley.
“It’s an open mystery why someone would be concerned about water being diverted eight miles downstream from them,” Aspen Mayor Mick Ireland said, noting that the water the city would take for the hydro plant would return to the river about two miles downstream after passing through the penstock and turbine.
Depagter, who lives near the proposed site of the hydropower plant that would house the turbine, said she is mostly concerned with protecting the health of Castle Creek and the project’s potential for “dewatering” the stream. While the lawsuit focuses specifically on the question of the city’s water rights, Depagter and other plaintiffs have also taken issue with the city’s process for obtaining federal licensing for the facility, as well as the project’s fiscal prospects.
The delay in converting the federal approval application has been of particular concern, Depagter said.
The city has laid out a plan that would see the hydro plant operate at first only when the creeks are running high in the spring and summer. Diversions could only be increased if a board of scientists agrees that doing so would not harm the creeks, according to the city’s plan.
Depagter said she was skeptical that the city would follow through.
“The city can give us lip service that they are going to do this right, but the track record is that they are not going to do this right,” she said. “It’s one kind of cover up, one kind of spin, one kind of manipulation after another. ... We felt it was time to take this onto a different level.”
Asked if it would be possible to design a hydro plant and operating plan that Save Our Streams could live with, Depagter said, “never say never.”