Only those with water rights who may be harmed by a proposed hydropower project can sue the city of Aspen over the project, a judge ruled on Wednesday.
The ruling comes in the case, filed in September 2011, when a group of property owners along Castle and Maroon creeks, as well as a nonprofit advocacy group, filed a lawsuit in state water court alleging that the city had abandoned its water rights to generate hydropower. The city is proposing to build a new hydro plant on the banks of Castle Creek with water rights that were last used in the 1950s to generate electricity.
The city shortly thereafter filed a motion to dismiss the case, claiming that only those holding water rights on the creek who may be harmed by the city’s action had standing to sue.
“The complaint does not identify which plaintiffs own water rights, what water rights they may own, or how those are or may be affected with respect to the alleged abandonment of the hydropower component of the subject water rights,” Cindy Covell, the city’s water attorney, told the court in the motion.
Water Court Judge James Boyd of the 9th Judicial District agreed with the city in a six-page order. He gave the plaintiffs 14 days to amend their complaint so that only those with water rights are involved in the case.
Attorneys for the plaintiffs said they plan to proceed. Numerous plaintiffs named in the suit do own water rights, including corporations tied to billionaire Bill Koch that own a conglomeration of properties with water rights in the upper Castle Creek Valley. Those rights are junior to the city’s water rights, meaning if the creek ran low, the city’s water rights would take precedence.
Local businessman Dick Butera, a plaintiff in the suit, also owns water rights on Castle Creek.
However, some plaintiffs, including the nonprofit group Saving Our Streams, do not own water rights, and therefore will have to be dropped from the suit. It is unclear how that might impact the proceedings.
Covell said that “assuming they have someone who can demonstrate standing,” city officials and their legal representatives will wait and see the amended complaint, and then decide what to do next.