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 their 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 they 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 non-consumptive, so the chances that the city will actually lose any real water is pretty small. There isn’t any real water to lose and the hydropower right is just one of many beneficial rights for which their decreed water is for. Win or lose, the city will retain all of their water rights for municipal, domestic, irrigation and other rights for water use. These aren’t being challenged.
There is also the absurd idea that some trans-mountain diversion interest could swoop in and claim that water. Again, that just won’t happen because:
• There isn’t any real water to take.
• Any new water rights filed on the streams will be hopelessly junior, even to the state’s minimum streamflow rights.
• 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.)
• Add to this the need for a Pitkin County 1041 permit and any thought of a new trans-mountain diversion evaporates.
Hunter Creek, the upper Roaring Fork and the Fryingpan, with their existing trans-mountain diversion infrastructure will be the real targets. Those streams are the ones to worry about, not Castle or Maroon creeks. Any claims to the contrary are fear-mongering fantasies.