Outspoken critic of Aspen’s Castle Creek Energy Center, Ken Neubecker’s recent letter to the editor is headlined “Nobody Can Take our Water.” As a city employee, I speak for the city when I say: we only wish that were true.
Mr. Neubecker refers to a lawsuit filed against Aspen by several owners of property and water rights on Castle Creek (and one on Maroon Creek), claiming that Aspen has abandoned the right to use its senior water rights for hydroelectricity. He says that if the hydroelectric use of this water is found to have been abandoned, the water will simply return to the stream; the plaintiffs can’t “take” Aspen’s water. Although we can’t comment on a pending lawsuit, we can say that Mr. Neubecker’s assertions about Aspen’s intentions and actions are wrong, and we ask you to consider the following:
Under the Colorado prior appropriation system, if a senior water right on a stream is abandoned, the more junior water rights are effectively moved up in the priority system. There is one fewer water right ahead of them in line, so their own water right becomes more valuable. Water may be available for them to divert more often, and there may be more unappropriated water in the stream for new diversions.
While new diversions are indeed the most junior, there is still going to be water available to them some of the time. Could there be a new consumptive diversion of water from Castle Creek or Maroon Creek? Yes. Could it take water out of the creeks, even with a protected instream flow? Sometimes it could and unlike a nonconsumptive hydroelectric use, the water wouldn’t come back, ever. If there was enough water in Colorado for all water uses that anyone wished to make, we wouldn’t need a prior appropriation system to allocate the resource. What Mr. Neubecker calls a “fear mongering fantasy” — a transbasin diversion from Castle or Maroon creek — could look quite different and less like fantasy in the future.
The Fryingpan–Arkansas transmountain water rights that are diverted from Hunter Creek are fairly junior water rights, and still, they are able to divert thousands or acre-feet annually to the eastern slope. Aspen has helped to protect the streamflows on Hunter Creek by dedicating its more senior Hunter Creek water right to instream flow protection on Hunter Creek.
Aspen has historically been the only water user on Castle Creek that has committed to exercise its water rights in a way that protects the instream flow. Aspen also voluntarily exercised its Maroon Creek diversions to protect the instream flows. The plaintiffs in the lawsuit have never committed to voluntarily exercise their water rights in a way that protects streamflows or stream habitat. Why, then, would anyone expect them to become protectors of the streams if they are successful in their abandonment claim? If they are successful, they may improve their own consumptive water rights, and provide additional opportunity for others to appropriate consumptive water rights.
Director of utilities and environmental initiatives, city of Aspen