City Attorney Jim True’s letter (“Emmer is simply wrong,” Aspen Daily News, Nov. 21), disputes my claim that the city of Aspen ignored federal law when it built the penstock and modified Thomas Reservoir for Castle Creek hydro before receiving FERC approval. This presents an opportunity for Aspen residents to investigate the facts and decide for themselves what is right.
Contrary to Mr. True’s assertion, my claim was based on research into, among others: The statute I quoted; the May/June 2010 correspondence to FERC from an Aspen law firm and the city (and exhibits); and the July 1, 2010 letter from a deputy director of FERC’s Division of Hydropower Administration and Compliance. The last document is where the city claims “the commission ruled” the city was not violating the law, presumably blessing the city’s actions. That letter was not a “ruling” by the commission as the city claims — the commission never blessed the city’s actions.
The July 1, 2010 letter was an informal deputy division director’s response to an Aspen lawyer’s inquiry about the penstock and modifications to Thomas Reservoir. The deputy division director’s letter contained only a one-sentence conclusion based on material the city submitted. Federal bureaucrats send out thousands of such informal letters every year; they are only the views of the individual bureaucrats who write them. One can Google FERC’s rulings and decisions and never find that letter or others like it.
FERC is a commission of five individuals appointed by the president and confirmed by the Senate. A ruling can be obtained from the commission on disputed matters if the city really wants one. That happens when a contested matter is submitted to the commission (not done in this case), following which there are hearings before an administrative judge, the taking of witnesses’ sworn testimony with cross examination opportunities, and written representations and arguments under oath. In short, an orderly trial-like search for the truth. An administrative judge “rules.” There are opportunities for appeal to the commission of the administrative judge’s ruling. After all process is exhausted the commission is considered to have ruled.
No such process occurred here; the matter never was submitted to the commission. Yet the city claims the commission ruled. The members of the commission would be surprised to hear that an informal mid-level staff letter response to a lawyer’s inquiry was being called a ruling of the commission.
More importantly, the deputy division director’s response was only as good as the information the city had fed to her. The city’s May 28, 2010 letter represented (not under oath) that the penstock and other construction were safety improvements to the city’s water system that happened to be useful in connection with the hydro project. If that was true, FERC had no jurisdiction over those components. If it was not true, FERC had jurisdiction and could intervene. The city of Aspen said it was true (again, not under oath), and the deputy division director took no further steps to verify that assertion; she was not an administrative judge and had no access to processes to test the veracity of the city’s assertions.
Since 2010 numerous pieces have been written suggesting that the city’s unsworn representations to the deputy district director about the penstock and so on were not true. See for example http://aspenjournalism.org/  2012/06/04/aspen-defends-its-journey-from-penstock-to-drain-line/. To refresh memories, the city had claimed the penstock and Thomas Reservoir modifications were necessary safety measures required or recommended by the state and a consulting engineer. Documents reveal that any requirements and recommendations arose from the changes caused by the hydro project itself; there was no safety concern absent the hydro project.
One may believe or not that there was a safety need for the penstock and reservoir modifications. I read the documents and don’t believe it. I am not a water lawyer but I don’t need to be to understand the facts and decide what is right. If you have an open and inquiring mind you might want to read the documents and reach your own conclusion. Tip: Look for that elusive ruling by the commission.