Twin Lakes Reservoir and Irrigation Canal Co. is the lone objector standing in Pitkin County instream flow change case

Change of water rights cases often drag on until all parties come to agreement and stipulate out. In many cases objectors raise issues with the proposed change that can only be settled at trial in water court. It looks like a change case by Pitkin County — to leave agricultural water in the stream for riparian purposes — is heading to court because Colorado Springs wants to make sure that the change won’t leave them water short at Twin Lakes if there is a rebound call from downstream seniors or a Colorado River Compact call. Here’s an in-depth look at the issue from Brent Gardner-Smith writing for Aspen Journalism. Click through and read the whole article for the great detail and analysis along with graphics that help illustrate the issues at hand. Here’s an excerpt:

Pitkin County and the Colorado Water Conservation Board (CWCB) are finding it’s not easy to leave water in a river for environmental purposes.

The two entities have been working since mid-2010 to reach agreements with various opponents to a plan that would leave 4.3 cubic feet per second (cfs) of county water in lower Maroon Creek and the Roaring Fork River, instead of diverting it for irrigation purposes to the Stapleton Brothers Ditch near the base of Tiehack.

They’ve reached agreements with 10 opponents so far, but the 11th, an entity controlled by the city of Colorado Springs called the Twin Lakes Reservoir and Canal Co., is proving to be challenging.

On Thursday, attorneys for Pitkin County asked a judge in Division 5 Water Court in Glenwood Springs to set a trial date as the parties have not yet resolved their differences. Judge James Boyd set the five-day trial for Feb. 3, 2014. The case number is 10CW-184.

The trial results from an agreement between Pitkin County and the Colorado Water Conservation Board that was announced in 2009.

Mr. Gardner-Smith has published a shorter version of the story in conjunction with the Aspen Daily News. Here’s an excerpt:

“We have been in active settlement discussions with the applicants and have every intention of reaching agreement prior to trial,” said Kevin Lusk, a principal with Colorado Springs Utilities, the city’s water utility that controls Twin Lakes. “We believe that we have made significant progress and do not feel that the remaining issues are in any way insurmountable.”

Lusk also serves as president of the Twin Lakes Reservoir and Canal Co., which diverts significant amounts of water off the top of the Roaring Fork River basin each year, sending it in tunnels underneath the Continental Divide to Twin Lakes and eventually the Front Range.

“Twin Lakes has a fiduciary responsibility to its shareholders to protect its interests,” Lusk said. “Because of this, Twin Lakes routinely objects to water rights cases on the Roaring Fork when they are of significant size or if there is significant precedent involved.”

Lusk said Twin Lakes is concerned that a change to the county’s water right from irrigation to an instream-flow right may indirectly lead to a situation where Twin Lakes is allowed to divert less water off the top of the Roaring Fork River basin.

But the county and state say there will be no injury to Colorado Springs’ water rights if the 4.3 cfs is left in the river instead of being used for irrigation, especially as monthly flow limits have been placed on the water right consistent with its historic use.

“The maximum and average uses proposed … will prevent any expansion of use of the Stapleton Brothers Ditch water right,” stated engineers from Bishop-Brogden Associates, Inc., the firm working with the county and the CWCB, in a report submitted to the court.

The county owns a total of 8 cfs of water in the Stapleton Brothers Ditch, which diverts that amount and more from Maroon Creek near the base of Tiehack and takes it some 3 miles across the base of Buttermilk Mountain to Owl Creek.

The county’s water right in the Stapleton Brothers Ditch of 4.3 cfs has a 1904 priority date and was used by the Stapleton family to irrigate 163 acres of hay and alfalfa fields on land along Owl Creek.

Most of that land is now occupied by the lower half of the runway at the Aspen-Pitkin County Airport. And since the county no longer uses all of the water for irrigation, it wants to leave about half of it — or 4.3 cfs — in the river for the benefit of the riparian ecosystem.

If successful, Pitkin County would become the first entity in the state to legally leave its water in a river for environmental purposes via a long-term trust agreement with the CWCB, as allowed by a state law enacted in 200 via House Bill 08-1280.

“It is significant because it is the first long-term agreement since HB 1280,” said [Linda] Bassi of the CWCB.

More instream flow coverage here.

2012 Colorado November election: Aspen voters say no to proposed Castle Creek hydroelectric generation plant

From The Aspen Times (Andre Salvail):

By a mere 110 votes, Aspen voters rejected an advisory question designed to move the city’s controversial Castle Creek hydroelectric power project forward…

Tom and Maureen Hirsch, vocal opponents of the project and residents on the banks of Castle Creek, said they might have supported a city initiative that was more eclectic. A mix of micro hydroelectric projects with other types of renewable energy efforts such as wind and solar power would be more acceptable to the community, they said, but the city instead decided to focus all of its efforts on Castle and Maroon creeks…

Over the last two years, city officials and others supporting the project, including Mayor Mick Ireland, sought to turn the debate into one of environmental stewardship, saying the hydroplant on Castle Creek would eventually eliminate the city electric utility’s reliance on power generated by coal, a nonrenewable resource.

More hydroelectric coverage here and here.

Aspen: Environmental community divided over propose Castle Creek hydroelectric generation plant

From The Aspen Times via The Denver Post:

Big names in the environmental movement are lined up on both sides of the issue. Connie Harvey, Charlie Hopton and Ken Neubecker are opposed to the proposed plant. Harvey was a founder of Wilderness Workshop. Hopton has been a member of environmental causes and organizations in Aspen for several decades. Neubecker has emerged as a leading voice in the Roaring Fork Valley on water issues.

Those lined up in support of the plant include Auden Schendler, Randy Udall and Paul Andersen. Schendler is executive director of sustainability for Aspen Skiing Co. Udall was the original director of the Community Office for Resource Efficiency and has emerged as a national expert on energy issues. Andersen is a respected environmental essayist and a columnist for The Aspen Times.

Voters in the city of Aspen will cast ballots Tuesday on Question 2C, an advisory question on the Castle Creek Hydroelectric Facility.

Hopton said he has rarely seen the upper Roaring Fork Valley’s environmental community torn apart over an issue like it is over the hydroelectric plant. He has friends on both sides of the issue and avoids discussing it with those backing the proposal. He hasn’t taken an active role in the campaign.

More hydroelectric coverage here and here.

Aspen’s original (c. 1890) Pelton Wheel now on on display

From The Aspen Times:

A key part of Aspen’s former hydroelectric plant will go on display Tuesday in the Silver Queen Gondola Plaza.

The Pelton wheel hydroelectric turbine will be displayed starting at 10 a.m. The machinery was used around 1890 to convert falling water into electricity at the Castle Creek Hydroelectric Plant.

The historic equipment will be unveiled by Sam Perry, the great-grandson of DRC Brown, the original owner and operator of the Castle Creek plant. Perry is a Roaring Fork Valley native who is now president of Sollos Energy, which operates hydroelectric plants in other parts of the country.

The Pelton runner going on display is a smaller version of the same type of equipment that would be used in a proposed new Castle Creek hydroelectric plant.

More hydroelectric coverage here and here.

2012 Colorado November election: City of Aspen hydroelectric project on the November ballot

From The Aspen Times (Andre Salvail):

One [ballot question], arguably the most controversial, is a referendum question that asks voters whether the city should continue with a hydroelectric project on Castle Creek…

With regard to the hydroelectric plant, the city’s voters will be asked the following “advisory” question: “Shall the city of Aspen complete the hydroelectric facility on Castle Creek, subject to local stream health monitoring and applicable government regulations, to replace coal-fired energy with renewable energy?” The council and city staff agreed to the ballot language at an Aug. 28 work session, and no members of the audience spoke up to oppose it.

So far, the city has spent about $7 million on the hydroelectric project, which aims to take a portion of the water flowing from Castle and Maroon creeks to generate enough power to cover 8 percent of the city electric utility’s needs. In 2007, when voters approved a bond-issue referendum that set the hydroelectric project into motion, the project cost was estimated at $6.2 million. Cost overruns have resulted in a revised estimate of $10.5 million to complete the plant.

A petition drive led by local residents Ward Hauenstein and Maurice Emmer early this year set off a chain of events leading to the referendum question. The petition sought to overturn the council’s December rezoning decision allowing public land off Power Plant Road to be used for the plant. The proposed plant has drawn fierce opposition from some Castle Creek property owners as well as the nonprofit group American Rivers.

More hydroelectric coverage here and here.

It must be spring: Parks and Wildlife is stocking fish all over Colorado — cutthroats above Aspen

From The Aspen Times (Janet Urquhart):

The agency’s 2012 stocking schedule calls for the addition of 260,500 fish to Ruedi Reservoir east of Basalt, but most are of the “sub-catchable” variety — they’re only a few inches long. The Ruedi total includes 11,000 3-inch rainbows that were scheduled for stocking in April; 200,000 2-inch kokanee salmon to be stocked this month, 28,000 5-inch lake trout to be added to the reservoir throughout the summer and 31,500 10-inch rainbows, also to be stocked in batches through early August. The lake at Chapman Campground in the upper Fryingpan Valley will see the introduction of 1,500 10-inch trout over the course of the summer, according to the schedule. “The 10-inch fish is our typical stocker,” said Mike Porras, Parks and Wildlife spokesman. “We stock them in areas where fishing is a little more popular.” It’s the expectation that those fish will be kept when they’re caught.

In addition to the 10-inchers are the unexpected lunkers — brood fish that have been reared in state hatcheries specifically for egg production rather than introduction into lakes and streams. They’re typically big fish, and some will be culled from hatchery populations and added to popular fishing waters. Maroon Lake near Aspen, for example, has been the occasional repository of brood fish in past seasons. This year’s schedule calls for putting only 2-inch cutthroats (25,000 of them) in the lake, but that doesn’t mean some brood fish won’t find their way there.

The agency’s stocking strategy, however, is about more than emptying a tank of hungry trout into the water for eager anglers to take back out. “It’s much more complex than, we want people to catch fish and enjoy them,” Porras said.

In addition to the plans for Ruedi and Maroon Lake, roughly 100,000 fish are scheduled to be stocked in other high-mountain lakes and streams this summer, in quantities that range from 100 fish to 1,000 or several thousand.

Roaring Fork Valley: Friends of Rivers and Renewables forms to promote ‘civil discussion’ the proposed hydroelectric generation station

From The Aspen Times (Andre Salvail):

The organization, Friends of Rivers and Renewables, is an offshoot of Old Snowmass resident Tim McFlynn’s nonprofit Public Counsel of the Rockies. McFlynn served as a mediator last year in negotiations between city officials and Castle Creek project critics, a process that led to the city’s “slow start” concept for the plant and other compromises.

Old Snowmass resident Chelsea Congdon Brundige, a documentary filmmaker and conservationist, will serve as director of the new organization. The group is seeking to provide a “grassroots educational effort to engender a more collaborative, less confrontational discussion of the important issues raised by the city’s proposed hydropower project,” according to a statement.

In a phone interview on Thursday, Brundige said she understands that city officials and other project supporters likely will look upon her group as another gadfly organization that hopes to cast the Castle Creek Energy Center in a negative light and eventually stop the project. But that’s far from the case, she said.

“This is a project that we would like to pursue for at least the next 10 years,” Brundige said. “The nexus between what we do in western Colorado about energy and what we do about water are going to be the two most important subjects for the next 50 years. All you have to do is look at the drought that we’re going to have this summer and realize how important it is for us to dig really deep and develop a good understanding and community dialogue about what our clean energy choices are and what we should be doing to protect our rivers and streams.”

Meanwhile, Aspen’s report to the Federal Energy Regulatory Commission contained errors. Here’s a report from Brent Gardner-Smith writing for the Aspen Daily News. From the article:

City officials say once the mistakes in the report are corrected, the estimate of net power to be produced by both the new Castle Creek hydro plant, and the existing Maroon Creek plant, will likely be shown to be 6.1 million kilowatt hours a year, down from a previously estimated 6.4 million hours.

The report, as it was submitted to the federal government, indicated that the net power generated by both plants would be 5.4 million kilowatt hours.

The report, an “assessment of project operation, stream flow and power generation” relating to the proposed Castle Creek Energy Center, was dated Wednesday, April 4 and submitted to FERC the same day.

It was prepared by Kerry Sundeen, a hydrologist and president of Grand River Consulting in Glenwood Springs, who has been advising the city on its proposed hydro project for several years.

At least some of the information in the report was specifically requested by officials at the FERC, which is in the process of reviewing the city’s license application for the new hydro project.

Mitzi Rapkin, the city’s communications director, said that Aspen City Manager Steve Barwick noticed some of the mistakes over the weekend while reading the report, and that a story in Monday’s Aspen Daily News prompted other city officials to take a closer look at the report.

Here’s a report about FERC’s visit to Aspen this week, from Curtis Wackerle writing for the Aspen Daily News. From the article:

But Jim Fargo, a project manager with the FERC based in Washington, D.C., said the city of Aspen’s proposal is on the agency’s radar to a greater extent than other small projects. For one, he said he’s seen in submitted public comments, and in the local press, sufficient confusion about the federal licensing process the city is entering. So he gave a presentation at Tuesday’s public meeting to the 50 or so gathered on the “traditional licensing process,” explaining how it requires a vetting of all studies presented and a review under the National Environmental Policy Act (NEPA). At best, the remainder of the licensing process will take another two-and-a-half to three years, he said.

Later in the process, people can formally contest information and file protests. However, “because of the level of controversy on this project, it’s being treated like it’s already a contested proceeding,” Fargo said.

Anyone is welcome to contact him at his office with process questions — (202) 502-6095 or james.fargo@ferc.gov — but he said he can’t debate the merits of the project due to the formal nature of the proceedings.

At this stage in the game, the city is still in the pre-application phase. Within 12 to 18 months, it will officially submit its license application and go through a NEPA process, requiring either an environmental assessment document or an environmental impact statement. But at this point, the feds are interested in public and stakeholder comments on what else still needs to be done — as far as studies conducted or data collected — to fully understand the project’s environmental impacts, said meeting facilitator Pamela Britton of Community Engagement Associates, who was hired by the city.

More hydroelectric coverage here and here.

Aspen: FERC is coming to town today to work on the permit for the proposed hydroelectric generation plant

From the Aspen Daily News (Curtis Wackerle):

There will also be a public meeting Tuesday evening with city and FERC officials to explain details of the project and take questions.

Beginning at 1 p.m.,, city officials will lead site visits to five locations associated with the new hydro project. The field trip will visit diversion facilities on Castle and Maroon creeks, where the city takes its water for consumptive and hydro power purposes. There will also be visits to the existing Maroon Creek hydro facility, the water treatment plant at Thomas Reservoir and the site of the proposed new hydro plant under the Castle Creek highway bridge. Registration for the field trip closed last week. About 30 people, including two FERC representatives in from Washington, D.C., are signed up to go along.

Beginning at 5 p.m. Tuesday at the Rio Grande conference room in the building above Taster’s Pizza, the city will hold a meeting open to the general public. The meeting’s purpose is to “present information and have a dialogue,” said David Hornbacher, the city’s director of utilities and environmental initiatives.

The meeting kicks off a 60-day comment period with the feds where the public is invited to weigh in on the project as FERC considers granting a license. The city is proposing to build a plant taking up to 52 cubic feet per second of water from Castle and Maroon creeks to feed a generator that could produce an average of 6.8 million kilowatt hours of electricity a year.

More hydroelectric coverage here and here.

Aspen: Opponents of the proposed hydroelectric plant hope to install stream gages on Maroon and Castle creeks to bolster their argument

From the Aspen Daily News (Brent Gardner-Smith):

A stream gauge suitable for inclusion in the U.S. Geological Survey (USGS) system cost between $20,000 and $35,000 to install, depending on the site, and $16,000 a year to operate. Saving Our Streams, a recently formed nonprofit that is challenging the city’s proposed hydro plant, wants at least one gauge on both Castle and Maroon creeks in order to keep an eye on how much water is left in the streams below the city’s diversion dams. Maureen Hirsch of Saving of Streams has contacted federal officials with the USGS, who have agreed to make a site visit this winter to the Aspen area…

For Our Rivers and Renewables, a new initiative from the Aspen-based Public Counsel of the Rockies, also wants gauges on those two streams. The group also is calling for new gauges on the Roaring Fork River in Aspen, on Hunter Creek and on the lower Crystal River. “It’s time to get the Roaring Fork River basin properly gauged,” said Tim McFlynn of Public Counsel for the Rockies. “It’s shockingly overdue.”

But the expense of doing so can be shocking as well. To install five streamflow gauges up to the standards of the USGS and to cover 10 years of operations and maintenance on them could cost $900,000…

Bill Blakeslee, the state water commissioner charged with managing local water diversions, said gauges are the best way to solve water disputes. “Anybody can produce a study, but without a consistent measuring device in the stream, everybody is just kind of blowing smoke,” he said. But Blakeslee warned that enthusiasm for new gauges tends to wane when it comes to paying for the ongoing maintenance and operational costs of them, which are prone to freezing up in the winter and need to be routinely checked.

Leaders from both Share Our Streams and For Our Rivers and Renewables say they are seeking funding for gauges from both private and public sources. Share Our Streams’ members include two billionaires and several other wealthy homeowners on Castle and Maroon creeks. Hirsch said one member already has agreed to fund one gauge.

More hydroelectric coverage here and here.

The Aspen Daily News is running a look at the parties suing the city over the proposed hydroelectric generation plant

Here’s a report from Brent Gardner-Smith writing for the Aspen Daily News. Click through and read the whole article for all the detail. Here’s an excerpt:

The city of Aspen, through its Denver-based water attorney, filed a motion to dismiss the lawsuit this past fall based on the notion that the plaintiffs don’t have standing to challenge the city’s water rights.

The plaintiffs recently submitted information to the court either detailing their water rights or giving other reasons why they should be allowed to sue the city over its water rights.

In the mix of property owners are two billionaires and two Aspen locals with a history of successfully taking on local governments.

The property owners sued the city in September 2011 in state water court in an effort to strip the city of its right to use water from the creeks for a new hydropower plant.

The city responded three weeks later by telling Judge James Boyd that the property owners don’t have the right to make their claims.

“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 a motion to dismiss the case.

The plaintiffs responded Oct. 24 with a 14-page brief and 155 pages of exhibits documenting their water rights and other interests.

The plaintiffs claim that since the city has not used its hydropower water rights on the two creeks since 1961, it no longer has the right to divert 25 cubic-feet-per-second of water from Castle Creek and 27 cfs from Maroon Creek for hydropower use.

More hydroelectric coverage here and here.

Aspen files preliminary paperwork with FERC for the proposed Castle Creek hydroelectric generation plant

From the Summit County Citizens Voice (Bob Berwyn):

The filing is the first step in a formal review process that eventually could enable the town to produce about 8 percent of its needed electricity from a clean and local source — but the project is not without controversy, as some critics claim that the power generated by the facility isn’t worth the potential harm it could cause to Castle and Maroon creeks by reducing stream flows.

For the town, the Castle Creek project is a key component in providing renewable energy sources to the Aspen community. According to the town’s website, the energy center will not only provide power, but serve as a renewable energy model, education center and museum, reducing CO2 emissions by about 5,000 tons. The turbine and generator convert the force of water falling from 325 feet, from the Thomas Reservoir, into electric power. The water will travel a 42 inch penstock (pipe) which will supply the plant with approximately 52 cubic feet per second of head and double as an emergency drain line for the Thomas Reservoir if the reservoir walls are breached. The electricity will be placed on the City of Aspen electric grid to power the Water Treatment campus, and may potentially produce hydrogen for fuel cells and hydrogen vehicles.

More hydroelectric coverage here and here.

Aspen: City council approves zoning for proposed Castle Creek hydroelectric generation plant

From The Aspen Times (Andre Salvail):

For nearly nine hours split between two meetings at Aspen City Hall on Monday, experts, consultants, residents and city officials debated the pros and cons of the proposed Castle Creek hydroelectric facility.

When the discourse was finally over at 10:20 p.m., the City Council voted unanimously to advance the project, conditionally approving a staff request to rezone property off Power Plant Road west of Aspen for a 1,761-square-foot building that would serve as the plant’s operations center. The vote also removes the land from the city’s open space inventory…

Council members heard from numerous opponents throughout the day, some of them landowners along the banks and within the watershed of Castle and Maroon creeks. An afternoon work session was designed to answer questions elected officials had about the project at large; the council’s regular meeting during the evening was supposed to focus only on the land-use request. In both instances, the public was allowed to comment…

The day began at 11:30 a.m., prior to the 1 p.m. work session, when representatives of the Washington, D.C.-based group American Rivers discussed a report it commissioned to evaluate the economic feasibility of the project.

The report, conducted by Tier One Capital Management LLC, questions the city’s estimate of $10.5 million for the project’s cost and puts the actual price tag at more than $16 million, citing interest payments on bonds used to finance construction. City officials have disputed the report and its conclusions, saying that it contains “egregious errors.”

At the work session, City Manager Steve Barwick discussed financial aspects of the plant and noted that the city need only spend a little more than $3 million more to complete the project. Most of that amount is for the building on Power Plant Road. An estimated $275,000 has been projected for handling the FERC application process.

Barwick stressed that the project is the best way to further the city’s goal of supplying 100 percent renewable energy through its electricity utility. He said every financial model shows that the new plant would save the community money in the long run.

More hydroelectric coverage here and here.

Aspen: The city council will discuss the Castle Creek hydroelectric generation plant on Monday

From The Aspen Times (Andre Salvail):

Matt Rice, Colorado director for American Rivers, said his organization wasn’t trying to “drop a bomb” in advance of the city’s meetings. He said the report, released Thursday, was intended for council members, city officials and others involved in the debate over the merits of the project. Rice also expressed disdain for a press release the city issued Friday stating that the American Rivers-commissioned report contains “egregious errors.”[...]

A work session at 1 p.m. Monday is designed to give council members answers to some long-pressing questions surrounding the project; the council’s regular meeting Monday evening will include a public hearing on a zoning request for the proposed facility, dubbed the Castle Creek Energy Center.

At the core of the organization’s report, researched and prepared by Tier One Capital Management LLC, is an estimate that the project will cost between $16 million and $18 million, with $7.3 million in interest payments over the life of bonds used to finance construction. The city of Aspen has disclosed a capital cost of $10.5 million, according to Tier One.

The city’s financial analysis, Tier One claims, does not include debt service on the $5.5 million bond that local voters approved in 2007. “Debt service will add significantly to the cost of the project, and it is inappropriate not to consider debt service in assessing financial feasibility,” the report states.

“Tier One concludes that the project is not cost effective,” the report continues. “Given the very high price of this project and debt service extending for 28 years, future electrical rate increases are a likely result.”

The city’s Friday statement says that Tier One’s alternative analysis of the project’s costs includes “many factual errors and egregious mistakes.” The city listed what officials have determined to be “three of the most fundamental” errors:

— Tier One “incorrectly states that the city of Aspen didn’t consider debt service” in its analysis.

— Tier One’s conclusion that the project should be abandoned is deeply flawed “due to its failure to consider only the incremental costs needed to complete the project [as] opposed to considering investments already made with benefits for projects other than the hydro plant.”

— Tier One “assigned ridiculously low inflation rates” for the cost of coal -— a power source on which the city is hoping to lessen its dependence through hydropower — using rates between .3 percent and .6 percent annually.

More hydroelectric coverage here and here.

Aspen: City Council approves application for a ‘minor water power project license’ from FERC

From the Aspen Daily News (Curtis Wackerle):

City Council on Monday voted unanimously to abandon its application for a “conduit exemption” in favor of a “minor water power project license” from the Federal Energy Regulatory Commission, which is a more rigorous review process. The city estimates that the change will mean an additional $250,000 in expenses…

Council also approved a memorandum of understanding (MOU) with the Colorado Division of Wildlife that aims to protect the riparian environment of the creeks. The MOU requires the city to maintain a minimum stream flow of 13.3 cfs below its existing diversion structure on Castle Creek, which will be used to siphon water for the hydro plant, and a minimum stream flow of 14 cfs in Maroon Creek below the diversion structure there.

The MOU, in trying to get at optimal stream health as opposed to minimum stream flows, also establishes a 10-year monitoring program. If macroinvertebrate population, fish population or biomass decreases, and they can be tied to hydro plant operations, the city will be required to take steps to reverse the damage to the creeks, including scaling back diversions, according to the MOU…

When Maureen Hirsch, who is one of eight plaintiffs in the lawsuit filed last month, suggested that permanent streamflow monitors be placed on the creek and that the monitoring go on for more than 10 years, Aspen Mayor Mick Ireland told her it would be very difficult to work with her and others who are suing the city.

“This is very hostile litigation,” Ireland said, holding up a copy of the complaint. “It’s very aggressive and divisive and I can’t say that I really appreciate it.”

More hydroelectric coverage here and here.

Aspen files motion to dismiss in hydroelectric power generation water rights case

From The Aspen Times (Andre Salvail):

The Oct. 5 motion states that Saving Our Streams, a nonprofit group made up of several local landowners that filed its complaint with the court in mid-September, has failed to “allege facts sufficient” to back up its claim.

According to the city’s motion, the SOS suit seeks a court judgment that Aspen abandoned one particular component — hydroelectric power production — of the municipal uses that accompany three separate water rights for Castle, Maroon and Midland creeks.

The city’s motion states that the three water rights were granted to various companies in the late 19th century for “municipal customers” and that the city acquired those rights in 1956. Those rights included “hydroelectric generation and domestic purposes” for Castle and Midland creeks, and were confirmed through a court decree in 1949.

The 1949 decree also confirms a water right for a diversion from Maroon Creek “in the amount of 65 cfs [cubic feet per second]” stemming from an appropriation in 1892, according to the motion.

The motion states that the SOS suit “does not identify which plaintiffs own water rights, what water rights they may own or how those water rights are or may be affected with respect to the alleged abandonment of the hydropower component” of the city’s water rights.

Further, “plaintiffs tacitly admit that some of them do not own or control any water rights,” the motion says. “If a plaintiff fails to allege or demonstrate that its rights, status or other legal relations will be affected, the plaintiff has no standing … and a declaratory judgment should not be entered.”

Also, the SOS suit fails to meet the law’s “injury-in-fact requirement” in which the challenged conduct of a defendant causes or threatens to cause injury to the plaintiff’s present or imminent activities.

More hydroelectric coverage here and here.

In a lawsuit filed last Thursday ‘Saving Our Streams’ is claiming the the City of Aspen has effectively abandoned their hydroelectric power generation right on Castle and Maroon creeks

From The Aspen Times (Andre Salvail):

Saving Our Streams, an environmental organization whose stated mission is to support local streams and to ensure that diversions of water do not compromise the health of fragile ecosystems, filed the lawsuit. The group was formed in February.

The lawsuit, which seeks to stop the city from moving forward with plans for a hydroelectric plant, was not unexpected. One of the plaintiffs, Aspen businessman Dick Butera, suggested during a City Council meeting in late June that it was likely.

Other plaintiffs are: Yasmine Depagter, Maureen Hirsch, Joseph and Sheila Cosniac, Kit Goldsbury, Elk Mountain Lodge LLC, Crystal LLC, American Lake LLC, Ashcroft LLC, B&C LLC and the Bruce E. Carlson Trust. They all own property along or adjacent to the creeks.

More coverage from Curtis Wackerle writing for the Aspen Daily News. From the article:

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…

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…

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…

“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.

More hydroelectric coverage here and here.

Energy policy — hydroelectric: Aspen’s Maroon Creek micro-hydroelectric plant generates 2.7 percent of the city’s supply on average

From the Aspen Daily News (Curtis Wackerle):

Total capital costs on the plant, from the original construction through today, including the Deane buyout, equal $1.33 million, according to the city. Combined with operating costs of $182,500 since 1994, that brings total Maroon Creek plant expenses to $1.51 million…

Since the new turbine was installed and the necessary repairs completed, Maroon Creek hydro has supplied an average of 2.7 percent of the city electric utility’s power. Numerous factors, including natural streamflow and maintenance issues, determine how much power the plant can generate on an annual basis, but the number has reached as high as 2.27 million kwh in 2007 and as low as 1.1 million kwh in 2010…

The city transfers the electricity to the Holy Cross Energy grid, and is given a credit for the power on its monthly bill from the Nebraska utility — the Municipal Energy Agency of Nebraska (MEAN). Over the life of the plant, the price the city has paid for MEAN power averages out at 3.8 cents per kwh, which brings the value of the Maroon Creek energy transfer at $990,000 since 1994. The price of MEAN power — and thus the city’s reimbursement rate for its hydropower — continues to rise and currently averages about 5.5 cents per kwh, Overeynder said. The city also saves money from the power it generates by not being charged “wheeling” and “facilities” fees. Wheeling refers to the cost of transferring MEAN power from Nebraska, and the Maroon Creek plant has saved $107,136 in those fees over the 16 years since good records have been kept…

When the plant was originally proposed, environmental concerns about streamflow were raised, just as they have been with the current Castle Creek plan. The city ended up amending its original proposal for the Maroon Creek plant, which would have left a minimum of 8 cfs in the creek, upping the minimum streamflow to 14 cfs.

More hydroelectric coverage here

and here.

Energy policy — hydroelectric: Aspen’s water rights for their proposed project are in question

From Aspen Journalism via the Aspen Daily News (Brent Gardner-Smith):

“The city of Aspen water department does not have the water rights for a hydro plant on Castle Creek, period,” Dick Butera told Aspen City Council at a June 27 meeting. Butera owns a large home overlooking Castle Creek just below the city’s diversion dam on the stream. He told the council that he and a group of other local landowners are willing to sue the city to prevent the hydro project from going forward.

Butera made his comments at a meeting when council approved increasing the spending authority for the hydro plant and an associated pipeline from $7.3 million to $8 million, and transferring $2.8 million from the water fund to the renewable energy fund to cover the cost. “Two of the leading water attorneys in the state of Colorado have both said to our committee that we have a 90 percent chance of winning the case to prove that the water department does not even have the water rights,” Butera said.

But Aspen’s water attorney maintains that the municipal government’s water rights remain in good standing and the city has never intended to abandon its option to use the water for hydropower. “The city has decreed absolute water rights,” said Cynthia Covell, an attorney with Alperstein and Covell in Denver. “They are decreed for power purposes and they have never been found to be abandoned in any court proceeding. I think that the city can do the project that it wants to do with the water rights it has.”[...]

Sarah Klahn, an attorney hired by Pitkin County to independently review the city’s hydro project, said last week that even if an abandonment lawsuit was successful, the city could still likely obtain new water rights for the new hydro plant. “I know that it is possible to still get a new appropriation, especially on a non-consumptive use,” said Klahn, who is with White & Jankowski in Denver…

Covell, the city’s water attorney, has a different take on the matter. “The fact that the city stopped generating electricity at that time does not mean they abandoned the right to do so,” Covell said. “The city has not intended to abandon. And intent is a piece of abandonment. We think we can defend an abandonment case.” Still, city officials are aware there is a danger of losing all or some of their water rights by not exercising them.

More hydroelectric coverage here and here.

Energy policy hydroelectric: Aspen’s proposed generation plant update — city utilities is asking council for $1.02 million budget increase

From the Aspen Daily News (Curtis Wackerle):

The original project budget in 2007 was $6.19 million. An analysis of city records shows that increases in the budget for the pipeline makes up $1.19 million of the difference between the 2007 budget at the current requested budget authority.

The pipeline, which was mostly constructed last summer, would feed up to 52-cubic-feet per second of water into a hydroelectric generator located in the proposed “energy center” under the Castle Creek Bridge. The pipeline was originally budgeted for $1.9 million, meaning it’s cost have risen by about one-third. The city is also installing the pipeline as a precautionary measure, as it can serve as an “emergency drainline” to empty the reservoir should it ever get too full. Thomas Reservoir stores water for the municipal consumption and is located above the water treatment plant on Doolittle Drive, near the Aspen Valley Hospital.

The cost of the pipeline increased because of challenges encountered during construction, city utilities director David Hornbacher said. The alignment had to be rerouted numerous times to get around utility lines the city didn’t know were there, and the work had to be modified as required by a state permit, he said…

While most of the hydro plant’s budget overruns to date have been driven by hard costs, the big variable in ongoing expenditures is the federal permitting process.

The city recently said it would withdraw its controversial “conduit exemption” application in favor of going for the more standard small project license from the Federal Energy Regulatory Commission (FERC). The conduit exemption — which would have required a less-stringent environmental review — was based on the premise that the plant would be part of the municipal water system because it would be attached to the pipe ostensibly put in to drain Thomas Reservoir.

The FERC license requires an environmental assessment, requiring more time and money than the city had originally planned. The formal license application is expected to be submitted this summer.

More coverage from Andre Salvali writing for The Aspen Times. From the article:

“I’ve been in Aspen long enough to know the truism, ‘to delay is to deny,’ ” Aspen Mayor Mick Ireland said, in reference to one speaker’s idea that the city should switch gears and explore other ways of tackling the project.

“I think there are opponents of this project who absolutely, under no circumstance, want to see it happen. The strategy in Aspen has traditionally been, ‘Well, we’ll get a new council in two years and we’ll get a new outcome.’ And we have had things in Aspen that should have been done 30 or 40 years ago because of the strategy of delay.”

Ireland and others were participating in “Hydropower in Aspen” at the Aspen Institute’s Paepcke Building. The presentation and panel discussion, which allowed questions from the audience, was hosted by the Western Rivers Institute, a Carbondale-based nonprofit that advocates healthy rivers and ecologically responsible development of hydropower…

Earlier in the forum, Ireland said the city’s plans respect the ecosystems of Castle and Maroon creeks. He said the renewable-energy project will be another way in which Aspen sets an example for other communities by working to reduce the carbon footprint and its dependency on coal-generated power.

More hydroelectric coverage here.

Energy policy — hydroelectric: Aspen plans to draw down Thomas Reservoir this summer for construction of new outlet and penstock

From the Aspen Daily News (Curtis Wackerle):

Beginning in July, the city will empty the reservoir, which stores water for the municipal water treatment plant on Doolittle Drive. It will remain dry for about three months, said Dave Hornbacher, the city’s deputy director of utilities and environmental initiatives…

Most of the $2.3 million 42-inch pipeline, running from the reservoir to the site of the proposed plant, was constructed last summer and fall. Crews still need to install the final 200 feet of pipe leading up to the earthen dam. They will then bore through the dam, build an intake structure and hook up the pipe. The state of Colorado’s Division of Water Resources granted a permit for the work this spring. That permit also requires the city to upgrade a spillway on the east side of the reservoir, so there will be even more capacity to release water form the reservoir in case levels rise too high.

The pipeline is a crucial part of the city’s proposed hydroelectric plant. Voters in 2007 approved $5.5 million in bonds — with a maximum repayment of $10.7 million — to build the plant, which would be located under the Castle Creek Bridge. The pipeline would feed up to 52 cubic feet per second (cfs) of water into a turbine, generating up to 8 percent of the municipal utility’s electricity needs.

More hydroelectric coverage here and here.

Energy policy — hydroelectric: $50,000 allocated from Pitkin County’s Healthy Rivers and Streams Fund to fund development of a diversion protocol for the proposed Castle Creek hydroelectric plant

From The Aspen Times:

The result will be something that can be applied to other transbasin diversions, according to John Ely, county attorney. The city’s project, which would divert water from Maroon Creek that would not be returned, constitutes a transbasin transfer of water, he said…

The information will be useful when additional diversions are proposed in the headwaters of Pitkin County, predicted Commissioner Rachel Richards. And, she said, the city contributes to the tax revenue that supports the Healthy Rivers and Streams fund.

More hydroelectric coverage here and here.

Energy policy — hydroelectric: Accuracy of Pitkin County’s streamflow data in question

From The Aspen Daily News (Curtis Wackerle):

Boulder firm AMEC Earth and Environmental, hired by Pitkin County, found that the city may have overestimated stream-flows by as much as 30 percent at the diversion points where water would be taken out of Castle and Maroon creeks to feed the hydroplant. “If such an error exists and is ignored,” wrote Tim McFlynn, who has been organizing the mediation effort, “hydropower and revenue generation would be overestimated and healthy bypass flows in streams would be similarly impacted.”

The closed-door mediation session was scheduled for Feb. 8 in an attempt to bridge the gap between supporters and opponents of the project. But comments from the panel of experts hired by the county’s Healthy Rivers and Streams board for $50,000, which were submitted to the city two weeks ago, have prompted facilitators to take a time-out.

More hydroelectric coverage here and here.

Energy policy — hydroelectric: Pitkin County’s Healthy Rivers and Streams Board is concerned with Aspen’s proposed Castle Creek hydroelectric plan

From The Aspen Times (Janet Urquhart):

The board, which met Monday, forwarded a two-page letter to David Hornbacher, the city’s deputy director of utilities and renewable energy, on Friday — the final day the city was accepting comments on its draft application to the Federal Energy Regulatory Commission for the hydro plant. Attached were 58 pages of attachments comprising the analyses of four experts hired by the county rivers board to review the city’s studies of the project. The county spent $50,000 on the review, which involved a Denver water attorney, Boulder engineering consulting firm, an aquatic specialist based in Eagle and a Telluride firm hired to review the expected energy output of the plant.

“We have significant concerns about the health and quantity of the waters in Castle and Maroon creeks,” said the board’s letter, signed by Chairman Greg Poschman. “The city’s hydroelectric project represents a potential conflict with the mission of our board.”

Among the board’s suggestions: The city should define and preserve a “healthy” streamflow as opposed to merely adhering to minimum streamflows.

The board also called on the city to make a legal commitment to maintain stream quality and quantity throughout the year as part of its operation of the hydro plant, and concluded that more complete data is needed over a longer period of time in order to assess the impacts associated with the hydroelectric facility.

Aspen is seeking a “conduit exemption” from the Federal Energy Regulatory Commission for its project. Such exemptions, granted for small hydroelectric projects that use infrastructure that is primarily used for other purposes, involve less onerous environmental reviews.

More hydroelectric coverage here and here.

Energy policy — hydroelectric: Public comment period for proposed Aspen hydropower project closes January 18

From the Aspen Daily News (Curtis Wackerle):

While only two comments having been submitted so far — both in favor of the project, which could generate power for up to 600 homes — a committee of experts hired by Pitkin County’s tax-supported Healthy Rivers and Streams Board is in the process of reviewing thousands of pages of documents on the proposed hydro facility. The board is aiming to complete its report in advance of the Jan. 18 deadline for comments on the draft application. The public has a 90-day window to submit comments to the city on the draft application, which was filed in mid-October. Once comments have been submitted, the city will consider them prior to finalizing its application to FERC. “The idea behind that is once we’ve had the 90 days, we’ll take those comments, and if there are any comments that might constitute making a change to the application, we would make those revisions,” City of Aspen Deputy Director of Utilities and Environmental Initiatives Dave Hornbacher said, adding that nothing has come in yet that would lead to any changes.

More hydroelectric coverage here and here.

Energy policy — hydroelectric: Aspen hydroelectric plant application filed with FERC

From the Aspen Daily News (Curtis Wackerle):

The city on Friday submitted its draft application for a conduit exemption to the Federal Energy Regulatory Commission (FERC). A conduit exemption would waive the formal FERC licensing process, which would likely include an environmental assessment or environmental impact statement.

The 521-page document explains why city officials believe the project qualifies for the conduit exemption.

It contains a report from Miller Ecological Consultants, which states that a minimum stream flow of 13.3 cubic feet per second (cfs) would be sufficient to maintain a healthy Castle Creek. It also contains intergovernmental agreements regarding stream monitoring and in-stream flows with the Colorado Division of Wildlife (DOW) and the Colorado Water Conservation Board (CWCB). It also includes about a dozen letters that have been filed in opposition to the conduit exemption…

Conduit exemptions are granted for small hydroelectric projects — defined as 15 megawatts or less — that use infrastructure that is not primarily intended for the generation of hydroelectricity. City officials claim that standard is met by a drainline currently under construction from Thomas Reservoir to Castle Creek near the site of the proposed hydro plant. City officials say the 4,000-foot-long drainline, approved in April at a cost of $2.3 million, is a necessary safety feature for Thomas Reservoir, which lacks adequate discharge capacity if there was ever an emergency. But the drainline also would be a “penstock” to feed water from the reservoir into a hydroelectric turbine in the proposed building underneath the Castle Creek Bridge…

A conduit exemption also requires that water used to generate electricity be discharged back into a conduit, into a point of municipal consumption or into a natural body of water if the same amount of water is re-diverted further downstream for municipal purposes. The application, prepared by Boulder law firm Dietze and Davis, states that discharging the water from the hydro plant into Castle Creek sustains an “in-stream flow” water right held by the CWCB. The in-stream flow constitutes a “point of municipal consumption,” according to the application. To come to that conclusion, the application argues that the CWCB is a municipality as defined by FERC. Further, the application cites case law which found that municipal consumption does not necessarily mean physically removing water from a river or stream…

By returning the water to the stream to meet a minimum stream flow requirement, the city and the water conservation board fulfill a municipal purpose, according to the application. The document, while arguing that it meets the discharge requirement, simultaneously asks for a waiver from that provision. “It’s just a belt and suspenders approach,” Kumli said. “We’re being careful to use FERC law in a manner that is fair [and consistent] with the way FERC approves hydroelectric projects.”[...]

Meanwhile, the Aspen City Council is considering whether to grant local land use approval for the hydro plant. Public hearings on the project began this summer, but have been tabled while a group of citizens and Pitkin County’s Healthy Rivers and Streams Board undertakes further study of the project. A group of citizens also is attempting to convene mediation meetings between project opponents — some of whom are considering lawsuits if the hydro plant is approved — and the city.

More hydroelectric coverage here and here.