Aspen’s request for faster review of hydro draws opposition

A streamlined process? Maroon Creek in late summer, with about 14 cfs of water flowing through it, just below the city's diversion dam.

Brent Gardner-Smith

A streamlined process? Maroon Creek in late summer, with about 14 cfs of water flowing through it, just below the city's diversion dam.

The city of Aspen’s request to the feds to use an expedited review process for its Castle Creek hydroelectric project has run into stiff opposition based on comments submitted to the agency that’s reviewing it.

Scott Fitzwilliams, the supervisor for the White River National Forest, sent a letter to the Federal Energy Regulatory Commission (FERC) on January 10 in response to the city’s request to use a “traditional licensing process” instead of an “integrated licensing process,” or ILP.

The Forest Service recommended that a more lengthy review process be employed for the Castle Creek hydroelectric project because it allows FERC staff to be involved from the beginning and a process similar to full-blown NEPA (National Environmental Policy Act) review will occur. There also is more opportunity for back-and-forth discussions regarding study designs, dispute resolution and public participation, Fitzwilliams wrote.

For Matt Rice, the director of conservation at the Colorado chapter of the nonprofit organization American Rivers, the letter from the Forest Service to FERC is a big deal. American Rivers opposes the city’s request for an expedited process and is questioning the project’s environmental impacts.

“It’s huge,” Rice said. “We have not had very much success requesting an alternate licensing process without a request from a federal agency as well.”

City officials in December filed a pre-application document and a request to use the “traditional licensing process,” or TLP, with the federal agency.

FERC, based in Washington, D.C., issues licenses for hydro projects.

The city told FERC officials that going the TLP route would save time, money and prevent unnecessary duplication of effort when reviewing the proposed Aspen hydro project, which would use water diverted from Castle and Maroon creeks to spin a turbine to make electricity.

A technician from the city of Aspen using a device to measure streamflow in Maroon Creek in summer 2010. Much of the debate over Aspen's hydro proposal comes down to how much water will be left in Maroon and Castle creeks, and when.

Brent Gardner-Smith

A technician from the city of Aspen using a device to measure streamflow in Maroon Creek in summer 2010. Much of the debate over Aspen's hydro proposal comes down to how much water will be left in Maroon and Castle creeks, and when.

“The use of the TLP will allow the city of Aspen to continue to utilize the substantial activities and stream condition data it has already undertaken, and will result in [the application for a minor water] power project being filed in the most timely and efficient manner possible,” reads a letter to the FERC from attorney Karl Kumli of Dietze and Davis, a Boulder law firm hired by the city for the hydro project.

But opponents of the project told FERC officials a much different story in their comment letters.

“The city of Aspen is still trying to simply dismiss and sweep these very real and unanswered questions aside, hoping that FERC won’t notice,” wrote Ken Neubecker, director of Carbondale-based Western Rivers Institute.

The city first sought a complete exemption from FERC, saying that it was grandfathered in for a hydro facility because it operated one on the banks of Castle Creek from 1893 to 1958.

When the exemption effort didn’t pan out, the city then applied to FERC for a “small conduit” exemption, claiming that elements of the new project are part of the city’s existing municipal water system.

After the city was widely criticized for that approach, Aspen City Council agreed to go through the “front door” of FERC. But once inside the door, the city asked again to proceed down an expedited path, the so-called TLP.

And again, opponents are crying foul.

“We applauded Aspen’s decision to withdraw its small conduit exemption application, hoping such withdrawal marked the beginning of a commitment by Aspen to be more inclusive of the public in its process,” wrote Amelia Whiting, the legal counsel for Trout Unlimited in Colorado. “So far, our hopes appear to be unfounded.”

American Rivers and Rice also filed comments with the FERC in support of the more expansive licensing process, stating that “at every turn, Aspen has attempted to take procedural shortcuts that would limit its exposure to public scrutiny and meaningful environmental review.

“There are significant natural resource issues yet to be resolved and there is an extremely high level of controversy surrounding the proposed project,” Rice wrote to FERC. “Our experience has shown that the ILP’s structured approach to application development makes working out these difficult issues much easier and helps to ensure that the public has an opportunity to contribute meaningfully to the content of a license application.”

Other organizations and individuals who filed comments opposed to the city’s proposed process route are Rick Lafaro, the executive director of the Roaring Fork Conservancy, Tim McFlynn of Public Counsel of the Rockies, as well as Aspenites Connie Harvey, Tillie Walton and Tom and Maureen Hirsch.

Also filing comments in opposition to the city’s request was Paul Noto, a water attorney with Patrick, Miller & Kropf who represents a group of Aspen property owners who live along Castle and Maroon creeks, and are suing the city over its water rights for hydro.

“This project is extremely controversial and has a broad and diverse group of stakeholders which oppose the project as proposed,” Noto wrote. “FERC should deny the city’s request to use the TLP because it will result in a more contested, lengthy and costly licensing process, and is more likely to result in a contested licensing decision.

“The FERC-driven ILP will remove many or all concerns with the process from the list of controversies so that FERC, the applicant, and stakeholders can focus on the substantive issues of the project,” Noto wrote.

FERC officials have until Febuary 10 to make a decision about the city’s request for an expedited process. If the city’s request is denied, the municipal government could appeal the decision to the agency’s board of commissioners for review.

The comment period on the city’s proposed process ended last Thursday, according to FERC spokesman Craig Cano. The deadline was extended a week from the original deadline of January 11 due to a delay in publishing a public notice.

The agency also is still taking comments on the city’s “application for preliminary permit,” which was filed on November 1. The application serves as a placeholder for the city’s proposed location for its new hydro plant under the Castle Creek bridge.

The comment period for that application is open until Tuesday, according to Cano. He added that comments on that type of application typically have to do with the nature of the proposed location for a plant, not the process to review it.

Comments to FERC can be filed by citizens online at its website at FERC.gov in the “eComment” section under the heading “Documents and Filings.”

The docket number for the city’s application is P-13254 and it is called “Castle Creek Hydroelectric Project.” The sub-docket number for the process (ILP v TLP) application is P-13254-002. The sub-docket number for the site-related application is P-13254-001.

Editor's Note: A version of this story was also published on Monday, Jan. 23, 2012 in the Aspen Daily News.

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