Aspen City Manager Steve Barwick remembers warning members of Aspen City Council in an executive session on Feb. 9, 2010, about what would happen if they repurposed a 42-inch pipeline between Thomas Reservoir and a proposed hydropower site on lower Castle Creek as an emergency drain line first and a penstock second.
“What we said to City Council was, ‘In making your decision here we understand there is going to be public controversy about this, because now you are moving from a penstock to an emergency drain line,’” Barwick said. “‘Some people are going to be confused and you’re probably going to get some accusations related to this.'”
Barwick was right.
After the city began installing the pipeline in mid-2010 and then filed for a “small conduit exemption” from the Federal Energy Regulatory Commission (FERC), based on the pipe primarily serving as an emergency drain line, it was accused by citizens and environmental organizations of manipulating a federal process in the name of public safety.
“Pretending that the pipe or penstock that [the city] built to bring water from the city’s Thomas Reservoir to the new hydro plant is actually an ‘emergency drain’ in reality implies a less than honest assessment,” Karen Ryman, who lives in the Twin Ridge neighborhood directly below the reservoir, told the city in a letter in January 2011.
It was a sentiment echoed in many other letters sent to the city.
City officials deny the accusations and still say they built the pipeline for safety reasons based on the advice they received from their consulting engineers. And they say they would have built the drainline even in the absence of a hydropower project.
Today the pipeline is in the ground but not yet operational. And the city has abandoned its attempt to secure a conduit exemption from FERC. Instead it is pursuing what FERC calls the “Traditional Licensing Process.” Both processes fall under the National Environmental Policy Act, but the current process requires either an environmental assessment or an environmental impact statement, where the conduit exemption process may or may not have required either an EA or EIS.
Aspen wants to build a 1.17-megawatt hydropower facility it has been planning since 2006. The power station would use up to 52 cubic feet per second of water taken from Castle and Maroon creeks. The water would be piped from the creeks to the small Thomas Reservoir, which the city also uses as part of its municipal water system. Then the water is to be sent down the 4,000-foot-long new pipe to the proposed powerhouse. If built, the plant would generate about 8 percent of the municipal utility’s power load.
The project now has a $10.5 million budget, up from a 2007 estimate of $6.2 million. The city attributes most of the overruns to unforeseen obstacles in construction of the pipeline and a more complex regulatory process than originally envisioned. A referendum on the council’s decision to rezone the powerhouse property will likely be on the ballot in November.
As Election Day approaches, there is still a lingering question in the community of how the pipeline, positioned in city documents as strictly a “penstock” beginning in 2006, morphed by 2010 into primarily an “emergency drain line.” At issue is whether that was done for safety reasons, as the city maintains, or to qualify for an expedited review by FERC, as opponents claim, or both.
And sure to add to the debate is the view of the chief of dam safety in Colorado, who says that while the city’s emergency drain line would be effective at draining the reservoir, it is not something that the state required when it recently reviewed the safety of the reservoir. Instead, the state required the city to install a relatively modest new spillway.
In response to the state’s view, city officials contend that the pipeline’s safety features are evident and that the city has an interest in exceeding minimum state requirements when it comes to public safety.
The executive session
Both Ireland and Barwick said they were told by Phil Overeynder, the city’s then utilities director, during the Feb. 9, 2010, executive session that the emergency drain line was needed as a safety measure. Other City Council members were present at the executive session, including Torre, Steve Skadron and Derek Johnson.
“What I understood was that it was going to be expensive to build a drain line, but the recommendation was that the drain line would be a safety feature that would be recommended to you even in the absence of building hydro,” Ireland said. “That’s what was told to us. We make decisions relying on the good faith of our staff, and our staff was saying, ‘You ought to do this.’”
Barwick’s account of the executive session is similar.
“We said, ‘Imagine it this way. Forget the hydroelectric for a while. Assume that you’ve put that project off or you’re never going to do it. Now you just have this report that says you need a drain line and you don’t meet modern safety standards,’” Barwick said.
There was, however, no report. At least no written report.
Overeynder gave his advice verbally.
There was not a written hazards analysis that showed how and where the water might spill out of the reservoir in an emergency. Nor was there a written range of options with a range of costs to mitigate the safety hazard of the reservoir, which holds 10.3 acre-feet.
Also at the executive session was Karl Kumli, an attorney from Boulder who specializes in FERC and hydropower law and who had been retained by the city in April 2008. Cindy Covell, the city’s attorney on water rights issues, was also there.
Barwick said the executive session was necessary because “this is related to lawsuits and a FERC application.”
During a May 23 interview in Barwick’s office, Ireland was asked about the charge by critics that the city should have applied for a full FERC license in the first place, and not pursued a conduit exemption.
“Would the public be served by that?” Ireland said. “The public is best served by getting the penstock or the drain line done as soon as possible and then processing the hydro application in the most expeditious means at hand.
"When I was asked to make the decision to go for a conduit exemption — I was asked to do that, and did do that — I did not know that there was a traditional licensing process that would provide more stuff. I knew that we could save money, and I knew that the public wanted us to do this, and we could apply for this but we wouldn’t necessarily get it.
"So we did that. Could we, should we, have done the traditional licensing process? Maybe. It’s a good argument. Would that have changed anything? No,” Ireland said.
During the May 23 interview, Ireland made the same point again using similar language.
“The essential point is that it would just be bad government to have somebody come in and say you should do a drain line, but ignore the possibility that using that drain line would expedite things and save the taxpayers hundreds of thousand of dollars,” Ireland said. “If you just do a drain line, you are going to add to the expense and the delay and that is something government is accused of all the time.”
In a follow-up email exchange to confirm his remarks, Ireland said his comments during the interview “were focused on expediting the project, not the process,” which seemed to contradict his remarks in the interview.
But, Ireland also wrote, “We were asked whether we should apply for a conduit exemption as a means of saving money. We were also told that we might not be allowed to apply under that provision. We assumed that under either process we would have a public process and would be criticized for either a) choosing an expedited process which would be seen as too fast or b) choosing a prolonged process for which we would be accused of wasting money.”
A month later on March 8, 2010, council approved a construction contract for $2.3 million with Western Summit Constructors to build the pipeline that summer. There was no public discussion of how the pipeline might relate to FERC’s small conduit process. And the contract itself stated the project was for a “penstock.”
The engineer’s advice
The city continues to position the emergency drain line as a safety feature it would have installed even without the hydro project, and says it has done so based on the advice its engineer first gave in 2008.
But a review of the public record related to the hydro project turns up nothing in writing from an engineer to the city on this issue in 2008.
When asked if it could flesh out the public record, city officials on May 23 produced a letter written on May 22 from Ron McLaughlin of McLaughlin Water Engineers.
In the letter, McLaughlin said that in early 2008 he pointed out to Overeynder that the two pipelines that brought water to Thomas Reservoir could deliver 52 cubic feet per second of water, as a pipeline from Castle Creek could deliver 25 cfs and a pipeline from Maroon Creek could deliver 27 cfs.
However, the existing drain line at the reservoir could only empty 25 cfs of water, which presented a safety concern should the two pipelines to the reservoir ever be stuck open with no quick way to turn them off.
If that problem was compounded by the dam failing at the same time, there would be no way to effectively handle the incoming water and also quickly drain the reservoir.
With the new pipeline, the reservoir could be drained in a relatively quick manner, even if the city had lost the ability to shut off the intake structures on the creeks and water was rushing into the reservoir at full speed, according to McLaughlin's letter and the city staffers he conferred with on the issue.
“I also told Phil that due to development now existing below the Thomas Reservoir, this was a safety concern, but that the proposed penstock could easily serve both functions — a penstock to carry water to the hydroelectric plant and an emergency drainline to promptly evacuate Thomas Reservoir if necessary,” McLaughlin wrote in his May 22 letter. “It was our recommendation that the pipeline and intake facilities be designed to serve this dual function. This would mitigate the safety concern.”
Overeynder said it wasn’t a “great jump” to see how the proposed 42-inch penstock could also function as a drain line or how the drain line was needed for safety reasons in any event.
“It was more like an additional reason to go forward with the project,” he said. “And so it would have made sense for McLaughlin to present this verbally and not require extensive documentation during that time period.”
But if the advice from McLaughlin was for an “emergency drainline” to be the primary reason to build the new pipeline, those words are hard to find in public documents related to the project between 2008 and 2010.
A dual-purpose conduit
What is in the public record, however, are references as far back as 2006 to the option of pursuing a conduit exemption from FERC. City officials long knew that might be an option for the project.
And then, increasingly after spring 2008, there are references in staff documents to the concept of a “dual purpose” or a “joint utility function” for the penstock in the context of FERC regulations.
A June 16, 2008, email from utilities engineer John Hines discusses the concept of a "joint utility function" for the penstock, possibly as a thermal heat exchange.
A Feb. 9, 2009, public meeting agenda, with staff notes, states that "if for some reason the FERC authorization for the project is denied, Aspen would use the conduit for discharges from its existing regulating reservoir at the water treatment facility to Castle Creek."
And a June 23, 2009, letter to a FERC official from Kumli states that "the city intends to install a pipeline to allow for evacuation of the contents of the reservoir in the event that there is a breach in the earthen embankment or other structural problem. Evacuation of the water in Thomas Reservoir could also be required in the event that a major maintenance event arises, including unscheduled maintenance." In the letter, Kumli refers to the pipeline as a "reservoir discharge pipeline," but not an "emergency drainline."
But it was apparently not until March 1, 2010, that city officials put the words “emergency drainline” into a memo to City Council, when the utilities department’s Rob Convington wrote that the “first purpose” of the pipe was its safety function.
“The first purpose for the penstock and intake is to supply an emergency drainline for the Leonard Thomas Reservoir at the city’s water treatment plant,” the memo reads. “The second function of the drainline/penstock is to supply water to the planned Castle Creek Energy Center, for the operations of a hydroelectric facility.”
The memo was in support of council approving the construction contract for the pipeline, which it did.
In mid-2010, as construction was under way, the city got its first taste of the opposition that would come in response to its new emergency drain line.
“The city is attempting to justify this pre-permit project construction under a specious argument that it is a dual-purpose pipeline needed to drain Thomas Reservoir safely,” wrote attorney Paul Noto in a letter to the head of FERC. “The city bases this right on a crafty, but ultimately baseless argument: that the pipeline is necessary because Thomas Reservoir dam poses a safety risk.”
Noto, of the Aspen law firm of Patrick Miller & Kropf, represents a group of property owners on Castle and Maroon creeks who have sued the city over its water rights in an effort to block the hydropower plant from going forward.
But Noto’s letter ended up giving the city one of its few wins so far in the hydro project process. On July 1, 2010, a FERC official sent Noto a response.
“We have investigated your concerns and have determined the construction being done by the city of Aspen is associated with the city’s water supply system and is not under [FERC’s] jurisdiction,” the letter stated.
Today, city officials still point to this letter as vindication of its actions regarding the pipeline.
In October 2010, Kumli crafted the city’s draft small conduit application to FERC. And the emergency drain line was front and center.
“In order to safely evacuate Thomas Reservoir, the city is constructing the Castle Creek drainline and penstock. The drainline and penstock is the conduit for which authorization for this project is sought,” the city told the federal government. “The conduit would exist as a component of the municipal water system even in the absence of power generation for the purposes of safely and efficiently draining Thomas Reservoir, and for regulating the amount of water diverted into the city of Aspen water supply system.”
The letters of opposition about the drain line and the conduit exemption started flowing into Aspen City Hall in January 2011.
“It is clear that the scale of the penstocks installed last summer were for the hydro plant rather than an essential safety feature for the low-volume Thomas Reservoir,” wrote Andre Wille, a science teacher in Aspen, in January 2011. “By using the conduit exemption loophole, the city not only avoids determining the real ecological cost of the project, but it sets a terrible precedent for other hydro projects in the future to use this type of exemption.”
And there was more.
The Pitkin County Healthy Rivers and Streams board encouraged the city to “revisit the appropriateness of the conduit exemption in their application to FERC.”
Amelia Whiting, the legal counsel for Trout Unlimited, accused the city of an “effort to avoid the licensing process” and called on the city to abandon “its attempts to circumvent federal law.”
Matt Rice, the director of conservation in Colorado for American Rivers, said “Aspen is engaged in a deliberate and disingenuous effort” to avoid FERC’s licensing requirements that would “open a new extremely dangerous loophole” by “claiming that the penstock for the project is intended for some other purpose.”
But not all of the letters were negative.
Kurt Johnson of Telluride Energy was hired by Pitkin County to review the city’s approach to its hydropower plant.
“Applying for a conduit exemption is a reasonable decision because it provides a potentially shorter time to obtain FERC approval than pursuing a FERC license,” Johnson wrote. “It does not mean the city bypasses a substantial environmental review process.”
In all, there were 62 comment letters sent to the city about its conduit exemption application, and 55 were negative.
And given that the City Council would go on to abandon its pursuit of a small conduit exemption, it would appear that the nays had it.
It’s been a long road for the city’s hydro project.
In November 2007, Aspen voters approved spending $5.5 million on a hydro plant.
In January 2008, the city sought a full waiver from FERC regulations, based on hopes the agency might view it as a restoration of the historic hydro plant the city operated on Power Plant Road from the 1890s to 1958.
But FERC rejected that idea on March 25, 2008.
Federal officials told Aspen its new plant would have to get a FERC license, primarily because the city intended to build a new powerhouse next to the old one.
So the city next chose to pursue the small conduit exemption, which Mayor Ireland still defends today.
“We didn’t do anything in secret,” Ireland said. “A conduit exemption is a public process. It is not a secret process. It may not be as robust as some people say they want to have for a process, but it was not secret.”
In 2006 when the city started designing the project, there were optimistic plans for the plant to open as early as 2009. Now, it’s not likely to open until 2015.
Today the delay, the opposition, the criticism, and some vitriolic denouncements of the character of certain city officials have left Ireland frustrated.
“I think it has been unfair,” he said. “I think it is scurrilous. I think it smacks of Swiftboatism. I think it is obstructionist, to say the least. It’s all of those things.”
But the city's role in the saga did catch the attention of Ann Miles, the director of hydropower licensing at FERC.
In a Feb. 10, 2012, letter to Kumli, she tells the attorney that FERC's review of the comments filed about Aspen's conduit exemption "suggest that the level of controversy in this proceeding does not stem solely from the resource issues, but rather, the city's conduct with regard to previous public engagement."
She also noted that FERC staffers do not consider the licensing issues presented by the Aspen project to be "complex."
The state weighs in
But the hurdles and obstacles to getting its project up and running have also come from the Colorado Division of Water Resources, which is in charge of dam safety in the state.
Engineers there don’t seem to have an opinion about hydropower, or about the FERC process, but they now hold sway over the physical aspects of managing Thomas Reservoir.
That was not the case when the city started planning the hydro project, or when it approved the emergency drain line and penstock.
On May 6, 2010, the city got an email from John Blair, a dam safety engineer with the Colorado Division of Water Resources, saying that the state needed to be brought back into the loop on plans for the dam.
This surprised the city, as the state had taken the facility off its inspection list in 1989, classifying it as having no public hazard. But the state became interested again in 2010 when its inspectors learned of the city’s pipeline plans.
Blair said he had asked for a copy of the city’s construction plans, and based on his review of them, told the city that, “We still retain jurisdiction over this dam in accordance with state statute.”
The city initially disputed the state’s assertion of jurisdiction, but eventually complied and submitted its plans to the state.
During the process the state changed the classification of the Thomas Reservoir dam from “No Public Hazard” to “Significant Hazard,” primarily because the Twin Ridge and Water Place deed-restricted housing projects have been built below the reservoir.
The state also required the city to install a new spillway to prevent the dam from overtopping and concluded that the city’s existing 24-inch drain line was adequate to drain the reservoir.
The state does not view the city’s 42-inch emergency drain line as being necessary to protect the public.
“It is not a safety feature that we required,” said Bill McCormick, the chief of dam safety at the Colorado Division of Water Resources. “Depending on how the city utilizes that facility, it may have the opportunity to use that pipeline as a safety feature, but it is not something that we required.”
City officials say the state has its own minimum requirements, but the city’s obligations go further.
“Every letter we have from the state says that it is the city’s ultimate responsibility to avoid liability through proper design and operation of the reservoir,” Overeynder said. “It is the city’s ultimate liability. It can’t step away from its responsibilities to operate a safe water system and reservoir.”
When asked if the state’s requirements were not adequate, Mayor Ireland said it’s the city’s prerogative to go above and beyond minimum requirements.
“I think it is clear that the city is entitled to operate the dam at a safer level than the state judges to be adequate or in compliance,” Ireland said. “It is often the case that the city of Aspen exceeds state safety or environmental requirements. We owe our citizens more than mere compliance or just getting by.”
When asked if the reservoir was safe today, given that the city’s emergency drain line and penstock still needs a tailrace installed before it is operable, Barwick replied, “It’s not as safe as we’d like it to be.”
The hazards analysis
The state also required the city to prepare an updated hazards analysis for Thomas Reservoir, which McLaughlin Water Engineers conducted in late 2011.
Ironically, the hazards analysis — done by the city’s own consulting engineers — downplays the hazards of the reservoir.
“Given the small volume of the flood wave, shallow depths of flooding and the minimal time that roads and buildings will be subject to flooding, it is my opinion that it is unlikely that buildings or roads would receive extensive damage as a result of a dam breach at Leonard Thomas Reservoir,” wrote Aaron Asquith, an engineer with McLaughlin Water Engineers who prepared the report on behalf of the city. “Due to the small volume, shallow depths of flooding and minimal duration of peak flow, it is my opinion that loss of life is not expected as a result of dam failure.”
A graphic in the report shows that water from a dam overcome by uncontrolled pipelines bringing water from Castle and Maroon creeks would not touch homes in the Twin Ridge or Water Place neighborhoods below the reservoir, which are often held up by city officials as being in harm’s way.
Instead, the report concludes that water from the reservoir would likely reach the Mountain Oaks housing building, a corner of one of the Castle Ridge apartment buildings, and the back of one of the buildings at the Marolt housing complex.
None of the buildings that could be impacted would be expected to suffer major damage.
Still, city officials and their consultants defend their decision to install the emergency drain line, and to tell FERC it was an integral part of the city’s water system.
“While the design of the new pipeline/drainline may have been different if the use as a penstock was not a design parameter, the drainline project would have been similar in overall scope, cost and location,” McLaughlin wrote in the May 22 letter to the city. “While the reservoir deficiency was discovered because of the CCEC (Castle Creek Energy Center), I believe that it would have been discovered eventually, hopefully not as a result of a failure.”
The city's pipeline ends just on the other side of Power Plant Road, at the location of the proposed hydropower plant under the Castle Creek bridge. Photo: Brent Gardner-Smith
Editor's note: This article was developed, written and edited in collaboration with Curtis Wackerle, the managing editor of the Aspen Daily News. It was published by the newspaper on Monday, June 4, 2012.
Clarification: June 20, 2012. In the wake of publication of this story, the city's FERC attorney Karl Kumli raised two points for clarification.
Kumli points out that a conduit exemption is reviewed under the umbrella of the National Environmental Policy Act. And he said, in the conduit exemption process, FERC could have decided to require an environmental assessment or an environmental impact statement for Aspen's hydro project.
He also said that other stringent environmental studies and protocols could have been required outside of an EA or EIS process, and in fact, that was the case regarding the protocols overseen by the Colorado Division of Wildlife.
However, it is also true that in a conduit exemption process, an EA or an EIS is not mandatory and may possibly not be required. To critics of the project, that was seen as a less rigorous environmental review, as an EA or EIS is mandatory in the full licensing process that the city is now pursuing.
Kumli also said that what Ann Miles, the director of Office of Hydropower Licensing at FERC, conveyed in her letter to the city was that the issues presented by Aspen's project were straightforward, not that Aspen's application was not complex or that it was simple or shoddy. We concur.
Our language could have been more precise, but we were trying to make a similar point - FERC doesn't think the licensing issues around the project are significant.
But the federal agency has also noted that the city's approach to the process had been less than ideal in regard to "public engagement."
The two relevant sections of the story have been edited for clarification.