ASPEN – A collaborative committee, formed by opposing parties in a lawsuit claiming the city of Aspen has abandoned its rights to divert water from Castle and Maroon creeks for a proposed hydro plant, is making slow progress toward its goals.
When the settlement effort was announced last year after a “stay” was filed in the case, there were hopes that a stream ecologist could be agreed upon and hired early this year to study the proposed hydro plant and the streams and make recommendations about “stream health goals.”
Steve Wickes, a local facilitator guiding the committee and working for both parties in the case, said the committee’s goals were narrowly defined: Can the two sides, with the help of a mutually trusted expert, agree on how much water can be taken out of the creeks?
But before a “request for proposals” can be written to attract a third-party stream ecologist, the committee has agreed that two experts who are working for either side should first review the list of prior studies done on the two rivers to determine where there are information gaps.
“We are in a short holding period at the moment because both scientists are top in their fields and very busy,” Wickes said.
To help review the existing studies and draft the request for proposal, the city has hired Bill Miller, the president of Miller Ecological Consultants of Fort Collins, who has been working for the city on river issues since 2009.
And the plaintiffs have hired Richard Hauer, a professor of limnology (freshwater science) at the University of Montana and the director of the Montana Institute on Ecosystems. Hauer appeared at an event in Aspen in 2012 to discuss the importance of keeping water flowing naturally through a river’s ecosystem.
To date, the committee has only incurred “nominal” costs, according to Wickes. The two sides initially agreed to spend up to $150,000 to obtain an independent third-party study from a stream ecologist.
Wickes said the committee has been meeting monthly and is still on track. And the committee members know that if they don’t reach agreement, a trial is set to begin on Sept. 11 in District 5 water court in Glenwood Springs.
“Without going into specifics we’re working to share information and build trust,” Wickes said. “It’s amazing what happens when people sit down at the table and talk as fellow community members instead of adversaries.”
On the committee from the city are Steve Barwick, Aspen’s city manager, Jim True, the city attorney, and David Hornbacher, the head of the city’s utilities and environmental initiatives.
Representing the plaintiffs on the committee are Paul Noto, a water attorney with Patrick, Miller, Kropf and Noto of Aspen, and Maureen Hirsch, a plaintiff in the suit who lives along Castle Creek.
The other plaintiffs include Richard Butera, Bruce Carlson, Christopher Goldsbury, Jr. and four LLCs controlled by Bill Koch. All of the plaintiffs own land and water rights along either Castle or Maroon creeks.
Wickes said the members of the committee have agreed with his suggestion that they not discuss their ongoing work with the media, and instead refer questions to him.
The claim of abandonment against the city was filed in 2011 water court, in case number 11CW130, “Richard T. Butera et al v. the city of Aspen.”
The case was poised to go to trial on Oct. 28, 2013 and both the city and the plaintiffs filed trial briefs on Oct. 14.
On Oct. 18, however, the parties filed a stay request with the court so they could “cooperate in engaging a qualified independent, neutral, stream ecology expert.”
The ecologist is to study the rivers and the proposed plant and then “determine a bypass amount of water, to be left in the stream by Aspen.”
The opposing parties are then supposed to “use their best efforts to define the stream health goals to be achieved by said amount of water.”
That could mean, as one example, that a flow regime is agreed upon, with varying levels of water being left in the rivers below the city’s diversions at different times of year, depending in part on the natural amount of water in the rivers during any given year.
Such a protocol exists today on Snowmass Creek as it relates to diverting water for snowmaking at the Snowmass Ski Area.
The city is currently proposing to divert up to 27 cubic feet per second of water from Maroon Creek and 25 cfs of water from Castle Creek for the proposed hydro plant, on top of the water it currently diverts from both streams for municipal uses and the existing Maroon Creek hydro plant.
The city also has a policy to keep at least 13.3 cfs in Castle Creek and 14 cfs in Maroon Creek below its diversion dams in order to help protect the rivers’ ecosystems.
Critics of the city’s hydro project have said the currently proposed flow regime could result in shallow, flat-lined reaches of both rivers for long periods of time, which they say is at odds with the complex water needs of the rivers and their broader ecosystems.
City officials point to a plan developed in 2012 that would initially limit the amount of water taken out of the creeks for hydropower, and only increase that amount after studying the plant’s impacts, as evidence that it is looking out for the riparian ecosystem.
The plaintiffs in the suit against the city have told the court they are concerned that if the city diverts more water for hydropower, it could hurt their ability to use their junior water rights on Castle or Maroon creeks. They also claim the city intended to abandon its hydro rights connected to an old hydro plant on Castle Creek, which the city concedes it has not used since 1961.
But the city has denied it ever intended to abandon its water rights and has challenged the plaintiffs’ standing to bring the suit.
Whether the September court dates are needed likely depends on whether the two sides can agree to hire a third-party stream consultant, and then agree to follow their recommendations.
If so, Wickes thinks such an exercise could influence how rivers and streams around the West are managed.
“I’m actually hopeful that when the study is completed, not only will it inform future conversations about the hydroelectric plant, it will inform a wide number of decisions about stream ecology, how we treat our streams, and how things are interconnected,” Wickes said.
Editor’s note: Aspen Journalism and the Aspen Daily News are collaborating on coverage of local and regional water issues and rivers. The Daily News published this story on Monday, March 3, 2014.