The City of Aspen's diversion structure on Maroon Creek.
The City of Aspen\ Credit: Brent Gardner-Smith / Aspen Journalism

A group of Aspen property owners fighting the city’s hydro plant on Castle Creek filed a document Thursday with the Federal Energy Regulatory Committee that claims the city is failing to make actual progress on its required development application.

The property owners told the federal agency that recent public statements made by city officials “show that not only is the city not moving forward toward a development application, it in fact has no current intent to do so, and may never.”

The claim by the opponents was in response to a six-month progress report from the city to FERC, which was submitted on March 11.

Tom and Maureen Hirsch, Dick Butera, Christopher Goldsbury, Bruce Carlson, four corporate entities controlled by Bill Koch, and an organization called Saving Our Streams filed the response to the city’s progress report.

The landowners are opposed to the hydro plant, and don’t actually want the city to make progress on the proposed hydro project.

But they are taking an opportunity to tell FERC that the city’s statements and actions indicate it is not actually making progress and its current “preliminary permit” should be canceled.

The opponents say FERC has the right to cancel the city’s permit if it “does not demonstrate that progress is being made toward a development application.”

Celeste Miller, a FERC spokesperson, said via email that the response from the property owners to the city’s six-month progress “is part of the record in this proceeding and we don’t comment further.”

The proposed hydropower plant is estimated to cost $10.5 million and would supply over 5 million kilowatt hours per year of electricity, or 8 percent of the power the city utility provides to its service area in central Aspen.

It would divert up to 25 cubic feet per second of water from Castle Creek and 27 cfs from Maroon Creek. A license from FERC is necessary to build and operate the plant.

As part of their claim, the opponents of the city’s hydro project point to a statement made in a Dec. 27, 2013 letter to the editor by David Hornbacher, the city’s director of utilities and environmental initiatives.

“While the city has no plans to move forward with the Castle Creek Energy Center, it is always beneficial to have the public dialogue be accurate,” Hornbacher said in his letter.

They also point to a January 2013 city staff memo to the city council stating, “council gave staff direction to postpone forward progress on the CCEC.”

In the same memo, staff said that the recommended March progress report to FERC from the city “merely maintains the current state of the CCEC — neither moving it forward nor backwards.”

Attorney Paul Noto of Patrick, Miller, Kropf and Noto of Aspen prepared the filing, but declined to comment on it.

Noto is also representing the same property owners in a lawsuit in state water court claiming that the city has abandoned its water rights for hydropower in Castle and Maroon creeks, which the city denies.

In the filing, he writes “that a careful review of the (city’s report to FERC) reveals that the city has undertaken no activities demonstrating progress toward a development application during the last six month period.”

Noto claims that the city’s current review of its renewable energy options with the National Renewable Energy Laboratory, which is included in the city’s progress report, is not true progress.

He said the NREL review “is aimed at merely deciding whether or not the city will move forward with the project in light of the 2012 vote in which Aspen voters directed the city not to complete the project.”

And he told FERC that instead of the NREL review being actual progress, “it is likely just the opposite in that it may well conclude that the city should pursue other more appropriate renewable energy options.”

As part of its March 11 progress report, the city included 942 pages of exhibits, including a listing of work done since 2008 on the project and many of the briefs from the water rights law suit.

Noto said that work on the water rights is also not true progress, but instead is “wholly irrelevant” because “FERC does not even require an applicant to own a water right in order to license a hydropower facility.”

In response to Noto’s claims, Will Dolan, a utilities and communications specialist with the city, said that city’s work with NREL does in fact represent progress.

“The ongoing NREL consultation represents additional analysis of renewable energy alternatives — including the CCEC,” Dolan said, referring to the Castle Creek Energy Center, as the city calls the proposed hydro plant.

Dolan also said the work being done by both the city and the plaintiffs in an effort to settle the ongoing water rights case represents progress.

“The ‘additional study’ incumbent to the ongoing water rights litigation also represents further analysis of the CCEC project,” Dolan said. “Without question, both activities are key to the hydro project’s progress should council direct staff to file a development application in the future.”

Dolan also said that city “staff will continue to complete the work necessary to preserve the preliminary permit, and in doing so also preserve council’s current and future decision-making authority on the fate of the CCEC project.”

Editor’s note: Aspen Journalism’s Water Desk and the Aspen Daily News are collaborating on coverage of rivers and water. The Daily News published this story on Monday, March 25, 2014.

Brent Gardner-Smith, the founder of Aspen Journalism, and who served as AJ’s executive director until August 2021 and as editor from 2011-2020, is the news director at Aspen Public Radio. He's also been...