No Water Right? Can’t Sue Over the Aspen Hydro Project, Judge Rules.

The city of Aspen’s diversion structure on Castle Creek, in late winter 2011. Water from this point would be used for the city’s proposed hydro plant. Photo: Brent Gardner-Smith, Aspen Journalism

Last Wednesday a Judge ruled that only those with water rights who may be harmed by the proposed Castle Creek hydropower project,  can sue the city of Aspen over the project. As the Aspen Daily News reported:

The ruling comes in the case, filed in September 2011, when a group of property owners along Castle and Maroon creeks, as well as a nonprofit advocacy group, filed a lawsuit in state water court alleging that the city had abandoned its water rights to generate hydropower. The city is proposing to build a new hydro plant on the banks of Castle Creek with water rights that were last used in the 1950s to generate electricity.

The city shortly thereafter filed a motion to dismiss the case, claiming that only those holding water rights on the creek who may be harmed by the city’s action had standing to sue.

Water Court Judge James Boyd gave the plaintiffs two weeks to amend their complaint, so that only those with water rights were involved in the case.

We’ll have to wait and see the outcome. According to an article published by Aspen Journalism last July, Aspen’s water rights have never been found to be abandoned.

“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.”

So what does it mean to abandon a water right? According to the Colorado Foundation for Water Education’s Citizen’s Guide to Colorado Water Law:

Absolute water rights are presumed to have been abandoned back to the stream if they are not exercised for a consecutive 10-year period. Owners of water rights may rebut this presumption in water court, by showing intent not to abandon. All or a part of a water right can be declared abandoned through a water court process. The State Engineer compiles a periodic ranking list of active decreed water right priorities and an abandonment list. The General Assembly has enacted statutes forestalling abandonment in certain circumstances, such as participation in a federal conservation reserve program or leasing water for Colorado Water Conservation Board instream flow use. Municipalities, without risking abandonment, can obtain amounts of water for future use, based on reasonable population projections for a reasonable water supply planning period and land use mix, taking into account available water conservation measures.

Water rights are usufructary rights, meaning those who have water rights can use the resource without actually owning it, like a property right. In Colorado, along with rights to use water, comes water court– water users obtain court decrees for their rights in a process known as adjudication. From the Citizen’s Guide to Colorado Water Law:

Adjudication of a water right results in a decree that confirms the priority date of the water right, its source of supply, amount, point of diversion, type and place of use and includes conditions to protect against injury to other water rights.

Any thoughts on Aspen’s water rights? What do you think of the Castle Creek hydro facility?

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