From the Aspen Daily News (Curtis Wackerle):
The city on Friday submitted its draft application for a conduit exemption to the Federal Energy Regulatory Commission (FERC). A conduit exemption would waive the formal FERC licensing process, which would likely include an environmental assessment or environmental impact statement.
The 521-page document explains why city officials believe the project qualifies for the conduit exemption.
It contains a report from Miller Ecological Consultants, which states that a minimum stream flow of 13.3 cubic feet per second (cfs) would be sufficient to maintain a healthy Castle Creek. It also contains intergovernmental agreements regarding stream monitoring and in-stream flows with the Colorado Division of Wildlife (DOW) and the Colorado Water Conservation Board (CWCB). It also includes about a dozen letters that have been filed in opposition to the conduit exemption…
Conduit exemptions are granted for small hydroelectric projects — defined as 15 megawatts or less — that use infrastructure that is not primarily intended for the generation of hydroelectricity. City officials claim that standard is met by a drainline currently under construction from Thomas Reservoir to Castle Creek near the site of the proposed hydro plant. City officials say the 4,000-foot-long drainline, approved in April at a cost of $2.3 million, is a necessary safety feature for Thomas Reservoir, which lacks adequate discharge capacity if there was ever an emergency. But the drainline also would be a “penstock” to feed water from the reservoir into a hydroelectric turbine in the proposed building underneath the Castle Creek Bridge…
A conduit exemption also requires that water used to generate electricity be discharged back into a conduit, into a point of municipal consumption or into a natural body of water if the same amount of water is re-diverted further downstream for municipal purposes. The application, prepared by Boulder law firm Dietze and Davis, states that discharging the water from the hydro plant into Castle Creek sustains an “in-stream flow” water right held by the CWCB. The in-stream flow constitutes a “point of municipal consumption,” according to the application. To come to that conclusion, the application argues that the CWCB is a municipality as defined by FERC. Further, the application cites case law which found that municipal consumption does not necessarily mean physically removing water from a river or stream…
By returning the water to the stream to meet a minimum stream flow requirement, the city and the water conservation board fulfill a municipal purpose, according to the application. The document, while arguing that it meets the discharge requirement, simultaneously asks for a waiver from that provision. “It’s just a belt and suspenders approach,” Kumli said. “We’re being careful to use FERC law in a manner that is fair [and consistent] with the way FERC approves hydroelectric projects.”[…]
Meanwhile, the Aspen City Council is considering whether to grant local land use approval for the hydro plant. Public hearings on the project began this summer, but have been tabled while a group of citizens and Pitkin County’s Healthy Rivers and Streams Board undertakes further study of the project. A group of citizens also is attempting to convene mediation meetings between project opponents — some of whom are considering lawsuits if the hydro plant is approved — and the city.