HomeMy WebLinkAboutminutes.council.20100913 Regular Meeting Aspen City Council September 13, 2010
JENNINGS RANDOLPH AWARD APWA TRISH ARAGON 2
CITIZEN PARTICIPATION 2
COUNCILMEMBER COMMENTS 5
CONSENT CALENDAR 6
• Resolution # 74, 2010 — Contract — Ice Garden compressor 6
• Resolution # 75, 2010 — Patrol Room Remodel — Sandy's Office Supply 6
• Resolution # 76, 2010 - Patrol Room Remodel — Tiffin Metal Products 6
• Minutes — August 23, 24, 2010 6
ASPEN SKIING COMPANY WINTER CONCERT CONDITIONS 6
SHOPPING AL FRESCO 6
ORDINANCE #15, SERIES OF 2010 — Castle Creek Energy Center 7
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Regular Meeting Aspen City Council September 13, 2010
Mayor Ireland called the meeting to order at 5:00 PM with Councilmembers Romero,
Torre, Johnson and Skadron present.
JENNINGS RANDOLPH AWARD APWA TRISH ARAGON
Mayor Ireland presented Trish Aragon, city engineer, with recognition for her
presentation to the APWA on her fellowship in New Zealand. Mayor Ireland pointed out
when things are running well, nobody notices and the city of Aspen is blessed with many
talented people including Ms. Aragon.
CITIZEN PARTICIPATION
1. Sara Adams and Stephan Kanipe told Council the Aspen Historical Society has
had an energy audit done on the Stallard house museum. The findings of this energy
audit will be September 21 at 5:30 PM; it is free and open to the public.
3. Emzy Veazy brought up Aspen having a sales tax holiday again and noted people
are looking forward to it. Veazy suggested Aspen have a zip code celebration August 16,
2011 (81611). Beverly Hills held one and it was very successful.
3. Richie Cohen told Council over the last several weeks, a group of citizens has
been gathering signatures from flyers, e-mails and letters asking Council to reconsider the
agreement signed in settlement of a lawsuit. Cohen said there are over 800 comments
signed asking for reconsideration based on the general feeling in the community that
Council made a settlement outside of the code for a building that is unapproved by any of
the bodies in the city. Cohen pointed out a great amount of effort has gone into and is
going into revamping the AACP and this action has put the concept of the AACP in
jeopardy by letting any developer know if they come in with a project and it is denied,
they can sue the city.
Cohen told Council they tried to initiate a lawsuit and were told they were all liable for
counter -suits from private entities. Cohen said the intent was to sue Council to stop them
from going ahead with this and to show the kind of anger this agreement generated in the
community. Cohen urged Council to take this project through the code process and if it
is approved the way it is, so be it. Cohen said the petitions are signed by people who call
Aspen home.
Mayor Ireland said Council does not have the power to reconsider the ordinance;
reconsiderations are only allowed at the next regular meeting. Council also does not have
the ability to refer something to the voters outside the 30 days time frame. City Attorney,
John Worcester, noted the settlement agreement allows either party to withdraw from the
settlement agreement if a legal challenge was made. A legal challenge has not been filed.
Worcester noted if the city withdrew from the agreement, the would be in violation of the
agreement and of the ordinance granting a vested right.
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Regular Meeting Aspen City Council September 13, 2010
Cohen said with a building of this magnitude and the impact it will have in the city,
Council is within their responsibility to let the applicants sue the city. Council should
stand and defend the AACP. Cohen said nothing in the art museum process came to a
public hearing and citizens had no say in the project. Some citizens feel the proposed
building is violation of the Aspen character. Councilman Romero asked if it is the mass
and scale that is the most offensive. Cohen stated it is the process. Councilman Romero
said if Council were to overturn their approvals and invite the lawsuits, there is no
process that would invite the art museum to that site. The applicants would carry forward
with their appeal and if they win would have a project that Council did not approve.
Councilman Romero said in a level of compromise, Council did what they thought best
given overall benefits to the community. Councilman Romero stated he is sticking by the
decision he made.
4. Toni Kronberg told Council she submitted a referendum petition that was
determined by the city clerk not to be legislative. Ms. Kronberg told Council she has 30
days from the date the city clerk made the decision in which to file something in court.
Ms. Kronberg said the rules of ethical conduct state Council is not to pre - determine their
decision and it has been perceived by the community that Council made their decision;
the city held a press conference saying there was a settlement agreement which bypasses
the land use code in order for a law suit to go away. Ms. Kronberg said if the city lost
that law suit, it means a building on that site would have to go back through the land use
process again. Ms. Kronberg noted the clicker sessions clearly demonstrated the
community wanted smaller buildings. Ms. Kronberg said the entrance to Aspen is
coming up and asked if the community can trust the clicker sessions to give an impartial
decision.
Ms. Kronberg said at the appeal of the recycle center, the city and she both agreed there
was no approved development order. Ms. Kronberg stated the community development
department wanted to amend the development order and at that meeting, the Rio Grande
master plan was noted as the development order that gave the initial approval. Mayor
Ireland said Council is not going to go on record to agree with this assertion. There was
an appeal which Council listened to for 3 hours and decided against the applicant.
Ms. Kronberg noted the Dancing Bear is being continued and asked if this application
and the creation of the vested property rights is subject to all rights of referendum. City
Attorney, John Worcester, said whatever rights of referendum existed at the time of
approval is what this refers to. Worcester said the fact of vested rights does not extend
the rights to referendum.
5. Junee Kirk presented the 800 signatures regarding the process by which Council
entered into a settlement agreement on the Wienerstube. The petitions ask Council to
reconsider, to withdraw the settlement agreement and take the project through the
process. Ms. Kirk said this violates and makes null and void the Aspen Area Community
Plan. Ms. Kirk stated Council violated the public trust by ignoring the land use code,
which every other developer has to go through. Council has taken away the ability to
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Regular Meeting Aspen City Council September 13, 2010
referendum this by the settlement agreement. Ms. Kirk stated what was approved
previously is better than this proposal.
Councilman Torre said this is a difficult issue; however this did not violate the land use
code. Councilman Torre agreed he did not appreciate the process; however, the
accusation of violations is not true. Ms. Kirk questioned the height of the art museum at
47' when code says buildings can be 45'. Councilman Torre noted the code states a
building can be 47' including the mechanicals. Councilman Torre said he would be
happy if the project were going to referendum, but it is not. Councilman Torre stated no
one on Council did anything in the spirit of violating the codes.
6. Someone read a letter into the record from PT Ranch LLC at 1900 Castle Creek
opposed to the Castle Creek hydropower plant and requesting a full EIS or EA.
7. Bill Wiener asked if the proposed rezoning of the Given property would allow for
museums. If it does, that may be a perfect place for relocation of the Aspen Art Museum.
8. Jack Wilke said he cannot imagine why the city is engaged in projects in these
financial times. Wilke said there does not seem to be any belt tightening by the city. The
city is buying property that is at the entrance to Snowmass. Mayor Ireland stated
maintenance projects need to be done now; it is putting people to work and it is cheaper
than putting them off. Mayor Ireland said the Droste property would connect open
spaces pieces and bike trails. It is also a elk migration corridor. Mayor Ireland stated the
city has tightened its belt; 45 positions were eliminated; 24 people were laid off; services
have been cut; sales tax and property taxes were cut. Wilke said repaving the bike path to
the Meadows does not seem to be an essential project. Councilman Johnson noted when
Council went through the budget process and laid out all the capital projects, Council
decided there would be trigger points before projects were started. The city has had clear
visibility of where they are with tax collections to make sure there is enough money for
the project. Councilman Romero pointed out the 2011 budget process has just started and
invited Wilke to attend any budget meeting.
9. Marilyn Marks brought up the 51 properties on the Ordinance #48 list left in
limbo last month. Ms. Marks pointed out the community does not have the desire to have
involuntary designations for 20` century properties. Ms. Marks said last week 3
Councilmembers approved an emergency ordinance circumventing the land use code and
rezoning one of those properties. Ms. Marks noted emergency ordinances are narrowly
permitted for preservation of public property, health, peace and safety; rezoning for
academic use does not fit that definition. Ms. Marks said property owners have been
granted a variety of rights under Ordinances 48 as well as negotiations under that. Ms.
Marks said if Council can pass an emergency ordinance to change the zoning of the
University's property, this could happen to other homeowners if they begin demolition of
their properties. Ms. Marks noted the city cannot build trust in the historic preservation
program with that type of approach. Ms. Marks pointed out Council's guidelines of
fostering a safe place and encouraging risk taking. Councilman Johnson stated he
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Regular Meeting Aspen City Council September 13, 2010
supported passing the emergency ordinance in an opportunity to get public input at the
meeting September 20`
Ms. Marks asked if instant runoff voting has been defined as the electorate will start
• voting next month and they will need to decide whether to repeal IRV or to keep IRV and
the voters do not know what IRV is. The city is asking the voters to vote on something
with rules to be determined. Ms. Marks said there were problems with IRV and there
have been no attempts to address these. Councilman Romero stated the definition of IRV
is the process in the Charter and the process adopted by Council. Councilman Romero
said the core essence of IRV could be stated in one paragraph and could be used as a
descriptor to the public.
Councilman Romero said he does not want to make work on details that may not be
appropriate for an election question. Ms. Marks said she does not feel this is crisp
enough for anyone to make a decision. Councilman Romero stated a decision will be
made in the next 45 days. Citizen input helped determine the ballot question for
November. Councilman Romero said people in the community would say delving into
greater detail is making work. Councilman Romero said what he hears from the public,
IRV is not at the top of their priority list. Mayor Ireland said IRV is defined; there is an
ordinance and procedures. Mayor Ireland said why revise IRV if in November the voters
do not want it. If the June runoff fails, the Council will start to define IRV.
10. Gram Slaton, Wheeler Opera House, reminded Council of the singer /songwriter
festival at the Wheeler this weekend, which Council helped support. Slaton presented t-
shirts to Council as they are part of the team.
COUNCILMEMBER COMMENTS
1. Councilman Romero thanked staff and everyone who contributed to making the
community picnic a success. Councilman Romero said the community picnic reminded
him why people live in Aspen.
2. Councilman Johnson said high school sports are back in Aspen. The high school
team played an Idaho team and won. The Skiers will play Hotchkiss Friday night, the
first home game.
3. Mayor Ireland announced the Wapiyapi Classic fund raising bicycle ride for
cancer will take place in Aspen next weekend.
4. Mayor Ireland said he just got back from Southern California, which reinforced
for him why people live here and he has gratitude for being home.
5. City Attorney, John Worcester, requested an executive session at the end of the
meeting.
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Regular Meeting Aspen City Council September 13, 2010
6. Councilman Romero reported RFTA is drafting resolutions in opposition to
amendments 60 and 61 and initiative 101. Councilman Romero said RFTA concludes
these 3 measures will affect a 10% reduction in their revenues. Councilman Romero said
if citizens care about public transit and other governmental services, there is a base line
service for these benefits.
CONSENT CALENDAR
Councilman Torre requested Aspen Skiing Company Winter Concert Conditions be
removed from the consent calendar.
Councilman Romero moved to approve the consent calendar as amended; seconded by
Councilman Johnson. The consent calendar is:
• Resolution # 74, 2010 — Contract — Ice Garden compressor
• Resolution # 75, 2010 — Patrol Room Remodel — Sandy's Office Supply
• Resolution # 76, 2010 - Patrol Room Remodel — Tiffin Metal Products
• Minutes — August 23, 24, 2010
All in favor, motion carried.
ASPEN SKIING COMPANY WINTER CONCERT CONDITIONS
Deric Gunshor, Aspen Skiing company, noted they are asking for a noise variance until
11 PM although they plan to have the concerts over by 10 PM. There may be some
instances where the concerts are delayed and the Ski Company wants that latitude.
Gunshor told Council the Ski Company met with the parks department on methods to
protect the parks. The preferred method is for the Ski company to make snow at the base
of Lift 1 A and to truck it to Wagner Park in the city's snow removal trucks to create a
12" base in Wagner Park. Councilman Torre stated making snow in Wagner park is not
an acceptable alternative. There are businesses and lodges surrounding the park. Mayor
Ireland asked about building structure around the snow guns to make them quieter.
Gunshor said in the event the Ski Company has to fall back on making snow on site, they
will mitigate it by making structures around the snow guns.
Councilman Romero moved to approve the Aspen Ski Company's special event in
Wagner Park for Winter concerts with the conditions in the memorandum; seconded by
Mayor Ireland. All in favor with the exception of Councilman Torre, motion carried.
SHOPPING AL FRESCO
Bill Dinsmoor, CCLC, requested the city relax the requirements for commercial retail
sales on city rights -of -way. Dinsmoor said the guidelines will be businesses will sell
only their merchandise; there will be 6' walkway space; no amplified music, food or
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Regular Meeting Aspen City Council September 13, 2010
beverages. Dinsmoor said this request is to help stores move their end of season
merchandise and would like to do it for the net 3 weekends. Council agreed with these
conditions for September 17 — 19; 24 — 26 and October 1 — 3.
ORDINANCE #15, SERIES OF 2010 — Castle Creek Energy Center
Mayor Ireland said Council intends to take public comment and will continue the
ordinance to see if a resolution that would allow the hydropower plant and would protect
the stream can be reached.
Steve Barwick, City Manager, stated this project is part of Council's long standing goal
of non - carbon renewable energy created in Aspen. Barwick said this goal has lead to
hiring environmentally oriented staff. Barwick said the city appreciates citizen
participation and input on this and all issues; there have been changes in this project as a
result of previous citizen input. Barwick said staff topics are the environmental impact
of hydroelectric power versus coal; water rights; protecting the health of the stream;
financial analysis; how this would function as emergency power.
Barwick stated hydroelectric plants do not use up non - renewable resources to make
electricity; they do not cause pollution of air, land or water; they have low failure rates
and low operating costs. Barwick noted hydroelectric plants generally last for 50 to 75
years. Barwick said coal generates acid rain, creates carbon dioxide and is dirty both in
the mining of coal and in the burning of the coal. Coal fire plants are responsible for
about 1/3 of America's carbon dioxide emissions. Part of the city's canary initiatives are
to reduce greenhouse gas emissions. The Castle Creek hydro plant will produce energy
to power about 650 houses or reduces the total mileage of about 908 vehicles /year.
Barwick noted there is no such thing as generation of electric power that has no
environmental impact; some has more impact than others and coal is one of the dirtiest
and least environmentally sensitive ways to create power. Barwick said there is an
impact on the stream with this project; however, the impact is not large enough to
significantly diminish the stream health.
Cindy Covell, city's water attorney, said they have been asked if the city has the water
rights needed for the Castile Creek hydroelectric project and the answer is yes the city
does. Ms. Covell said another question is how is stream flow protected by bypassing
water at the hydroelectric project to be sure there is enough water in the stream to
maintain a healthy stream and environment. Ms. Covell said the Colorado Water
Conservation Board is the state entity that is allowed to hold water for in- stream flow
water rights, which means if the city bypasses water at its point of diversion in order to
protect the stream, the city can only assure that it will not be picked up by a junior
appropriator after it is by passed if there is a water court decree for in stream flow that
will protect it.
Ms. Covell said the in stream flow on Castle Creek is 12 cfs. Dr. Miller and the Colorado
Division of Wildlife has concluded that in stream flow number should be 13.3 cfs. Ms.
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Regular Meeting Aspen City Council September 13, 2010
Covell noted the city is proposing the Castle Creek project by pass that amount and that
the city go to the CWCB and request an additional appropriation of 1.3 cfs in stream flow
to bring the total to 13.3 cfs. Ms. Covell said if there is a senior water right, it would be
ahead of the city's additional request. This would protect against future changes that
might occur in the bypass reach.
Ms. Covell said if the Castle Creek energy center were to operate above 13.3 cfs, the city
would not be able to protect that excess from somebody else's use. Ms. Covell noted city
staff has been negotiating with the Department of Wildlife for a stream monitoring
program intended to keep an eye on stream flows and determine if the 13.3 cfs is the
correct number. If that monitoring program should demonstrate that 13.3 cfs is not the
correct number, staff recommends Council authorize seeking a further increase in in
stream flow from the CWCB. This is a way for the city to go above the minimum
requirements, which is protecting the in stream flow as it is currently decreed.
Ms. Covell discussed the possibility of trans mountain diversions, like the Frying Pan
Arkansas project from Hunter Creek and the Homestake project for Aurora. It is not out
of the range of possibility that there could be collection system out of the upper reaches
of Castle and Maroon to divert water over the Gunnison drainage and into Blue Mesa
reservoir where a trans mountain diversion project has been considered, rejected and
looked at again. Ms. Covell showed pictures of Hunter Creek which does have trans
mountain diversions coming out of the upper reaches. Ms. Covell noted the city had a
hydro electric project on Hunter Creek, which project was abandoned and may have been
a Lost opportunity to protect water in the stream on this side of the mountain.
Councilman Johnson asked the timing and procedure for going to the CWCB to ask for
an additional 1.3 cfs. Ms. Covell said the CWCB staff holds a general meeting the
February to consider new in stream flow appropriations. The city proposes to take Dr.
Miller's scientific data with the DOW, submit a request for this meeting asking for an
additional in stream flow. The CWCB staff considers it, makes a recommendation to
their Board who determines whether or not to make the appropriation. If they decide to
make the appropriation it is published and goes through the water court.
Councilman Skadron reiterated the city's water is at risk if the city does not use it and the
city should protect their water on this side of the mountain. Ms. Covell said if there is
unappropriated water coming down Castle Creek to a greater extent than there is because
of the city abandoning a water right, there would be more water going down the Roaring
Fork that someone could divert..
Bill Miller, Miller Ecological Consultants, noted he was contracted by the city to conduct
in stream flow studies and studies on the aquatic resources in Castle and Maroon Creeks.
Miller reviewed the ecology in snow melt streams. Miller showed a hydrograph of a
water year, peak flows and low flows. Summer has the maximum growth for fish and
invertebrates where they assimilate food and put on body weight. Miller reiterated peak
flows create and maintain habitat; they recharge wetlands and riparian areas. Miller
noted both Castle and Maroon Creeks both have peak flows currently on average years
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Regular Meeting Aspen City Council September 13, 2010
that are above bank full. The flow taken in Castle Creek in June 2010 was about 900 cfs;
there is more contact with the linear wetlands and some overbank flows in the area of the
Aspen Institute. Miller said some areas along Castle Creek have a fairly entrenched
channel, which keeps some areas from over bank.
Miller showed a slide of the same area of the stream taken in the spring at 40 cfs when
the measurements were done for the R2Cross measurement. Base flow habitat is needed
for invertebrate production through the winter; these provide food for the fish; the winter
flows provide refuge habitat. Miller said out of the R2Cross study, it was found that
according to the criteria of the DOW, 13.3 cfs from the diversion down stream to the
hydro plant and 17.2 cfs from the hydro plant return down stream to the Roaring Fork is
needed. There are two different in stream flow recommendations for those areas. These
are base flows that would be used in conjunction with the operating agreement.
Miller said comparing the 12 cfs to the 13.3 cfs, there is about 'A" change in the stream
depth. The difference between 13.3 cfs and 20 cfs is about 1.25" on this stream and
stream width changes of 1 to 2' in width. At these minimum flows, there are areas in the
stream where fish can pass; the pool habitats would be 1.5' or deeper during winter at the
base flows.
Miller told Council they sampled both Castle and Maroon creek for fish habitat; these are
in good conditions based on body mass, a factor used in assessing the condition of trout.
A 1.0 in that assessment is very good condition and higher than 1.0 is excellent. Miller
noted coming out of winter, one would expect below 1.0; in both Castle and Maroon,
there were rainbow and brown trout that are at or near 1.0. This means there is plenty of
food available for the fish in these streams. Miller explained the body mass is based on
length times weight times 10 to the 3` Mayor Ireland asked if this takes into account
how many fish are in the stream. Miller said this is the mean value. Miller said there
seems to be fewer fish in the stream than the stream can support.
Miller showed an additional hydrograph superimposed on the existing hydrology with a
proposed hydro operation. Miller said this shows a decrease in discharge as well as an
associated decrease in wetted area and productivity in the stream during fall and
sometimes during the ascending and descending limbs of the hydrograph; there is an
impact to the stream. The question is whether this will detract from the stream and make
it unhealthy. Miller said the things that drive the stream channel will not be changed.
Miller noted the biggest change in October and into late November, the river goes from
about 40 cfs to 20 cfs to base flows and 13.3 cfs in late November is an additional impact
that does not currently exist. From late November to December, there is a 1 to 2%
change overall; there will be a loss of area upstream where the hydro plant return comes
in and a gain of wetted area down stream of the hydro return from Power Plant road,
downstream to the Roaring Fork. Mayor Ireland asked if the intent is to go back at
some time and measure again. Miller said that is what the monitoring plan is set up to do.
Councilman Romero asked at what level Miller would be alarmed with a percentage
alteration. Miller said he would look at the individual cross section information, the total
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Regular Meeting Aspen City Council September 13, 2010
wetted area by reach of stream as well as the cumulative numbers. Miller said seeing
15% change or higher, that is getting to the measurable range. Councilman Romero
asked if more constructive data from various perspectives is better. Miller said for
different features within the stream, the answer is yes. Miller said the city has a good
data base to start; the proposal for the monitoring is to collect more data this fall for the
base line information. There will be 2 seasons of sampling. Miller said in biological data
there is a lot of variability, measurements, techniques, conditions when measured. Miller
said he does not expect to see changes. Miller said some implications to Castle and
Maroon Creeks health, existing hydrograph has high peak flows for habitat creation and
maintenance; there is riparian and wetland recharge; the high flows stay for a fair amount
of time, almost 2 months in some years. The proposed hydro plant operation maintains
the hydrograph shape. Miller said there is not the physical capacity to reduce that peak
flow; the capacity out of Castle Creek is 25 and 27 out of Maroon Creek; they are
physically limited to those amounts. When the stream is in the 200 cfs range, their effect
on the peak flows diminishes. The wetted stream width is maintained at 90% or more of
the existing conditions during all times of year, which is a factor in building inferences in
trophic levels. Miller concluded that both Castle and Maroon Creek are healthy streams
and they should remain healthy with the proposed operation. There will not be a major
shift; the proposal is to maintain the hydrograph.
Councilman Skadron asked if the proposed stream flows achieve the optimal range of
variability. Miller said there will be variability within a year from base flow to peak flow
as well as dry years, wet years. The hydrograph presented is from an average year.
Miller said optimal depends on which part of the hydrograph one is looking at; there is no
single optimal number. It is a healthy stream that needs to mimic the hydrograph. All
the flow prescriptions talk about mimicking the natural hydrograph, which is what the
proposed operation will do. Councilman Skadron asked if stream health is insured as a
priority over the hydro plant. Miller said the commitment is to maintain the existing
stream health; the commitment to the 10 year monitoring plan is unusual. Most hydro
plants do not include an in stream monitoring to see if the stream health plan worked.
Councilman Johnson asked if the city's plan is in the excellent category. Miller said he
has not seen programs with longer monitoring plans unless it includes endangered
species. Councilman Johnson said he would like some information on operations that
have not run well, can streams be brought back, what happens to the operations.
Councilman Romero asked how many sites each for Castle and Maroon Creeks the
monitoring plan proposes. Miller said there are 3 sites on each; a reference site on each
above both diversions; a site in each by pass reach and a site down stream of the plant
returns on both streams. Miller said data on invertebrates and fish population will be
collected at all sites for the first year base line and for each of 4 years. Councilman
Romero pointed out the ordinance says "identify a monitoring site on Castle and a
monitoring site on Maroon ". Miller said that should be hydrologic site, a stream gauging
site, which is different from monitoring. One can get water temperature at the gauging
sites. Councilman Romero said the monitoring site is proposed to end after 10 years.
Miller told Council that was recommended by CDOW; it is a long time to monitor. One
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Regular Meeting Aspen City Council September 13, 2010
should know what is happening before that time. For the monitoring, a transducer, which
senses how much water will be going through it, will be hooked up to the intemet.
Miller told Council to measure the fish population, he uses electric fishing equipment
which is standard. There is an electrified field, positive electrodes hit the sides of the
fish, net and hold the fish, repeat that, and there are standard equations used to calculate
the population. Dave Hombacher, utility department, showed a plaque commemorating
1892 an installation of hydropower on Maroon. The new Maroon Creek hydro facility
started in 1986. Hombacher noted in 1974 there was a decreed in stream flow for 14 cfs.
Hombacher said last week, there were demonstrations of 14 cfs and 20 cfs in the creeks,
which are fall and spring water flows.
Hombacher said the work on the stream health was coordinated with the Division of
wildlife. Staff also met with the Roaring Fork Conservancy and the US Forest Service.
Hombacher told Council the current standard is 12 cfs. This proposal has a higher level
of protection and staff will adhere to the higher numbers. Hombacher said this plan
meets 3 criteria of the R2Cross. The DOW requires 3 out of 3 for summer habitat and 2
out of 3 for the winter habitat and 13.3 cfs meets 3 out of 3 for both of those habitats.
Hombacher said staff wants to make sure this is right and approached the DOW on
collaborating, which will be committed to in a memorandum of understanding for the
health of the stream and a monitoring plan. The plan is a 10 year study and includes
assessment and adaptive management.
Hombacher noted the city has a scientifically -based recommendation for 13.3 cfs.
Hombacher pointed out if through the monitoring, something higher is recommended, the
city has a scientific basis to request review from CWCB for an increase in stream flow.
Barwick presented draft language for amendments to the ordinance. One amendment is
that the city will be legally bound to maintain stream health. There will be annual
reviews of the stream health and the results will be forwarded to CWCB who, if changes
are recommended, the city will have to change the electric operation plan in order to
insure stream health. This is unprecedented in the state of Colorado.
Barwick presented financial estimates including an average 1% annual increase over coal
costs over the years. The coal costs will go up 8% in 2011, the city has already been
given that increase and to be conservative averaged the increase to 1% over the years.
Barwick said staff figured in putting money into a capital reserve and using 13.3 cfs, the
rate of return is 9.7 %. Barwick said if the monitoring plan shows that more water should
be left in the stream and at 19 cfs, the rate of return is 7.6% calculated over a 50 year
period; at 40 years, the minimum life of a hydroelectric plan, the rate of return is changed
very little. These financials include the principal and interest payments for the cost of the
bonds. Barwick said at 13.3 cfs, there is a positive cash flow in the 2 " or 3 year
including principal and interest. Councilman Romero asked the total project cost.
Ilornbacher said the total project cost is $6.3 million; the principal and interest over the
life of the bonds is $10 million.
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Regular Meeting Aspen City Council September 13, 2010
Mayor Ireland asked how the cash flow is if the project is 19 cfs. Barwick said it takes 3
or 4 more years before the cash flow is positive. Barwick said there is financial
flexibility in case the stream flow needs to be increased. Barwick noted the city's electric
rates are the 7` lowest in the state of Colorado. The city is about 75% "green" power,
which is possible because of previous hydro projects, like Ruedi. Hydro projects last a
long time and once the bonds are paid off, the fuel is almost free and produces low and
stable rates. Barwick said if the city's electric grid goes down, this hydro power project
could provide power locally. Barwick stated this hydropower plant is much less
impactful than coal and provides energy at a lower cost. The hydropower plant fully
utilizes and protects city water rights and helps keep power costs low. Staff believes this
project has a lot of merit.
Mayor Ireland opened the public hearing.
Sara Adams, community development department, entered letters and e-mails into the
record; Dick Butera, Ruthie Brown & Tim McFlynn, Kit Goldsbury, Roaring Fork
Conservancy, Ann & Edward Hudson, Paul Noto, Michael Lipkin, Ken Neubecker, Lucy
Hibberd, Ed Zasacky, Blanca O'Leary, Carol Tadmore on behalf of Michael and Dana
Werner, Timothy Marcand and Mary Lowe.
Tim McFlynn said he appreciates the city taking a 30 day timeout to allow for further
stakeholder input. McFlynn suggested because there is new interest daily, that the city
allow during this 30 day period, stakeholders, experts and some neutral facilitator to
conduct more public process. McFlynn noted western communities are dealing with
impacts of expanding hydro, solar, biomass or wind to reduce dependence on fossil fuels.
Aspen is a leader in this area and should take the time to get it right and to harmonize
getting off fossil fuels and protecting the streams.
Lee Rosacalus, Boulder, told Council he is a hydrologist and water engineer and has been
involved in developing hydropower projects and in stream flow protection. Rosacalus
said he was asked to review Miller's report and to listen to citizens' concerns and agreed
it would be time well spent to allow time to absorb this information. Rosacalus
applauded the city in its intent to reduce the carbon footprint.
Bob Rafelson asked for every added increment of added cfs, does it delay the savings by
a large amount. Rafelson told Council he has been against altering the creek for years;
people have romantic ideas about water in the stream. Rafelson said his house on the
creek was flooded this year. Rafelson noted Council did their inspections in narrow
streams and there are places where the streams are much wider. Where, when and how
the stream measurements are taken affects the results. Rafelson said when people alter
flow of a river, it can be grotesque if it is not done correctly.
Mayor Ireland asked staff for dry year hydrology. Mayor Ireland asked if the city can
increase the in stream flows without approval from the CWCB that it is reasonably
necessary. Ms. Covell told Council the CWCB has a methodology for calculating what
in stream flows are and they look at criteria calculated in a certain way and that is what
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Regular Meeting Aspen City Council September 13, 2010
they will appropriate. Ms. Covell said if the city wants the CWCB to use a different
criteria for a larger number not generated by their measurement devices, the city would
have to figure out how to persuade the CWCB to do that. Ms. Covell stated she is not
confident if the city asked the CWCB to appropriate 19 or 20 cfs without scientific
studies supporting that conducted in the way they approve that the CWCB will agree to
that. Rafelson asked if anyone has calculated what it would cost to take the water, bring
it through the plant, and run it back up again to where the diversion was so the water
would go round and round.
Jay Hammond, previous city engineer of the 1980's, told Council both Ruedi and Maroon
hydropower plants were constructed then. Hammond aid at that time the city felt it was
the right thing to do; hydro was a renewable energy source; the city was reducing their
dependence on coal -fired electric plants. Hammond noted the Maroon Creek facility has
been in operation for 25 years and has about half the capacity of the proposed facility.
Hammond said there have been no complaints or any demonstrable degradation of the
stream on Maroon Creek. Hammond told Council his company has an energy efficiency
team; they spend a lot of time encouraging communities and private clients to develop
hydropower and micro hydro projects where appropriate. Hammond pointed out Aspen
has access to two creeks and two basins with separate personalities and distinct geology;
the hydrology of the two basins is fairly comparable although not precisely the same and
the city can divert water from each of those creeks.
Dee Malone noted minimum flows as established by the CWCB are at best a guesstimate
regarding the amount of water necessary to sustain the stream function. Ms. Malone said
minimum flows are determined as Castle Creek by looking at one site in the stream at one
point. Ms. Malone stated there is year to year variability and within a year variability and
determining minimum flows based on one sample point at one time is insufficient to
assess stream needs. Ms. Malone said minimum flows often maintain only minimum
streams. Ms. Malone said base line data needs to be collected over at least 3 years during
different times of the year. Ms. Malone said each type of stream in the gradients will
respond differently to dewatering. There should be a sufficient amount of time for base
line studies, a sufficient number of sites, and determine if there are changes. Ms. Malone
said indications of a healthy eco- system are not just presence or absence of a species but
the reproductive success and spawning depends on things like velocity.
Councilman Torre agreed this discussion is about stream minimums and what they mean
and where to set the bar for these streams. Miller told Council he found no cutthroat
trout. There is a program is reintroducing cutthroats in the Colorado River basin; they
have been hybridized with rainbow trout. The only native fish captured were sculpin,
which is not a game fish. Native fish are important but is not the key issue in
determining health of the stream. Councilman Torre asked what Castle Creek gets to at
its lowest flow during winter months. Miller said according to the data, it gets to the low
teens. Miller told Council to get to a higher stream number, according to the CWCB, one
has to look at the availability of water and one can only ask for waster that is available.
The Roaring Fork Conservancy report notes in the winter, the average monthly flow is 15
to 17 cfs. Asking for 19 or 20 cfs may not be supported by the availability of water.
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Regular Meeting Aspen City Council September 13, 2010
Mayor Ireland asked about the minimum stream flows being established at one location,
being measured one time. Miller said that is the methodology established by the state;
one cross section is looked at, one flow is taken at a base flow level. Tom Hirsch said he
is not aware of any studies showing there is a 15 cfs stream flow in Castle Creek and
during the winter it is difficult to know that it gets that low. Miller stated he is basing his
answer on the hydrology provided by the city hydrologist. There were historic gauges
and from that they developed information to provide that data, which was a modeling
exercise. Phil Overeynder, water department, told Council they do measure the bypass
flow going past the headgates and considering other diversions made, in March 2010, the
stream was in the low teens.
Tom Hirsch said there are a lot of different stakeholders and all of them favor renewable
energy. This issue is how to get there and to clarify there is a difference between
renewable and green. There can be renewable energy that does have impacts and does
cause damage. Green infers minimal impacts, not minimal stream flow. Hirsch noted
that 15 or 20 cfs is from a human perspective, not from below where the fish and aquatic
population live. Hirsch said people who arrive at major decisions with major impacts
generally do due diligence before the decision are made.
Hirsch noted when he was meeting with Miller at Castle Creek, the city has already
invested several million in infrastructure. Hirsch said his concern is much of this
equipment has already been purchased and the due diligence has not been done. Hirsch
said hydropower may be a great solution; however, perhaps several small, minimal
impact hydro plants would be a better solution. Hirsch said mediating a solution after a
decision has already been made is not ideal. Hirsch said people who live along the
stream have wells and these wells will ebb and flow with stream flow. The impacts of
minimizing rhythms of the streams and aquifer is not known. Hirsh questioned putting a
hydropower plant in a residential area which will change the character of that
neighborhood. There are many layered issues to sort out in this application before
everyone is fully informed. Hirsch stated hydrographs are not reality and does not mean
anything to life in the stream. Hirsch said the city notes there will be an 8% gain, which
is not possible because the plant will not run all the time. This 8% is equivalent to minor
conservation measures people could take. Hirsch said some people look at the stream as
a commodity and some look at it as magic. People are here for the magic.
Tom Starodoj asked who decides whether the stream is healthy and what are the
standards for making that decision. Miller said the monitoring protocols look at steady or
increasing populations for macroinvertebrates, for fish and changes in habitat that is
significantly different. If there is a healthy stream today, the base line numbers become
those to be compared to in the future. Starodoj asked if one could just look at a stream
and make a decision it is diminished. Miller said the decision would be based on the data
collected. Starodoj asked at what cfs the city's return gets to zero. Barwick said he
would have to work that out. Starodoj said if a hydro plant is built, it will result in a tug
of war between the health of the creek and the viability of the plant and each side can
only win at the expense of the other side. Starodoj said this is a lose /lose situation. This
is a well meaning project driven by the desire to address responsibilities and the canary
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Regular Meeting Aspen City Council September 13, 2010
initiative. Starodoj said when the city starts tinkering with the heart and sole of the
community, the project does not pass the critical test and it is not green and is not in the
best long term interests of the community. Starodoj recommended Council not approve
this ordinance.
Bill Stirling said it is good the city is not going to rush into this decision. Stirling agreed
everyone is interested in renewable energy. Stirling told Council as a CORE board
member, they were presented in 2006 with the idea of harnessing the flow of the streams
and gave a $200,000 grant to the water department for this project. The mission of
CORE is energy efficiencies in order to reduce the carbon footprint and to protect sources
of water. Stirling said any efforts that will get the city further along the way toward
reducing the carbon footprint is a necessity. Stirling said minimum stream flows is a
critical issue. Stirling said there are only several months when the stream will be below
20 cfs. Stirling said shale oil development on the western slope will be the ultimate user
of water, which is a concern. Stirling said this project can be done as a balancing act;
protecting the stream and providing renewable power. Stirling said he would err on a
slower rate of return.
Paul Noto, representing homeowners on Castle Creek, said he does not feel the threat of
trans mountain diversion and the front range leaping in front of other water rights is
feasible. There would be hundreds of thousands of water rights ahead of anyone who
applied in this area. Noto said some of his clients upstream own small water rights for
ponds and wells and they want to make sure their water rights are protected, which is
standard practice. Noto said he would like assurance the stream is not being drawn down
lower than 13.3 cfs including other diversions and ditches. Noto brought up baseline data
based on stream flow data from a gauge 9 miles upstream and which gauge is at least 15
years old. Noto said this project warrants more than one reading in the stream. Noto
said putting off the rate of return and leaving a higher amount of cfs in the stream sounds
like a good idea. Noto said there are only so many water uses that can occur in the 2.5
mile stretch of Castle Creek through mostly private land. Noto said there is a new
mechanism by which the CWCB can accept a loan of water rights to improve the nature
environment to a reasonable degree, which could be an option. Overeynder told Council
all the diversions are accounted for.
Maureen Hirsch told Council there are 53 wells on Castle Creek and 14 wells on Maroon
Creek; a significant number drawing from the creek. Ms. Hirsch said originally the
Aspen Energy Center was proposed to have multiple uses, like hydrogen extraction,
hydrogen storage, a fuel station for alternative fuel, geothermal and solar. Ms. Hirsch
suggested conditions on what the building can be used for. This building is in the midst
of a residential area. Ms. Hirsch pointed out in November 2008, the city received a
preliminary permit from FERC in order to study the proposed 1.05 megawatt hydro plant.
This did not give the city permission to build any infrastructure; however, there has been
infrastructure put in, feeder lines and a penstock. Ms. Hirsch noted the city has referred
to a conduit exemption. According to FERC a conduit refers to an existing water way,
making an assumption water is currently flow through that water way. Ms. Hirsch said
this conduit does not meet the definition.
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Regular Meeting Aspen City Council September 13, 2010
Connie Harvey thanked Council for allowing the process to go on. Ms. Harvey said she
supports renewable energy and asked if there are any calculations for the effects of
climate change on streams. Ms. Harvey asked if the construction project will be stopped
while the citizen process is gone through. Ms. Harvey said she wished this process had
more transparency and the public had been better informed. Ms. Harvey said some
concerns may disappear if Council agreed to only run the plant during high water.
Michael Lipkin noted the hydrograph was described as an average year. Lipkin asked if
this is an average year. Overeynder said 2010 is very close to an average year. When the
city had an onsite demonstration, the stream was at 50 cfs. Lipkin said he would like to
know the cfs in July. Lipkin supports the need for additional testing to help everyone
understand.
Jeanette Darnauer told Council their subdivision Twin Ridge is being used as a
justification for spending money from this bond issue on a drain line from Thomas
reservoir, which could avoid potential property damages if there were a breech in the
dam. Ms. Damauer said neither she, nor her neighbors, have ever been contacted by the
city expressing concern about their safety or potential damages. Ms. Darnauer noted the
reservoir existed when the subdivision was approved by the county and if there was a
danger, why was the subdivision approved. Ms. Darnauer questioned the city saying
there could be an emergency situation when the state dam safety inspector said in 1989
this was a small and benign reservoir and would create no safety hazards. Ms. Darnauer
pointed out the safety inspector stated if the dam were to break, the flood would be
contained to the channel of a slow velocity with no damage occurring to anyone and the
water would spread out in a shallow spreading pattern. This does not sound like an
emergency situation and risk to downstream properties. Ms. Damauer said they would
like assurances that they are protected from current work and the implications of a new
reservoir classification. Ms. Darnauer said this construction of the penstock has
destroyed native bushes and grasses; Doolittle Drive has been a mess; neighbors have
never been notified of plans or disruptions; construction noise has begun as early as 7
a.m. Ms. Damauer told Council traffic was prohibited from leaving Twin Ridge for one
hour because of paving with no notification.
Mayor Ireland requested a report on the construction damages and to what extent things
are being repaired. Councilman Skadron asked how come this became an emergency
after 19 years. Overeynder said the report from the engineer studied the way the dam has
been operated and engineered and said it is not meeting current design standards. The
requirement is to be able to convey all the water in the reservoir safely out of the
reservoir. Overeynder said the statement that water would spread out and not be a
problem was the case in 1989 not in 2010. Overeynder stated there is not an adequate
overflow to handle the amount of water coming in, the reservoir could be overtopped and
if the reservoir fails, it could bring 170 cfs into a neighborhood developed post 1989.
Overeynder told Council if the engineer states there is a problem, his process is to deal
with that problem immediately.
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Regular Meeting Aspen City Council September 13, 2010
Jack Hoffman told Council he has looked at Maroon Creek for 25 years running at a
minimum of 12 to 14 cfs when needed, to provide the city with 4 to 5% of its energy.
Hoffman stated he has not seen a stream ruined; none of the neighbors on the stream have
objected and they supported the project. All the neighbors understood hydropower as
cleaner, better and homegrown. Hoffman asked if Aspen has a responsibility to do
homegrown. This project is a larger impact to the use of energy in the city than any one
person in an office can create as an energy coordinator. Hoffman said nothing is being
destroyed based on 25 years of experience on a neighboring similar stream. Hoffman
agreed the stream will not flow as much water for a period of time. Hoffman said Aspen
uses energy in everything it does and energy has to get here somehow.
Jim Markalunas passed out pictures of Castle Creek when the former power plant was
operating in the mid -50's and there is water in the creek. Markalunas noted he operated a
hydro facility and appreciates the renewable resource in Aspen. Aspen has been
fortunate to have had a history in hydroelectric power. Markalunas said he has published
a book of Aspen memories and there are chapters on creating power in Aspen.
Markalunas said the need to create an emergency power source is important; the town
was without power in 1961. Markalunas stated Castle Creek was never depleted in all
the years he ran the power plant. Markalunas noted in the 1960's there were problems
with water in city wells and the use of wells was discontinued and the solution was to go
back to using river water and to build the treatment plant. Markalunas said conservation
is important; our society is affluent and wasteful.
Yasmine dePagter said she agrees with Ms. Harvey and the Hirschs. Ms. dePagter said
her position is healthy stream flows; healthy numbers. Ms. dePagter asked if it is
possible to turn off the flow into the reservoir. Overeynder stated it is not possible to
control Maroon Creek without a person on site. If the stream were shut down rapidly, the
construction is such that the pipeline could blow up.
Nathan Ratledge said he appreciates the community's attention to this issue. Ratledge
stated he agrees with Stirling on the urgency of some of these issues. Ratledge said
promoting energy efficiency is a city priority and everyone in the community can get a
energy audit. Ken Ransford agreed with the recommendation to have a citizen group to
work on this issue.
Mayor Ireland moved to continue Ordinance #15, Series of 2010, to October 12, 2010;
seconded by Councilman Skadron. All in favor, motion carried.
Councilman Skadron moved to continue Dancing Bear to September 27; seconded by
Councilman Johnson. All in favor, motion carried.
Councilman Romero moved to continue the Ordinance #48 negotiations for the Given
institute to September 20, 2010; seconded by Councilman Torre. All in favor, motion
carried.
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Regular Meeting Aspen City Council September 13, 2010
Mayor Ireland moved to go into executive session pursuant to C.R.S. 24- 6- 402(4)(b)
Conferences with an attorney for the local public body for the purposes of receiving legal
advice on specific legal questions and (e) Determining positions relative to matters that
may be subject to negotiations; developing strategy for negotiations; and instructing
negotiators at 10:15 PM the topic is the Given Institute; seconded by Councilman Torre.
All in favor, motion carried.
Mayor Ireland moved to come out of executive session at 10:30 PM; seconded by
Councilman Johnson. All in favor, motion carried.
Mayor Ireland moved to go into executive session at 10:30 PM pursuant to C.R.S. 24-6 -
402(4)(a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other
property interest; seconded by Councilman Johnson. All in favor, motion carried.
Councilman Torre moved to come out of executive session at 10:37 PM; seconded by
Councilman Johnson. All in favor, motion carried.
Mayor Ireland moved to continue the meeting to Thursday, September 16 at 3 PM;
seconded by Councilman Skadron. All in favor, motion carried. Council left Chambers
at 10:37 PM.
Kathryn S. Koch, City Clerk
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