Working Paper 94-59, February, 1994.
By Jerome Roch
This paper was written in conjunction with the Fall 1993 Natural Resources and Environmental Policy Seminar of the University of Colorado Interdisciplinary Graduate Certificate Program in Environmental Policy. All ideas presented are those of the author and do not necessarily represent the views of the Consortium or the University. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: email@example.com.
© 1994 Jerome Roch. Do not reprint without permission.
The Lakewood pipeline dispute started in 1987 when the utility maintenance personnel for the City of Boulder, Colorado, issued a plan to replace a four-mile raw water pipeline. The existing pipeline is wearing out and it does not have the capacity to carry the 18 million gallons of water daily that it was originally designed for. When constructed, the Lakewood pipeline had a smooth, coal tar enamel lining on the interior surface of the pipes. Recent studies have shown that the interior enamel lining has begun to come off. Much of the lining has been deposited and removed at the treatment plant, but it is believed that some has collected at low points in the pipeline, thereby reducing the pipeline capacity and increasing the friction within the line. The new pipeline will replace the smaller, 40-year old pipeline. It is designed to run between the Lakewood reservoir to the Betasso treatment plant, one of the City of Boulder's raw water treatment plant. The original pipeline was installed in 1906 and replaced in the early 1950s with a larger one. The proposed project will replace the bottom four miles in the line leading from the Boulder watershed, on the continental divide, to the treatment plant. The upper six miles of pipeline, west of the Lakewood reservoir, is scheduled to be replaced in about 10 years. The currently proposed project would be a 24-inch high pressure raw water pipeline. This proposed pipeline would be larger than the existing one in order to handle increased water pressure from a proposed hydroelectric plant. It is part of the strategy of the City of Boulder to commit to zero net energy growth and to the use of non-polluting renewable energy resources. The City plans that the energy generated would eventually pay for the cost of the project. The City fears that the old pipeline would suffer a major break. In addition, they are concerned about the problem of maintaining water quality. The problems caused by trapped air threatens the water quality and the City staff is concerned about the possibility that the water, after treatment, will still not meet the new Safe Drinking Water Act standards. The problem-causing trapped air can be reduced through pressurizing the water. The existing pipeline would remain in place to carry water during construction and to be used as back up during maintenance and emergencies.
To complete the construction of the pipeline, the City of Boulder needs easements from 32 property owners. These easements need to be 50 to 60 feet wide during construction and 40 feet wide permanently if the proposed project is to be completed. The new proposed pipeline would be parallel to the existing pipeline, at a distance of 10 feet, for most of the four miles. It would be installed approximately 4 feet underground. The City of Boulder claims that the water carried by the Lakewood pipeline is critical to the City's water supply. The City has two other water sources: the Boulder reservoir which stores water from the Colorado Big Thompson Project, and the Barker reservoir. The Lakewood pipeline provides Boulder's entire water supply during the winter months and approximately one-third of the daily demand during the summer months.
The construction of the proposed pipeline was originally scheduled to begin in March 1989 and was supposed to last eight months, costing a total of $3 million. The construction contract was to be awarded in November 1988. There were several increases in the original cost estimates and several delays. In October 1988, the City Council accepted the staff recommendation to delay both the construction and the financing of the project for approximately one year. In November 1988, the project was expected to cost $4 million. The increase in cost was partly due to the underestimation of the cost of the pipeline steel and was also due to the slight changes in pipeline alignment based on agreements between the City and property owners.
To date no construction has begun and the project has cost the City of Boulder more than $1 million so far. The entire cost of the project is now estimated at $11 million.
The City of Boulder needs a special-use permit from the U.S. Forest Service for the pipeline to go through the Arapahoe-Roosevelt National Forest. For the U.S.F.S. to grant that permit, the City of Boulder has to pay for an environmental assessment (EA), followed by an environmental impact statement (EIS) if the EA determines that the project would have significant environmental impacts. In October 1989, the City of Boulder chose Engineering Science Inc. as a contractor to work on the scoping process for an eventual environmental assessment (EA) and a potential environmental impact statement (EIS). The scoping document discusses the purpose of and need for the project and alternatives. This scoping process was a good opportunity for people to inform the City of their issues and concerns about the project.
The opposition to the project naturally comes from mountain residents whose land lies in the pipeline's path. The project clearly threatens their high country quality of life, their property values and the area's delicate environmental balance. Trenches will be dug to install the new pipeline underground. Hundreds of trees will be cut down or moved. In particular, among the trees to be removed are 15 century-old trees, 80 to 100 feet tall. They are located in a place called the "Tall Timbers" subdivision. Fisheries could also be disturbed. A particular worry is the safety of the Greenback Cutthroat Trout. The new pipeline could potentially disturb the Boulder watershed and the wild trout population by withdrawing too much water from the Boulder Creek. The Greenback Cutthroat Trout is a native species of the high mountain lakes of Colorado. It was believed to be extinct in 1937. It is now considered to be threatened. Some residents recently accused the City of taking water out of Boulder Creek simply to support Boulder's growth. Since the 18 inch line would be replaced by the 24 inch proposed pipeline, the amount of water diverted from Boulder creek would be increased. "If [the City of Boulder] keep[s] taking all of the water, there is not going to be any Boulder Falls, a major tourist attraction" a resident said.
Residents are also worried about a number of disturbances. They say that there could be a disruption of septic fields, as well as damage to private wells. They mentioned the possibility of the disruption of radioactive settling ponds at a mine site that the line will pass through. A worst-case scenario has been suggested in the form of a possible rupture of the high pressure line. If it were to happen, lives and properties would be threatened. The water will travel at a speed of about 218 miles per hour in the pipeline. If the line were to rupture, it would send water jetting 1,600 feet into the air "at a velocity that would tear a mule deer, an elk or a human apart," calculated a concerned resident. This worry was fueled by the burst of a similar water pipe on December 21, 1990 in Boulder Canyon due to freezing conditions. The city's answer was that the new Lakewood pipeline should be built to avoid such an event. It is planned to be installed underground to avoid freezing conditions. Residents claim that there is a danger of potential damage to areas of significant geological and historical interest that the pipeline would cross. They also claim that they would be turned into "guinea pigs." The Lakewood pipeline is supposed to be the only high-pressure water pipeline in the country that will be placed in a residential area. The residents fear the unknown effect of high-frequency vibrations caused by water flowing through the pipeline. As those effects are currently unknown, the residents declared them potentially dangerous to humans, wildlife and the environment.
The "Sugarloaf Community Inc." was formed to look into the issues facing the area. Committees are researching the pipeline project and forest management. The corporation has the responsibility of representing the group's concerns to City officials.
The City staff guaranteed that the topsoil along the route of the pipeline will be removed before installation of the pipeline and returned once construction is finished. Some of the younger trees along the route will be replanted following construction and new seedings will be planted to restore, as nearly as possible, the original vegetation. The area will be reclaimed as much as possible. The City will try to mitigate any excessive disturbance to the property owners. It is planned that once the pipeline replacement begins, each easement will be temporarily fenced off. This method of construction will also ensure that the contractor stays within the easement. Responding to the fears of the residents, the City claims that the pipeline will be even quieter than the old pipeline because it will benefit from better engineering and it will be buried deeper into the ground.
To try to raise the awareness of citizens on the tradeoffs to be made, the City of Boulder's Utilities Division distributed a biweekly newsletter to Sugarloaf residents and other concerned citizens. More than 900 newsletters were distributed biweekly. Paralleled to this tentative operation of trying to define a common ground for discussion, the City started to address the problem of the easements. The process was conducted with an attitude ranging between negotiation and arm-twisting. The City needed to acquire 44 permanent easements and 29 temporary construction easements from private property owners. In September 1988, the City Council authorized condemnation proceedings on six parcels.
At the beginning of the dispute, some residents said that nearly all the problems can be avoided by a relatively minor realigning of the pipeline. They also lobbied for a narrower easement. A 60-foot easement seemed to be too large. Some residents even asked about a design that would leave a "no more than a four foot scar." Those opinions seemed to reflect a kind of consensus between the residents in 1988. But the City categorically refused to discuss any change in the line. The response from the City staff was that the route chosen for the proposed project was the most environmentally sensible, workable option given the potential hazards. Other residents suggested rerouting the pipeline to follow county roads. The City responded that putting the pipeline under Sugarloaf road would be more expensive, would cause traffic disruption, would imply more blasting and the Tall Timbers' trees would still be lost. The increased cost would come from the necessity to pump water for about half a mile to reach the high point of the road. In contrast, City staff members said, the disruption for the construction of the proposed project would be limited to two weeks at any one spot.
Another idea was to repair or rebuild the Barker-Kossler reservoir pipeline with Public Service and to pump the water from the Lakewood reservoir to the Peak to Peak highway and then drop it to Barker reservoir.
Another tentative conciliation agreement was tried by the residents. They asked the City Council to provide them with fire hydrants on the pipeline as a compensation of the construction of the new pipeline. In September 1988, the Boulder City Council voted against the proposition. The Council's unanimous decision was driven by the desire to not violate Boulder's "Blue Line" law adopted by voters in 1959. The law prohibits the City from extending utility services above a boundary separating the city from the mountain backdrop without voter approval. Moreover, the proposition contained other problems. The pressure reducing valves required for any type on the high pressure line would cost a minimum of $22,000 each. Improper operation of the fire hydrants could severely injure the operator or damage the pipeline. Furthermore, the hydrants would be in an isolated mountain area and subject to vandalism. Finally, the line would be emptied periodically for maintenance and the staff was concerned about the possibility of the City's liability for failing to supply water to the hydrants. The City even refused to add a tap to the proposed pipeline for firefighting. The Sugarloaf Volunteer Fire Department's truck currently travels twenty minutes to fill-up at the Betasso treatment plant.
The repairing of the older pipeline seems another possibility too. Some people suggested to run a "pig" to clean the line out and add a plastic liner or a cement lining inside the pipe. Moreover, certain residents claimed that the pipeline is not necessary. They point out the City of Boulder's September 1988 Long-Range Development Plan that says: "enlargement of the pipeline would increase system redundancy, but is not necessary from a strict water supply standpoint." The City replied that the pipeline is needed as a backup during shortages caused by breakdowns in other pipelines.
In September 1988, the concerns of the property owners were taken to the Forest Service in the form of an environmental appeal. The U.S. Forest Service, after reviewing the City of Boulder's environmental assessment (EA), accepted the finding of no significant impact. Therefore, the environmental study process ended there. Residents claimed that the environmental assessment did not consider the effect of noise or vibrations from the pipeline. The City of Boulder put the project on hold during most of 1989. Clearly, the City wanted to avoid the million-dollar-plus cost of the EIS requested by residents. The U.S.F.S. finally granted the request of the residents to redo the environmental assessment. After a second scoping process in early 1990, the U.S. Forest Service decided to prepare an environmental impact statement in March 1990. The City of Boulder decided to support the environmental impact statement process and agreed to finance the making of the document. At that time, the City thought the EIS process would fit into its $400,000 budget for studies and design. The decision of the U.S. Forest Service to work on an EIS was considered as a "victory" by Sugarloaf residents.
This dispute seems much more unconventional than the preceding dispute with private property owners affected by the proposed project. This dispute is much more embedded in the broader conflict over water management in the western U.S. The primary reason why the U.S. Forest Service is involved in the Lakewood pipeline project process is that the proposed route for the pipeline crosses parts of the Arapahoe-Roosevelt National Forest.
In September 1988, the U.S. Forest Service (U.S.F.S.) completed the environmental assessment review. The Forest service approved the finding of the City of Boulder's EA: that the proposed project will not have any significant impact on the environment. An environmental appeal was filed with the Forest Service by some property owners along the pipeline. They thought that all of the questions regarding environmental impacts had not been answered in the environmental assessment. The City of Boulder willingly cooperated with the environmental appeal process. It gave information to the Forest Service to help in the decision. The City of Boulder provided a copy of the plans and specifications of the proposed project, information on design standards utilized by the design engineer, economic analysis worksheets of the pipeline and the hydroelectric project and the description of the quality control methods planned to monitor the project. Once again, the City of Boulder reaffirmed that the Lakewood pipeline is a critical element in the Raw Water Master Plan of the City. The City added that even if it did not find significant impacts, it had prepared a mitigation plan to minimize those impacts.
But in March 1989, following the environmental appeal by property owners, the U.S. Forest Service decided to invalidate the finding of no significant impact of the EA and ordered the City of Boulder to write another EA. The City did not consider appealing the U.S.F.S. decision. The Forest Service recommended that the EA should address the specific concerns of those opposed to the pipeline.
The dispute between the City of Boulder and the U.S. Forest Service is mainly centered around the question of in-stream channel flow in Boulder Creek. The new pipeline would carry 21 million gallons of water a day instead of the 13 million currently carried by the old pipeline. This situation would significantly affect the in-stream flow of Boulder Creek. The Forest Service wants a minimum in-stream flow to minimize the impact on fisheries. In addition, the U.S.F.S. requires a channel flushstream flow to address the problem of channel stabilization. The City argues that the amount of in-stream flow requested is excessive and that the flushstream flow is not needed. On the contrary, the City claims that the flushstream flow would damage the creek instead of being beneficial to the environment. The City officials explain that they are not trying to get more water from the watershed but simply to get the amount to which Boulder is entitled. The U.S. Forest Service replies that the water is Boulder's but the City can not take it across Federal land without an environmental impact statement being done. One of the reasons why the Forest Service asks for more in-stream flow is because the U.S.F.S. tries to help save endangered species in the watershed downstream of the Boulder Creek. In fact, the Forest Service expects the in-stream flow to help the Sandhill Crane and the Sturgeon in the Platte River basin in Nebraska. The City argues that if it agrees to release this in-stream flow, it would not be beneficial to those species. The argument is based on the Colorado water laws and Nebraska water laws. Under Colorado water laws, if more water is available in the stream, downstream junior rights will be able to divert the water before the water reaches the endangered species. If the water reaches Nebraska, it is not sure that it will be beneficial to the species either. Under Nebraska water laws, wells are considered "non-tributarian" and would be allowed to "suck the water" from the stream, the City claims.
The dispute between the City of Boulder and the Forest Service over minimum in-stream flow is bittered by a long history of water disputes in the arid West. Water is a "special" resource. It contains in itself a potential for development and also a potential for control over those who lack this resource. The City's position is that it cannot afford to give away water, even though it is well known that Boulder has a very secure supply in this domain. The complexity of the issue is increased by what the City of Boulder sees as a matter of sovereignty. The City owns the water rights to divert water and does not want the U.S. Forest Service to interfere with its sovereignty. The City of Boulder has asked the Forest Service to negotiate with them as equals and not to force the city to comply with unilateral Forest Service decisions.
The dispute worsened in February 1992 when the City of Boulder asked Environmental Science Inc., its impact study contractor, to stop all work. The City wanted an estimate of the total cost for the study and the deadline for completion from the Forest Service. This stop placed on the EIS work was a response to the U.S. Forest Service requests for more study and data for the EIS. The City of Boulder had the feeling that the U.S.F.S. was unfair in asking for too many studies, too much detail for the EIS and raising the cost for the City. The City then realized that there may be a way to avoid the need of a special-use permit to cross the National Forest. In that case, the City would not have to comply with the federal National Environmental Policy Act requesting an EIS. The City would be left with its own environmental impact piece of legislation, the Community Environmental Assessment Process (CEAP).
The position of the City is that it perfected an 1866 Act right-of-way across public domain lands for the Lakewood pipeline in the location where the pipeline was constructed prior to the time the lands were reserved as National Forest System Lands. The City would like to rebuild the Lakewood pipeline under this 1866 Act right-of-way. It argues that the act includes operation and maintenance, and that is sufficient to encompass rehabilitation and reconstruction.
The Lakewood pipeline dispute is not over yet. The residents of the Sugarloaf community are still worried that the City will choose the proposed route over the Sugarloaf road route. The U.S. Forest Service still argues that the 1866 Act right-of-way is not valid and that a special-use permit is needed, involving the finishing of the EIS studies. The City of Boulder seems to prefer the proposed route and seems now to be willing to litigate with the U.S.F.S. on the question of the vested right-of-way. In the November 16, 1993 City Council study session about the Lakewood pipeline, Joseph de Raismes, City of Boulder Attorney, stated that the City had "an excellent chance" of winning, in case of litigation.
The City of Boulder used an awkward method of dealing with the complaints and fears of the residents about the pipeline matters. It seems that City officials triggered anger and frustration with their attitude. The City was perceived to push for the project "at all costs," by acquiring easements when there was still discussions about potential risks of the pipeline or potential harm to the environment. At the same time, the city was doing a good job of distributing newsletters and getting the information across by organizing public meetings. The City was dealing with a well-educated and concerned population who understood the tradeoffs involved in the proposed project. This helped the residents to polarize against the City. But the purchase of the easements during the information process seemed to interfere and send the message that whatever the feelings of the residents, the proposed construction would proceed. The position of the City changed eventually, but distrust in the first place is always difficult to overcome later. The few property condemnation processes that got started, exacerbated these feelings from the residents. They clearly felt that they had no choice over the potential risks the pipeline would bring. The residents then entered an escalation spiral by using all the delaying strategies possible. They added all the potential risks they could think about on top of one another. Some concerns were legitimate, some others appeared to be less convincing. The publicization of the worst-case scenario can be considered a good rhetoric tool to trigger more arguments, more studies and more delay.
The dispute with the Forest Service seems very likely to end up in litigation. Since the City considers that its chances are really good to win in that case, litigation will determine the outcome of the dispute, unless the Forest Service makes major concessions at the last minute on in-stream flow matters, which is not very likely to happen. In the case the courts decide that no special-use permit is required, the City has to be prepared to handle the residents' concerns in the CEAP process.
The City still has to build a more trustful relationship with the residents. It should avoid more delays and more bitter fights over the pipeline. The City has to show that the proposed alternative is not the only one considered. In every good environmental impact document, the alternative and mitigation section is the centerpiece. The City must show that it pays attention to other ways of solving the problem instead of counting on brutal condemnation of properties and unilateral decisions. The shift has started with the acknowledgement of the possibility of a Sugarloaf road route for the pipeline, but the process has to continue and gain strength for the residents to regain confidence.
Residents will tend to think that the City bypassed the EIS process and that it will try to avoid considering crucial environmental impacts in the CEAP process. This is why a better relationship with property owners is needed.
Baird, R.E. "A city-federal battle looms over pipeline" Colorado Daily May 5, 1992.
_______ "City wants pipeline to move ahead" Colorado Daily April 8, 1993.
_______"Pipeline plan gets panned in discussion" Colorado Daily April 12, 1993.
_______ "Boulder mulls watery future" Colorado Daily November 16, 1993.
Coffield, Dana. "Neighbors: Pipeline plans are dangerous" Boulder Daily Camera March 22, 1989.
de Raismes, Joseph N. Letter to George M. Leonard, Associate Chief, Department of Agriculture, United States Forest Service October 22, 1993.
Gillen, Sharon. "Pipeline plan irks residents" Boulder Daily Camera June 16, 1988.
Hodell, Courtney. "Residents of Sugarloaf clash with water pipeline proponents" Boulder Daily Camera November 3, 1988
Hutchinson, Julie. "Boulder wants line on Sugar Loaf" Boulder Daily Camera January, 23 1989.
________ "New Sugarloaf pipeline study required" Boulder Daily Camera March 25, 1989.
________ "Sugarloaf wins round on pipeline" Boulder Daily Camera March 27, 1990.
Pochna, Peter. "Forest Service to study impact of water pipeline" Colorado Daily March 27, 1990.
_______ "Feds, city at odds over pipeline" Colorado Daily June 9, 1992.
Rhodes, David A. et al. Memorandum to James W. Piper, City Manager and to City Council Members February 3, 1989.
Rhodes, David A. Memorandum to David Knapp, City Manager October 13, 1989.
Stafford, Julie. "Burst pipe helps case, foes of Sugarloaf line say" Boulder Daily Camera December 23, 1990.
Todd, Gregory. "City tries to duck impact study" Boulder Daily Camera June 10, 1992.
Lakewood Pipeline Newsletter September 23, 1988.
Lakewood Pipeline Newsletter October 21, 1988.
Joseph de Raismes' presentation, University of Colorado's ENVD 4023 class, November 2, 1993.
City Council Lakewood Pipeline Study Session, November 16, 1993.