Working Paper 94-52, February, 1994.
By Nancy Linscott
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: crc@cubldr.colorado.edu.
© 1994. Nancy Linscott. Do not reprint without permission.
Funded by the William and Flora Hewlett Foundation and the University of Colorado, the Conflict Resolution Consortium is a coordinated program of research, education and application on three of the University's four campuses. The program unites researchers, educators, and practitioners from many fields for the purposes of theory-building, testing, and application in the field of conflict resolution. Current focus areas include international conflict; environmental and natural resource conflict; urban, rural, and inter-jurisdictional conflicts; and the evaluation of alternative dispute resolution mechanisms.
WORKING PAPERS
The Conflict Resolution Consortium working paper series includes a variety of papers written by our members as a part of their research. Usually these papers are in preliminary draft stage and are being prepared for eventual publication in professional journals or books. Other papers record discussions from Conflict Resolution Consortium seminars and plenary presentations.
The purpose of the working paper series is to generate a dialogue about the work presented. Readers are encouraged to respond to the papers either by contacting the author directly or by contacting the Consortium office.
BACKGROUND
The Southern Water Supply Project (SWSP) is a pipeline project which will deliver water from the Windy Gap and Colorado-Big Thompson Projects to eight Front Range towns, the Morgan County Quality Water District, and Public Service Company of Colorado. The project initially began after a planning study conducted by the Northern Colorado Water Conservancy District (NCWCD) indicated that a pipeline conveying water supplies from Windy Gap and C-BT would serve the needs of several communities in the Front Range.
Meanwhile, concerns over potential contamination of Great Western Reservoir from the nearby Rocky Flats Nuclear Weapons Plant prompted the City of Broomfield to seek an alternate water source. Following completion of the planning study, Broomfield requested that the NCWCD construct a pipeline which would bring water from Windy Gap and C-BT to the city. According to the NCWCD, this request, coupled with interest on the part of the towns of Berthoud, Erie, Fort Lupton, Fort Morgan, Hudson, Longmont, Louisville, and Superior formed the basis of the project.
NCWCD
The water district is a public entity created in 1937 under legislation known as the Conservancy District Act of Colorado. NCWCD administers about 230,000 acre-feet of water annually to users in Boulder, Larimer, Weld, Morgan, Logan, Washington, and Sedgewick counties. NCWCD is responsible for distributing water from the Western Slope to northern Colorado for municipal, agricultural, residential, and industrial use. Primary users include ditch and reservoir companies, almost 30 cities, and approximately 2,500 individuals.
The NCWCD is run by a 12-member board of directors. Although a public entity, the NCWCD officials are appointed rather than elected. The district has the power of imminent domain over property owners within the district's service area. If necessary, land could be condemned for the acquisition of pipeline right-of-way.
According to the NCWCD Public Information Officer Brian Werner, the district's primary interest is balancing the distribution of water within the district. NCWCD is a for-profit public entity which uses taxpayer dollars to fund most of its projects; however, the approximately $80 million price tag for the SWAP will be paid for by federal grants and the entities subscribing to it.
SWSP PARTICIPATING ENTITIES
There are currently 11 Front Range entities which have agreements with the NCWCD to participate in the project. Those subscribing to the project to replace existing low quality water supplies or delivery facilities include Berthoud, Broomfield, Erie, Fort Lupton, Fort Morgan, Hudson, Longmont, and Public Service Company of Colorado. Hudson and Fort Lupton are under particular pressure by the Colorado Department of Health (CDH) to replace existing groundwater supplies due to Safe Drinking Water Act violations and potential associated fines. The groundwater these entities use as their primary water source has been seriously degraded by agricultural wastes and in both cases exceeds the federal maximum contaminant level of 10 mg/1.
Louisville, the Morgan County Quality Water District, and Superior are subscribing to the SWSP to augment their current supply in order to support planned growth within their communities. Erie also plans to enhance current supplies and replace current substandard supplies.
LANDOWNERS IMPACTED BY PREFERRED ROUTE
The pipeline will be approximately 32 miles long with two connecting turnouts: one serving Superior and Louisville and the other extending east to Fort Lupton and Hudson (Figure 1). The primary right-of-way has been determined and will cross 107 land parcels involving 92 property owners. Property owners opposing the pipeline have formed an unofficial coalition aimed at modifying the adopted route. The primary spokesman for the coalition is Aaron Harber, a farmer from Lafayette.
Primary concerns of the landowners center around the direct impacts to the usability of their land and obtaining fair compensation for the easement. Additionally, some are concerned about their burden of proof regarding the potential presence of hazardous materials or contamination on the easement; NCWCD is negotiating to keep that aspect of easement management in the hands of the landowner. Other landowners are concerned about payment for crops damaged during construction or left unplanted because of the work and liabilities for damages to either the pipeline or the easement.
THE INDIAN PEAKS CHAPTER OF THE SIERRA CLUB
The Sierra Club is a non-profit national environmental organization. This particular chapter, located in Boulder, is opposed to the pipeline primarily on the grounds that its presence will increase the potential for growth along the Front Range urban corridor. Initially, the Sierra Club's efforts wee aimed at convincing the federal government to require that an environmental impact statement be prepared, specifically to address the potential growth issue. However, based on a draft environmental assessment of the pipeline route submitted in 1992, the Bureau of Reclamation declared that an EIS would not be required. On July 21, 1993, the Bureau of Reclamation issued the final environmental assessment and a Finding of No Significant Impact (FONSI). Sierra Club Conservation Chair Gary Brenner will not publicly comment on whether the Sierra Club will challenge the FONSI in court or not. However, club efforts appear to be redirected at modifying the authority of NCWCD to allow for more citizen and municipality input into regional water issues.
MISCELLANEOUS INTERESTED PARTIES
There are numerous local governments and citizens who have taken an active interest in the SWSP. Local agencies that have approved the project include the Boulder County Planning Commission, the Boulder City Council, the Boulder County Parks Open Space Department, and the City of Boulder Open Space Board. These entities have reviewed the project to determine its compatibility with city and county open space, the city conservation easement and Boulder Creek, and the Boulder Valley Comprehensive Plan.
There are also local citizens, who although they do not own land impacted by the pipeline, have still taken a keen interest in the progression of the pipeline issue. The most notable concern on the part of local citizens is the potential for an increased growth rate.
Opposition Perceptions
GROWTH
According to the NCWCD, their efforts to provide water to Broomfield and other pipeline subscribers are responsive to the needs of these communities and best suit the goals of Front Range water allotment. While other sources of water exist, the NCWCD contends that most of these additional sources will seriously impact the agricultural community and in the long run will prove more costly and less efficient. Lee Rozaklis, a water resources consultant with Hydro-sphere Resource Consultants, Inc., spoke of the additional water resources available to the district communities and how the pipeline would provide the most environmentally suitable and efficient alternative during a public hearing on November 16, 1993. Excerpts from his speech are provided below:
One may ask, if all these options are available, why are these cities and towns participating in the Southern Water Supply Project? I believe that the answer is that this project is seen as the environmentally preferred way to get water. It reduces pressure on local agricultural water supply and instream flows, and it does not require further dry-up of local agricultural lands. (Preservation of local agriculture and instream flows are goals of both Boulder County and the City of Boulder). It relies on water (Windy Gap) which is already decreed for municipal purposes and has already been mitigated for, and it minimizes environmental impacts to wildlife, riparian ecosystems and wetlands that would occur as a result of piecemeal conversion of local agricultural water and construction of associated diversion, conveyance, and storage facilities.
In summary, Rozaklis, who although he does not work for the NCWCD, has adopted a position in support of the project, summarized by saying, "...it has long been argued by some that growth can be throttled by withholding water supply. this argument is based on the simplistic line of logic that water is essential for growth, therefore lack of water means no growth. I suppose that this may be true on the moon. Here in Colorado growth cannot be controlled or even slowed by stopping individual water projects. One would have better luck trying to plug holes in leaking sponge."
Rozaklis' argument essentially reflects the view of the NCWCD.
The primary opposition to this stance comes from the Sierra Club. Gary Brenner argues that the growth does not necessarily come because of water availability, but rather because to financially support the project, smaller towns will have to acquire additional tax revenues through the addition of new residential growth.
According to Brenner's perception, the town of Superior is a prime example. The cost of the project to Superior is, according to Brenner, more than the assessed value of the town's holdings. Therefore, the town has no choice but to add more housing to increase the tax base to finance the project.
Superior Town Manager Karen Cumbo disagrees with Brenner. According to Cumbo, subscribing to the project was a question of town survival, not growth. The town was actually decreasing in size due to a diminishing groundwater supply and due to a decrease in available water quality. She said people were actually leaving Superior because the lack of quality water. Property values plummeted. No one would make improvements to their property because they would never get their money back. Things looked grim for Superior.
The Superior Metropolitan District (SMD) is the agency in charge of providing water to the town. the SMD looked at seven different alternatives for water transmission lines before the SWSP project was adopted. In all cases, multiple transmission lines would be needed to access Windy Gap water rights that the town has actually owned for years. The SWSP provided the most efficient and environmentally sensible alternative.
The cost to Superior for accessing Windy Gap water falls somewhere in the $7 to $8 million dollar range, according to Cumbo. Additional housing is an option for financing the project, but growth projections for the town are actually reduced from original estimates. Houses will be built, but other options for financing the project include selling other water rights that the town would have tapped into if the pipeline weren't being constructed.
Other towns share the same perspective. The primary impetus for joining the project is replacement of degraded sources, as discussed earlier, and not growth.
LEGAL NOTIFICATION
According to landowners along the route, notification of the project was inadequate. In some cases, they say they had no knowledge of the choice of the route until maps were unveiled at public meetings. In other cases, landowners who were aware of the project said that workers and consultants came on to their property without adequate forewarning. In fact, Aaron Harber recently received a $750 settlement because the NCWCD subcontractor trespassed on his land.
Public hearings are now being held due to citizen demands that the Board of County Commissioners require that the NCWCD comply with Colorado House Bill 1041. HB 1041 requires public participation for matters that affect the state through a process of public meetings and hearings. the next public meeting, which will be held December 9, 1993, is to decide if the SWSP is a matter of state significance and if so, should HB 1041 be adopted by the Boulder County Commissioners and applied to any future Front Range pipelines, including any potential second lines within the SWSP easement. However, the question remains as to whether the implementation of HB 1041 can apply retroactively to the current SWSP pipeline and cause delays in construction by instigating a re-examination of the pipeline route
The NCWCD contends all their notification procedures complied width existing laws and local requirements. According to the pipeline newsleter published by NCWCD, 1/8 and 1/4 page paid advertisements to provide public notice in advance of the Boulder County hearing were placed in Boulder, Longmont, Lafayette, and Louisville newspapers. And, although there is no Boulder County regulation requiring individual notice to property owners, NCWCD mailed individual notices of the hearing on April 21, 1993 at the request of Boulder County Commissioners. The NCWCD admits that a few landowners were missed in the direct mailing effort, but spokesman Brian Werner says that those missed were contacted immediately when it was discovered that they had been omitted from the mailing list.
The NCWCD also sponsored two public workshops to obtain public input concerning pipeline routing and environmental evaluations on April 2, 1992 and August 26, 1992. Both workshops were advertised in area newspapers.
Even so, Aaron Harber believes the NCWCD was negligent in its attempts to notify landowners. He says that after learning that his property was in fact on the pipeline route, he requested the NCWCD provide him with a list of all other property owners. By obtaining the list, Harber hoped to find out whether or not he was the only one who was unaware of the routing decisions. The NCWCD responded by taking the matter before the Larimer County District Court. The NCWCD wished to withhold the list based on protection of privacy issues. However, Harber's position was that the list should be a matter of public record and therefore accessible to citizens.
The court decided in favor of Harber.
Once the list was released, Harber contacted the individuals on it and found that many of them say they were misguided as to the full scope of the project.
EASEMENT REQUIREMENTS
Easement Width - The NCWCD says that needs an 80- to 90-foot permanent easement for the pipeline and an additional 20-foot temporary easement during construction. This width is arguably wider than normal pipeline easements; the pipeline itself only ranges in width between 12 inches and 48 inches.
Construction cross-sections of the SWSP pipeline and the Lakewood pipeline, which runs from Lakewood Reservoir to the Betasso water treatment plant west of Boulder, are shown in Figure 2. The easement for the Lakewood pipeline is considerably smaller, even though it is paralleling the old pipeline (the new pipeline will be replacing the old Lakewood pipeline, which is over 80 years old). In fairness, it should be mentioned, too, that the Lakewood pipeline descends through Dream Canyon, and wider easement space my simply not be available.
The NCWCD says the wider easement is necessary to keep costs down and reduce the amount of time necessary to construct the pipeline, thus minimizing disturbances to the landowner. their argument is that by widening the trench, they can slope the sides rather than having to shore up the sides to meet Occupational Safety and Health Administration (OSHA) requirements. Sloping the sides eliminates the time needed to construct the support structure necessary and also eliminates the need to purchase support structure materials.
The counter argument on the easement width issue comes from both the landowners and the Sierra Club. The real reason for the excessive width, they contend, is because the NCWCD has unannounced plans to add additional pipelines to the easement sometime in the future. "Experts" from the pipeline opposition claim that the easement width is sufficient in size to comfortably fit up to five side-by-side pipelines. Although the NCWCD maintains that there are absolutely no plans for additional pipelines along the route, Werner says that acquiring a wide easement now will provide for additional space if there "ever" is a need for more transmission lines in the "way distant" future.
EASEMENT CONDITIONS
The NCWCD is negotiating with individual landowners to iron out the conditions of access and maintenance of the easement. In most instances, landowners will be compensated for maintaining the easement and for crops impacted by the construction or presence of the pipeline.
The opposing landowners, organized by Harber, have formulated a "model easement" agreement. the objectives of the model are to set the standard for fairness and reasonability. the elements that are being sought by the landowners are listed below:
6. Agree to have easement automatically rescinded in the event it is not used within two years (with no payment or refund to the NCWCD).
7. Payment will be for full appraised (100%) value of land effected permanently and 20% to 25% of value of land effected temporarily, with no deduction.
8. Payment to be qualified as tax-free (due to condemnation) or approved for like-use/purchase deferment.
9. Have the easement be non-transferable, non-shareable (without property owner's consent--which would not be expected).
10. Permissible activities include agriculture, parking, roadways, paving, fencing, one-story structures for storage (e.g. sheds, barns), and mobile homes.
11. Construction to occur at a mutually agreeable schedule.
12. Construction will occur during normal business hours (or a set timetable which is mutually agreeable).
13. The NCWCD will pay an hourly fee for damages related to noise, traffic, and other disruptions equal to $15 per hour whenever on property.
14. When accessing the property, the NCWCD will contact the property owner at least 48 hours in advance (except in the case of emergencies where immediate attention is needed, in which case the property owner will be contacted immediately).
15. The NCWCD will keep the property clean and will contribute to the maintenance of the easement by reimbursing the property owner for any maintenance- related expenses or the pro-ration thereof (across the entire property).
16. Payment in full for crop or ground damages (including value of perennial crops such as alfalfa).
17. Arbitration panel for all dispute resolution and a simple, inexpensive arbitration process (to be instituted immediately for valuation disputes).
18. Written notice of 90 days or more prior to construction.
19. A construction schedule (with an end date) provided to all participants.
20. Access restricted only to needed land--not general use of the property.
21. Replacement of any fencing or other property damaged.
22. Retention of right to have other utility lines on the easement (including crossing the easement).
23. Retention of all rights regarding annexation and disposition of the property (except that the easement stands with any such future action).
PEOPLE PROBLEMS
If you ask Gary Brenner of the Sierra Club what his fundamental problem with the pipeline and the NCWCD is, he'll tell you the problem is that the folks at the NCWCD are ruthless. He'll even give you a list of references, some of them former employees of the NCWCD, that will attest to his assessment.
Of course the feeling is mutual. According to NCWCD Spokesman Brian Werner, the "opposition" (as he calls it), will try anything, no matter how low, to stop or delay the pipeline. He says that because the NCWCD is a public entity it is especially "convenient" to take the pot shots at it.
The landowners have very little trust in the NCWCD or its consultants, even though the NCWCD supposedly fired on of its employees who was responsible for the subcontractor that omitted on of the landowners from the notification list. Harber believes that the firing story is fabricated and that the responsible employee will works at the NCWCD.
Accusations of trickery and deceit are common with respect to the NCWCD's pipeline agenda and easement access negotiations. According to one landowner, an employee of the NCWCD gave her false deadlines for signing the right-of-way agreement and threatened condemnation of the land by a certain imminent date. Another landowner claims that the contract the NCWCD wants him to agree to give the NCWCD access to not only the easement, but his entire property.
PROVOCATION/COUNTERPROVOCATION
At a public meeting November 16, Gary Brenner accused the NCWCD of using a former employee, who was a high level official in the U.S. Department of the Interior at the initiation of the project, to obtain federal endorsement of the project.
His efforts to cast doubt on the integrity of the NCWCD were met with counter actions. The NCWCD sent him letters essentially threatening to sue him for slandering a former employee. they further add that it's the Department of Energy, not the Interior, which has authority over the project. This matter is, as of this writing, unresolved.
According to the NCWCD, some landowners willing to negotiate easement agreements are requesting conditions which are incredibly restrictive and unrealistically stifling. In one case, a landowner would not allow contractors working on the property to smoke. Landowners counter that their negotiation efforts have been met with threats of condemnation.
CONFLICT REGULATION RESOURCES
Currently, the three main conflicting parties (landowners, Sierra Club, and the NCWCD) are working with Boulder County Commissioners through public hearings to resolve matters of conflict. The ultimate resolution will come through the County's adoption of HB-1041, which will mandate citizen participation.
The landowners who have unofficially grouped together have consulted with a lawyer to review the situation. the concurrence was that in order to achieve their goals of the "model easement", it would most likely be necessary to get the project declared a matter of state interest. However, within their list of model easement requests is the formation of a direct and accessible means of arbitration for easement disputes.
The ability to take sides during the case review has remained difficult because in most cases the opposing parties have all had (if accurate) valid motivation for adopting their respective positions.
Because the route has been chosen and the current system permits land condemnation in the event that landowner/NCWCD negotiations fall short of expectations, the landowners themselves have been limited in their capacity to halt the project altogether. The pipeline is going in. They know that.
The fundamental problem is that it crosses their land. Many of the farmers along the route have yielded other easements to public causes. The pipeline represents one more "taking", compensatory or not, of a personal possession and the pride that goes with it. And for those that have moved to the country to avoid the nuances of the city and suburbia, yielding land to a perceived urban cause dismisses their intentions. That's why the growth argument is perhaps the strongest. The pipeline will bring water, which, according to the argument, brings people. People bring with them schools, paved roads, city services (desirable or not), traffic, noise, increased pollution, and crime, to name a few. The country life diminishes. there is no longer control of your immediate surroundings, and it's all because you allowed on more utility easement pass through your property. This is the crux of the issue.
The cities and towns who wish to subscribe to the project have equally compelling interests. There are health issues to be considered. There are a lot economic considerations. Additional housing is a real and likely way to finance subscription to the project for towns like Superior. Superior's population was moving away and the town was actually drying up, despite the increased influx to Boulder County, because of an inadequate water supply. Growth may or may not have been inevitable, but substandard water quality is the present reality. And, in the case of Superior, Windy Gap water rights were obtained years ago. Superior has every economic right to access water that is owns.
Both sides have presented testimony regarding the probability or likelihood of increased growth as a result of the pipeline. this issue does not appear readily resolvable, as the argument tends to be correct no matter how you look at it.
The NCWCD has been accuse don being ruthless. However, they are charged with one of the most difficult tasks in the western United States: to fairly distribute water in an otherwise parched land. Often they have been accused with meddling with nature. Ironically, one of the most common accusations is that distribution of agricultural irrigation water causes low flow in the Platte river system. The Platte River had historically been dry during the later summer months. The workings of the NCWCD have not only ensured water to eastern Colorado and western Nebraska farmer, but to fish and avian habitats along the way.
The easement issue may or may not be resolvable depending on whose camp you subscribe to. The Sierra Club and landowners believe that the NCWCD has a hidden agenda to service more than the phase I participants. The NCWCD has continually denied this, citing OSHA regulations as the predominant reason for the easement width and prudent planning for what could maybe be a second pipeline, someday.
At the moment, the dispute seems to have gotten to the point where personal attacks on character and ethics are commonplace. However, the suggestion of creating a simple, affordable, and readily accessible arbitration method by affected landowners seems to indicate, that for the landowners at least, the situation is resolvable.
With respect to the Sierra Club, a less personal approach is recommended along with a careful review o facts. Mutual admission of error is necessary to d-escalate at least some of the points of contention between the club and the NCWCD.
The commonality between all affected parties is an agreement for the need for quality water to the communities that need it. few are in dispute over the turn-out points to Hudson and Fort Morgan. Similarly, no one wants to deny a clean, reliable source of water to Superior, either. It's a matter of the trade-off.
The answer appears to lie rooted in the county's adoption of HB-1041. The regulation will require public input on a policy- setting level, which for many will provide the assurance that their opinion has the potential to be effective and afford them a sense of control over future development plans for the cities and towns of the Front Range.