Local regs loom large in dam battle as #Colorado cities seek more Western Slope water — The Rocky Mountain Post #ColoradoRiver #COriver #aridification

Here’s a deep-dive into the proposed Whitney Reservoir Project from David O. Williams that’s running in The Rocky Mountain Post. Click through and read the whole article. Here’s an excerpt:

With Wednesday’s move by the Trump administration to weaken one of the nation’s bedrock conservation laws – the National Environmental Policy Act (NEPA) – all eyes will increasingly be on local opposition and regulation when it comes to major infrastructure on federal lands.

That’s pretty much what Eagle County Commissioner Kathy Chandler-Henry told me when I asked about the proposed Whitney Reservoir project currently being scoped out by the U.S. Forest Service along Homestake Creek in southeastern Eagle County. The reservoir is being proposed by Colorado Springs and Aurora to pump Western Slope water to the Front Range.

All that’s currently being considered by the Forest Service is a test-drilling project to detect fatal flaws and see if one of four possible dam configurations is feasible, at which point an actual proposal for Whitney Reservoir would be submitted and considered by the feds, including a possible request to shrink the Holy Cross Wilderness by up to 500 acres to realign the road.

The Forest Service was flooded with more than 500 online comments opposing the drilling and the reservoir, demanding higher levels of environmental scrutiny for a special use permit for the drilling project that could be issued under what’s known as a “categorical exclusion.” Opponents are demanding an Environmental Assessment (EA) or Environmental Impact Statement (EIS)…

What didn’t make it into my Vail Daily story due to space constraints was the Eagle County angle. It’s important because way back in the 1990s, when I first moved to the Vail area, there was a huge battle going on over what was then called Homestake II – a reservoir proposed for the same area by the same cities, which still hold 20,000 acre-feet of water rights here.

Eagle County used its 1041 permitting powers, which give counties some degree of local control over infrastructure projects with regional or statewide impacts, to deny Homestake II – a move that wound up in court and went all the way to the Colorado Supreme Court before Eagle County ultimately won. Those 1041 regulatory powers were granted by a state law in the 1970s.

All of that led to the Eagle River Memorandum of Understanding (MOU) that outlines how all the various stakeholders in the Eagle River Basin would work together going forward to resolve their issues. But one important thing remains true: Eagle County, not a signatory to the MOU, still has 1041 permitting authority.

So Chandler-Henry, the water leader on the board, had some important things to say last spring. First, on any proposal that would require redrawing the boundaries of the Holy Cross Wilderness Area: “I can tell you that’s not anything that we would ever be supportive of is moving wilderness boundaries.” Then, on the importance of local permitting power:

Chandler-Henry points out that federal protections have been stripped away by the current administration, with fens and ephemeral streams recently being removed from the definition of Waters of the United States by the U.S. Environmental Protection Agency. Those changes, she said, are making it much easier for water providers to get their federal permits in place.

“Which means 1041 is all the more important for local considerations,” Chandler-Henry said, adding she believes her constituents oppose a dam. “I think that that is going to be a huge public sentiment, that we don’t want anything there.”

That being said, the county has to be somewhat diplomatic on both the test drilling and a possible future reservoir. Eagle County officials said they are working with the Forest Service on the test drilling proposal and may comment later…

“Eagle County cannot take a position regarding, and will not be commenting on, any future reservoir project because of its permitting authority powers,” county officials said in an email. “Eagle County must avoid prejudging a file based upon this authority.

“Eagle County plans to meet with the USDA USFS to discuss procedural questions regarding the proposed Whitney Creek Geotechnical Investigation project. Depending upon the outcome of that conversation, Eagle County may or may not choose to provide comment [to the Forest Service],” officials added.

Chandler-Henry, who talked to me well before the formal test drilling application and the recent Trump move to gut NEPA, said the county is keeping an open mind on 1041 permitting for whatever proposal eventually comes before the board. However, she reiterated that shrinking the Holy Cross boundary – something Congress would have to approve – is a non-starter.

“Sen. [Michael] Bennett’s office says that whenever they’re approached by Aurora Water about moving those boundaries in Holy Cross, they say, ‘You need to go see what Eagle County thinks.’” Chandler-Henry added. “To date they have not done that because I think they know what we think about that.”

An official with Bennet’s office confirmed they are aware of the wilderness adjustment plan but are not supportive of pulling back boundaries to make room for a proposed reservoir because there is not broad local backing. Bennet has been a strong advocate of wilderness expansion, not shrinkage…

Conservation groups see this as a key issue, linking the test drilling to an eventual dam proposal that could lead to less wilderness. The original Homestake II proposal would have been in the Holy Cross Wilderness Area…

Chandler-Henry said Eagle County is firm on the wilderness issue but staying openminded on 1041 so any proposal can be weighed fairly on its merits.

“One of the things that we’re doing, which is going to be really useful, is trying to tie our 1041 permitting in with the community water plan that [Eagle River Watershed Council] is working on … because a 1041 allows us to look at environmental impact, economic impact, infrastructure,” Chandler-Henry said, adding the utility has been modeling for future growth.

“Those are always our concerns with any sort of 1041 permit,” Chandler-Henry added. “What happens if water is dammed up in a reservoir? Then what happens to the Eagle River, to the environment, to the subdivisions that are relying on that water, to the recreation economy?”

Chandler-Henry said Aurora Water has been a part of that planning process…

These wetlands, located on a 150-acre parcel in the Homestake Creek valley that Homestake Partners bought in 2018, would be inundated if Whitney Reservoir is constructed. The Forest Service received more than 500 comments, the majority in opposition to, test drilling associated with the project and the reservoir project itself. Photo credit: Heather Sackett/Aspen Journalism

The U.S. Forest Service has been inundated with more than 500 online comments in opposition to a geotechnical and drilling study by the cities of Aurora and Colorado Springs to determine the feasibility of a second reservoir in the Homestake Creek drainage six miles southwest of Red Cliff, including objections from nearby towns and a local state senator…

Operating together as Homestake Partners, Aurora and Colorado Springs own water rights dating back to the 1950s that, under the 1998 Eagle River Memorandum of Understanding (MOU), ensure them 20,000 more acre-feet of average annual water yield. They’ve been studying four potential dam sites in the Homestake Valley several miles below the cities’ existing Homestake Reservoir, which holds 43,600 acre-feet…

Western Slope signatories of the Eagle River MOU were tight-lipped on the geophysical study and drilling. Jim Pokrandt, director of community affairs for the Colorado River District, declined to comment on the investigatory test work, saying only, “Yes, we have signed the MOU. That said … we are not participating in the Whitney Creek effort.”

Diane Johnson,communications and public affairs manager for the Eagle River Water & Sanitation District, said: “The short answer is we – [ERWSD] and Upper Eagle Regional Water Authority — support [Homestake Partners’] right to pursue an application for their yield. We trust the permitting process to bring all impacts and benefits to light for the community to consider and weigh in total.” Neither organization submitted a comment to the Forest Service…

Two prominent local conservation groups – the Eagle Valley Land Trust and the Eagle River Watershed Council – both submitted comments to the Forest Service expressing serious reservations about both the drilling and the possibility of a dam…

The Eagle River MOU was drawn up after a lengthy court battle that ended in the 1990s when Eagle County rejected the cities’ Homestake II reservoir proposal using its 1041 powers under a state law passed in the 1970s that gives counties permit authority over certain outside infrastructure projects that could impact the local economy and environment.

Besides Homestake Partners (the two cities), the MOU was signed by the Colorado River District, Climax Molybdenum Company, and the Vail Consortium consisting of the Eagle River Water and Sanitation District, Upper Eagle Regional Water Authority and Vail Associates (now Vail Resorts).

The two private companies signed onto the MOU – Vail Resorts and Freeport-McMoRan (Climax) – declined to comment on either the drilling study or Whitney Reservoir.

Any proposed water storage project by any of the signatories has to meet the objectives of the MOU, which are, “Develop a joint use water project in Upper Eagle River basin that minimizes environmental impacts, is cost-effective, technically feasible, can be permitted by local, state and federal agencies, and provides sufficient yield to meet the water requirements of project participants as hereinafter defined.”

ERWSD’s Johnson said the water provider can’t comment on Whitney Reservoir because its environmental impacts have yet to be defined, but she did have overall praise for the MOU.

“To date, water users in the Eagle River basin have received great benefits from the MOU,” Johnson said. “It has been the basis to develop key elements of the local municipal and snowmaking water supplies that have been essential to the economic vitality of our community.”

The MOU provides 20,000 acre-feet for the cities, 10,000 acre-feet of firm water yield for the Vail Consortium (meaning if there’s a shortage, those needs are met first), and 3,000 acre-feet of water storage for Climax. About 2,000 acre-feet were already developed with Eagle Park Reservoir, but that leaves 28,000 acre-feet of yield and 3,000 of storage undeveloped.

Proposition 117 explained — The #Colorado Sun #VOTE

From The Colorado Sun (Brian Eason):

It’s the rare point of bipartisan agreement in Colorado politics where public spending is concerned: Since the Taxpayer’s Bill of Rights took effect in 1992, state lawmakers have increasingly turned to fees to fund government operations.

But how you feel about that development, depends on your politics. To the left, it’s an unfortunate side effect of the state’s strict restrictions on taxation. To the right, it’s a sign that TABOR, the state’s landmark constitutional amendment governing public spending, didn’t go far enough to restrain government growth.

This November, that debate goes to voters, as it so often does in Colorado, in the form of a complicated ballot measure that demands an up-or-down vote on the future of the state’s fiscal policy.

Proposition 117, supported by conservative anti-tax groups, would require voter approval for the creation of certain fee-funded state government programs known as “enterprises.” Traditionally, these are public entities, like water utilities, parks or toll roads, that operate like a business because they are funded primarily by user fees rather than taxes.

Existing enterprise programs would be exempt from the new requirements, and the referendum would apply only to new fees that generate $100 million over their first five years, or an average of $20 million annually. And unlike the voter-consent requirements found in TABOR, local governments would be exempt from additional requirements.

Nonetheless, if the proposition passes, it would represent a major expansion of voter control over Colorado fiscal policy that would reshape future budget fights and further limit the ability of state lawmakers to create government programs.

A nonpartisan legislative analysis found that had Proposition 117 been in effect previously, it would have triggered elections on seven of the 16 government-run state enterprises Colorado had in place in 2019, affecting as much as $7.6 billion in annual public spending by universities, state parks and prisons. It also would have required voter approval for a reinsurance program pushed by Gov. Jared Polis that imposed new fees on health insurance plans and hospitals.

Here’s an overview of what you should know about Proposition 117 and enterprise funds.

What are state enterprises, and why do they matter in Colorado?

State and local governments all over the country rely on so-called enterprise funds to pay for essential services. These are effectively government-run businesses that mostly operate with the fees they charge to users. In Colorado, state and local taxes can’t make up any more than 10% of an enterprise fund’s revenue.

Common examples include public water utilities, municipal airports and the entities that operate toll roads. But enterprises take on a special significance in Colorado because of the state’s unique restraints on taxation.

TABOR, added to the state constitution in 1992, does two key things that have contributed to the proliferation of enterprises.

One, TABOR requires voter approval for all new taxes — but not fees, which are legally distinct from taxes in that they can’t be used for general government services. Instead, courts have said they have to fund something that’s reasonably connected to the fee itself. For instance, toll fees can pay for road maintenance, and park fees can pay for parks upkeep, but neither could be used to pay for health care or courts. And because voters have rejected most new statewide taxes in the TABOR era, lawmakers tend to view fees as a more politically feasible way to boost spending on public services. Not all government fees are tied to enterprise funds, but that’s the purpose for many of them.

Two, TABOR prevents general government spending from increasing faster than a revenue cap, which limits the growth of the state budget to the rate of population growth plus inflation. Historically, this limit has not allowed the state to keep up with the growth in expenses such as Medicaid caseloads or schools. So to pay for new initiatives without cutting funding to other areas of the budget or asking for new taxes, lawmakers effectively have to set up programs as an enterprise, which TABOR explicitly exempts from its spending limit.

A legislative analysis published in the Blue Book ballot information guide shows examples of recent enterprise fees in Colorado that would need voter approval if Proposition 117 wins approval in November 2020. (Screenshot)

State lawmakers also have used this mechanism to prevent existing programs from crowding out other services. College tuition and student fees, for instance, were reclassified in 2004 and now make up the state’s largest enterprise, generating $5.1 billion in the 2019 fiscal year. More recently, lawmakers converted a hospital-bed fee that helps reimburse hospitals for uncompensated care to an enterprise fund; it now generates around $1 billion a year.

The case against Proposition 117

Opponents view Proposition 117 as an unnecessary restraint that will make it that much harder for lawmakers to fund public services. And they balk at the notion that lawmakers have turned to fees to circumvent TABOR. The constitutional provision explicitly allows lawmakers to create fee-funded enterprises without the same restraints it imposes on taxes.

Scott Wasserman, president of the Bell Policy Center, a progressive think tank, blames TABOR’s restrictions for the chronic underfunding of K-12 education, higher education and transportation — all in a state where, before the pandemic, the economy had consistently been rated among the nation’s strongest. He fears that placing new restrictions on enterprises will make matters worse.

And, he says, it’s simply not good government to continually put esoteric fiscal policy questions — like the $34 million petroleum storage tank enterprise, which charges fees to fund environmental clean-ups — on the ballot.

“Why do we want to make these very specific, technical, user-based issues politicized fights, where big money can come in and really distort the issue?” Wasserman said during the debate.

“This is why we send people to the state Capitol who are trying to operate government on our behalf,” he added.

State Sen. Dominick Moreno, the vice chairman of the Joint Budget Committee, also urged voters to reject it, saying that Proposition 117 would limit the state’s ability to respond to the ongoing financial crisis created by the coronavirus.

“Our teachers, doctors and nurses can’t afford more cuts and cannot be shut out of this recovery,” Moreno, a Commerce City Democrat, said in a statement. Proposition 117 and the Proposition 116 measure to cut income taxes “would stall our recovery and permanently harm our ability to provide critical state services.”

Notably, unlike TABOR and some of Colorado’s other constitutional fiscal constraints, Proposition 117 is a statutory change, meaning that lawmakers could override it by passing legislation. But there would be political risks in doing so if voters approved it on the ballot.

The case in favor of Proposition 117

To supporters, Proposition 117 is a natural extension of the voter protections provided by TABOR — protections that they argue lawmakers have undermined by leaning so heavily on enterprises.

There’s no doubt that the growth of enterprising has been staggering. Just after TABOR took effect in the 1993-94 fiscal year, enterprise funds generated $742 million, which was just a fraction of the state’s total budget. In 2017-18, according to an analysis by Colorado Legislative Council, they generated nearly $18 billion. But not all of the total comes from fees. In the 2018-19 fiscal year, according to a separate legislative analysis, fee revenue collected by state enterprises only made up around 20% of the state’s roughly $29 billion budget.

A graphic from a December 2018 state report from the Joint Budget CommitteeColorado Legislative Council shows how state revenue has shifted to sources outside TABOR in recent years. (Screenshot)

Michael Fields, the executive director of Colorado Rising State Action, a conservative advocacy group, said during a recent debate that enterprise funds were “used for good things in the beginning,” such as college tuition, the state lottery and state parks.

“What we’re concerned about is the things that it’s moving towards,” he said in the forum moderated by PBS12 and The Colorado Sun. “If you’re going to create a new program, you need buy-in from the people.”

One enterprise that Fields suggests goes too far and should have received voter approval is the state’s new reinsurance program, which lawmakers decided to fund through health insurance fees after the coronavirus pummeled the state’s coffers. Legislative analysts expect it to generate $94 million in the 2021-22 fiscal year and more than $100 million annually after that.

Colorado is more reliant on government fees than the average state, according to an analysis by Pew Charitable Trusts, ranking 9th nationally in the percent of its budget that comes from service charges. Still, comparing fees and taxes across states is tricky. For one thing, Pew’s analysis excludes insurance funds, like Colorado’s unemployment trust fund, which is among the state’s largest enterprises. For another, Colorado’s “hospital provider fee” is considered a “bed tax” in many states, illustrating the degree to which TABOR has shaped even the words lawmakers use in creating policy.

“The legislature has been going around our Taxpayer’s Bill of Rights,” Fields said. “If they label something a fee, they don’t have to go to voters for approval.”

Get ready for next year’s watering season now – News on TAP

Fall is a good time to think about changing your lawn and landscape next spring to be more water efficient next summer.

Source: Get ready for next year’s watering season now – News on TAP

Big tree-cutting machine put to the test on steep slopes around Breckenridge – News on TAP

Summit County wildfire mitigation work aims to protect homes, improve forest health and protect water supply.

Source: Big tree-cutting machine put to the test on steep slopes around Breckenridge – News on TAP