Here’s the release from the Colorado Water Conservation Board:
On March 20, Governor Jared Polis signed into law House Bill 1157 (HB20-1157: Loaned Water For Instream Flows To Improve Environment), which provides additional tools to the Colorado Water Conservation Board (CWCB) for managing voluntary loans from water rights owners for the purposes of preserving and improving the natural environment.
Specifically, the bill expands the number of years within a 10-year period that a renewable loan may be exercised from 3 years to 5 years, but for no more than 3 consecutive years, and allows a loan to be renewed for up to 2 additional 10-year periods. It also expands the CWCB’s ability to use loaned water for instream flows to improve the environment.
“This is a really helpful tool for instream flows that fall short. It is always good to have more ways to work with partners to protect flows in Colorado’s streams,” said CWCB Stream and Lake Protection Section Chief Linda Bassi.
CWCB’s Instream Flow Loan Program is critical for boosting stream flows, especially in late summer when flows are low, temperatures are high, and fish are particularly stressed. The CWCB appreciates the stakeholder coordination that resulted in this bill advancing to the Governor’s desk.
A bill that cleared the Colorado legislature with bipartisan support March 4 seeks to resolve an eight-year debate over how ranchers and other water users can maintain their historical water use when dry conditions trigger cutbacks to protect streamflows.
HB20-1159 [State Engineer Confirm Existing Use Instream Flow], which passed the House with a unanimous 63-0 vote and the Senate with a 31-1 vote, authorizes state water officials to confirm historical usages, such as water used for livestock, whether or not it’s held in an official water right. This allows ranchers’ uses to stay first in line for water ahead of the stream protections, known as instream-flow rights.
“It’s really a belt-and-suspenders clarification of existing authority,” said Zane Kessler, director of government relations for the Colorado River Water Conservation District, which drafted the language for the bill. “I think it’s a good example of when we sit down and pore over these issues, it’s not hard to come up with a fix that protects West Slope water users and provides the state engineer the authority he needs to continue administering them.”
Instream-flow rights, which are held exclusively by the Colorado Water Conservation Board, exist for the sole purpose of preserving the natural environment of streams and lakes “to a reasonable degree.” Most of these date to the 1970s and are junior to most agricultural-water rights under Colorado’s prior appropriation system of “first in time, first in right.” To date, instream-flow rights protect roughly 9,700 miles of stream in Colorado.
The debate over historical uses has turned on whether a water user must go to water court to make their pre-existing use official in a decree.
A 2012 drought brought the question to a head when state officials cut off water users on the Elk River in northwestern Colorado in favor of instream-flow rights. Although many ranchers in the area have water rights for irrigation that are senior to the 1977 instream-flow rights and have historically used that water also for their cattle, the state Division of Water Resources determined that livestock watering wasn’t implicit in irrigation rights.
Those without specific rights for stockwatering were left high and dry once the summer irrigation season was deemed over, even though they had used the water for livestock for generations.
“My grandparents bought this piece of land in 1946,” said Krista Monger, a cattle rancher on the Elk River. “We have the records to show we’ve been using (our water) for livestock.”
Stockwatering and irrigation often go hand in hand. During the irrigation season, if a rancher’s livestock drink from the ditches used to irrigate their fields, the use is considered incidental to irrigation. But once the growing season is over and a rancher keeps the water flowing through the ditch for the exclusive purpose of watering their livestock, the use is not covered under irrigation-water rights.
The amount of water typically used for exclusive stockwatering is a fraction of what is used for irrigating, around 80% to 90% less. Some ranchers also use stock ponds, which require a water-storage right.
More than 90,000 irrigation-water rights are held across the state, of which 29,000 specifically name both irrigation and livestock uses. That means the new law could potentially apply to 61,000 water rights, although not all of these are held by ranchers raising livestock. An additional nearly 32,000 water rights are held exclusively for livestock purposes but not irrigation.
The Monger family holds both irrigation- and livestock-water rights to grow hay and to water their 300 cattle. Her family’s rights and diligent record-keeping meant their ditches kept flowing while their neighbors’ ditches were shut down in 2012, highlighting the need for better record-keeping among the region’s irrigators.
But the incident prompted a statewide debate over the meaning of Colorado statute C.R.S. 37-92-102(3)(b), which states that instream-flow rights are subject to pre-existing uses of water, “whether or not previously confirmed by court order or decree.”
The state Department of Natural Resources, home to both the Division of Water Resources and CWCB, argued that when the instream-flow protections were created, lawmakers intended for water users to make their existing use official in a decree. The Colorado Cattlemen’s Association and the Colorado River Water Conservation District argued that the statute clearly precludes the need for a court decree and sought to protect ranchers’ historical usage without requiring them to go to water court.
“The statute says… prior uses would be honored. But they’re saying the statute doesn’t say what the statute says,” said Mike Hogue, former president of the cattlemen’s group.
After years of negotiations, stakeholders agreed on a simple piece of legislation to clarify the state water engineer’s authority “to confirm a claim of an existing use (if it) has not been previously confirmed by court order or decree,” according to the bill summary. The bill had bipartisan sponsorship from Reps. Marc Catlin, R-Montrose, and Dylan Roberts, D-Avon, and Sens. Don Coram, R-Montrose, and Kerry Donovan, D-Vail.
“I do think this is very helpful legislation,” said State Engineer Kevin Rein, who is with the Division of Water Resources. “We had what I’d call an honest disagreement about what the statute meant. My position is if they change the law and give me a place to hang my hat on, that solves the problem.”
However, what the legislation doesn’t resolve — and what is perhaps a bigger Pandora’s box opened by the 2012 incident — is the decision that state water officials made that irrigation rights do not include stockwatering rights. In practice, irrigators around the state, many of whom hold water rights dating to the late 1800s and early 1900s, have used irrigation- or agricultural-water rights not to just irrigate their hayfields, but also to water their livestock.
The new distinction means that ranchers with irrigation rights must apply for livestock water rights if they want to protect their usage into the future. Although the new legislation protects a rancher’s stockwatering use from being shut off specifically by an instream-flow right , their stockwater use could still be cut off if another water user makes a call on the river to fulfill a formal water right.
“We all thought that was part of our ag water rights,” said Doug Monger, a Routt County commissioner and a cattle rancher on the Yampa River in northwest Colorado, and also uncle to Krista Monger. “It’s a wakeup call for all of us.”
Aspen Journalism collaborates with The Craig Daily Press, Steamboat Pilot and Today and other Swift Communications newspapers on coverage of water and rivers. This story ran in the March 16 edition of the Craig Press.
State workgroups charged with making sense of a program to add water to a savings account in Lake Powell have begun narrowing down the complicated questions such a program would have to grapple with.
But some state officials worry that a Western Slope group is going its own way, possibly undermining the state process.
Water managers and experts from around the state met for two days in early March to compare notes on their current investigation of the feasibility of a voluntary, temporary and compensated water-use-reduction program, known as demand management.
The workshop brought together many of the participants who sit on the eight workgroups created by the state to explore different aspects of a demand-management program: law and policy; monitoring and verification; water-rights administration and accounting; environmental considerations; economic considerations and local government; funding; education and outreach; and agricultural impacts.
At the heart of a demand-management program is a reduction in water use in an effort to send up to 500,000 acre-feet of water downstream to Lake Powell to bolster levels in the giant reservoir and meet 1922 Colorado River Compact obligations. Under such a program, agricultural-water users could get paid to temporarily fallow fields and leave more water in the river.
Russell George, a former Colorado lawmaker and chair of the Interbasin Compact Committee who helped create the state’s basin roundtables, rallied participants and acknowledged that tackling demand management was a hugely ambitious and thorny project.
“It’s time for this and here we are, to wrestle to the ground this monster that just does not want to give,” he said.
The Colorado Water Conservation Board is heading up the investigation into demand management and is about nine months into the process. Workgroups have met two or three times so far, and many have acknowledged the chicken-or-egg dilemma in front of them.
“It’s like going on vacation, but we don’t know if we even want to go on vacation or where we are going or who’s going with us,” said CWCB Interstate and Federal Manager Amy Ostdiek.
Some groups say they can’t complete their work because they need the input of other groups to inform their work. Some want to know what the alternative to demand management — shutting off water rights in the event of a compact call, known as curtailment — would look like before they commit to creating a water-use-reduction program.
Under the terms of the Colorado River Compact, the Upper Basin states (Colorado, Wyoming, New Mexico and Utah) are required to deliver 75 million acre-feet over 10 years to the Lower Basin states (Arizona, Nevada and California). If the Upper Basin fails to deliver the water, the Lower Basin could make a “compact call,” triggering cutbacks — something water managers want desperately to avoid.
Equity is one topic that demand-management discussions keep turning to again and again. Some Western Slope water users fear that their ranches and fields will be ground zero for a water-use-reduction program. And with temporarily dry fields comes the potential for secondary negative economic impacts to agricultural communities.
“The other side of the fairness coin is mistrust,” George said.
But members of the agricultural-impacts workgroup pointed out that equity means equity of opportunity, not just shared burden. Some irrigators may welcome payment for their water.
“There are many people in ag that don’t want others being too quick to take away potentially profitable opportunities for their farm or ranch,” said Mark Harris, general manager of the Grand Valley Water Users Association. “If demand management can be considered a different kind of crop, farmers and ranchers will consider it because they have an economic incentive. Farmers and ranchers are not dead-set against it.”
But for all the uncertainty still out there, workgroups have begun to narrow the focus of their work down to “threshold” issues, some of which overlap among the eight workgroups.
The two-day workshop concluded with a group exercise that found the following issues to be the most important for those who could be crafting Colorado’s demand-management program: simplicity of monitoring; state-wide resiliency; environmental impacts and benefits; agriculture viability; and shared responsibility.
Some said it was time to stop talking and start acting. According to a real-time text poll, 57% of the workshop participants said the demand-management feasibility investigation was moving too slowly.
“It’s time to take the next step and start doing some pilot projects,” said Barbara Biggs, general manager of Roxborough Water and Sanitation District. “We can’t answer questions sitting around a room talking about it.”
River District study
A week after the state-led demand-management workshop, Colorado River Water Conservation District general manager Andy Mueller stood before the CWCB board at its regular meeting and told board members that the River District had received a grant for its own study of demand management and water marketing on the Western Slope, a move that some board members saw as subverting the state’s grassroots process.
“All the conversations we had in this room for two straight days and to preempt that discussion, that bothers me somewhat because I think we are getting out in front as a river district,” said Gail Schwartz, a former lawmaker and Basalt-based CWCB board member who represents the Colorado main stem on the board.
CWCB South Platte River Basin representative Jim Yahn agreed.
“We have to be careful because it could be somewhat confusing,” he said. “We want to project this unified front. We are looking at everything we can, but we want to be on this path together.”
Mueller said the study, which will be funded in part by a $315,721 WaterSMART grant from the Bureau of Reclamation, is meant not to compete with the state process but, rather, to feed into it. He said the decision to undertake the study is not a result of dissatisfaction with the CWCB’s work but, rather, is based on the need to fulfill the River District’s mission.
“We think our district has an obligation to the water users in the communities within our district to make sure that the water supply within our district and for water users in our district is adequate for all our needs,” Mueller said. “(The CWCB) is not the only governing body that has the right and obligation to be involved with demand management; the River District shares that obligation.”
The mission of the River District, which represents 15 Western Slope counties, is to protect, conserve, use and develop water in the Colorado River Basin. Mueller said the study is meant to come up with policy recommendations for the state if and when it develops a demand-management program.
Still, the move had echoes of a lingering and long-standing mistrust between Western Slope and Front Range water users, which George had alluded to the week before.
“There can be a perception in rural Colorado that people on the Front Range don’t have our best interest in mind,” Mueller said.
The Colorado Water Conservation Board, the primary water-policy agency for the state, met last week in Westminster, and afterward I had dinner with a friend. The friend, who has long worked in the environmental advocacy space, spoke of some matter before the board, and added this: “Twenty years ago this conversation never would have happened.”
Water politics in Colorado have undergone a Big Pivot. As the century turned, environmental issues had made inroads into the conversation, but water development remained a dominant theme. Then came the drought of 2002, which more or less changed everything. So has the growing realization of how the changing climate will impact the already over-extended resources of the Colorado River.
Instead of a deep, deep bucket, to be returned to again and again, the Colorado River has become more or less an empty bucket.
Those realizations were evident in a panel discussion at the Colorado Water Congress about water conservation and efficiency. Jeff Tejral, representing Denver Water, spoke to the “changes over the last 20 years” that have caused Denver Water and other water utilities to embrace new water-saving technology and altered choices about outdoor water use.
Denver Water literally invented the word xeriscaping. That was before the big, big drought or the understandings of climate change as a big, big deal. Twenty years ago, the Colorado Water Congress would never have hosted panels on climate change. This year it had several.
Tejral pointed to the growth in Denver, the skyscrapers now omnipresent in yet another boom cycle, one that has lifted the city’s population over 700,000 and which will likely soon move the metropolitan area’s population above 3 million. That growth argues for continued attention to water efficiency and conservation, as Denver—a key provider for many of its suburbs—has limited opportunities for development of new supplies. “The other part of it is climate change,” he said. “That means water change.”
Denver Water has partnered with a company called Greyter Water Systems on a pilot project involving 40 homes at Stapleton likely to begin in June or July. It involves new plumbing but also water reuse, not for potable purposes but for non-potable purposes. John Bell, a co-founder of the company, who was also on the panel, explained that his company’s technology allows water to be treated within the house and put to appropriate uses there at minimal cost.
“It makes no sense to flush a toilet with perfectly good drinking water, and now with Greyter, you don’t have to,” he said.
For decades Denver has had a reuse program. Sewage water treated to high standards is applied to golf courses and other landscaping purposes. Because of the requirements for separate pipes—always purple, to indicate the water is not good for drinking—its use is somewhat limited.
A proposal has been moving though the Colorado Department of Public Health rule-making process for several years now that would expand use of greywater and set requirements for direct potable reuse. The pilot project at Stapleton would appear to be part of that slow-moving process.
Greyter Water Systems, meanwhile, has been forging partnerships with homebuilders, the U.S. Department of Defense, and others in several small projects.
“It seems like 40 homes in Colorado is a small step,” said Tejral, “but a lot of learning will come out of that, which will open the door for the next 400, and then the next 4,000.”
There are limits to this, however, as water cannot be recycled unless it’s imported into a basin. Water users downstream depend upon releases of water from upstream. Water in the South Platte River Basin is estimated to have 6 or 7 uses before it gets to Nebraska.
In the Eagle River Valley, the streams gush with runoff from the Gore and Sawatch ranges, but there can be pinches during years of drought. That area, said Linn Brooks, who directs the Eagle River Water and Sanitation Districts, has a population of between 35,000 and 60,000 between Vail and Wolcott, “depending where we are during our tourist year.”
Water efficiency programs can make a big difference in what flows in the local creeks and rivers. Brooks pointed to 2018, a year of exceptionally low snowfall. New technologies and policies that put tools into the hands of customers reduced water use 30% during a one-month pinch, resulting in 8 cubic feet per second more water flowing in local creeks and rivers. During that time, Gore Creek was running 16 cfs through Vail. It flows into the Eagle River, which was running 25 cfs. “So saving 8 cfs was really significant,” she said.
Many of Eagle Valley’s efficiency programs focus on outdoor water use. That is because the water delivery for summer outdoor use drives the most capacity investment and delivery expenses. “Really, that is the most expensive water that we provide,” Brooks said.
Tap fees and monthly billings have been adjusted to reflect those costs. One concept embraced by Eagle River Water and Sanitation is called water budgeting. “Our hope is that water budgeting will continue to increase the downward trend of water use per customer that we’ve had for the last 20 years for at least another 10 years,” she said.
Eagle River also has tried to incentivize good design. The district negotiates with real estate developers based on the water treatment capacity their projects will require. “That is a way to get them to build more water-efficient projects, especially on the outdoors side,” explained Brooks. “When we execute these agreements, we put water limits on them. If they go over that, we charge them more for their tap fee. That can be a pretty big cost. We don’t like to do that, but we have found that in those few cases where new developments go over their water limits, we have gone back to them and said, we might have to reassess the water tap fees, but what we really want you to do is stay within your water budget.” That tactic, she added, has usually worked.
In this concept of water budgeting, she said, “I don’t think we have even begun to scrape the surface of the potential.”
Outdoor water use has also been a focal point of efforts by Northern Colorado Water Conservancy District, the agency created to deliver water to customers from the trans-mountain diversion at Grand Lake. Municipalities from Broomfield and Boulder north to Fort Collins and Greeley, even Fort Morgan, get water from the diversion.
Frank Kinder was recently hired away from Colorado Springs Utilities to become the full-time water efficiency point person for Northern. Part of the agency’s effort is to introduce the idea that wall to wall turf need not be installed for a pleasing landscape. Instead, Northern pushes the idea of hybrid landscapes and also introduces alternatives for tricky areas that are hard to irrigate. The ultimate goal falls under the heading of “smiles per gallon.” Some of the district’s thinking can be seen in the xeriscaping displays at Northern’s office complex in Berthoud.
Kevin Reidy, who directs water conservation efforts for the Colorado Water Conservation Board, said the Colorado Water Plan posited a goal of reducing water use by 400,000 acre-feet. Don’t get caught up in that precise number, he advised. “It’s really about trying to figure out a more stable water future for our cities,” he said.
Readers might well be confused by an agency named “water conservation” having an employee with the title of “water conservation specialist.” The story here seems to be that the word conservation has changed over time. In 1937, when the agency was created, water conservation to most people meant creating dams and other infrastructure to prevent the water from flowing downhill. Now, conservation means doing as much or more with less.
On why Eagle River Water takes aim at outdoor use
The amount of water used outdoors is generally twice that used for indoor purposes, and only about 15% to 40% of water used outdoors makes its way back to local waterways.
None of this water is returned to local streams through a wastewater plant. Most of the water is consumed by plant needs or evaporation; what is leftover percolates through the ground and may eventually make its way to a local stream.
— From the Eagle River Water website
This was originally published in the Feb. 18, 2020, issue of Big Pivots.
Many of Arizona’s Native tribes have long-standing claims to water rights that haven’t yet been settled, and a discussion of efforts to negotiate possible agreements took center stage at a meeting of Gov. Doug Ducey’s water council.
The meeting grew tense after Arizona’s top water official gave a presentation on the status of tribes’ unresolved water claims, and then didn’t allow leaders of four tribes to speak.
Arizona Department of Water Resources Director Tom Buschatzke said he sent letters a week ago to all 22 federally recognized tribes in Arizona inviting them to speak about the issue at upcoming meetings later this year.
That stance drew criticism from Arizona House Minority Leader Charlene Fernandez, D-Yuma, and sharply worded letters from the leaders of four tribal nations, which laid out grievances about how state officials have been treating their water cases.
Buschatzke gave a presentation [March 13, 2020] for the meeting reviewing the history of federal and state law regarding water for Indian reservations, the amounts of water that some tribes have obtained through congressionally approved settlements, and the status of 11 tribes’ outstanding water rights claims.
Buschatzke said it’s important to clarify Indian water rights claims because “unresolved claims create significant uncertainty for water users in our state.” Each tribe has priority water rights based on the date its reservation was established, he said, and may be entitled to large amounts of water.
If Colorado decides to join in an historic Colorado River drought protection effort, one that would require setting aside as much as 500,000 acre-feet of water in Lake Powell, can it find a fair way to get the work done? A way that won’t cripple farm economies and one which ensures Front Range cities bear their share of the burden?
That was one of the key questions more than 100 people, citizen volunteers and water managers, addressed last week as part of a two-day meeting in Denver to continue exploring whether the state should participate in the effort. The Lake Powell drought pool, authorized by Congress last year as part of the Colorado River Drought Contingency Plan, would help protect Coloradans if the Colorado River, at some point in the future, hits a crisis point, triggering mandatory cutbacks.
But finding ways to set aside that much water, the equivalent of what roughly 1 million people use in a year at home, is a complex proposition. The voluntary program, if created, would pay water users who agree to participate. And it would mean farmers fallowing fields in order to send their water downstream and cities convincing their customers to do with less water in order to do the same. The concept has been dubbed “demand management.”
Among the key issues discussed at the joint Interbasin Compact Committee and demand management work group confab last week is whether there is a truly equitable way to fill the drought pool that doesn’t disproportionately impact one region or sector in the state.
In addition, a majority of participants reported that they wanted any drought plan to include environmental analyses to ensure whichever methods are selected don’t harm streams and river habitat.
Some pointed to the need to identify “tipping points” when reduced water use would create harmful economic effects in any given community, and suggested that demand management be viewed as a shared responsibility.
Flipping the narrative of shared responsibility, participants said sharing benefits equally was important as well. They want to ensure that people selected to participate would do so on a time-limited basis, so that a wide variety of entities have the opportunity to benefit from the payments coming from what is likely to be a multi-million-dollar program.
“People are starting to get it,” said Russell George. George is a former lawmaker who helped create the 15-year-old public collaborative program which facilitates and helps negotiate issues that arise among Colorado’s eight major river basins and metro area via basin roundtables. He chairs the Interbasin Compact Committee, composed of delegates from those roundtables.
“It’s understood that we have to be fair about this and we have to share [the burden] or it won’t work. I think we’re making great progress,” George said.
The Colorado River is a major source of the state’s water, with all Western Slope and roughly half of Front Range water supplies derived from its flows.
But growing populations, chronic drought and climate change pose sharp risks to the river’s ability to sustain all who depend on it. The concept behind the drought pool is to help reduce the threat of future mandatory cutbacks to Colorado water users under the terms of the 1922 Colorado River Compact.
The public demand management study process, facilitated by the Colorado Water Conservation Board, has caused concern among different user groups, including farmers. Because growers consume so much of the state’s water, they worry that they are the biggest target for water use reductions, which could directly harm their livelihoods if the program isn’t implemented carefully and on a temporary basis.
In early 2019 the seven states that comprise the Colorado River Basin—Arizona, California and Nevada in the Lower Basin, and Colorado, New Mexico, Utah and Wyoming in the Upper Basin—agreed for the first time to a series of steps, known as the Colorado River Basin Drought Contingency Plan, to help stave off a crisis on the river.
And while Lower Basin states have already begun cutting back water use in order to store more in Lake Mead, the four Upper Basin states are still studying how best to participate to shore up Lake Powell. For the drought pool program to move forward, all four states would need to agree and contribute to the pool. George pointed to Colorado as a leader among the four states, saying it would likely be responsible for contributing as much as 250,000 acre-feet to the pool.
“We appreciate the focus, dedication and collaboration of our work group members,” said CWCB Director Rebecca Mitchell in a statement. “This workshop was the next step in sharing ideas for Colorado’s water future, and positioning our state as a national leader for cooperative problem solving.”
The eight major volunteer work groups, addressing such topics as the law, the environment, agriculture and water administration, will continue meeting throughout the year, with a mid-point report based on their findings to date due out sometime this summer.
Travis Smith, a former CWCB board member from Del Norte who is now participating on the agriculture work group, said he is hopeful that the work groups will be able to come up with a plan the public will endorse. Any final plan will likely have to be approved by Colorado lawmakers.
“Coming together to address Colorado’s water future is something we’ve been practicing through the [nine river basin roundtables] for years. Will we get there? Absolutely,” Smith said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
[Ted] Simmons is one of more than a hundred landowners — some who have been there for generations — who received a letter in recent weeks from an agent of the city of Thornton.
The letter offers Simmons and his neighbors a sum of money — Simmons reckoned the city is figuring about $7,500 per acre — for a permanent easement that would allow the city to build a jagged-lined water pipeline, north to south, across Weld County into Thornton.
“The current proposal makes that piece of land almost unusable,” Simmons said. “I can still put up hay, but for the future, if you want to do any plans in the future, it pretty much destroys the whole piece. You can’t build over it.”
The permitting process has been a bit rocky. It involves both Larimer and Weld counties, and the commissioners of each county have thrown various hurdles in the way of the city which resides in neither of their jurisdictions.
Initially, the project proposed to take Weld County Road 13 much of the way south. But there was concern on the part of the Weld commissioners that that was unfair to the landowners along that stretch of highway.
“We said we were not willing to put the pipeline in our right of way,” Weld County commission chairman Mike Freeman said by phone this week. “The reason is, with farming, they farm up to the county road. So it still impacts the landowners as much. The landowners need to be paid for these easements. It’s going to impact them, so they need to be paid.”
About 160 parcels are crossed, Koleber said, as the hypothetical pipeline traverses Weld County. And the commissioners weren’t making things any easier on Thornton, either.
“Weld commissioners said, ‘We want you to acquire all of the easements that you need for the pipeline ahead of time,’ before they even look at the permit,” Koleber said. “That’s reverse of how a project normally goes. Permit-design-right of way-construction. They flipped that and continued our process for a year, from July 2019 to July 2020.”
That said, roadblocks or not, Weld has been substantially more accommodating than Larimer. There, the commissioners rejected the permit application and are on their way to court with the city of Thornton. Freeman said that that’s not the plan in Weld.
“We want to make sure they’re treating people fairly,” Freeman said. “We can’t get in the middle of negotiation, whether they’re paying enough, but we want to make sure they’re getting those easements secured, not coming in and saying, ‘We’ve got 30%.’ We’re not going to approve a pipeline if we don’t know where it’s at … but if they come in with an application demonstrating it’s complete, and it’s a good one, more than likely we’d approve it.”
But the landowners — at least some of them — aren’t thrilled with the idea of giving up a strip of their property to the underground pipeline, even if it can be farmed right over the top of it as Thornton claims.
That’s because, like Simmons, the value is less in agriculture now than it is in development potential. Houses or other municipal space are where the future is.
Simmons and his neighbors, including Ken and Sue Kerchenfaut, would much rather the pipeline go down Weld County Road 13, actually. But if that’s not an option, Simmons has another idea, too. Rather than jutting through the various properties in a zig-zagging line, why not take a straight shot parallel path with an existing Sinclair Energy pipeline that already stripes his and many of his neighbors’ land?
Like it or not, it seems they’ll probably have to give up the easement one way or another. Thornton feels comfortable its eminent domain powers will be backed up in court, should it get that far.
And they’re probably right.
Thornton is a home rule charter, and such entities are granted quite broad eminent domain power for the sake of a public good by the Colorado constitution. That’s what an expert on the subject, University of Colorado professor Richard Collins, said by phone this week.
“The home rule powers of the constitution explicitly authorize home rule charters to have eminent domain,” Collins said. “So there’s really not much doubt that a home rule city would have broad powers of eminent domain.”