Blue River pumpback in peril?

SUMMIT COUNTY - A challenge to the county's permitting authority could delay or even kill the proposed Blue River pumpback, which would divert water from the Blue River near Dillon Reservoir and deliver it back upstream to Breckenridge.

County Commissioner Tom Long explained that the $10 million proposal is still subject to a "large investigation" into the feasibility, impacts and cost.

"I don't think they're going to be bringing in the backhoes next year," Long said.

At issue is the timing and level of review. Summit County wants to maintain 1041 authority over the project, while the Breckenridge Sanitation District - the project proponent - is claiming the pumpback pipeline is exempt from the county's authority.

Even though the county and the district are wrangling over permit issues, there is agreement that the pumpback will deliver significant benefits.

"We want to be sure the pumpback is used for water quality. We think this is one of the best ideas to come down the pike in a long time," said County Commissioner Bob French.

The project will get another public hearing before the board of county commissioners next week, and negotiations are expected to continue right up until the last minute. The Breckenridge Sanitation District is prepared to put the project out for bid in two weeks.

Both parties said they have been negotiating in good faith for several months to outline conditions under which the project could proceed outside the county's 1041 authority.

"The county cannot agree to any language that compromises or creates uncertainty as to its 1041 jurisdiction," planners wrote in a memo for the July 25 meeting.

"... we do not believe it is covered under the 1041 regulations," said district manager Andrew Carlberg. "However, what we've also said is that we'll concede on that, (provided the two sides can agree on other conditions)."

Carlberg said the district's board of directors objects to language in the proposed agreement that could make the board members and Carlberg personally subject to civil and criminal charges under certain circumstances.

"We respect the county's position. But we believe this is a special project with different circumstances," Carlberg said. The district hasn't held direct discussions with the county for some time. The remaining issues are being handled by legal counsel for both sides, Carlberg said.

Based on the remaining points of contention, Carlberg said the district board is considering four options:

• Dig without a permit and face litigation;

• not doing the project at all;

• saying "uncle" and accepting the county's terms;

• and, the preferred option, finding mutual resolution.

The timing of the county decision is critical, Carlberg said, explaining the district has nearly all the funding in place, and that the pipeline installation could be done as part of the Highway 9 widening.

Who gets the water?

The question of permitting authority is at the surface in this showdown, but bubbling just beneath is the question of "unintended consequences." The main aim of the pumpback is to provide environmental benefits in the Blue River, additional water for the district's treatment facilities, and to potentially provide water for a possible Upper Blue reservoir.

Additionally, the water - up to 17 cfs - could help provide water for an umbrella augmentation plan for some well users in the Upper Blue who are facing shortages and potential well shutdowns.

But adding water to the Blue could also make more water available for other water users with senior rights. The water rights for the pumpback water are under adjudication in state water court in a process separate from, but running parallel to, the permitting and review discussions at the county level.

"We don't want it to be consumed by the ski area for snowmaking, or by Colorado Springs (which diverts from the Blue up at the headwaters near the Continental Divide)," Carlberg said. "We don't want other people using it without authorization."

The ski area is already on the record as saying that it won't lay claim to the water, Carlberg explained. And he believes the water right for the "extra" water from the pumpback can be protected from outside claims.

"We have enough support from the state engineer's office and the Colorado Water Conservation Board to protect at least 12.5 cfs," Carlberg said.

"We are trying like hell to to resolve the differences," said French. "If the district is successful in water court in asserting its dominion over the water rights, I think the problems go away," French said.

Maintaining the county's 1041 authority is a matter of principal, French explained. But it could also crop up in a very real way.

"Should Colorado Springs Utility lay claim to water, it could have a significant effect on downstream flows," he said. Maintaining 1041 authority is the tool the county needs to make sure it can mitigate impacts to Summit County residents outside the service area of the sanitation district.

For Carlberg, the biggest challenge remaining is to address the seasonal nature of the proposed pumpback operation.

"What we are looking at now is operating it from November to April," Carlberg said. That is the low streamflow season, when short reaches of the Blue go completely dry at the surface and the river fails to reach required minimum flows downstream in segments important to aquatic life.

"But what about April to October? What happens then?" Carlberg said, explaining that the district may need to operate the pumpback during the summer under certain scenarios, mainly to address water quality issues.

"Right now, what the county is telling us is that if (we) want to operate the pumpback for water quality purposes between April and October, we have to go through a 1041 process. We want to have the ability to turn the pumps on for water quality or emergency purposes," Carlberg said.



Bob Berwyn can be reached at (970) 331-5996, or at bberwyn@summitdaily.com.