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SUMMIT COUNTY - Water attorneys representing the Breckenridge Sanitation District and Summit County faced off for a high-stakes round of legal poker at a public hearing in Breckenridge Tuesday, with the future of a $10 million Blue River pumpback pipeline on the table.
The BOCC hearing didn't completely resolve the lingering questions about possible future impacts downstream or about the county's permitting authority ove the proposed project, but both sides said they moved at least a little closer to making the project work.
Attorneys for the sanitation district said they are still not willing to "contractually concede" to the county's permit authority over the project, while the county commissioners maintained that they have an obligation to citizens of the county outside the district's jurisdiction that they won't relinquish.
"Jeff (county attorney Jeff Huntley) pointed out that we are required by statute to make this decision," Commissioner Bob French said after the hearing. "We feel a responsibility to the citizens of the entire county."
At issue are Summit County's 1041 powers, as outlined in a state statute that gives local governments "identify, designate and regulate areas (through a permitting process) areas of state interest" including major extensions of of existing water and sewage treatment systems and the efficient utilization of municipal and industrial water projects.
But the district believes that, even though it is working through the 1041 process, the pumpback project isn't described under the state statute that outlines local 1041 powers, said manager Andrew Carlberg.
"That's what we've been doing for the past seven months," Carlberg said. That process could lead to a "finding of no significant impact" by the county if the two sides can agree on specific terms in a memorandum of agreement.
As proposed by the district, the pumpback would deliver about 17 cfs of Blue River water from the Farmer's Korner area back to a point above the district's Iowa Hill treatment plant, boosting stream flows in the Upper Blue and providing more water for treatment and dilution. The pipeline could possibly help avert what is now being called a well crisis in the Upper Blue, with the State Engineer's office threatening to red-tag numerous wells that are not in compliance with permits.
The potential benefits of the project are almost universally recognized, but both sides are still trying to find a way to make provisions for unintended consequences. The district is currently trying to assert its dominion over the pumpback in state water court. If it can establish firm control over the water, than most of the remaining issues would disappear.
But until the water right is adjudicated (potentially in 2007, according to Carlberg) there is the potential for impacts to downstream flows in the Blue River north of Silverthorne. Those are the impacts the county commissioners seek to maintain control over.
Pumpback timing
Related to that issue is the timing of pumpback operations. As envisioned, the pipline would generally flow during the winter months to boost water levels during the low flow season. But Carlberg acknowledged during the hearing that there "will be times we will have to operate the pumpback in summer to meet permit limitations (at Farmer's Korner)" or add additional treatment capacity at the Farmer's Korner treatment plant.
The district has the most of the needed funding in place and could work with CDOT to time at least part of the construction to coincide with widening of Highway 9. Delays in construction could add significantly to the cost of the pipeline, Carlberg said.
"In a worst-case, you put us in a position where we have to tell you to shut down a project you built with everybody's money," Commissioner Bob French said, looking around the room to indicate the financial implications to taxpayers.
French was describing the district's opne-ended proposal that the county sign off on the pumpback now but delay any contest over permiting authority to some future undetermined time. The district's position is based on the presumption that the question might never come up, but the commissioners didn't appear inclined to go down that road.
"We're trying to protect the Blue against major deppletions that could affect streamflows in the entire Blue and Colorado," said Barney White, the county's water attorney. "Why shouldn't the county be able to do that?"
"We're asking people in the Lower Blue to live with this in good faith, waiting for the shoe to drop," said Commissioner Tom Long.
"I think the county should if it has authority," said Gene Riordan, representing the district. "Does the statute give the county that authority? Why fight that battle today? We're looking for a way to give both of us a soft landing," Riordan said. "We're trying to avoid a war with the county."
County attorney Huntley said it might be better to determine the extent of the county's authority now, before a $10 million project is built. "We're pretty confident of our 1041 authority," Huntley said.
The hearing was continued until the next BOCC meeting in early August. During that time negotiations will continue and both sides will look for some solid engineering data to back up some of the assumptions about stream flow impacts.
"In a worst-case, you put us in a position where we have to tell you to shut down a project you built with everybody's money." - Commissioner Bob French.
The BOCC hearing didn't completely resolve the lingering questions about possible future impacts downstream or about the county's permitting authority ove the proposed project, but both sides said they moved at least a little closer to making the project work.
Attorneys for the sanitation district said they are still not willing to "contractually concede" to the county's permit authority over the project, while the county commissioners maintained that they have an obligation to citizens of the county outside the district's jurisdiction that they won't relinquish.
"Jeff (county attorney Jeff Huntley) pointed out that we are required by statute to make this decision," Commissioner Bob French said after the hearing. "We feel a responsibility to the citizens of the entire county."
At issue are Summit County's 1041 powers, as outlined in a state statute that gives local governments "identify, designate and regulate areas (through a permitting process) areas of state interest" including major extensions of of existing water and sewage treatment systems and the efficient utilization of municipal and industrial water projects.
But the district believes that, even though it is working through the 1041 process, the pumpback project isn't described under the state statute that outlines local 1041 powers, said manager Andrew Carlberg.
"That's what we've been doing for the past seven months," Carlberg said. That process could lead to a "finding of no significant impact" by the county if the two sides can agree on specific terms in a memorandum of agreement.
As proposed by the district, the pumpback would deliver about 17 cfs of Blue River water from the Farmer's Korner area back to a point above the district's Iowa Hill treatment plant, boosting stream flows in the Upper Blue and providing more water for treatment and dilution. The pipeline could possibly help avert what is now being called a well crisis in the Upper Blue, with the State Engineer's office threatening to red-tag numerous wells that are not in compliance with permits.
The potential benefits of the project are almost universally recognized, but both sides are still trying to find a way to make provisions for unintended consequences. The district is currently trying to assert its dominion over the pumpback in state water court. If it can establish firm control over the water, than most of the remaining issues would disappear.
But until the water right is adjudicated (potentially in 2007, according to Carlberg) there is the potential for impacts to downstream flows in the Blue River north of Silverthorne. Those are the impacts the county commissioners seek to maintain control over.
Pumpback timing
Related to that issue is the timing of pumpback operations. As envisioned, the pipline would generally flow during the winter months to boost water levels during the low flow season. But Carlberg acknowledged during the hearing that there "will be times we will have to operate the pumpback in summer to meet permit limitations (at Farmer's Korner)" or add additional treatment capacity at the Farmer's Korner treatment plant.
The district has the most of the needed funding in place and could work with CDOT to time at least part of the construction to coincide with widening of Highway 9. Delays in construction could add significantly to the cost of the pipeline, Carlberg said.
"In a worst-case, you put us in a position where we have to tell you to shut down a project you built with everybody's money," Commissioner Bob French said, looking around the room to indicate the financial implications to taxpayers.
French was describing the district's opne-ended proposal that the county sign off on the pumpback now but delay any contest over permiting authority to some future undetermined time. The district's position is based on the presumption that the question might never come up, but the commissioners didn't appear inclined to go down that road.
"We're trying to protect the Blue against major deppletions that could affect streamflows in the entire Blue and Colorado," said Barney White, the county's water attorney. "Why shouldn't the county be able to do that?"
"We're asking people in the Lower Blue to live with this in good faith, waiting for the shoe to drop," said Commissioner Tom Long.
"I think the county should if it has authority," said Gene Riordan, representing the district. "Does the statute give the county that authority? Why fight that battle today? We're looking for a way to give both of us a soft landing," Riordan said. "We're trying to avoid a war with the county."
County attorney Huntley said it might be better to determine the extent of the county's authority now, before a $10 million project is built. "We're pretty confident of our 1041 authority," Huntley said.
The hearing was continued until the next BOCC meeting in early August. During that time negotiations will continue and both sides will look for some solid engineering data to back up some of the assumptions about stream flow impacts.
"In a worst-case, you put us in a position where we have to tell you to shut down a project you built with everybody's money." - Commissioner Bob French.
