Blue River pumpback suspended

SUMMIT COUNTY - The Breckenridge Sanitation District last week suspended plans for a proposed $10 million Blue River pumpback after negotiations with the Board of County Commissioners failed to resolve issues related to the county's permitting authority over the project.

According to district manager Andy Carlberg, talks collapsed after the county added "unreasonable and unlawful" language to a hotly debated Memorandum of Agreement. As approved by the BOCC, the agreement would subject the district and its board of directors to civil and criminal penalties, Carlberg said.

The permitting negotiations have been complex, but essentially, the county wants to ensure that it retains what it believes is a state-mandated responsibility to review and regulate any "unintended consequences" resulting from operation of the pumpback outside the parameters outlined by the agreement.

At issue during the district's Sept. 21 board meeting was language that would have established a "strong presumption of immediate and irreparable harm," from operation outside those parameters, according to county attorney Jeff Huntley.

"We have to have a remedy in the event there is a violation," Huntley said.

That clause was unacceptable to the district board, Carlberg said, sounding frustrated but still passionate about the pumpback's upside.

"It's too good of a project to go away," Carlberg said, continuing to tout the potential benefits to water quality and quantity in the Upper Blue Basin.

As proposed, the pumpback would shunt up to 17 cfs of water from near the district's Farmer's Korner treatment facility through a pipeline back upstream to Breckenridge. The exact point of discharge back into the river hadn't been determined.

But Carlberg said all along that the project would boost water in a depleted section of the Blue, where minimum streamflow standards set to protect aquatic life frequently go unmet, especially during snowmaking season. As well, the recycled water would have helped meet treatment needs at the district's Iowa Hill facility, and potentially even provided a source for a new reservoir in Breckenridge that is on the drawing board.

Carlberg said the pumpback could also help address a sticky well water issue by providing an augmentation supply for groundwater users in the Upper Blue. Finally, he said the project would save a substantial amount of money by eliminating the need for costly upgrades at the Farmer's Korner plant, foreseeably needed to address water quality impacts within 10 to 15 years. Carlberg said the district would now start to look at making plans for those improvements.

"What was really sad was, we never liked the agreement, but we were at a point where we were going to sign it anyway," Carlberg said, explaining that the "presumption of immediate and irreparable harm" clause was the monkey wrench that gummed up the deal.

"That language put the county commissioners above the (federal) Clean Water Act," Carlberg claimed. "The BOCC passed what they knew we would not agree to. They are stepping outside the bounds of their authority." The language could have put the district in a lose-lose situation, forcing it to choose between violating the Clean Water Act or the county's operational conditions, facing potentially severe penalties in either case, he explained.



Water rights in question?

All three county commissioners said the permitting issue could have been avoided if the sanitation district already had a firmly decreed water right for the pumpback flows. The district is currently pursuing that decree in water court, where a number of objectors have lined up to have their say in the matter.

Carlberg said he is certain the district will ultimately prevail, but Commissioner Tom Long, who knows the system as well as anybody, said he wasn't comfortable going with that assumption.

"I would have liked to have said, go ahead and do your pumpback ... but we want to make sure they have absolute control over the water," Long said. Additionally, he expressed concern that the district hadn't completed all the engineering studies required under the regulatory process.

With those pieces in place in the future, it's very possible that the pumpback could get a friendlier reception by the BOCC, said Commissioner Bob French.

"It's a good project," French said. "But if they operate outside the parameters (of the Memorandum of Agreement) there are potentially significant impacts. The county couldn't simply give up its responsibility to regulate those impacts, French said.

According to Commissioner Bill Wallace, the pumpback would add "new" water to the Blue River that could be claimed by an outside interest unless the district's right is legally decreed.

"We wanted to have the irreparable harm clause in there so that if someone outside the county wanted to file on that water ... they would have to take it from the Upper Blue (in the case of Colorado Springs' diversion near Hoosier Pass) or from the Lower Blue," Wallace said.

Such diversions could have an impact on Summit County, and that's what the "irreparable harm" language is intended to address, Wallace explained.

The san district may be licking its wounds, but the project is not completely dead. Huntley said the district has indicated that it will continue its water court effort to firm up its water rights.

"We're looking at all our options," Carlberg said, adding that the district had already spent about $100,000 on legal fees and studies.

The district had tentatively lined up a 3 percent loan from the Colorado Water and Power Authority for $8 million, covering a large part of the projected cost, as well as $500,000 grant. Carlberg had hoped to get going on the pumpback as early as next spring to coincide with scheduled Highway 9 widening. Bidding for the project was already under way, but Carlberg said all the bids were rejected as a result of the board's decision to suspend the pumpback for now.



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