After almost 20 years of controversy, Homestake II has joined the growing ranks of defeated Colorado water projects. On Nov. 17, the Colorado Court of Appeals upheld Eagle County's decision to reject construction permits.
ruling, which recognized Colorado counties' broad discretion in
land-use matters, could be appealed to the Colorado Supreme Court.
But regardless of the ultimate outcome of the case, Colorado
Springs and the Denver suburb of Aurora, the partners in the
project, already have moved on - buying up water from farmers since
Homestake II was to siphon 20,000
acre-feet each year from the Holy Cross Wilderness south of Vail.
The project received a special exemption when the wilderness was
created by Congress in 1980, and seemed inevitable when a federal
court refused to halt the project.
Colorado Legislature unknowingly handed the project's opponents a
potent weapon. In the 1970s, its adoption of House Bill 1041 gave
counties the power to control development proposed by entities
beyond their boundaries. Although language in the bill included
utilities projects, it is unlikely the law was ever intended to
stop cities from diverting water from rural western
But in looking at Homestake II impacts,
Eagle County found that it would damage fragile alpine wetlands.
Making the environmental case was the Sierra Club Legal Defense
Fund for a local group, the Holy Cross Wilderness Defense Fund. The
evidence convinced the county to deny a construction
In Colorado, water rights are protected
in the state constitution. In the Home-stake case, the cities
argued that denial of their permit applications would constitute a
"taking" of property. A county could attach reasonable conditions
to a permit, the cities argued, but it would have to honor the
cities' property rights.
The Court of Appeals
disagreed. "The existence of previously decreed water rights does
not provide an exemption for the developer from regulation under
the land use act ... The cities' entitlement to take water from the
Eagle River Basin, while a valid property right, should not be
understood to carry with it absolute rights to build and operate a
particular water diversion project."
principle, if left untouched by the state's Supreme Court, gives
rural areas a powerful defensive
The writer works for
the Gazette Telegraph in Colorado