Another water project is drowned

  • Cross creek in the Holy Cross Wilderness, Colorado

    Warren Martin Hern

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.

The 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 the mid-1980s.

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.

But the 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 Colorado.

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 permit.

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."

That principle, if left untouched by the state's Supreme Court, gives rural areas a powerful defensive weapon.

The writer works for the Gazette Telegraph in Colorado Springs.

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