Historical Perspectives: Does Mitigation Stand the Test of Time
Snowmass, Colorado – August 20-22, 2014
As part of the Colorado Water Congress’s (“CWC”) annual summer conference, Jim Lochhead, CEO and manager of Denver Water, moderated a four panelist discussion entitled “Historical Perspectives: Does Mitigation Stand the Test of Time?” The discussion centered on Colorado trans-basin water projects and the mitigation of their environmental impacts. The panelists were chosen to represent differing perspectives, and talk about what they have learned from the past and what has changed in regard to today’s physical and cultural environment. Jim Lochhead noted that disputes over trans-mountain diversions are not new, and have existed since Coffin v. Left Hand Ditch Co. in the nineteenth century. He also pointed out that in addition to cities on the front range of Colorado, many western slope cities make use of trans-basin diversions on both large and small scales.
Harold Miskel, formerly the water resource manager of Colorado Springs Utilities, and “Larry Simpson, formerly the general manager of the Northern Colorado Water Conservancy District, presented the perspective from the east slope of Colorado. During his career, Miskel was involved with the Homestake Water Project; a water supply project jointly operated by the cities of Colorado Springs and Aurora that transfers west slope water from the Eagle River basin to water users on the east slope. Starting in the early 1960s, and for the rest of his thirty-year career, Miskel took part in the conflicts that resulted from the project, many of which are ongoing today. He acknowledged that the basin roundtables happening today are beneficial because they create better collaboration. Although he also stated that in his experience there are three categories of people who get involved in the collaboration process: collaborators, opportunists, and obstructionists. He noted that obstructionists, those who are willing to defeat you at all costs, can really hinder the progress of a project.
One of the main issues Miskel encountered during his work on the Homestake Project, was the 1041 permitting process. Miskel discussed how that process was litigated for fifteen years, it is still not completely resolved today, and it caused the costs of the project to go up immensely. Miskel’s experiences left him with the perspective that the 1041 permitting process needs revising, and he suggested that the new Colorado state water plan presents an opportunity to do just that. Also, he stated that, while he does believe in the value of mitigation, the current process gives counties decision-making authority in state-wide issues.
Larry Simpson followed by sharing his experiences with the Windy Gap Firming Project. The Windy Gap Project is a water supply project designed to improve the reliability of supply to the Colorado Big Thompson Project, a trans-basin diversion that supplies water to northeastern Colorado from Lake Granby on the eastern side of the continental divide. Simpson stated that he and Miskel’s experiences were similar. The Windy Gap Project was negotiated extensively with the Colorado River Water Conservation District and the Grand County commissioners, and ended up with large mitigation efforts and compensatory storage as part of the deal. He gave the opinion that our current permitting and litigation process creates opportunities for stalling, which ultimately causes the costs of a project to increase. He stated that compensatory storage essentially makes someone pay for something that he/she already owns, and could be considered a form of extortion. Simpson ended by stating that he believed mitigation would not stand the test of time, because other interests and their successors will keep trying to take another bite out of the apple.
Eric Kuhn, general manager of the Colorado River Water Conservation District, and James Newberry, a Grand County commissioner, gave a perspective from the western slope. Kuhn noted that the issues surrounding trans-mountain diversions having been going on since the 1930s. In his view, this is one of the factors making current mitigation negotiations more difficult; in order to be successful in mitigation everyone needs to be included from the beginning. He also said that the issues are not only trans-basin issues, but also inter-basin issues, and they need to be viewed as a connected system in terms of exports of water.
James Newberry addressed earlier comments about the 1041 permitting process. He thought the process gave everyone a chance not to be blind-sided. He stated that from the Grand County perspective, the way that the Colorado Big Thompson Project was operated prior to the 1041 permitting negotiations did not do a good job of distributing the affects between all the parties involved. He said the rivers of Grand County were being negatively impacted, and noted that the Fraser River was recently listed as endangered. Newberrywas a part of the early negotiations with the Denver Water Board; he credited them for stepping out of their comfort zone, doing the right thing, and looking for solutions. In Newberry’sopinion, leaders stepped up, created an adaptive management plan, and are now going forward joined at the hip. He reminded the audience that while it is easy to identify problems, it is not nearly as easy to find solutions. He drew a laugh from the audience by comparing “Free Tibet” bumper stickers to the Save the Fraser (River) campaign; it is easier to say it than to actually do it. Newberry reiterated that he thought the 1041 permitting process was beneficial because it identified issues and did not streamline the process. In his opinion, the process requires people at the grassroots level who understand what the rivers need, in order to help save them.
Lochhead ended the discussions by suggesting that if this experiment in partnering fails, we could end up in a state of gridlock.