Plan to pipe water to Denver dumped
September 11, 2006
DENVER (AP) ” The Colorado Supreme Court on Monday rejected an appeal by supporters of a plan to pipe billions of gallons of Western Slope water to the thirsty Front Range, apparently killing the project.
“This was the final nail in the coffin,” said John McClow, general counsel for the Upper Gunnison River Water Conservancy District, which opposed the project from the beginning.
Natural Energy Resources Co. wanted to build a reservoir near Crested Butte to store up to 1.2 million acre-feet from the headwaters of the Gunnison River to be piped to fast-growing Arapahoe County on Denver’s east side.
But in a 6-0 ruling with one justice abstaining, the Supreme Court upheld an August 2005 decision by Montrose-based Water Judge Steven Patrick, who canceled the company’s 20-year-old conditional water right after determining there wasn’t enough water available in the system for the company to carry out its plans.
McClow said the water conservancy district and other water users in the area had always considered the proposed project a threat to their water.
“We proved in two consecutive trials that were appealed to the Colorado Supreme Court … that there is no water available for appropriation at that location in the Gunnison River Basin,” he said.
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Dave Miller, the head of Natural Energy Resources, said it is premature to declare the project dead.
“It’s a major setback and I think it’s a setback for the state of Colorado as well as the whole Western United States,” he said.
In the early 1980s, Miller had obtained a conditional water right to 325,000 acre-feet to build a proposed hydropower project at Taylor Park Reservoir as part of the proposed Union Park project. In 1986, he sought to expand the Union Park project to hold 900,000 acre-feet that would be transported to the Front Range, and Arapahoe County took over the proposed project two years later.
Before Monday’s ruling, the Supreme Court had twice upheld water court rulings denying Arapahoe County’s applications for water rights to build the project. The county later transferred the project back to Natural Energy Resources.
Last year, Patrick determined three previous court rulings specifically prevented the company from being able to prove it could complete its project with diligence and within a reasonable time, a condition that state law requires be met for conditional water rights.
The Supreme Court said the feasibility of the overall project depended in part on the proposed use of Taylor Park Reservoir in the hydropower project, which had been ruled as not feasible.
“Since (Natural Energy Resources) cannot use Taylor Park Reservoir as contemplated in the (conditional water right), it cannot satisfy the ‘can and will’ test of the required diligence proceeding,” Justice Alex Martinez wrote for the court. “Consequently, there is no genuine material issue of fact left to be adjudicated.”
The Supreme Court rejected Natural Energy Resources’ arguments that Patrick was wrong to dismiss the case when he did because it had never been denied the appropriate government permits.
Vail Daily, Vail, Colorado