Eagle River Watershed Council: A deeper diver into the Eagle River MOU

This is Part II of a three-part series.

In the previous column, we reviewed the history of water development in the Homestake Valley, as well as some of the key points contained in the Eagle River Memorandum of Understanding that was agreed to and signed by the principal parties in 1998. Of primary interest in this column is what is referred to as “Exhibit 2” in the MOU, and pertains to Homestake Creek-based alternatives.

As a reminder, the Eagle River Assembly and signatories of the MOU were Aurora and Colorado Springs (named the Cities in the memorandum), Colorado River Water Conservation District (River District), Climax Molybdenum Company (Climax) and the Vail Consortium, consisting of Vail Associates, the Eagle River Water and Sanitation District, and the Upper Eagle Regional Water Authority. The Vail Consortium and the River District together are known as the “Reservoir Company” in the MOU.

The primary objective of the MOU was to create a joint project from one of four options, which were explained in the previous column. The idea was to develop a water supply project that “minimizes environmental impacts, can be permitted by local, state and federal agencies, and provides sufficient yield to meet the water requirements of project participants…”

The baseline sharing of water would provide as much as 10,000 acre-feet (an acre foot is enough water to cover one acre — about a football field — one foot deep), on average, for the Eagle County participants, 20,000 acre-feet on average for the east slope participants and 3,000 acre-feet average for Climax. These amounts were based on a firm dry year yield, which means the maximum quantity of water which can be guaranteed during a critical dry period.

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There are provisions in the MOU for the range of needs and timelines of the parties. Any party or parties wishing to build a project must seek the participation of all the other parties. If the other party or parties do not wish to participate at that time, then the initial parties may “proceed independently of the others…,” with additional caveats regarding money, infrastructure and “rights of refusal” to water, depending on the final size of a project.

If the proposed project is a joint project, the parties shall all apply for permits as co-applicants for federal, state and county permits. But, what happens if one or more of the parties decline to participate?

The MOU outlines the following: “To the extent that any party exercises its right not to participate… such party shall nevertheless support any application that is consistent with the terms of this MOU.” The non-participating parties will “provide favorable testimony and letters of support in any permit proceedings…” If any party or parties fail to support a proposed project than “the Cities shall have no obligation to subordinate their water rights…”

Such refusal of support would also jeopardize a specific exchange of water.

The MOU considers the need to study and mitigate potential environmental impacts. It is designed to focus primarily on compiling all information on existing wetlands, identifying and quantifying wetlands in the area, estimating mitigation costs and “identifying potential benefits for recreation, fish and wildlife in a qualitative sense.” This last comment is important and reflects a long history of resistance by Front Range water diverters to any quantification of flow needs for environmental protection or recreation.

If any flow rates, seasonal or otherwise, including any range of flows needed for the environment, fish, wildlife and recreation were provided, the diverters might be expected to provide for flows through depletions, or when their diversion is impacting local stream flows.

The MOU calls for an environmental analysis of the various alternatives to identify impacts to wetlands and concerns from inundation, or the flooding of the valley floor and surrounding landscapes. It specifically states that, “If it is found that there are less environmentally damaging practicable alternatives [any of these proposed projects] may prove difficult to permit.”

Now that’s an understatement.

The third column will explore some serious questions brought to mind by both the MOU and the assumptions underlying the work of the Eagle River Assembly. The significant cultural, hydrologic and climatic changes that have occurred since 1998 will also be investigated. The world and problems we face with water and rivers in the West in 2021 are not the same as those the Eagle River Assembly was trying to address in the early 1990s.

Ken Neubecker is a founder of and former board president for Eagle River Watershed Council and recently retired from his position as the Colorado Project Director at American Rivers. The Watershed Council has a mission to advocate for the health of the Upper Colorado and Eagle River basins through research, education and projects. Contact the Watershed Council at (970) 827-5406 or visit erwc.org.