For all the venom spilled over Colorado Springs' proposed pipeline from the Arkansas River, a judge's ruling last week that the plan will be subject to Pueblo County land-use regulations did not seem to surprise many.
"From my point of view, it was expected," says Dennis Hisey, chair of the El Paso County Board of County Commissioners. The law in Colorado "tends to give counties the upper hand," he says.
This upper hand comes from House Bill 1041, passed in 1974 to give local governments some control over "areas and activities of state interest," such as water pipelines and roads.
Colorado Springs sought escape from that unhappy position by filing suit against Pueblo County commissioners in 2006, after they rewrote their 1041 regulations in apparent anticipation of the Springs' planned Southern Delivery System pipeline.
Attorney David Eason, representing the city, argued that the SDS pipeline should be exempt from the regulations because the land it would run across was already zoned for that sort of use when the law passed.
But Pueblo District Court Judge Dennis Maes sided with Pueblo County last week, meaning Colorado Springs, failing a successful appeal, will need county permits before it sets about laying a 66-inch pipe from Pueblo Reservoir up to and beyond the border of the two counties, about 20 miles north.
Colorado Springs Utilities officials say the pipeline, which could carry 80 million gallons of water to the region each day, will be needed in about five years to keep up with growth planned in the area.
Eason says the city has not decided whether to appeal.
A return to the '70s
Hisey, who has been working with elected officials and residents from both counties as a participant in the Fountain Creek Vision Task Force, says the best way forward for the city seems to lie in negotiation.
"I think that means the city is going to have to find a way to work with the county commissioners there in Pueblo County," Hisey says.
That work could be easier now than in the past, Hisey suggests, given that Loretta Kennedy, a noted SDS critic, resigned as a commissioner in August to take a job with U.S. Rep. John Salazar.
The pipeline's path is still an open question. Colorado Springs presented seven alternatives some routing the pipeline to the west through Fremont County, instead of Pueblo to the Bureau of Reclamation for review in an Environmental Impact Statement. A draft of that statement is due in early 2008.
While Utilities officials have said running the pipeline through Fremont County along Colorado Highway 115 would be costlier than coming up from Pueblo County, conditions imposed under Pueblo County's regulations could shake up the numbers.
With a history of casting a wide net to meet local water needs, Colorado Springs is no stranger to House Bill 1041.
Eagle County used 1041 rules in the '80s to block the Springs' plan to increase collection on the Homestake water system west of the Continental Divide.
For part of a 2005 report published by the Colorado Bar Association, Joe Dischinger, an environmental attorney with a background in water law, reviewed the 1041 regulations that have been adopted by different counties.
Such regulations were adopted often in the 1970s, he says, but relatively seldom in the following two decades.
Only in the past few years, he says, has there been renewed interest in drafting these regulations, with some counties facing new water projects and others looking to influence the proposed Front Range toll road known as Super Slab.
Considering the power the law gives these counties in controlling certain types of projects, Dischinger suggests, many officials now recognize they have to work with county governments to get their projects approved.
A venue view
One heated issue in the run-up to Maes' decision was simply where the Springs lawsuit should be heard, with both sides seeking whatever advantage there might be in a home court.
The Colorado Supreme Court decided last year the case belonged in Pueblo County. Eason, attorney for Colorado Springs, says the effect of that ruling cannot be ignored.
"The venue, of course, played into the result," he says.
Still, the decision, if it stands, only gets indirectly at the concerns of many Pueblo County residents and officials.
A pipeline might suck a lot of water, but the bigger issue is what happens after the water is returned to Fountain Creek, which already has problems with flooding, erosion and contamination.
Hisey says those are the concerns the Vision Task Force is trying to address.
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