NISP: Northern Colorado's Unnecessary Reservoirs

###### Preface

This entry, drafted by Lee McMains, serves as both an introduction to a *Colorado water rights* issue and as a sample of how such a wiki page might look when completed. A great deal of this page was taken from a final paper Mr. McMains wrote for his Environmental Dispute Resolution course at Vermont Law School. *(I'm quoting myself so it's not plagiarism!)*

## Overview

The Northern Colorado Water Conservancy District has proposed a significant change to the flow of the Cache la Poudre River - one that may only marginally help its customers. The U.S. Army Corps of Engineers is currently collecting data for a Supplemental Draft Environmental Impact Statement, expected to be published mid-2015. Eleven municipalities and four regional water districts have been waiting for access to this additional water for almost fifteen years; several Colorado—based organizations are actively trying to dismantle the project. This wiki entry reviews the history of the river and of the project. It introduces the major players on both sides of the dispute, it discusses the negotiations that have occurred, and it details some missed opportunities. The entry concludes with some recommendations for the group leading the opposition to the project.

## History

In 2000 the Northern Colorado Water Conservancy District (Northern Water) completed a study forecasting water demand for the region. The study found that there would be a 160% increase in water demand within 30-60 years. The Northern Integrated Supply Project (NISP, or project) was presented to fifteen water consumers in the region: eleven municipalities and four water districts. These fifteen participants agreed to fund another study to develop several alternative solutions.

Table 1 summarizes the timeline of the NISP project. Unless noted, all dates are taken from the NISP Timeline. Comments in the table are cited separately.

## Influence

California has successfully integrated the Public Trust Doctrine into their water management system, and Oregon has explicitly stated that the waters of their state are for the public good.

Application of this doctrine has been tried several times in Colorado (recent examples include Initiative 4 [2015-2016], Initiative 89 [2014], Initiative 103 [2014]) and has not found much traction. There is little appetite for the doctrine in the state legislature, choosing to prefer the Right of Prior Appropriation. This form of property law establishes the law of “first in time, first in right.” To quote C.R.S. 37-82-101:

> “The doctrine of prior appropriation has become thoroughly entrenched in our jurisprudence, through constitutional and statutory provisions, and by a uniform and unbroken line of judicial decisions...It is said of the doctrine in this state that the common-law rule of continuous flow of natural streams is abolished, is so firmly established by the constitution, the statutes of the territory and the state, and by many decisions of the courts, that the supreme court declines to reopen or reconsider it.”
>
>

Justice Gregory J. Hobbs of the Colorado Supreme Court has said, in effect, that states downstream from Colorado have no legal right to water that flows through our state other than the rights we Coloradans give them.

This is a position commonly-held by all sides of water management disputes in the state.

## No Action Impact

The option carried forward for permitting involves creating two new reservoirs: the Glade and the Galeton. The Glade Reservoir is sited to be six miles north of the Horsetooth Reservoir, itself a few miles west of Fort Collins. Seven miles of U.S. Route 287 will have to be shifted to make room for the reservoir.

The Glade is designed to hold up to 170,000 acre-feet of water diverted from the Poudre “during the high water months of above-average years." The Galeton Reservoir is sited North of Greeley to hold 45,000 acre-feet of water diverted from the South Platte River. This reservoir will primarily supply two irrigation ditch companies that currently pay for access to the Poudre; they would pay for water that goes in to the Glade and extract water
from the Galeton.

## Effort

One of the leading opponents of the project is Save the Poudre: Poudre Waterkeeper, sometimes informally referred-to as STP. This citizens’ organization was founded circa 2006 in response to NISP. Its mission is “to protect and restore the Cache la Poudre River” by conducting and publicizing research and increasing public awareness of potential impacts to the health of the Poudre River and Front Range rivers generally. The group follows this mission with fervor; it has become an influencer regarding development along the Poudre corridor, though seen by some as intransigent.

The author e-mailed the organization at info@savethepoudre.org on March 30th, 2015 after reading that one of the 10 accomplishments they were most proud of was engaging NISP subscribers. According to their website, “This communication process has proven challenging, but there are a few positive signs and we will keep this up as long as it takes.” During a phone call on April 21st, 2015 following up the e-mail, the author interviewed Gina Janett, Grants & Volunteer Coordinator for STP.

Ms. Janett stated that the group had considered the author’s request for information and decided against responding, feeling that the focus of this paper amounted to “barking up the wrong tree” with questions about negotiating with municipalities. She suggested that “coalitions with cities are not at all politically possible,” because cities “are the enemy” and “are hell-bent on growth; they’re not allies of rivers or the environment, generally speaking.”

At the end of the phone call her organization was nonetheless invited to speak to students about water use – to give the PowerPoint presentation heavily marketed on their website. She begged off saying that “we’re a small group; we all have day jobs.” Their website states that conservation could address the communities’ needs for water, but they don’t seem interested in engaging those parties.

## Future Action

(In this section, the author speaks directly to Save the Poudre, or one of their 20 aligned organizations. Herein some thoughts and suggested processes are provided. Please keep in mind that framing any of the following conversations in a Public Trust context will be counter to your objectives. The measures highlighted below are not *no-growth*, they’re *smart-growth*.)

Referring to Figure 1, the author proposes that STP approach the municipalities with the smallest stake in the project:

Dacono (1,000 AF), Eaton, Firestone, Morgan County Quality Water District, or Severance (1,300 AF each). A ranking of these communities by size would generally fall in the same order, but that is not how they are listed here.

The long-term goal will be to help communities see that NISP is not their only chance to meet their water needs. This long-term goal will only be met by meeting smaller goals. It isn’t necessary that a city immediately agree to leave the project; collaboration need only plant a seed to help them plan for the future. For now you should focus on building a relationship. Help them see that they have already paid several hundred thousand dollars for a project that was strongly questioned by an approval authority (EPA) and they need to start planning today for the possibility that the project will not be approved.

Start by working with the city of Dacono. Their walk-away cost should be very low, since you are offering to collaborate with them for free. Work with the city to develop a contingency plan that focuses on demand-side conservation – help them identify the mechanisms and costs associated with a 15% reduction in demand for their city. The following scenario may be helpful:

> In 2007 the city of Dacono projected that in 2016 it will need 1,389 acre-feet of water for its residents. A 15% reduction in demand would bring the city back to its projected 2012 levels. It would also mean that current (2016) water levels could support a population projected for 2020 – the city would, in effect, be 5 years ahead of its Master Water Plan.
>
>

It’s important to recognize that this would be a one-time offset in efficiency; the number only scales with aggressiveness. If Dacono wanted to be 7 years ahead, for example, they would need to accelerate or incrementalize their conservation measures.

The next step in the collaboration, after the contingency plan, is a replacement plan. Work from the assumption
that there will otherwise be a need for an 11th Interim Agreement. Use that payment amount to shift the focus away from the project toward the conservation measures previously discussed. Perhaps the city might incentivize low-flow shower heads or xeriscaping with credits or rebates. Perhaps the city will regulate a maximum water pressure at the meter. Water management education will be crucial, so be sure to include some room in this mental-exercise-budget for an intensive outreach and education campaign. Structure the plan so that it costs less to conserve without the project than it does to participate within the project. By this process you will make it more expensive for the city to remain a project member than it would be to leave.

Approach the Town of Firestone, 3 miles to the north, and complete this same process with them. You may choose to do this either in succession or simultaneously with your efforts in Dacono (there are merits to either approach). For Firestone, the scenario looks like this:

> For the town of Firestone 5,701 acre-feet of water demand are projected for 2016. A 15% reduction would realize 2013 consumption levels, or it could healthily support a 2019 population. This according to their 2010 Potable Water master Plan.
>
>

By this point you will have built rapport with city officials, and you should have healthy working relationships with their Town and City Planners. It’s time to leverage those relationships and start a collaboration with the Town of Frederick, located right in between Dacono and Firestone. Make it a four-way collaboration; see how much more these three cities, together, can impact water conservation than they could apart – while still allowing for smart growth. A snowball effect will start to take effect here, as Frederick town officials will have access to ideas and solutions developed by the previous two groups. This type of sequential collaboration has been shown to yield successful outcomes time and again, and it is at this point that you should start working toward commitments from the city officials.

If you can successfully diminish the strength of NISP, and enhance the strength of the communities (collectively or individually) then this negotiated walk-away will be easier. The effort you will have put forth heretofore serves this purpose. None of this is to say that it will be an easy task. Expect that Northern Water will want a seat at this table; even though this might seem like a disadvantage to you, they are certainly a stakeholder in the area. If they want to negotiate, then you should play to your identified strengths, one of which is surely your ability to align with other citizen organizations. If there are other natural stakeholders that should participate in this discussion, now would be the time to invite them, in response to Northern Water’s request.

It is vital to recognize that converting these three smallest partners away from NISP will shrink the storage and diversion requirement of the project by over 12%. That is a significant change, enough that neighboring Fort Lupton, with their 7.5% project yield participation, will take notice. The message throughout all of this is important: don’t demonize the project, marginalize it.

As you work with these municipalities, NISP project partners will become your partners. If you haven’t already, begin negotiations with Northern Water to find another alternative that better meets all of the partners’ needs and helps to preserve (and possibly restore) the Poudre River. You will want to make sure that all stakeholders are represented, otherwise any negotiated agreement will certainly result in damages in the public, economic, and relationship arenas. The goal to keep in mind is that demand-side reductions will drive supply-side reductions.

## References

1. ↑ NISP News 1 (May 2003): 1. Northern Colorado Water Conservancy District. Web. 25 Apr. 2015.
2. ↑ NISP Timeline
3. ↑ "Environmental Impact Statement - Northern Integrated Supply Project." Omaha District. U.S. Army Corps of Engineers. Web. 25 Apr. 2015.
4. ↑ https://www.northernwater.org/docs/NISP/NISPHome/NispTimeline.pdf
5. ↑ "Intent to Prepare a Supplemental Draft Environmental Impact Statement for the Proposed Northern Integrated Supply Project in Northeastern Colorado." Federal Register. Federal Register, 17 Feb. 2009. Web. 25 Apr. 2015.
6. ↑ *National Audubon*
Society v. Superior Court. 33 Cal. 3d 419 (1983)
7. ↑ Adams, Jennifer, Mariella Czetwertynski, Lalita Limpanatevin, and Kevin Ackaramongkolrotn. "Water as Part of the Public Trust: A Review of Selected State Codes." *Water Policy Working Paper #2002-001* (2002). Web. 25 Apr. 2015.
8. ↑ "Prior Appropriation Law." *Colorado Division of Water Resources.* Colorado Department of Natural Resources. Web. 25 Apr. 2015.
9. ↑ Leonhardt, Stephen H., Esq. *Colorado Water Stewardship Project 2015-16 Scope of Work.* Denver, CO: Colorado Water Stewardship Project, 2015. Colorado Water Stewardship Project, 7 Apr. 2015. Web. 25 Apr. 2015. http://cowaterstewardship.com/wp-content/uploads/2015/04/CWC-Webinar-April-2015.pdf.
10. ↑ Whaley, Monte. "CDOT OKs "Rock Cut" Reroute of U.S. 287 for Glade Reservoir Project." 4 Sept. 2013. Web. 25 Apr. 2015.
11. ↑ Eastwood, Cara. "In Defense of a River." *wyomingnews.com.* Wyoming Tribune Eagle, 18 Jan. 2007. Web. 25 Apr. 2015.
12. ↑ http://www.fortmorgantimes.com/fort-morgan-local-news/ci\_30221948/location-shift-likely-proposed-water-storage-reservoirs
13. ↑ Duggan, Kevin. "Save the Poudre Keeps Watchful
Eye on the River, but Critics Say Group Is Obstructing Development in Fort
Collins." The Coloradoan. Gannett, 28 July 2012. Web. 25 Apr. 2015.
14. ↑ 14.0 14.1 "About Save the Poudre: Poudre Waterkeeper." *savethepoudre.org.* Save the Poudre: Poudre Waterkeeper. Web. 25 Apr. 2015.
15. ↑ "Top 10 Accomplishments." *savethepoudre.org.* Save the Poudre: Poudre Waterkeeper. Web. 25 Apr. 2015.
16. ↑ 16.0 16.1 16.2 16.3 16.4 Janett, Gina. Personal interview. 21 Apr. 2015. At one point Ms. Janett asked me to reiterate who I was, asking if I worked for Northern. I came away fairly surprised and more than a bit disappointed that the group was not interested in talking with a graduate student from arguably the premier environmental law school in the country, nor with engaging communities to make NISP irrelevant.
17. ↑ *City of Dacono Master Water Plan.* Rep. Dacono, CO, 2007. City of Dacono, Aug. 2007. Web. 26 Apr. 2015.
18. ↑ *Town of Firestone Potable Water Master Plan.* Rep. Firestone, CO, 2010. Town of Firestone, Mar. 2010. Web. 26 Apr. 2015.
19. ↑ Menkel-Meadow, Carrie, Kupfer Schneider, Andrea, Love, Lela. *Negotiation Processes for Problem Solving*. Wolters Kluwer Law & Business.