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Water Court case reaches settlement

Contact: Bryan Treu, County Attorney, 970-328-8685

After years of litigation and months of recent negotiations, Eagle County and the cities of Aurora and Colorado Springs today reached a settlement in a 1995 Water Court case involving the cities’ proposal for development of a groundwater project at Camp Hale and a surface water reservoir in lower Homestake Creek, which would be used for future water diversions to the Front Range. Origins of the dispute date back to the 1970s; the settlement ends a protracted legal dispute over the Homestake II project water rights.

As part of the settlement, the cities have agreed to abandon any additional diversion points within the Holy Cross Wilderness Area. Additionally, the settlement greatly reduces the potential size of both the Camp Hale groundwater project and the proposed reservoir at the mouth of Homestake Creek. Water rights which the cities obtain through the settlement will be dedicated to cooperative development under the 1998 Eagle River Memorandum of Understanding (MOU), an agreement designed to cap the amount of trans-mountain diversions by the cities from the Eagle River basin. 

Aurora and Colorado Springs have committed to working collaboratively with Western Slope water providers, including the Eagle River Water and Sanitation District (ERWSD) and the Upper Eagle Regional Water Authority, to develop mutually beneficial projects. “The cities agreeing to forever abandon additional water rights within the wilderness area is significant. Eagle County’s renewed focus to work through tough issues over the past few months to settle a 15-year-old case provides a great public benefit by protecting the Holy Cross Wilderness Area and our watershed,” said Bob Warner, ERWSD Board Chairman.

Much of the impetus for the settlement came from current Aurora Mayor Ed Tauer, whose father was mayor of Aurora during the contentious Homestake II hearings in the late 1980s. Mayor Tauer persisted in approaching Eagle County Board of Commissioners for a common sense discussion outside of the legal battle. It was recognized that such a discussion would be a logical extension of the collaborative efforts that eventually led to the Eagle River MOU. “What started as a battle has become Colorado’s best east-west partnership” said Tauer. “It turns out that through a little listening we can preserve wild areas, support the river and help cities. The Eagle Valley team is a model for our state.”

The Homestake Partners’ water rights in the upper Eagle River basin were first developed by John Elliot in the 1940s and 50s, who envisioned water diversions from the mountains to the faster growing Front Range. In 1952, Elliot sold those rights to the cities of Aurora and Colorado Springs who subsequently developed several surface diversions and conveyances, including the Homestake Reservoir and the trans-mountain Homestake Tunnel. However, the cities did not develop all of their decreed rights before the Holy Cross Wilderness Area was established 1980.

The State of Colorado directs counties to regulate development in “areas of state interest,” such as wilderness, through House Bill 1041 of 1974. The cities’ attempt to develop their rights in the Holy Cross Wilderness met with opposition in Eagle County through litigation that ultimately recognized the county’s right to regulate land use through its 1041 powers. Previous Boards of County Commissioners were adamant that the proposed projects be undertaken in a way that was least impactful on the area’s natural resources. “We have always insisted these projects be realistic in scope and located outside the wilderness area,” said former Eagle County Commissioner Tom Stone. “Any new project will need to be reviewed carefully and it appears this settlement provides a process to make that happen,” Stone said.

According to Eagle County Commissioner Jon Stavney, who helped facilitate conversations with the cities of Aurora and Colorado Springs, all those involved are hopeful that solutions will be identified that lead to joint-use projects with minimal impact on the natural environment. “It’s good for both sides to have an agreed upon process that avoids expensive legal posturing and works toward a right-sized, mutually beneficial outcome,” said Stavney. “I’m proud to be a part of this agreement that stands midpoint between entrenched battles of the past and solutions on the horizon that will occur years after we’ve left office.”

With the settlement in place, Eagle County, Aurora and Colorado Springs have agreed to meet on an ongoing basis to design and develop projects. The county will retain its land use review authority for any future project, including its 1041 powers, and has instructed staff to assist in developing projects that accommodate both the cities’ needs and the county’s land use objectives. For more information, contact Eagle County Attorney Bryan Treu at 970-328-8685.