Nestle brought heavy artillery to Salida Tuesday as it pursues approval from the Chaffee County Board of Commissioners for a water-harvesting project in the heart of the Colorado Rockies.
In what appeared to be a move aimed at countering last week’s testimony by Upper Arkansas Water Conservancy District Manager Terry Scanga, Nestle brought Colorado water law heavyweight Steve Sims to town.
Sims served as senior water counsel under former Colorado Attorney General Ken Salazar. Named one of the state’s 2009 Super Lawyers, late last year Sims was appointed by Gov. Bill Ritter to the Colorado Water Resources and Power Development Authority. Sims and Nestle lead counsel Holly Strablizky, both of whom hail from Denver-based Brownstein, Hyatt, Farber and Schreck. Last summer, an article in the New York Times named the firm “one of the most powerful legal firms in the West.”
Sims took direct aim at Scanga’s testimony that alleges that because of a prior existing intergovernmental agreement between UAWCD, Southeast Colorado Water Conservancy District and Aurora, Nestlé’s proposed water lease with Aurora could have a “deleterious effect” on water in the Upper Arkansas River Basin, particularly in the event of a severe Stage III drought. State water law requires Nestle to replace the spring water it hopes to harvest in Nathrop with a court-approved augmentation plan.
To that end, in late March, Aurora City Council approved leasing Nestle 200-acre-feet of water annually for approximately $200,000 per year. The lease has a renewal option for an additional 10 years, at Aurora’s discretion. Aurora also reserves the right to interrupt its supply to Nestle in the event of a severe Stage III drought. In such a scenario, Nestle would be obliged to stop pumping unless it has an additional augmentation source that is not subject to the same drought restrictions.
Sims said that while he appreciates Scanga for “always looking out for the Upper Ark,” he also said it was “very very doubtful” that the Nestle-Aurora lease would change any legal dynamic on the river. Sims said the 200-acre-feet per year Nestle-Aurora lease is a fraction of Aurora’s 52.000-acre-foot portfolio on the Upper Arkansas Basin. Translating what the Nestle-Aurora water lease means in terms of the standard unit of river flow, Sims said it’s “unlikely a half cfs (cubic feet per second) per day would change anything.”
Commenting on the worst case drought scenario Scanga painted for the county, Sims said “it’s just not going to happen,” especially in light of Aurora’s Prairie Waters project which Sims said will double or triple Aurora’s water portfolio, buffering it against enacting the type of Stage III drought triggers that Scanga warned the county about. Sims is also Aurora’s legal counsel for the $800 million Prairie Waters project.
Scanga, who said he has a lot of respect for Sims, said that if Sims assertion that Aurora’s Prairie Waters project really does mean Aurora doesn’t need any additional water from the Arkansas River basin, he’d like to see as much in a legally binding agreement.
Scanga described two scenarios that would alleviate his concerns about the Nestle-Aurora lease. In one such scenario, Aurora could agree to lease to Nestle only water Aurora spills from its vessels that is does not need for municipal supplies. Alternatively, Aurora could stipulate, in a separate agreement with Chaffee County or the UAWCD, that it won’t lease or purchase any additional water from the Upper Ark in perpetuity. “I’d be OK with it then,” Scanga said.
Scanga said the bottom line is his concern for what happens to the Upper Basin in a drought year. The 1041 application requires the applicant to provide an environmental impact analysis that includes descriptions of the “immediate and long-term impact and net effects that the proposed project would have on the quantity and quality of surface water under both average and worst case conditions.”
During Tueday’s public hearing, Nestle project manager Bruce Lauerman said he was “surprised” Scanga’s testimony had gained so much traction with the count and reiterated his skepticism about the validity of Scanga’s calculations and conclusions.
A report published in the August 2005 edition of the technical journal Pure and Applied Geophysics, seems to add credence to Scanga’s concerns. Scientists, including those from prominent climate science centers, wrote a research paper called, “Drought 2002 in Colorado: An Unprecedented Drought or a Routine Drought.” The abstract from the paper notes that while the impacts of the water shortages that year were “exceptional,” actual precipitation was less than severe over a “good fraction of the state.”
“A likely explanation of this discrepancy,” the authors write, “Is the imbalance between water supply and water demand over time. For a given water supply, water shortages become intensified as water demands increase over time. The sobering conclusion is that Colorado is more vulnerable to drought today than under similar precipitation deficits in the past.”
Sims also sparred with County Planning Director Don Reimer and county water counsel Jim Culichia over these two staff-proposed conditions of approval related to water rights and groundwater:
- Require a re-opening of the 1041 application if Nestle alters its augmentation source
- Prohibit Nestle from buying another water right to add supply to the aquifer
Culichia explained that any change of the augmentation source or supply to the aquifer could create 1041 impacts that are not part of the pending application and thus have not been studied or evaluated. He further explained that “what happens in water court doesn’t necessarily correlate” to 1041 standards. For example, water court does not concern itself with the natural resource, economic and wildlife habitat impacts of a dry up if, for example, Nestle were to purchase agricultural land and dry it up in order to use the associated irrigation water right as a source of augmentation.
The next public hearing on the Nestle application is set for May 21 at 1 p.m., location TBA.
Nice article Lee. It is great to be able to get real news on this situation since most of us don’t have the time to attend all the hearings. I’ve been following on the Citizen and the coverage has been excellent. Thanks for doing the hard work!
I want to second Bill’s thanks. Whatever happens with this issue the community owes Lee and the Citizen a debt of gratitude for the dedicated reporting. As the hours of hearings pile up, there is no way the community could follow every detail without your hard work.
Make that a triple crown Lee. Your coverage has been great! I have been impressed with our commissioners and staff for wading through the huge pile of information (much of which seems like a smoke screen to me) The same kudos goes to you…thanks!