Nestle, CCFS sought last-minute concessions from county on six hot topics

The day before it was granted conditional approval to proceed with its proposed water harvesting project in Chaffee County, Nestle Waters North America submitted an eight-page memo to the Board of County Commissioners asking for reconsideration of draft conditions in several of the most hotly contested aspects of its proposal.

During the BOCC special hearing Aug. 19 Commissioner Frank Holman argued the board should admit both Nestle’s memo as well as comments to draft conditions offered by Chaffee Citizens for Sustainability. Commissioners Tim Glenn and Dennis Giese persuaded Holman that re-opening the record, even if only to allow the written comments by Nestle and CCFS, would unnecessarily prolong a public review process that already included thousands of pages of documents, hundreds of letters from the public and hundreds of hours of oral testimony.

While Nestle and CCFS last-minute efforts to influence the county commissioners is a moot point because they were not heard by the commissioners prior to their decision to approve the project, the points shed light on which issues both sides still contested.

Perhaps most significantly, a review of Nestle’s eight-page memo appears to show Nestle directly contradicting earlier testimony by its own legal team aimed at discrediting and downplaying testimony by Upper Arkansas Water Conservancy District General Manager Terry Scanga,

Earlier in the public review process, Scanga provided written and oral testimony warning Commissioners that Nestle project depletions could cause an increase in exchanges by Aurora on the Arkansas that could have a “deleterious effect” on the basin. Aurora has signed a 10-year lease with Nestle to provide augmentation water for the project.

In direct counterpoint to Scanga, Nestle water counsel Steve Sims told Commissioners 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.

At the time, 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.

Commenting on the drought scenario Scanga painted for the county, Sims flatly assured the Commissioners “it’s just not going to happen,” especially in light of Aurora’s Prairie Waters project that Sims said will double or triple Aurora’s water portfolio, buffering it against enacting the type of drought triggers Scanga envisioned.

Now three months later, Nestle appears to refute its own earlier testimony. It recaps Scanga’s argument that Aurora will need Nestle lease water to serve its customers in the future and they should not be allowed to replace that water with new Arkansas exchanges. Nestle now agrees that this is a “legitimate concern” that will be mitigated by draft county condition 32a requiring Nestle to suspend pumping project wells if Aurora exercises its right to exchange any Category 2 leased water.

Citing a closer examination of the Aurora-UAWCD-Southeast Water Conservancy District intergovernmental agreement, Nestle now argues that condition 32a is too broad and “will have the unintended result in some circumstances of causing Nestle to curtail pumping, without preventing Category 2 exchanges.” In the memo, Nestle provides an example of just such a scenario as it asks Commissioners to amend condition 32a so that under certain Category 2 exchange circumstances, Nestle would not have to suspend pumping in Chaffee County.

Also of note in the latest memo to the county, Nestle continues to take issue with recommendations provided to the county from environmental consultants, Colorado Natural Heritage Program. Nestle argues that since it agreed not to pump water from its Bighorn Springs parcel, the extent of wetlands monitoring conceptualized and suggested by CNHP at Bighorn Springs is no longer necessary. Despite acknowledging the county’s uncertainty as to whether Ruby Mountain Springs pumping will impact Bighorn Springs wetlands, Nestle nevertheless suggests “deleting any reference to the CNHP report in county 1041 permit condition titled “wetlands and groundwater monitoring and mitigation plan.”

Also of note in Nestle’s recent memo is its attempt to dodge circumstances that could trigger a re-opening of the 1041 permit process.

In its draft conditions of approval, the county outlines triggers that would determine the difference between minor changes to the Nestle plan that would require an administrative technical revision and those that would mandate a re-opening and re-examination of Nestle’s 1041 permit.

Nestle hoped to persuade commissioners to agree that any change in the augmentation water source or augmentation water release point would constitute a minor technical revisions, rather than re-opening the 1041 permit process as recommended by county water counsel Jim Culichia.

As drafted, the county will require that all augmentation water to offset Nestle depletions must be physically delivered to the Arkansas River above the project area and that release points in Lake County meet this requirement. The condition also states that augmentation water cannot be delivered either by exchange from downstream water rights to the point of depletion, or by Aurora into storage of downstream native water rights.

In another attempt to skirt re-opening the 1041 permit process, Nestle asked Commissioners to consider a minor technical revision any material changes to its description of the 15-acre “Hagan exception.”

An earlier lack of a precise location of the 15-acre exception, slated for future residential development by the Hagan family who is selling the Ruby Mountain Springs property to Nestle, was a factor in the county’s concern for 10 of the 26 1041 requirements county staff believed Nestle had not satisfied.

Nestle asked that it not be required to provide limited parking and overland fishing access to the Arkansas River through its property.  This particular point proved to be a battleground last week as Commissioner Glenn argued in favor while Commissioner Holman was staunchly opposed. In the end the two agreed to a compromise proposed by Commissioner Dennis Giese that would cede the decision to the local Division of Wildlife.

Finally, Nestle wrote to express its hope the county would ease restrictions on summer holiday weekend truck traffic arguing that it should not be required to address a part of its project that it feels it proved, through the Wilkinson traffic study, would not have a significant net adverse impact on the community.

The top two concerns aired by CCFS in an emailed memo to the County concerned the deletion in the final draft of 1041 conditions of any reference to the permanent conservation easement Nestle had verbally promised in the closing hours of public testimony after Commissioners had already closed the hearing to written testimony.

Glenn checked with county legal counsel several before commissioners voted on the Nestle project to be sure Nestle would be held to its promise. Staff assured Glenn that reference to the conservation easement would be in the “whereas” portion of the permit resolution.

CCFS also aired concerns that the county altered a condition CCFS had expressly requested remain unchanged. On first draft condition 39 prohibited Nestle from purchasing, leasing or acquiring, directly or indirectly, other water rights or dry-up irrigated lands in Chaffee County in order to provide water to the aquifer Nestle plans to tap. Now, the condition adds that Nestle does not need the consent of the county to enter into agreements with up-gradient irrigators for the continuance and preservation of historical irrigation practices, the return flows from which provide a source of water to the aquifer.  CCFS is concerned the new sentence is too vague and that Nestle’s arrangements with irrigators should be more closely defined and monitored.

County Planning Director Don Reimer explained that in the county comprehensive plan and again through the recently concluded Planning Roundtable process, the county has heard repeatedly from the public about the necessity and desirability of continuing productive agriculture in the valley for the benefits it provides to viewsheds, water and air quality, and wildlife.

In the end, Commissioners voted unanimously to direct county staff to draft a resolution granting conditional approval to the Nestle project.  Fort-four conditions totaling 11 pages will be incorporated into the resolution. Commissioners have until Oct. 18 to review and vote on the final resolution.

Nestle will extract 65 million gallons of water annually from springs on what was once ranchland at the mouth of Brown’s Canyon. The springwater will be piped underground four miles north to Johnson Village where it will be loaded on trucks for transfer some 120 miles east to Denver. Once there, the water will be bottled for distribution and sale as Nestle’s Arrowhead brand of bottled water.