SUBJECT:
Title
Settlement of Water Court Case with City of Boulder
Body
DEPARTMENT: Utilities Department
Department
PRESENTER(S): Todd Fessenden, Utilities Director
First Name Last Name, Title
FISCAL SUMMARY:
Cost as Recommended: N/A
Balance Available: N/A
Budget Line Item Number: N/A
New Appropriation Required: No
POLICY ISSUES:
The settlement in this case achieves the stated Council Priorities of a Safe and Healthy Community, Environmental Sustainability and Fiscal Responsibility in ensuring safeguards in place to protect quality and quantity of the Town’s most valuable asset, its water supply.
STAFF RECOMMENDATION:
Recommendation
Informational report only, no action needed.
End
SUMMARY AND BACKGROUND OF SUBJECT MATTER:
At the Aug. 13 Executive Session Council authorized Special Water Counsel Steve Bushong to attempt to negotiate a settlement with City of Boulder in the pending water court case, regarding their application to store effluent in Panama Reservoir. If Mr. Bushong couldn’t find a fair and reasonable settlement, we would prepare an appeal to the Court's recent ruling on Boulder’s motion regarding enforceability of injury claims by senior conditional water rights holders. Fortunately, appealing was not necessary because we were able to settle the matter amicably on Aug. 27 with City of Boulder reflecting terms Council had authorized. Boulder County, a co-applicant to the City’s water court filing, has also approved the settlement. A simple explanation of the attached Settlement Agreement is below:
Water Quality Monitoring, Data Sharing and Future Protection:
Boulder Agrees to support Erie's efforts in obtaining water quality data from Panama Reservoir in the future through one, or a combination, of:
• In-reservoir sampling
• Sampling at the reservoir outfall,
• In the outfall channel that runs through Boulder County-owned land and;
• To share any water quality data Boulder collects for its own purposes related to this project.
In addition, Boulder acknowledges Erie's ability, in the future, to challenge any water quality changes via the State Engineer's Office and that Erie is entitled to receive substitute water of a "sufficient quality to maintain its normal use". The parties agree to disagree that Erie maintains the right to bring water quality issues back up in water court once our wells are placed into normal use (i.e. as part of our new treatment plant supply).
Water Quantity
Boulder Agrees to provide Erie up to 370 acre-feet of leased CBT water from Boulder Reservoir as a 20-year lease, which must be initiated by Erie by 2030. This will act as an emergency supply and will only be unavailable in years when a water shortage exists that also causes Boulder to issue water restrictions.
In addition, Boulder agrees to work in good faith with Erie and Northern Colorado Water Conservancy District (Northern) to allow Erie to obtain a permanent pool of 370 acre-feet in Boulder Reservoir. Should this permanent arrangement be arrived at, most of the additional terms in the agreement would be terminated. However, Erie would maintain the right to perform its own water quality monitoring of Panama Reservoir even if Boulder fully controls the reservoir.
Summary
Staff is very pleased with this outcome. Erie's lease of up to 370 acre-feet of water from Boulder Reservoir would be only the second of its kind for the city; the other is for a mere 0.6 acre-feet per year for a research lab in the hills above the City. Erie's existing emergency supply is Erie Lake which holds only 240 acre-feet when full. This agreement allows for a 20-year more than doubling of that supply, and the possibility of an equivalent permanent supply in Boulder Reservoir. Recent meetings with Northern indicated that they are also supportive of this idea. We consider this a positive overall outcome for Erie and a great safety net between now and when the Northern Integrated Water Supply (NISP) project arrives. In addition, Boulder has also agreed to drop its opposition in our wetlands project pending water court application for a substitute water supply (aka augmentation) plan.
TOWN COUNCIL PRIORITY(S) ADDRESSED:
ü Prosperous Economy
ü Safe and Healthy Community
ü Effective Governance
ü Environmentally Sustainable
ü Fiscally Responsible
ATTACHMENT(S):
1. Settlement Agreement Water Court Case 20CW3053