HomeMy WebLinkAboutR88-015 Cities of CO Springs and Aurora Homestake II Water Diversion0
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Commissioner e () /) moved adoption
of the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 88 -_L6
IN RE THE MATTER OF THE APPLICATION
OF THE
CITIES OF COLORADO SPRINGS AND AURORA
HOMESTAKE II WATER DIVERSION PROJECT
DECISION
WHEREAS, the Cities of Colorado Springs and Aurora
(hereinafter the "Cities" or the "Applicant ") submitted a consol-
idated application for the construction of the second of four
phases of a water diversion project commonly referred to as the
40 Homestake Water Diversion Project; and
WHEREAS, the Homestake Water Diversion Project cur-
rently diverts water from Homestake Creek and tributaries in the
Homestake Valley. The Phase II development proposal, which is
the subject of the Cities' consolidated application, is the
second of four phases and would divert waters from the headwaters
of Cross Creek and its tributaries and Fall Creek in the Holy
Cross Wilderness Area of the White River National Forest. The
Phase II proposal is for 57,000 feet of tunnels, 3,000 feet of
pipeline and four diversion structures. The diversion of water
from the Cross Creek and Fall Creek drainages was originally
estimated in the application to amount to approximately 19,600
acre feet per year (af /yr); the estimated amount increased to
approximately 21,000 to 21,500 of /yr during the course of the
Applicant's presentation of testimony and evidence concerning the
Phase II Project (the "Project "). The potential cumulative
diversions from Homestake Phase II and all other undeveloped
water rights owned by the Cities in the Eagle River Basin total
36,900 a/f in an average year and 11,050 a/f in a dry year,
according to an analysis made by a consulting hydrologist firm
for the Cities in conjunction with the filing of their applica-
tion. This water is to be delivered into the existing Homestake
system for subsequent delivery to the Cities of Colorado Springs
and Aurora for municipal use. The location of the Project is
• described on the attached Exhibit A.
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WHEREAS, the construction and operation of the Home -
stake II Water Diversion Project constitutes a designated matter
of State interest pursuant to Part 1 of article 65.1, Title 24,
of the Colorado Revised statutes, and the "Guidelines and Regula-
tions for Areas and Activities of State Interest of the County of
Eagle, State of Colorado ", 1980, as amended, and there is no
evidence in the record that the Cities fall within any of the
exemptions set forth at S 24- 65.1 -1 -107, C.R.S.; and
WHEREAS, the Board of County Commissioners of the
County of Eagle, State of Colorado (hereinafter the "Board "),
conducted joint public hearings with the Eagle County Planning
Commission on April 20 through April 24, 1987, May 14 through May
16, 1987 and May 18 through May 20, 1987, after publication and
notice as required by law, to consider the Cities' application
for the following permits:
I. Permit to conduct the following designated activity of State
interest: a major extension of an existing water collection
system (S 6.04, Eagle County Land Use Regulations);
II. Permit to conduct the following designated activity of State
interest: the efficient utilization of a municipal water
• project (§ 6.05, Eagle County Land Use Regulations);
III. Special Use Permit (§ 2.09, Eagle County Land Use Regula-
tions); and
IV. Certificate of Designation (§ 30 -20 -101, et seq., C.R.S.).
(the above applications hereinafter collectively referred to as
the "Application "); and
WHEREAS, the following persons and entities entered
their appearance as parties to, and had an interest in, the
proceedings:
Avon Metropolitan District
Town of Avon
Colorado Council of Trout Unlimited
Colorado River Outfitters Association
Western River Guides Association
Division of Wildlife
Eagle County Sheriff
Holy Cross Wilderness Defense Fund
James Franklin Lamont
Red Cliff Water and Sanitation District
Town of Eagle
• Town of Gypsum
Town of Minturn
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Town of Red Cliff
Town of Vail
Upper Eagle Regional Water Authority
Upper Eagle Valley Sanitation District
Vail Valley Consolidated Water District
Vail Associates, Inc.
Eagle County Historical Society; and
WHEREAS, the hearing concluded on October 30, 1987, and
the Planning Commission conducted its public deliberation on
November 18, 1987, and, based on all the evidence, exhibits and
arguments presented, made its recommendation concerning the
Application to the Board of County Commissioners in Eagle County
Planning Commission Resolution No. 87 -1 dated December 30, 1987;
and
WHEREAS, the Board of County Commissioners conducted
its public deliberation on January 13 and February 4, 1988; and
WHEREAS, prior to the hearing, the Applicant made
several motions in limine to prohibit the presentation of evi-
dence concerning (a) need; (b) availability of alternatives to
the proposed Project; (c) cumulative effects of all phases of the
• Homestake Project; (d) costs; and (e) ownership of water rights;
and
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WHEREAS, the Board ruled to grant the Applicant's
motions regarding need, the availability of alternative projects,
ownership of water rights, and cost, and to deny the Applicant's
motions regarding cumulative effects; and
WHEREAS, because the Board granted the Applicant's
request to prohibit any evidence relating to alternative projects
outside the scope of the pending Application, the Board is unable
to consider permitting any alternative to the Project described
in the existing permit Application, and for purposes of these
findings and decision, the Board has not considered or evaluated
any evidence relating to alternatives to the Project described in
the pending Application; and
WHEREAS, all evidence submitted by way of an offer of
proof which is not admissible pursuant to the Board's rulings on
the Applicant's motions in limine has not been considered by the
Board; and
WHEREAS, the Board has considered all evidence, exhib-
its, testimony and arguments presented which were not excluded by
its ruling on the Cities' motion in limine.
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FINDINGS
NOW, THEREFORE, based on the evidence admitted at the
hearings, the Board of County Commissioners of the County of
Eagle, State of Colorado, finds as follows with regard to that
portion of the Application submitted by the Cities in accordance
with the requirements and criteria set forth at the "Guidelines
and Regulations for Areas and Activities of State Interest of the
County of Eagle, State of Colorado," which are regulations
designed to protect the public health, safety and environment,
promulgated pursuant to the authority of § 24- 65.1 -101, et sea.,
C.R.S. The "Guidelines and Regulations for Areas and Activities
of State Interest of the County of Eagle, State of Colorado," are
codified in Chapter 6 of the Eagle County Land Use Regulations,
there being no separate environmental code. (All references
herein to said Guidelines and Regulations are shown in paren-
theses.)
I. APPLICATION FOR A PERMIT TO CONDUCT A DESIGNATED ACTIVITY OF
STATE INTEREST: A MAJOR EXTENSION OF AN EXISTING WATER
COLLECTION SYSTEM (§ 6.04, EAGLE COUNTY LAND USE REGULA-
TIONS).
The Board of County Commissioners finds as follows
relative to § 6.04:
1. (6.04.15.o) The evidence shows that the proposed
development will significantly deteriorate marshlands or
wetlands.
2. (6.04.15.1.o) The Applicant has failed to show
that the proposed development will not significantly deteri-
orate aquatic habitats.
3. (6.04.15.1.o) Evidence presented at the hearing
failed to demonstrate that the significant deterioration of
the wetlands can be adequately mitigated.
4. (6.04.15.1.o) There will be a significant deterio-
ration in public outdoor recreational areas because of loss
in the quality and quantity of the river rafting experience
and construction disturbances in the Wilderness Area.
5. (6.04.15.1.o) Evidence presented at the hearing
failed to demonstrate that the loss in the quality and
quantity of the river rafting experience and the construc-
tion disturbances can be adequately mitigated.
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6. (6.04.15.1.p) Reduction in stream flows and
construction activities in the Wilderness Area will result
in a significant degradation of natural scenic characteris-
tics.
7. (6.04.15.1.p) Evidence presented at the hearing
failed to demonstrate that the significant degradation of
natural scenic characteristics resulting from reduction in
stream flows and construction activities in the Wilderness
Area can be adequately mitigated.
8. (6.04.15.1.m) The proposed development will
further decrease the quality of surface water below accept-
able standards because of aggravated exceedances of heavy
metals.
9. (6.04.15.1.m) Evidence presented at the hearing
failed to demonstrate that the decrease of surface water
quality to below acceptable standards because of aggravated
exceedances of heavy metals can be adequately mitigated.
10. (6.04.15.1.1) The benefits of the proposed devel-
opment do not outweigh the losses of natural resources.
is 11. (6.04.15.1.c) There will be an adverse effect on
water rights because water quality is a protected element of
a water right, and there will be a reduction in downstream
water quality.
12. (6.04.15.1.c) Evidence presented at the hearing
failed to demonstrate that the adverse effect on downstream
water rights can be adequately mitigated.
13. (6.04.15.1.o) There may be a negative effect on
the aquatic environment because of increases in water
temperature which cause fish to be subject to disease.
14. (6.04.15.1.o) Evidence presented at the hearing
failed to demonstrate that the negative effect on the
aquatic environment can be adequately mitigated.
15. (6.04.15.1.p) The proposed development will cause
nuisance factors such as increased traffic, dust, fire
hazards, and dangers from hazardous chemical contamination,
explosives and fuels. The mitigation measures proposed by
the Cities fail to adequately satisfy this criterion.
16. (6.04.15.1.q) The proposed development will result
in increased costs to the Town of Avon for water treatment.
• However, the Board finds that such increased costs will not
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result in an undue financial burden to the residents of the
County of Eagle.
17. (6.04.15.1.r) There is no evidence that the
proposed development will be subject to risk from earth-
quakes, floods, fires, snowslides, landslides, avalanches,
rockslides or other disasters.
18. (6.04.15.1.t) The construction of the Project will
not cause a significant impact on communities within the
development area and source development area if construction
impacts are mitigated.
19. (6.04.15.1.b) The proposed development conflicts
with the Eagle County Master Plan and the Areawide Water
Quality Management Plan but thcse plans are advisory only
under this criterion.
20. (6.04.15.1.k) There may be easements required for
tunnels through mining claims.
21. The following permit criteria under 6.04.15 do not
apply:
• (6.04.15.1.a)
(6.04.15.1.e)
(6.04.15.1.f)
(6.04.15.1.g)
(6.04.15.1.h)
(6.04.15.1.i)
(6.04.15.1.j)
(6.04.15.1.$)
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II. APPLICATION FOR A PERMIT TO CONDUCT THE FOLLOWING DESIGNATED
ACTIVITY OF STATE INTEREST: EFFICIENT UTILIZATION OF A
MUNICIPAL WATER PROJECT. (§ 6.05, EAGLE COUNTY LAND USE
REGULATIONS).
The Board of County Commissioners finds as follows
relative to § 6.05:
1. (6.05.15.g) The evidence shows that the proposed
development will significantly deteriorate marshlands or
wetlands.
2. (6.05.15.1.g) The Applicant has failed to show
that the proposed development will not significantly deteri-
orate aquatic habitats.
• 3. (6.05.15.1.g) Evidence the hearing
presented t a_
failed to demonstrate that the significant deterioration of
the wetlands can be adequately mitigated.
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4. (6.05.15.1.8) There will be a significant deterio-
ration in public outdoor recreational areas because of loss
in the quality and quantity of the river rafting experience
and construction disturbances in the Wilderness Area.
5. (6.05.15.1.g) Evidence presented at the hearing
failed to demonstrate that the loss in the quality and
quantity of the river rafting experience and the construc-
tion disturbances can be adequately mitigated.
6. (6.05.15.1.f) The proposed development will
further decrease the quality of surface water below accept-
able standards because of aggravated exceedances of heavy
metals.
7. (6.05.15.1.f) Evidence presented at the hearing
failed to demonstrate that the decrease of surface water
quality to below acceptable standards because of aggravated
exceedances of heavy metals can be adequately mitigated.
8. (6.05.15.1.g) There may be a negative effect on
the aquatic environment because of increases in water
temperature which cause fish to be subject to disease.
9. (6.05.15.1.g) Evidence presented at the hearing
failed to demonstrate that the negative effect on the
aquatic environment can be adequately mitigated.
10. (6.05.15.1.d) The U.S. Forest Service easement
restrictions, Corps of Engineers permit requirements, and
City construction management techniques contain provisions
to ensure that construction of the water Project will not
contaminate surface water resources.
11. (6.05.15.1.h) No salinity and advanced wastewater
treatment offset plans have been required.
12. (6.05.15.1.i) The construction of the Project will
not cause a significant impact to communities within the
development area and source development area if construction
impacts are mitigated.
13. The record indicates deficiencies in the Environ-
mental Impact Statement.
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• 14. (6.05.15.1.b) The proposed development conflicts
with the Eagle County Master Plan and the Areawide Water
Quality Management Plan but those plans are advisory only
under this criterion.
15. The following permit criteria under 6.05.15 do not
apply:
(6.05.15.1.a)
(6.05.15.1.c)
(6.05.15.1.e)
III. SPECIAL USE PERMIT (S 2.09, EAGLE COUNTY LAND USE REGULA-
TIONS).
A. Section 2.09.02.13, Eagle County Land Use Regulations.
With regard to the Special Use Permit, the Board of
County Commissioners incorporates all relevant findings of fact
under Sections I and II of this Resolution, "Guidelines and
Regulations for Areas and Activities of State Interest ", as more
fully set forth hereinabove, and, more specifically, finds as
• follows:
1. (2.09.02.13.f) There will be an adverse effect to
private property owners.
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2. (2.09.02.13.f) Evidence presented at the hearing
failed to demonstrate that the adverse effect to property
owners can be adequately mitigated.
3. (2.09.02.13.e) The Project may adversely affect
fish, wildlife or migratory ranges.
4. (2.09.02.13.e) Evidence presented at the hearing
failed to demonstrate that the adverse effect on fish,
wildlife or migratory ranges can be adequately mitigated.
5. (2.09.02.13.b) There is a sufficient supply of
electrical energy to serve the Project.
6. (2.09.02.13.c) The Project will be built in a safe
and prudent manner.
7. (2.09.02.13.d) The Project will utilize the
minimum amount of private land.
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8. The following criterion does not apply to the
proposed Project:
5 2.09.13.a
B. Section 2.09.04, Eagle County Land Use Regulations.
1. (2.09.04.1.a) The Project is not compatible with
other existing uses.
2. (2.09.04.1.b) For purposes of this Application,
"the neighborhood" is the Wilderness Area and adjacent
lands. As such, there will be an overall negative effect on
the character of the neighborhood.
3. (2.09.04.1.c) There is adequate access.
4. (2.04.04.1d) Proper water and sanitation facili-
ties will be supplied by the Applicant.
IV. CERTIFICATE OF DESIGNATION (§ 30 -20 -101, et sec., C.R.S.)
1. The proposed disposal site does not conform with
Eagle County's comprehensive land use plan, being the Eagle
County Master Plan, and is specifically in contravention of
§ 4 ( "Environment "), § 6 ( "Recreation "), § 8 ( "Water Use and
Diversion "), and § 10 ( "Public Lands "), Eagle County Master
Plan, § 1.03, Eagle County Land Use Regulations.
2. The disposal site is not compatible with surround-
ing property.
3. The disposal site is accessible.
4. The Applicant has the ability to comply with
Department of Health requirements.
DECISION
The Applicant, having failed to satisfy the criteria
set forth at §§ 6.04.15.1 and 6.05.15.1, Eagle County Land Use
Regulations, as described above,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, ACTING
IN ITS CAPACITY AS THE EAGLE COUNTY PERMIT AUTHORITY:
• THAT the Application submitted by the Cities of Colora-
do Springs and Aurora for the following designated activities of
State interest be denied:
A. Major extension of an existing water collection system
(§ 6.04); and
B. Efficient utilization of a municipal water project
(§ 6.05).
BE IT FURTHER RESOLVED BY THE BOARD OF COUNTY COMMIS-
SIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, that the Board
hereby denies the Cities' Application for a Special Use Permit
for the Homestake II Water Diversion Project, the Applicant
having failed to satisfy the criteria of § 2.09, Eagle County
Land Use Regulations.
BE IT FURTHER RESOLVED BY THE BOARD OF COUNTY COMMIS-
SIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO, that the
application submitted by the Cities for a Certificate of Designa-
tion be and is hereby denied, the Applicant having failed to meet
the requirements of § 30 -20 -104, C.R.S.
• The Board finds, determines and declares that this
Resolution is in the best interests of the health, safety and
welfare of the County of Eagle, State of Colorado.
MOVED, READ AND ADOPTED by the Board of County Commissioners
of the County Qf Eagle, State of Colorado, at its regular meeting
held the _ag-_iday of ,,,�Y 1988.
County Commissioners
By:
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
BOARD OF COUNTY COMMISSIONERS
GeOrgeDA. Gates
Chairman
Donald Weich
Co ' sion r
Richard L. st4son
Com�nrissio r
d
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Commissioner _
the foregoing resolution.
was as follows:
tj .Z,/ C,/Al seconded adoption of
The roll having been called, the vote
Commissioner George A. GatesC'
Commissioner Donald H. Welch
Commissioner Richard L. Gustafson
This Resolution passed by vote of the Board of County
Commissioners of the County of Eagle, State of Colorado.
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0 DIVERSIONS AND TUNNEL PORTAL
The second construction phase of the Homestake Project
( Homestake II) will divert water out of the Cross Creek and
Fall Creek drainages. More specifically, diversion points
will be located in the following unsurveyed and projected
sections: Section 11 (West Cross Creek) and Section 12 (Upper
Cross Creek), T7S, R82W of the 6th P.M.; Section 3 (Fall
Creek), T7S, R81W of the 6th P.M.; and Section 29, (East Cross
Creek, T6S, R81W of the 6th P.M., all located in Eagle County
Colorado.
The tunnel portal outlet and related construction will be
located in the Fancy and French Creek drainages in Sections 32
and 33, T7S, R81W of the 6th P.M., Eagle County, Colorado.
CERTIFICATE OF DESIGNATION
The Certificate of Designation for which application is
made requests approval for a sixteen -acre site to dispose of
the excavated tunnel rock. The proposed disposal pile will be
located in the NW 1/4 of the unsurveyed and projected Sec-
tion 33, T7S, R81W of the 6th P.M., Eagle County, Colorado.
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E %NIBITA