Working Paper 94-64 February 1994
By Mark Woods
This paper was written in conjunction with the Fall 1993 Natural Resources and Environmental Policy Seminar of the University of Colorado Interdisciplinary Graduate Certificate Program in Environmental Policy. All ideas presented are those of the author and do not necessarily represent the views of the Consortium or the University. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e- mail: email@example.com.
© 1994. Mark Woods. Do not reprint without permission.
126,000 acres of land in the northern Sawatch Range of the Rocky Mountains in central Colorado were designated the Holy Cross Wilderness Area (HCWA) on December 22, 1980. In accordance with the provisions of the Wilderness Act of 1964, the HCWA was set aside to be "an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements of human habitation, which is protected and managed so as to preserve its natural conditions" (Wilderness Act 1964: 1131(c)). However, the cities of Aurora and Colorado Springs owned water rights within the newly created HCWA and wished to construct a mountain water diversion project--called Homestake II-- to divert wilderness water to the cities themselves. Seemingly in direct contradiction to the non-development condition of the Wilderness Act of 1964, the Colorado Wilderness Act of 1980 stated, "[t]his act shall not interfere with the construction, maintenance, and/or expansion of the Homestake Water Development Project of the cities of Aurora and Colorado Springs in the Holy Cross Wilderness" (Public Law 1980: Special Provision 8). A Boulder-based environmental group, in loose alliance with residents of Eagle County (the resident county of the HCWA), has fought a legal battle against Homestake II for the past eleven years. In the following, I present a case history and policy analysis of the conflict surrounding Homestake II.
The substantial issue in this conflict is the status and use of the instream flow water(1) within the HCWA. The main stakeholders are the following: a Boulder- based non-governmental, grassroots environmental group called the Holy Cross Wilderness Defence Fund (HCWDF), which was formed in 1982 to prevent the construction of Homestake II, is fighting to prevent the diversion and loss of the instream flow water of four creeks within the HCWA; the cities of Aurora and Colorado Springs are fighting to construct Homestake II and divert water from these four creeks to the cities for use and/or consumption; some residents of Eagle County are fighting to stall and/or prevent the construction of Homestake II; and several governmental agencies have been caught in the middle of legal battles over the authorization and regulation of the Homestake II project.
The status of water within Colorado is governed by the prior appropriation doctrine--"first in time, first in right"- -which was legalized by the Mining Law of 1866 and a U.S. Supreme Court ruling in 1935 (California-Oregon Power Company v. Beaver Portland Cement Company 1935). Within Colorado, a riparian establishes a water right by either obtaining a permit or declaring an intent to divert instream flow water out of a natural watercourse for beneficial human use. The establishment of a water right creates a date of appropriation; all who subsequently establish water rights for the same watercourse are juniors to the original riparian. Instream flow water itself is ascribed no value and is considered to be waste (Getches 1984).
An entrepreneur named John Elliot established water rights on several upper tributaries of the Eagle River in the 1940s and 1950s. In 1952, he sold these water rights to the cities of Aurora and Colorado Springs who, in turn, began surveying for a water diversion project called Homestake I which involved the construction of several diversion dams, a network of surface and subsurface pipelines, a tunnel, and a reservoir. This project was completed in 1967 and began supplying these two cities with about 28,000 acre-feet of water annually.(2) A continuation of the original water project--called Homestake II--was announced in 1974.
Mount of the Holy Cross and the glaciated valleys surrounding it were declared a National Monument in 1929, lost monument status in 1951, and were incorporated into the White River National Forest in 1951. In 1980, this area was legally incorporated into the National Wilderness Preservation System as the Holy Cross Wilderness Area (HCWA); the cities of Aurora and Colorado Springs were guaranteed development of their water rights within the HCWA and, in exchange, agreed to construct an underground tunnel pipeline instead of a surface water pipeline for the project.
The construction of Homestake II is governed by numerous Eagle County building permits and is subject to approval by the following: the U.S. National Forest Service, the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, the provisions of the National Environmental Protection Act (NEPA), the provisions of Colorado water law, and the provisions of the Wilderness Act.(3) All of these acts and agencies, as well as Eagle County, have been used by one side or another of the Homestake II conflict to approve, delay, and/or stop the project.
Specifically, Homestake II involves the construction of four ten-foot diversion dams within the HCWA across four high-altitude creeks and the construction of an eleven-mile tunnel under a 13,000 foot ridge (also within the HCWA) to divert approximately 22,000 acre-feet annually from spring run-off within the HCWA(4) to the existing Homestake I Reservoir and ultimately to the cities of Aurora and Colorado Springs.
1981: In May, the cities of Aurora and Colorado Springs initiated the Homestake II project by issuing an Environmental Impact Report. In September, the Forest Service announced the beginning of the scoping period for the Environmental Impact Statement (EIS) required as per regulations established under NEPA (Holy Cross 1983).
1982: A draft of the EIS was made available to the public in May. By summer, there was growing opposition to Homestake II from a number of environmental groups including the Sierra Club, the Audubon Society, the American Wilderness Alliance, the Colorado Open Space Council, the Wilderness Society, and the Colorado Mountain Club. A grass- roots environmental group called the Holy Cross Wilderness Defence Fund (HCWDF) was formed in July to combat the project. Numerous public meetings were held concerning Homestake II throughout 1982, and news about the project began to be covered extensively by numerous Colorado newspapers and television stations (Holy Cross 1983).
1983: In April the Forest Service issued a final EIS and in May released a decision in favor of Homestake II; in November the Forest Service officially approved construction plans for the project (Rennicke 1984).
1984: Accurately or not, by 1984 the media was portraying the Homestake II conflict as polarized between two solidly opposed, entrenched camps: the cities of Aurora and Colorado Springs needed the water from Homestake II for the development and economic needs of growing populations, and the HCWDF was a no-compromise environmental group fighting to preserve wilderness values. Aurora and Colorado Springs were reported as two of the fastest growing cities in Colorado (Malmsbury 1984). In August, the U.S. Army Corps of Engineers conditionally approved Homestake II: a one-year study of the environmental wetlands impact of the project was ordered (Gibson 1984).
1985: By 1985, growing opposition to Homestake II was being voiced by the local residents of Eagle County. Many of these residents voiced wilderness degradation concerns and concerns about the impact upon the local economy, which was largely supported by tourism. A new camp of opposition emerged: some local business leaders in and around Eagle County saw Homestake II as interfering with business interests in the mountains and on the West Slope, that is, business interests which would need water for their own growth (Peterson 1985). In October, the HCWDF filed a federal lawsuit in Denver against the Forest Service and the Corps of Engineers, citing a violation of the Clean Water Act by the Corps of Engineers (Huffman 1985).
1986: In February, the cities of Aurora and Colorado Springs voluntarily joined the federal government as defendants in the above lawsuit (Accola 1986). Also in February, the HCWDF and the Colorado Mountain Club filed a suit in Glenwood Springs District Water Court against Homestake II; the original decree sites for water diversion within HCWA were wrong (Graham 1986). During the summer and fall of 1986, a vocal debate ensued between the HCWDF and the cities of Aurora and Colorado Springs over the impact of Homestake II on wetlands within the HCWA; both sides of the debate released contradictory scientific findings. Much of the debate over Homestake II now began to revolve around the impact it would have on these wetlands. A highlight of this debate occurred in June when an ecologist working for the HCWDF announced finding two species of rare plants within the HCWA which would be endangered by Homestake II (environmentalists would later use these discoveries to invoke the Endangered Species Act against Homestake II) (Best 1986a). In September, the Vail Valley Water Consolidated District challenged the water rights of Aurora and Colorado Springs in Colorado Supreme Court by citing concern over water availability for Vail from diverted tributaries of the Eagle River during dry years (Best 1986c).
1987: Public hearings took place in April and May in Eagle County concerning whether or not Eagle County should approve construction permits for Homestake II. The debate centered around approval of a 1041 permit the cities of Aurora and Colorado Springs needed to begin construction of Homestake II. In November, the Eagle County Planning Commission and the Army Corps of Engineers voiced concern over environmental wetlands impact and the inadequacy of Aurora and Colorado Springs to monitor these wetlands impacts (Schrupp 1987).
1988: On January 1, local government officials from the towns of Avon, Vail, Eagle, and Red Cliff and from the Vail Valley Consolidated Water District, the Upper Eagle Valley Regional Water Authority, the Red Cliff Water and Sanitation District, and Vail Associates, Inc. wrote a letter to The Vail Trail asking the Eagle County Commissioners to oppose Homestake II (Public 1988). Membership of the HCWDF was estimated at over 1,000, with over half of all members living in Eagle County. On February 4, the Eagle County Commissioners rejected the 1041 construction permit for Homestake II by citing twenty reasons against the project including loss of HCWA wetlands, potential environmental destruction, and lack of conformity to the Eagle County Master Plan. This decision was covered by newspapers in Aurora, Colorado Springs, Denver, Boulder, and Vail and was hailed as a landmark decision by environmentalists. On March 18, the cities of Aurora and Colorado Springs filed a joint lawsuit against the Eagle County Commissioners in Eagle County District Court, legally challenging the county's power to halt Homestake II (Foster 1988). In May, the two lawsuits initiated by the HCWDF in February of 1986 came to trial. Arguments by both opposing camps were heard throughout May in Denver District Court in the HCWDF's lawsuit against the Forest Service and the Corps of Engineers (Chronis 1988). On May 28, the District 5 Water Court in Glenwood Springs ruled against the HCWDF by claiming that even though the original decreed diversion sites for Homestake II were wrong, no expansion of water rights (and infringement against the HCWA) would occur (Noreen 1988c). The Sierra Club had for years been attempting to get legal recognition of reserved water rights for instream flow waters within wilderness areas; in July Attorney General Edwin Meese stated there were no implied or automatic reserved water rights for wilderness areas such as the HCWA (Shabecoff 1988).
1990: On July 6, U.S. District Court Judge Zita L. Wienshienk ruled in favor of Homestake II in the lawsuit filed by the HCWDF and debated in court in May of 1988. The HCWDF appealed (Scanlon 1990).
1991: Eagle County District Court ordered the Eagle County Commissioners to take a second look at their 1988 decision to deny Aurora and Colorado Springs their 1041 construction permit for Homestake II. In July, Eagle District Judge William Jones ruled that the commissioners had overstepped their legal powers in denying the 1041 permit, and Williams invalidated fourteen of the original reasons the commissioners used to deny the permit. However, the commissioners reaffirmed their denial of the permit using their six remaining reasons against it (Heicher 1991).
1992: On April 3, Weinshienk's ruling from 1990 was upheld in the 10th U.S. Circuit Court of Appeals; the HCWDF asked the court to reconsider its decision (Gerhardt 1992).
1993: The lawsuit filed against the Eagle County Commissioners by the cities of Aurora and Colorado Springs in 1988 is still pending. The HCWDF is considering challenging the original EIS from 1983 by asking for the Forest Service to undertake a supplemental EIS (Hern 1993). No construction has begun for Homestake II.
As seen from above, the conflict over Homestake II is long, complex, and far from over in 1993. The conflict has been influenced by public perceptions, the role of science, and the role of economics, which have been played out in a legal and political area of conflict.
All parties involved in this conflict have attempted to use public perceptions to sway people over to their particular positions. The media has been an invaluable tool to all parties since the early 1980s, because the media (particularly newspapers) has covered the Homestake II conflict extensively, and the media has been used by leaders from all parties to voice themselves.
The Cities of Aurora and Colorado Springs have said again and again that they need the water for continued growth. In 1985, Mayor Robert Issac of Colorado Springs claimed that the cities cannot control growth; the cities do not have the power to turn away people who wish to relocate, and to do so would be an infringement upon peoples' freedoms (Frazier 1985). In 1985, Aurora was reported to be the fastest growing city of more than 100,000 people in the United States; in 1986, Aurora declared its intent to undertake a monumental Collegiate Peaks water project to secure over 100,000 more acre-feet of water annually to support a projected population of 750,000 in the future(5) (McBean 1986a). The cities of Aurora and Colorado Springs have attempted to mobilize support for their growing needs by appealing to the economic and demographic growth needs of the Front Range population in Colorado.
At least some of this mobilization of public perception for Homestake II has backfired. The projected growth in the early and mid-1980s for Aurora and Colorado Springs still has not occurred by 1993. Many people in these cities have questioned unquestioned assumptions about the need for continued growth, and the HCWDF claims a strong membership base in both cities. In January of 1988 a group of college students in Colorado Springs presented the Colorado Springs City Council with the "Environmental Tragedy of 1988 Award" for Homestake II (Noreen 1988a). In 1990, Colorado Springs was said to have a surplus of water for an additional 200,000 people, and the need for more water via Homestake II was questioned (Noreen 1990). A citizen's water council in Colorado Springs has been questioning the city's water needs for Homestake II since the formation of this council in 1988.
The Holy Cross Wilderness Defence Fund has said again and again that it is fighting to uphold the wilderness values of the HCWA. The success of this group cannot be underestimated. Primarily through the charismatic leadership of their chairman, Warren Hern, they have mobilized public support against Homestake II by appealing to the large environmentally-friendly population of the Front Range cities. They have also championed the wilderness cause amongst local residents in Eagle County who largely rely upon tourism-related businesses for economic survival. The HCWDF has used arguments that appeal to the recreational (and spiritual) qualities of the HCWA and arguments that appeal to some kind of inherent worth of the HCWA (independent of human usage) to oppose Homestake II.
Eagle County has largely taken sides with the HCWDF thanks in no small part to the two Vail newspapers--The Vail Trail and The Vail Daily-- which have covered the Homestake II conflict extensively and have consistently taken an environmentally-friendly side of opposing Homestake II. Arguments supporting wilderness values (which support the economic base of Eagle County) have loomed large, but there has been increasing opposition against Homestake II because of public perceptions of competing economic growth interests between Eagle County and the Front Range cities. Indeed, the denial of the 1041 permit in 1988 has been perceived by many to represent a local community asserting its political autonomy against large Front Range communities to the east.
Perhaps the best way to characterize the role of science in this conflict is to characterize it as a policy pathology known as "contradictory experts."(6) The debate which began in 1986 over the ecological impact of Homestake II on wetlands within the HCWA has been characterized by testimony from contradictory scientific experts. The crux of the debate is as follows: The Colorado Springs Department of Utilities released a $750,000 wetlands impact report in November of 1986 which claimed that Homestake II would impact only six acres within the HCWA--the six acres upon which the four diversion dams would be situated. The adjacent wetlands would not be impacted because snowmelt running down from adjacent mountain slopes supplied and recharged the water necessary to sustain the wetlands community (Noreen 1986). The mayor of Aurora actually claimed that Homestake II would benefit wilderness wetlands by reducing peak creek flows and enhancing fish and beaver habitat and activity (Tauer 1987). Ecologist working for the HCWDF countered these claims by claiming that Homestake II would negatively impact 240 acres of adjacent wetlands by lowering water levels up to a foot or more and ending yearly cycles of erosion and deposition which supported the wetlands communities (Best 1986a). The scientific debate has polarized around the issue of whether six or 240 acres of wetlands within the HCWA would be negatively affected.
The Eagle County Commissioners largely favored scientific testimony from ecologists working for the HCWDF and listed wetlands impacts as a major reason for rejecting the 1041 permit in 1988.
The original draft EIS from 1982 and the final EIS from 1983 have been criticized for their lack of scientific credibility. A Congressional subcommittee letter in 1986 characterized the draft EIS as inadequate to satisfy the requirements of NEPA (Rennicke 1984).(7) There have been debates over the impact upon mountain fish habitats due to Homestake II, which were never covered in any detail in the original EIS. Indeed, Judge Weinshienk, in her 1990 ruling against the lawsuit filed by the HCWDF against the Forest Service and the Corps of Engineers, claimed that, in light of the best scientific evidence, Homestake II would dry up a substantial amount of HCWA wetlands and that the Corps of Engineer's approval permit for Homestake II was based upon inaccurate and invalid data (Scanlon 1990).
Finally, much of the case made by Aurora and Colorado Springs for Homestake II rests on a "cosmetic" technological approach to the project. Both cities have consistently claimed that the only evidence of Homestake II will be the four small diversion dams; the critical water transportation system is to consist of an eleven mile tunnel which will be invisible except at its termination points. Only a few backpackers who visit the high backcountry of the HCWA would see Homestake II, and what cannot be seen, because of modern tunnelling technology, is not a problems.(8)
All parties in this conflict have relied upon complex scientific data to support their positions. The uncertainties of ecology as a science (Botkin 1990) and wilderness management as a practical endeavor (Hendee, Stankey, and Lucas 1990) are well-known; the fact that all parties have relied on contradictory data to support arguments about future ecological impacts caused by Homestake II should come as no surprise.
Although the cities of Aurora and Colorado Springs both ground their case for Homestake II in arguments about economic growth, direct cost-benefit analysis (the standard tool of economic arguments) has been little invoked as an argument for building Homestake II. The original estimated cost of Homestake II was estimated at $93 millions by the cities, and today in 1993 the cities claim that Homestake II will cost around $100 million. The HCWDF has consistently disputed this cost and today estimates the costs at up to $300 million. Much media publicity has been skeptical about the true costs of this project, and numerous people opposed to the project have claimed that virtually every water diversion project in American history has cost far more than those building the project claimed it would cost.
Aurora and Colorado Springs have claimed that Homestake II is the most cost-effective way for them to develop their water rights for the tributaries of the upper Eagle River. In response to this, the HCWDF has claimed that, because of a failure to adequately compare costs and benefits of alternative to Homestake II in the 1983 EIS, Homestake II is not cost-effective (Noreen 1988b). What is at issue in the debate over the economic merits of Homestake II is how this project compares against alternative projects to supply Aurora and Colorado Springs with water; I shall address the issue of alternatives to Homestake II below.
The Homestake II conflict may best be summarized using a summary of conflict analysis presented by Susan L. Carpenter and W.J.D. Kennedy (Carpenter and Kennedy 1991). Carpenter and Kennedy develop a model they call the "spiral of unmanaged conflict" (Carpenter and Kennedy 1991: 11-17); as people became aware of Homestake II in the early 1980s, many people joined the side of those opposing the project.(9) The issues and positions of both sides were sharpened in the mid-1980s through scientific studies and litigation. The conflict became increasingly polarized; in every litigation issue, both sides have threatened to appeal and have refused to concede defeat. Threats of holding up the project indefinitely have been made by Warren Hern of the HCWDF (Hern 1993), and threats that Homestake II will eventually get built, no matter what (environmentalists can only delay the project), have been made by Harold Miskel--the chair of the steering committee for Homestake II (MacAskill 1986). All alternatives proposed by the HCWDF have been dismissed by the proponents of Homestake II; Warren Hern and the HCWDF have exhibited a refuse-to-compromise stance against the project.(10) In 1993, the conflict seems completely stalemated.
Personal Conflict: Warren Hern has charismatically led the HCWDF for the past eleven years. Hern and the members of the HCWDF are motivated by a perception of the environmental threat of Homestake II and shared interests in wilderness values (Ingram and Mann 1989). Hern has been vocal and perceptive about name-calling throughout the conflict. He has called Homestake II a "boondoggle" (Hern 1988), has called Forest Service and Corps of Engineer decisions approving Homestake II "stupid, incompetent and indefensible" (McBean 1990), and has suggested renaming Homestake II the "Harold L. Miskel Water Memorial Project" (Hern 1993). He was threatened with possible arrest on trespassing charges for handing out flyers to hikers and backpackers in the HCWA in 1986 (McBean 1986b), and he claims that throughout the past eleven years he has been continuously harassed while attempting to attend various public meetings concerning Homestake II (Hern 1993).
Officials from Aurora and Colorado Springs have been much less outspokenly vocal. Tad Foster--the chief legal counsel and spokesperson for the cities throughout the conflict--and Harold L. Miskel--the chair of the steering committee for Homestake II--have played less vocal but persistent roles in the history of this conflict. The cities have put much political pressure on officials from Eagle County (have wined and dined them on occasion) in order to secure approval of the infamous 1041 permit.
Substantial Issues: The description which best characterizes this conflict is that Homestake II is a question about the needs of two Front Range cities versus the needs for relatively undisturbed upper riparian communities in the Sawatch Mountains. Aurora and Colorado Springs have consistently defended their water rights in the upper tributaries of the Eagle River. The HCWDF and local opposition in Eagle County have never denied that these cities legally own the instream flow water; the issue has consistently been about the consequences of the cities developing their water rights into a diversion project. A central question of this conflict is: are water rights absolute or conditional? Further, is the prior appropriation doctrine appropriate when it conflicts with wilderness values and/or the needs of junior water users such as those in Eagle County? Is the legality of the prior appropriation doctrine beyond question?
Wilderness values have been the substantial issue for most of the opponents of Homestake II. Debate has centered around the impact upon and possible destruction of wetlands within the HCWA, as well as impact upon and degradation of wilderness recreational activities within the HCWA. Aurora and Colorado Springs have consistently stated that Homestake II would have no negative impact upon these wilderness values;(11) opponents have consistently stated the opposite.
Hern and the HCWDF have consistently raised questions about the right of Aurora and Colorado Springs to keep growing without limits. Hern is an epidemiologist and has claimed that Front Range growth represents maladaptive survival; cities such as Aurora and Colorado Springs have grown beyond some point of carrying capacity because they must divert mountain water in order to survive. He has also claimed that more water for these cities means more real estate profits (Hern 1986). Many who oppose Homestake II have cited opposition to unchecked Front Range growth as a reason to oppose it.
Eagle County has emerged as a key player in the conflict. Their denial of the 1041 permit has been perceived by many to be an assertion of political power by a mountain community against the financial and legal might of the Front Range. Opposition to Homestake II represents local autonomy to many Eagle County residents.
Procedural Issue: All parties involved in this conflict have used legal and administrative procedures in any way they can in an adversarial manner.
The HCWDF has primarily used litigation procedures against federal agencies because they have had little recourse to anything else to stop Homestake II. They have nothing to bargain with and have been concerned with what may be known as dispute management. The following accurately describes their procedural strategy:
Dispute management is used frequently in the latter part of the study in preference to "dispute settlement" and "conflict resolution," which appear more commonly in the social science literature. This choice of terms reflects the fact that for one or more parties in a dispute, settlement may not be a primary goal. Indeed, keeping the dispute unsettled, active, off balance, and costly to all concerned may in some situations be the preferred strategy. Also, in the disputing process each party plans and executes strategy to get the dispute into the friendliest forum under the most favorable conditions possible at the lowest cost to themselves and the greatest cost to their opponents. (Burton 1991: 35-36)
The following letter written by Hern to Aurora Mayor Tauer in 1991 illustrates this dispute management strategy:
Since we founded the Holy Cross Wilderness Defence Fund in 1982, we have raised and spent about $250,000 while successfully stopping construction of the Homestake II project. Our efforts have cost you and Colorado Springs more than $5,000,000. That is at least a 20:1 ratio. We are prepared to keep up this struggle indefinitely, for a century or more . . . Why don't you give up and do something reasonable? (Hern 1991)
The cities of Aurora and Colorado Springs believe that their legal water rights are the only real substantial issue, and they have been content to follow all required environmental procedures (EIS, Forest Service approval, Corps of Engineers approval, etc.) to get permission to begin construction of Homestake II. The key procedure holding them up so far in this conflict has been the refusal of Eagle County to grant them the 1041 permit. Accordingly, Aurora and Colorado Springs are currently challenging the constitutionality of Colorado HB 1041 (1975) which allows counties such as Eagle County to hold power over the home rule (in regard to water rights) cities of Aurora and Colorado Springs. This 1975 procedural challenge stands in the way of Homestake II.
Conversely, Eagle County has invoked the constitutionality of this procedural challenge to stop Homestake II. Eagle County, along with the HCWDF, has consistently looked for procedural challenges to stop the project. Unlike the HCWDF, Eagle County can invoke an array of county ordinances and procedures; it is unclear at this point what further county ordinances and procedures are available to Eagle County, but as long as opposition to Homestake II remains strong, it seems clear that Eagle County will search for legal and administrative procedural opposition.
Alternatives: The HCWDF and the Vail Valley Consolidated Water District have listed the Green Mountain Exchange (GME) as a viable alternative to Homestake II. The GME involves pumping water from the Green Mountain Reservoir to the Dillon Reservoir and then to Aurora; the GME would require construction of a new twenty-mile pipeline, approval by Summit County, and approval by Denver to give the water to Aurora. Aurora would get its share of Homestake II water (approximately 11,000 acre-feet), while Colorado Springs would get all of the existing Homestake I water (28,000 acre-feet). There would be no need for the additional 22,000 acre-feet to be supplied by Homestake II. Tad Foster of Colorado Springs, representing Homestake II, believes that the GME is too complicated, would create environmental problems greater than those of Homestake II, and is a "water rip-off" (Best 1986b). Hern has responded by claiming that politicians in Aurora and Colorado Springs have too much invested in their pet water projects to consider talking about alternatives (Best 1986b and Hern 1993).
In 1989, the Iron Mountain Project (IMP) was announced once again (it had been proposed in the past and rejected). The IMP involves building a new dam and reservoir on Homestake Creek near where it joins Eagle River, well below the current Homestake I Reservoir and outside the HCWA boundaries. This new reservoir would yield over 100,000 acre-feet annually of water, and the 22,000 acre-feet to be acquired by Homestake II could be pumped back uphill to the existing Homestake I reservoir, thus eliminating the need for Homestake II. Although costs of pumping water back uphill to the existing reservoir have been historically reported to be high, Harold Miskel of the Homestake II Steering Committee claimed that he would look into the IMP (Best 1989). By 1993, Homestake II proponents have expressed no real interest in the IMP.
The lesson should by now be clear. A grass-roots group of what is now estimated to be 1,500 members has succeeded in marshalling public opinion in Eagle County against Homestake II; this has effectively stopped the project for the present. The dispute management strategy of the HCWDF and all its various tactics of pursuing delay litigation against Homestake II has been successful: no construction has occurred for the project. Environmental groups fighting water diversion and related projects would be wise to study the Homestake II conflict.
The HCWDF has recently stated that its official message must be to show that it will use any possible legal means to prevent construction of Homestake II; their principal objective, however, is to "stimulate" the citizens of Aurora and Colorado Springs into forcing their city officials to abandon the project (Hern 1992). In this way, the HCWDF can "win" this conflict.
It is perhaps surprising that so little has been said throughout the Homestake II conflict about reserved water rights for wilderness areas. This is currently an important issue which hung up recent Colorado wilderness area additions for years: the debate centers on whether or not wilderness areas are federal reservations with reserved water rights.
The history and issue of federal reserved water rights is too lengthy to discuss in any great detail here. A 1985 court ruling stated the following:
It is beyond cavil that water is the lifeblood of the wilderness areas. Without water, the wilderness would become deserted wastelands. In other words, without access to the requisite water, the very purposes for which the Wilderness Act was established would be entirely defeated. (Sierra Club v. Block 1985: at 862)
This ruling has established a precedent for the legal existence of reserved water rights for wilderness areas. A legal debate has ensued over what these rights are (Leshy 1988, Wallentine 1990, and Colbourn 1988) and how they are to be asserted (Abrams 1986, Hansen 1990, and Lee 1990). By and large, the HCWA and Homestake II are ignored in the current debate over reserved water rights because of the Homestake II exemption in the legal act which created the HCWA. However, what ultimately happens over Homestake II in the HCWA will undoubtedly have repercussions throughout the debate about the relationship between wilderness areas and their instream flow waters.
Robert V. Bartlett has constructed a case for what he calls "ecological rationality:" "Ecological rationality may be thought of as a rationality of living systems, an order of relationships among living systems and their environments" (Bartlett 1986: 229). The central idea here is that one must look at ecological systems in a more holistic manner and see the rationality of the interrelationships of the parts. Separating the instream flow water from the HCWA in which it flows goes against Bartlett's idea of ecological rationality.
In light of the conflict of water rights involved with Homestake II and the seemingly impossible marriage of a wilderness area preserving land in its unaltered state to a water diversion project building a tunnel under a 13,000 foot ridge and diverting over 90% of the water of various creeks,(12) I propose two possible solutions. Either the wilderness area must go or the water diversion project must go. Because of our current understanding of wilderness and wilderness values, they cannot exist in the same area. This leads me to my final topic.
An either/or prescription for resolving the conflict and the bottom-line stance of the HCWDF do not follow typical conflict or dispute resolution strategies. Typical environmental dispute resolution involves negotiating some type of a settlement, which is frequently some form of compromise where no parties walk away unhappy and feeling like they have lost the conflict in some complete kind of manner (Fisher and Ury 1981). I suggest that a compromise negotiating strategy cannot work in the Homestake II conflict because the conflict is what Heidi Burgess and Guy Burgess have labeled an "intractable conflict" (Burgess and Burgess 1991).
According to our earlier definition, intractable conflicts arise whenever the prevailing values and policies of society are challenged by grassroots protest movements. The people involved are usually motivated by deep personal convictions and the belief that they must act to change (or protect) society. Therefore, they are likely to choose an active strategy--either contending or problem solving--much more often that they are likely to settle for inaction, withdrawal, or yielding.
Another characteristic of intractable conflicts is that they are not solved by simple clarifications of misunderstandings or negotiated away by the reconciliation of differing interests. (Burgess and Burgess 1991: 6)
Essentially, the HCWDF and other opponents of Homestake II share fundamentally different values than the proponents of the project. The opponents of Homestake II believe that the wilderness values of the HCWA are threatened by the project, and these values are not compatible in any way. Homestake II reveals that these values are not compatible with the values held by the proponents of Homestake II--legal water rights legitimize the compromising of wilderness values. More fundamentally, the cities of Aurora and Colorado Springs share an unquestioned commitment to economic and demographic growth which their legal water rights legitimizes.
The wilderness values of the HCWA cannot be compromised because to do so is to compromise the existence of the HCWA as a wilderness area. The growth values of the Front Range cannot be compromised because to do so is to compromise the existence of an anthropocentric, progress-growth mindset. The conflict over the proposed construction of the Homestake II water diversion project painfully illustrates the incompatibility of these different sets of values.
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Best, Allen. "Vail district seeks to nullify cities' Homestake water rights," The Vail Trail, 9-19-1986(c).
Best, Allen. "Local water officials see potential benefits to dam that could replace Homestake II," The Vail Trail, 12-29-1989.
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Burgess, Heidi and Guy Burgess. "Intractable Conflict and Constructive Confrontation," Working Paper #91-6, Conflict Resolution Consortium (Boulder: University of Colorado, 1991).
Burton, Lloyd. American Indian Water Rights and the Limits of the Law (Lawrence: University Press of Kansas, 1991).
California-Oregon Power Company v. Beaver Portland Cement Company. 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (1935).
Carpenter, Susan L. and W.J.D. Kennedy. Managing Public Disputes: A Practical Guide to Handling Conflict and Reaching Agreements (San Francisco: Jossey-Bass Publishers, 1991).
Chronis, Peter G. "Federal judge gets Homestake case," The Denver Post, 6-1-1988.
Colbourn, Elinor. "The Morality of Wilderness: Federal Reserved Water Rights in Western Wilderness Areas," Yale Law & Policy Review 6 (1988).
Fisher, Roger and William Ury. Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin, 1981).
Foster, Dick. "2 cities to sue over halted water project," Rocky Mountain News, 3-18-1988.
Frazier, Deborah. "Springs mayor says water key to municipal growth," Rocky Mountain News, 10-8- 1985.
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Heicher, Kathy. "Commissioners uphold Homestake plan denial," The Vail Trail, 11-29-1991.
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Hern, Warren. Letter to Mayor Paul Tauer, 6-1-1991.
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McBean, Bill. "Judge won't halt drainage of water from Holy Cross," The Denver Post, 7-10-1990.
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Schrupp, Wendy. "Homestake talks call for conditions," The Vail Trail, 11-10-1987.
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Tauer, Paul. "Mayor says fish and beaver will love Homestake II," Aurora Sentinel, 12-16-1987.
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Wilderness Act of 1964, 16 U.S.C.A.
Instream flow water is the water which remains in natural streams, creeks, and rivers and is not diverted out of the natural watercourse for human use and/or consumption.
An acre-foot contains 325,851 gallons of water and is estimated to supply one year's water needs for a typical family of four people.
This list is probably not exhaustive. One of the distinctions of those opposing Homestake II is their ability to find one regulation or agency after another with the legal power to stall the construction of the project. This may be known elsewhere as a successful use of the "technicality trap." I owe this label to Guy Burgess.
The diversion of water would take place only during the months of May and June (and July according to some reports).
The population of Aurora in 1986 was 230,000.
I owe this pathology characterization to Guy Burgess.
A 1982 public hearing in Minturn, Colorado on the draft EIS drew approximately 400 local residents who were mostly opposed to Homestake II. The comments of these residents were recorded, as per scoping EIS requirements, but, interestingly enough, none of these comments made their way into the final EIS because the Forest Service revealed in 1983 that the recording equipment at this Minturn meeting failed to work properly. We may identify this as a "successful use of technology to silence your opponent pathology."
We may identify this as the "out of sight, out of mind cosmetics pathology."
It is unclear how many people, beyond the ruling governments and policy makers in the cities of Aurora and Colorado Springs, have actually joined sides with the cities in supporting Homestake II; support for the project has been almost exclusively found only within legislators, officials, and policy makers for these cities. In one real sense, the conflict around Homestake II has pitted grassroots organized individuals against governmental bureaucracies.
Warren Hern and the HCWDF may exhibit what Guy Burgess has called the "pricelessness pathology" by claiming that wilderness values are priceless and defense of these values justifies unlimited litigation resources.
Interestingly enough, Mayor Paul Tauer of Aurora has argued that if it were not for Homestake II and the compromise made by Aurora and Colorado for an underground tunnel, the HCWA would never have been created. Homestake II should be allowed because the Homestake issue allowed for the creation of the wilderness values in the first place (Tauer 1987).
There has been much dispute over how much water will actually be diverted by Homestake II. Aurora and Colorado Springs legally own the water rights to divert approximately 90%-95% of the spring run-off.