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Citation: Heidi Burgess, "Environmental Mediation (The Foothills Case)" in Resolving Environmental Regulatory Disputes, eds. Lawrence Susskind, Lawrence Bellow, and Michael Wheeler, (Cambridge, MA: Schenkman Books, 1983), pp. 156-221.
The Foothills case is an example of a complex, multiparty environmental dispute. The Foothills project was a proposed raw water treatment plant intended to meet the Denver area's future water demands. The Denver Water Board (DWB) was the main proponent of the Foothills project. The Environmental Protection Agency (EPA) and various environmental groups were the main opposition. Numerous other groups also had stakes in the project. The issues in the case were complex and broad in scope. The dispute involved issues of growth and development, urban sprawl, air pollution, environmental impact, water conservation, urban- suburban competition, eastern- and western-slope conflicts, local versus federal control, broader water planning policy, and even debates over proper lawn care. The situations was further complicated by uncertainty over the facts.
The DWB claimed that their current water treatment facilities would be inadequate to meet projected Denver area water needs beginning in 1977. DWB projections assumed increasing population growth, and increasing per capita water usage. The DWB concluded that the Foothills project was the necessary solution to this projected shortage. The DWB also argued that not building the Foothills facility would encourage undesirable urban sprawl. Without the new facility Denver would have to continue its limitations on new water taps in the Denver suburbs, which would encourage developers to move out into areas beyond Denver's jurisdiction.
The EPA and environmentalists questioned the DWB assumption of increasing water usage. They argued that current facilities wold remain adequate if a program of water conservation and rationing were put in place. In direct opposition to the DWB claims, they claimed that not building the Foothills facility would discourage urban sprawl. Maintaining the limitations on new taps in the suburbs would encourage developers to build within the city of Denver. They further argued that there were existing public trends toward a conservation ethic, and a back-to-the-city movement, and that these trends would increase. The DWB countered by claiming that the English Garden-style yard was a central and "historic" value of the Denver people, and that "neither narrowly based special interest groups nor federal officials have the right to reject the people's choice and destroy this Historic Value!"[p. 162]
The Foothills controversy was politically charged. In the early stages of the conflict, both sides publicly attacked the other's credibility. Foothills supporters and the pro-Foothills newspaper the Denver Post attacked the EPA, questioning their expertise in the water supply field and calling EPA analyses "naive" They charged the head of the EPA with politically motivated and inappropriate meddling. One environmental activist produced and publicized a report which charged the DWB with "misleading the public, inaccurately assessing the need for additional water treatment, and withholding figures that the public must consider if they were to make an informed decision."[p. 170] Activists went to the Denver District Attorney asking that the DWB be charged with criminal violation of the Colorado Open Records laws. The D.A. concluded that there was no evidence of a violation, and no charges were made.
By 1977 the Foothills controversy focused on the 404 permit review. Since the Foothills project involved building a new dam, the DWB had to obtain a 404 dredge-and-fill permit. The U.S. Army Corps of Engineers reviews such applications. However the EPA has final veto power over 404 permits. An EPA veto of the 404 permit would send the Foothills case through the Federal hierarchy to end up in Federal court. Litigation would be costly, both politically and economically, to both sides. Neither side was sure it could win in court.
Faced with this stalemate, Congressman Wirth (a Denver area representative) proposed mediation. Wirth persuaded the Corps of Engineers to undertake a comprehensive study of the remaining issues, positioning the Corps as a neutral third-party. He then persuaded the DWB and the EPA to agree, if only tacitly, to be bound by the Corps review. The DWB felt that the Corps would be sympathetic to the Foothills project. The EPA was concerned about possible Corps bias, but conceded Corps expertise in dam design. The Corps had statutory authority to conduct such a review, and neither side felt that they had a better alternative than to accept the Corps data mediation. However, both parties publicly maintained their right to reject the Corps' findings.
Wirth solidified the parties' commitment to mediation by publicizing the process. "Wirth told the press that he was hopeful' that the Corps' study would be binding. As the study went on, the Denver Post continued to reinforce this notion, thereby increasing public pressure, which, in turn, prevented the parties from withdrawing."[p. 179] Wirth also involved the DWB and the EPA in designing the Corps study. Working together, the DWB, EPA and the Corps identified three key issues: projected water needs, project impacts, and project alternatives. The parties also agreed that the review was to be thorough and in-depth, and would be limited to unresolved issues. At each stage of the review the Corp released its initial findings publicly, accepted comments and objections, and then responded by revising their analysis or offering further justification. In the end, the EPA still opposed the Corps' assessment of the environmental impact of the proposed dam, and the viability of alternatives.
While the completed Corps review did not itself produce a settlement, it did provide a basis for further negotiation. The process also increased public pressure on the parties to reach a settlement. As importantly, the negotiations surrounding the Corps review had broken down some of the hostility and distrust between the parties, thus paving the way for further, more fruitful negotiations. A negotiated settlement of the Foothills case was finally achieved in 1979.
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