# Petition for Writ of Certiorari — City of Colorado Springs v. Board of County Commissioners

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 1008

## Text

fp) @upreme Court, U.S.
; FILED

No. OB 428 SEP 5 = 1995'

OFFICE Ur 4c vend —
In The

Supreme Court of the United States

October Term, 1995
*

CITY OF COLORADO SPRINGS AND CITY OF
AURORA, COLORADO, MUNICIPAL CORPORATIONS,

Petitioners,

THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF EAGLE, STATE OF COLORADO, et al.,

Respondents.
~ .
Petition For A Writ Of Certiorari To The
Colorado Court Of Appeals
+

PETITION FOR A WRIT OF CERTIORARI AND
APPENDIX, VOLUME I, Pages ia to 156a

+

JOHN M. DINGEss Mark T. PIFHER*

DUNCAN, OSTRANDER, JONATHAN C. DEHMLOW
VARNELL & Dtncess, P.C. ANDERSON, GIANUNZIO,

7800 East Union Avenue Dube, PIFHER & Leset, P.C.

Suite 200 104 S. Cascade Avenue

Denver, CO 80237 Suite 204

Grecory L. JOHNSON — apne, CU

Assistant City Attorney, (719) 632-3545
Utilities .
30 S. Nevada, Suite 601 *Counsel of Record
Colorado Springs, CO
80903

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does a municipality, acting in its proprietary capac-
ity, have standing under the Fifth Amendment to the United
States Constitution to bring a claim for the taking of its
property without just compensation?

2. Cana local governmental entity deny a local land use
permit for a federally approved project located entirely on
federal Forest Service lands?

on

il
PARTIES TO THE PROCEEDING BELOW

In addition to the Board of County Commissioners of the
County of Eagle, State of Colorado, the following individuals
and entities were parties to the appellate proceeding below:

1. George A. Gates, Johnette Phillips, James E. John-
son, Jr., in their official capacities as individual members of
said Board;

2. The Board of County Commissioners of the County
of Eagle, in its capacity as the permitting authority under
C.R.S. § 24-65-101, et seq. (1988);

3. The Eagle County Planning Commission;

4. Mark Donaldson, Robert Tether, Arlene Quenon,
Robert Morris, Donald Price, in their official capacities as
individual members of the Planning Commission;

5. The County of Eagle, State of Colorado;
6. Holy Cross Wilderness Defense Fund;
7. Vail Valley Consolidated Water District.

At the time of the filing of the litigation in the Eagle
County District Court, the following individuals and entities
were also named defendants:

1. Donald H. Welch and Richard L. Gustafson, in their
official capacities as individual members of the Eagle County
Board of County Commissioners;

2. Charles Ridgway, David Slemon, and Dennis Gelvin,
in their official capacities as individual members of the Eagle
County Planning Commission;

” ac tii eit EAA A EATEN AY Ae

ee ee

PARTIES TO THE PROCEEDING BELOW - Continued

In addition, the following entities, which did not actively
participate in the litigation but were parties to the county
permit proceeding, were named defendants in the District
Court litigation: Avon Metropolitan District; Town of Avon,
Colorado; Colorado Council of Trout Unlimited; Colorado
River Outfitters Association; Division of Wildlife, State of
Colorado; Eagle County Sheriff, in his official capacity;
James Franklin Lamont; Red Cliff Water and Sanitation Dis-
trict; Town of Eagle, Colorado; Town of Gypsum, Colorado;
Town of Minturn, Colorado; Town of Red Cliff, Colorado;
Town of Vail, Colorado; Upper Eagle Regional Water Author-
ity; Upper Eagle Valley Sanitation District; Vail Associates,
Inc.; Eagle County Historical Society.

TABLE OF CONTENTS

Page
SAREE NOW GREP MOURN Ci oaccs tins becnccebucnubs vi
Sg ry Oe re ee a ee eee 2
JURISDICTIONAL STATEMENT .................... 3

CONSTITUTIONAL, STATUTORY AND REGULA-
TORY PROVISIONS INVOLVED.................. 3
So RAL Geeee es COE ENO CAD civic cts ccesevddannsds 4
SN a5 dd iron ok 00 BRS Shae be cee neue ee ebs ae) 4
The Federal Permitting Process ..............0se00. 5

Decision of the Eagle County Board of County Com-
rr a ee om 7
The Colorado District Court Decisions ............. 8
The Colorado Court of Appeals Decision........... 9
The Colorado Supreme Court Decision............. 10
REASONS FOR ISSUING THE WRIT............... 10

I. THE SUPREME COURT MUST RESOLVE CON-
FLICTS AMONGST THE LOWER COURTS..... 10
eg re Ty errr eer ee 10
i. OTT PE 6 o's deeb s Con tkaowsiees 14

Il. THE COLORADO COURT OF APPEALS’ DECI-
SION ESTABLISHES BAD PUBLIC POLICY.... 15

Iii. THE COLORADO COURT OF APPEALS DECI-
AEE Wee Ge SE, 9-5-0. 0.c0 koa sn hws eee essa 18
oe ee ere Peer rere ee Te 18
BTR T COR ee 22
1. Conflict with Federal Laws............. 23

TABLE OF CONTENTS - Continued
Page

2. Conflict with Congressional Wilderness
INU o v'00s b bap tddenedeseniawceeus 28

ee wt | eT ere POO rrr err rere ry Ty ree 30

vi

TABLE OF AUTHORITIES

Page
CASEs:
Amato v. Wilentz, 952 F.2d 742 (3rd Cir. 1991)........ 12
Association of Data Processing Serv. Org. v. Camp,

Sl UR FSD Cee cccipccudicetecseavdecdnecases 20
Board of Comm'rs v. City of Fort Collins, 68 Colo.

204, TED Sa Cis a cc canndvoutelenaseanscereses 13
Board of Education v. Allen, 392 U.S. 236 (1968)...... 20
Board of Levee Comm'rs v. Huls, 852 F.2d 140 (Sth

RA. COU. nevcicccaccesas¥ ae Gekunveseoweawereuwese 11

Brendale v. Confederated Tribes, 492 U.S. 408 (1989) .... 28

Brubaker v. Board of County Comm'rs, 652 P.2d 1050
Cae, RUUD dws 6 odutce ee 5 40 ee Ses Ueae eee 9, 14, 26

California Coastal Comm'n v. Granite Rock Co., 480
eR ay: y Preis 9, 1D, 87, Bae Bee ate aes at

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691
CEE Both the Forest Service and Corps permits have with-
stood court challenge by opponents of the Project.®

from the United States Fish and Wildlife Service, the Colorado Department
of Wildlife, and the Corps of Engineers, the Forest Service found that
“significant adverse effects will not occur and this action minimizes the
loss of wetlands.” App. 52a.

4 The federal permitting process was the subject of an extensive
administrative review proceeding. See Holy Cross Wilderness Fund v.
Madigan, 960 F.2d 1515, 1519, n.5 (10th Cir. 1992).

> “Operational flow releases” require appropriators to forego certain
water diversions in order to pass additional water through downstream
wetland areas.

© Claims brought under the Clean Water Act and the National Envi-
ronmental Policy Act were dismissed by the District Court of ‘Colorado and
the Tenth Circuit Court of Appeals. The Tenth Circuit noted that “the
Corps’ permitting review process culminated in a permit requiring a
comprehensive mitigation plan to prevent wetlands’ losses,” and empha-
sized that the Corps, by making its decision “to issue its permit with the
specific condition that there be no wetland losses,” in fact “assumed such
impacts and essentially guaranteed that the cities mitigate those impacts.”

dae ere on

7

Finally, the cities successfully obtained a Section 401
certification from the Colorado Water Quality Control Divi-
sion stating that the Project would meet all applicable state
water quality requirements.

In reliance upon the property interests they had obtained,
the cities have spent approximately 78 million dollars to date
in the construction of Phase I, obtaining and protecting their
rights in court proceedings, and pursuing the permitting of
Phase II.

Decision of the Eagle County Board
of County Commissioners

Having obtained all necessary state and federal
approvals, the cities sought a permit from Eagle County under
the Colorado Land Use Act, C.R.S. § 24-65.1-101, et seq.’
Eleven days of public hearings on the permit request were
held in Vail, Colorado before the County Planning Commis-
sion and Board of County Commissioners. The Planning
Commission recommended approval of the application subject
to compliance with 53 conditions. However, the Board of
County Commissioners unanimously voted to deny the per-
mits. The denial was based upon certain findings, including:

(Emphasis in original). 960 F.2d at 1526-27. See also Jn re Application for
Water Rights, 799 P.2d 33, 36 (Colo. 1990) (Colorado Supreme Court
upheld decree for change of water rights to conform the location of the
cities diversion points to the project description given Congress, while
highlighting the fact that the water court had found that the requested
alternate points of diversion would not result in material injury to plant or
animal life or to visual and aesthetic values of the wilderness, especially in
light of state held in-stream flow water rights and Forest Service permit
bypass requirements).

7 The Colorado Supreme Court has described the Act as “Colorado’s
first comprehensive land use law, . . . designed to protect Colorado’s land
resources and allocate those resources among competing uses.” City and
County of Denver v. Board of County Comm'rs, 782 P.2d 753, 755 (Colo.
1989).

8

3. The evidence presented at the hearing failed to
demonstrate that the significant deterioration of the
wetlands can be adequately mitigated.
4. There will be a significant deterioration in pub-
lic outdoor recreational areas because of loss in the
quality and quantity of the river rafting experience
and construction disturbances in the wilderness
area.
6. Reduction in stream flows and construction
activities in the wilderness area will result in a
significant degradation of natural scenic charac-
teristics. (emphasis added)

App. 147a.8

The Colorado District Court Decisions

The cities appealed the permit denial to the Eagle County
District Court. By two separate orders, App. 162a-172a, the
District Court dismissed the cities’ original “takings” claim
upon determining that the cities, as municipal corporations,
are not citizens under the Fifth and Fourteenth Amendments
to the United States Constitution, and therefore lacked stand-
ing.

The District Court subsequently issued an order upon
cross motions for summary judgment, concluding that many
of the County’s original findings were preempted under state
and federal laws. App. 173a-191la. However, the Court further
found that the County had jurisdiction over “wetlands, aquatic
habitats, and possibly the nuisance factors,” and remanded the
case for further consideration.? App. 187a. In response to the
County’s decision upon remand, the District Court issued an
order finding that the County had deprived the cities of due

8 The County, upon remand from the Eagle County District Court,
adopted Resolution 91-104, App. 157a-16la, which merely reaffirmed
certain of its original findings.

9 The District Court did indicate in its order that the preemption
doctrine has been held to preclude zoning officials from denying a special
use permit for activities on federal lands. App. 186a.

9

process and acted in an arbitrary and capricious fashion given
that its decision was unsupported by any competent evidence.
App. 192a-206a.'° The County decision was vacated and the
County was ordered to issue the requested permits.'!

The Colorado Court of Appeals Decision

The County appealed the District Court decision. The
Colorado Court of Appeals reversed, finding “ample evidence
to support the Board’s determination that the criteria in the
two areas which the trial court found were not preempted -
wetlands protection and nuisance factors — had not been
satisfied.” App. 7a. The Court implicitly rejected the cities’
argument that the County “denial” decision was, in fact,
preempted by federal law.'?

The Court of Appeals, relying upon Town of Orchard City
v. Board of Delta County Comm'rs, 751 P.2d 1003 (Colo.
1988) and Coleman v. Miller, 307 U.S. 433 (1939), upheld the
lower court determination that the cities lack standing to
bring a claim for compensation under the Fifth Amendment to
the United States Constitution. App. 29a.

The cities filed a Petition for Rehearing with the Court of
Appeals, asserting that the Court’s conclusions upon federal!

10 The Court also stated in its July 14, 1992 order that the holdings in
California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987) and
Columbia Basin Land Protectio 1 Ass'n v. Schlesinger, 643 F.2d 585 (9th
Cir. 1981) supported the cities’ contention that the county could not deny a
permit for a federally approved project located on federal land. App. 201a.

11 Upon reconsideration, the District Court vacated that portion of its
prior decision which had required the county to issue the permits, and
remanded the permitting decision to the County with direction to take
official notice of the mitigation requirements imposed by the federal
agencies. App. 207a-212a.

12 The Court reached this conclusion despite the cities’ citation to the
decisions in Brubaker v. Board of County Comm'rs, 652 P.2d 1050 (Colo.
1982), Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979),
and California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987).
App. 244a-256a.

10

preemption and standing were clearly erroneous. App.
262a-265a. The cities’ Petition was summarily denied. App.
213a.

The Colorado Supreme Court Decision

The cities filed a petition for writ of certiorari with the
Colorado Supreme Court, identifying as issues whether the
Court of Appeals erred in allowing the County to veto a
federally approved project located entirely on federal lands
and in finding that the cities lacked standing under the Fifth
Amendment. On a 5-2 vote, the Supreme Court denied cer-
tiorari. App. 214a-216a.

REASONS FOR ISSUING THE WRIT

I. THE SUPREME COURT MUST RESOLVE CON-
FLICTS AMONGST THE LOWER COURTS

A. Standing to Sue

A genuine conflict currently exists on an issue squarely
presented in this case: whether one subdivision of a state may
assert a Fifth Amendment takings claim against another sub-
division. The conflict involves the Delaware and Pennsylva-
nia Supreme Courts, as well as the Fourth, Fifth and Ninth
Circuits.

The Pennsylvania Supreme Court and the Ninth Circuit
have adopted a per se rule that one state entity may not assert
a takings claim against another. In City of Chester v. Com-
monwealth Dept. of Transp., 434 A.2d 695 (Pa. 1981), the
Pennsylvania State Department of Transportation condemned
a municipal park. The city sued for just compensation. The
Pennsylvania Supreme Court allowed the claim under the
state constitution. 434 A.2d at 702. The Court ruled, however,
that the Fifth Amendment does not allow a school district to
claim a taking, as the Amendment concerns only “private
property.” 434 A.2d at 701. Cf: United States v. 50 Acres of
Land, 469 U.S. 24, 25-26 (1984) (the reference to “private
property” in the takings clause of the Fifth Amendment can
encompass the property of state or local governments).

_ ne

11

In City of South Lake Tahoe v. California Tahoe Regional
Planning Agency, 625 F.2d 231, 233 (9th Cfr. 1980), cert.
denied, 449 U.S. 1039 (1980), a California state agency
adopted plans and regulations limiting residential develop-
ment in a city. The city sued, alleging that the plan would take
property without just compensation in violation of the Fifth
Amendment. See 625 F.2d at 232. The Ninth Circuit held that
the city lacked “standing” to challenge the plans and regula-
tions on constitutional grounds. 625 F.2d at 233.

On a similar note, in Board of Levee Comm'rs v. Huls,
852 F.2d 140 (Sth Cir. 1988), the Louisiana legislature passed
an act requiring the Orleans Levee District to convey some
land that it owned. The Levee Board sued the state, arguing
that the statute constituted an uncompensated taking. Relying
upon City of Trenton v. New Jersey, 262 U.S. 182 (1923), the
Fifth Circuit concluded that under the facts before it the
“Board cannot sue the state for an uncompensated taking of
property.” 852 F.2d at 142.'3

In City of Charleston v. Public Serv. Comm'n of W.VA, 57
F.3d 385 (4th Cir. 1995), on the other hand, the Fourth Circuit
recently had occasio:> to re-examine the question of whether a
political subdivis*.1 may sue its maker on constitutional
grounds. After noting the existence of a conflict on the issue,
the Court assumed that such suits are indeed allowed.

Moreover, doubts have been expressed as to

whether the “broad dicta” that “a political subdivi-

sion may never sue its maker on constitutional
grounds” is really “the rule.” See San Diego Unified

Port Dist. v. Gianturco, 651 F.2d 1306, 1309 (9th

13 The Court, nevertheless, failed to overrule its prior decision in
Rogers v. Brockette, 588 F.2d-1057 (Sth Cir. 1979), cert. den., 444 U.S. 827
(1979), stating that the Rogers decision “dealt only with the theoretica!
possibility that a city has standing to sue its state.” 852 F.2d at 143.
However, the Rogers court had specifically noted that the Trenton line of
cases simply “hold that the Constitution does not interfere in the internal
political organization of states” and, in fact, Trenton “implicitly [acknowl-
edges] that a municipality could raise the claim that its private contract and
property rights have been impaired.” 588 F.2d at 1069-1070.

12

Cir. 1981), cert. denied, 455 U.S. 1000, 102 S.Ct.
1631, 71 L.Ed.2d 866 (1982); see also City of South
Lake Tahoe v. California Tahoe Regional Planning
Agency, 449 U.S. 1039, 1042, 101 S.Ct. 619, 621,
66 L.Ed.2d 502 (1980) (White & Marshall, JJ.,
dissenting from denial of certiorari) (“Such a per se
rule is inconsistent with [Board of Educ. v.] Allen,
{392 U.S. 236, 88 S.Ct. 192, 20 L.Ed.2d 1060
(1968)]”); Gomillion v. Lightfoot, 364 U.S. 339,
344-45, 81 S.Ct. 125, 129, 5 L.Ed.2d 110 (1960);
United States v. Alabama, 791 F.2d 1450, 1455
(lith Cir. 1986), cert. denied, 479 U.S. 1085, 107
S.Ct. 1287, 94 L.Ed.2d 144 (1987); South Macomb
Disposal Authority v. Township of Washington, 790
F.2d 500, 504-06 (6th Cir. 1986); Rogers v.
Brockette, 588 F.2d 1057, 1067-71 (Sth Cir.), cert.
denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35

(1979).
Thus, whether the cities have standing to bring this
suit is unclear. . . . Accordingly, we assume -

witnout deciding — that the cities have standing to

assert the Contract Clause claim made here and

address the merits of that claim.'4
Id. at 389-90.

In New Castle County School Dist. v. State, 424 A.2d 15
(Del. 1980), the Delaware Supreme Court also rejected any
exclusionary rule on standing. The Delaware legislature had
passed a law requiring a particular school district to convey
land to a state agency for use as a park. The school district
challenged the state law as a taking. The Delaware Supreme
Court directly contradicted the Pennsylvania Supreme Court
and the Fifth and Ninth Circuits. It held that, under the Fifth
Amendment, the rule “regarding compensation to municipal

'4 See also School Dist. of Philadelphia v. Pennsylvania Milk Market-
ing Bd., 877 F. Supp. 245, 250 (E.D. Pa. 1995) (“In recent years, however,
a split has developed among the circuits on this [standing] issue.”); Amato
v. Wilentz, 952 F.2d 742, 754-755 (3rd Cir. 1991) (judicial support for a per
se rule excluding municipal standing may be “waning with time”).

13

corporate entities” is that “property which is held in a propri-
etary capacity cannot be taken by the State unless just com-
pensation is paid.” 424 A.2d at 16-17.

The Delaware Court relied on the leading treatise in the
field which, citing many cases from a variety of jurisdictions,
states: “The property acquired by municipal corporations for
the private benefit of their inhabitants is protected by the
constitution, and can be taken only by eminent domain, and
upon payment of its value.” 1 Julius L. Sackman, Nichols’
The Law of Eminent Domain, § 2.225[1], at 2-158 (rev. 3d ed.
1993).

The Delaware Court also relied on a section of a promi-
nent legal encyclopedia, which provides:

The common constitutional provision against taking
of private property without payment of compensa-
tion is generally held to be applicable to the taking
by the state or a subdivision or agency thereof of
the property held by another subdivision or agency
in its proprietary capacity.

26 Am. Jur. 2d § 179, at 858. Eminent Domain, (1966).

The Cities of Aurora and Colorado Springs, like other
cities, hold their water rights as proprietary property. See 26
Am. Jur. 2d § 179, at 858. Eminent Domain, (1966) (propri-
etary property includes “the property which the inhabitants of
a city or town have acquired for the purposes of supplying
them with the necessities of life, such as water, gas or electric
light.”); Board of County Comm'rs v. City of Fort Collins, 68
Colo. 364, 367, 189 P. 929, 930 (1920) (in operating a
waterworks system a city acts in its proprietary or business
capacity and not in its political or governmental capacity).

As a result, if this case had arisen in Delaware or the
Fourth Circuit, the Cities of Aurora and Colorado Springs
could have raised their Fifth Amendment takings claims. Yet,
because the case arose in Colorado, they could not. These
circumstances warrant review by this Court.

14

B. Federal Preemption

By implicitly assuming that federal law did not preempt
the county’s denial decision, the Colorado Court of Appeals’
opinion clashes with decisions by the Ninth Circuit and this
Court. The Ninth Circuit was faced with a similar set of
circumstances in Ventura County v. Gulf Oil Corp., 601 F.2d
1080 (9th Cir. 1979), aff’d mem., 445 U.S. 947 (1980). In that
case, the County insisted that Gulf obtain a land use permit if
it wished to continue its mineral exploration activities on
federal lands within the county. In finding that the governing
federal legislation preempted the exercise of such county veto
authority, the Ninth Circuit observed:

Despite this extensive federal scheme reflecting
concern for the local environment as well as devel-
opment of the nation’s resources, Ventura demands
a right of final approval. Ventura seeks to prohibit
further activity by Gulf until it secures an Open
Space Use Permit which may be issued on whatever
conditions Ventura determines appropriate, or
which may never be issued at all. The federal Gov-
ernment has authorized a specific use of federal
lands, and Ventura cannot prohibit that use, either
temporarily or permanently, in an attempt to substi-
tute its judgment for that of Congress.

Id. at 1084. The Court then continued: “[T]he states and their
subdivisions have no right to apply local regulations imper-
missibly conflicting with achievement of a Congressionally
approved use of federal lands. ... ” /d. at 1086. See also
Idaho ex rel. Andrus v. Click, 97 Id. 791, 554 P.2d 969 (1976);
Ogden Environmental Services v. City of San Diego, 687 F.
Supp. 1436 (S.D. Cal. 1988).!5

'S The Ventura County decision is, in turn, consistent with the Colo-
rado Supreme Court’s opinion in Brubaker v. Board of County Comm'rs,
652 P.2d 1050 (Colo. 1982), wherein the Court held that a county special
use permit denial was preempted by federal law, as it stood as an “obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress.” Jd. at 1055. Simply stated, the Court determined that “such a
veto power is not consistent with the Supremacy Clause.” /d. at 1056.

15

The Colorado Court of Appeals’ decision is likewise at
odds with the direction taken by this Court in California
Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).
Although this Court found therein that reasonable state “envi-
ronmental” regulations covering Forest Service land were not
per se preempted by federal law, the 5-4 majority described
this holding as a “narrow” rejection of a “purely facial chal-
lenge.” /d. at 580, 593. Granite Rock had not even applied for
a state permit, arguing that there was no possible set of
conditions that the state could place on its permit which
would not conflict with federal law. It therefore had “lost the
possibility of making this argument [prohibition] in this liti-
gation.” Jd. at 588.'© In the present case, not only has that
prohibition of a federally permitted project located on federal
lands occurred, but the County made no attempt whatsoever
to impose conditions, reasonable or otherwise.!7

Thus, this Court is being called upon to clarify an issue
of critical importance to both federal land managers and
proponents of project development, i.e., the authority of a
local governmental entity to “deny,” based on the same
impacts reviewed in the federal process, a local permit for a
federally approved activity located on federal lands.

‘II. THE COLORADO COURT OF APPEALS DECI-
SION ESTABLISHES BAD PUBLIC POLICY

Approximately forty-six (46) percent of the West is fed-
erally owned lands, much of it managed by the Forest Service
or Bureau of Land Management. United States v. New Mexico,

16 Significantly, the majority decision assumed without deciding, an
assumption deemed “correct” in the dissent and consistent with the deci-
sion in Ventura County, supra, that “the combination of the NFMA and the
FLPMA preempt the extension of state land use plans . . . in national forest
lands.” 480 U.S. at 585, 612.

17 As further explained below, the County findings, with specific
reference to their reliance on the “wilderness” designation, nuisances,
aesthetics, and in-stream flow needs, were more nearly akin to preempted
“land use” controls than to environmental regulations.

aoe

16

438 U.S. 696, 699, n.3 (1978). Congress set aside such lands
for specific purposes including, in the case of national forest
lands, the securing of favorable water supplies and timber
production. 16 U.S.C. § 475 (1985).

Utility projects, be they water, electric or gas, oftentimes
cross federal lands, especially in the more arid and sparsely
populated Western portions of this country, where water and
power are transported across great expanses. Existing projects
on federal lands will need to be maintained, repaired and
replaced in the future, while new projects, especially those
designed to bring essential services to growing Western cities,
will have to be constructed. At the time of federal permitting
for such projects, alternatives will be examined, public hear-
ings will be held, and necessary mitigation conditions will be
imposed. Allowing the lower court decision to stand will
negatively impact upon these important activities and frus-
trate the Congressional purposes underlying national forest
legislation.

First, the decision below allows, and indeed encourages,
“local” branches of government to sit quietly on their hands
during federal review proceedings, only to play their “trump
card” at the end of the process. Second, the decision permits
local entities to “second guess” federal determinations upon
impacts and mitigation requirements over the federal govern-
ment’s land — just as occurred in this instance.'*® Third, it
exposes permittees to duplicitous and potentially conflicting
requirements. Each separate jurisdiction which the pipeline,
power line, canal or other project crosses could apply its own
unique mandates, without regard for either the federal condi-
tions or the requirements imposed by neighboring govern-
mental bodies. Fourth, the decision exposes permittees to the

18 For example, the Corps found that there would be no unacceptable
harm to wetlands as a result of this project, but in an abundance of caution
mandated the completion of a complex monitoring and mitigation plan,
inserted a “no loss” condition in the § 404 permit, and required a bypass of
project diversions should unanticipated wetland damage occur. The county
then vetoed the project based on wetland mitigation concerns.

17

prospect of “unreasonable” conditions which amount, in and
of themselves, to a prohibition.!9

Finally, a failure to reverse the Court of Appeals decision
would allow local entities to foreclose, by use of their
“denial” authority, certain federally approved uses on federal
lands, thereby not only usurping federal authority, but harm-
ing the federal programs governing resource use which were
developed to fulfill Congressional directives. This result,
openly antagonistic to federal land management interests,
could be accomplished under the guise of “environmental
regulation,” when in fact the governmental body is imple-
menting a local land use scheme. It is the very result feared
by the dissenting opinion in Granite Rock, i.e., “duplicative”
processes wherein a local regulator has given itself final
authority to determine how federal lands are to be used.
Granite Rock, 480 U.S. at 605.

The lower court’s decision on municipal standing would
likewise have far-reaching impacts, potentially touching
every municipality across the country.2°9 Though munici-
palities oftentimes purchase water rights, real property, or
other tangible goods in the free market, and pay market price
therefor, under the decision below they would have no
recourse to seek just compensation if those assets were subse-
quently taken by the state or an agency of the state. This
would be true whether or not the municipality was constitu-
tionally created, and thus not subject to dissolution by the
state, and whether or not it was acting in its proprietary
capacity in the provision of an essential utility service.?!

19 To the extent the county would argue that the federal mitigation
plan was inadequate, despite its operational flow release option, there is no
reasonable environmental regulation available for this otherwise federally
permitted Project. That is to say, there exists a de facto prohibition, the very
exception to allowable “environmental” regulation noted in the Granite
Rock decision, 480 U.S. at 587.

20 The decision would also adversely affect quasi-governmental enti-
ties to the extent they are deemed “creatures of the state.”

21 In addition, where the regulating entity need not be concerned
about having to pay another governmental body for a complete or partial,

18

Finally, as also evidenced by this case, without a deter-
mination that municipalities have such standing, there could
be a “regulatory redistribution,” by local agencies, of essen-
tial natural resources, including water. If, for example, a
county can deny a permit because the county wants additional
flows in the stream for wetlands inundation, aesthetics, and
rafting, yet it does not have to acquire those flows in a water
court adjudication, purchase them in the marketplace, or pay
the permittee for its senior decreed rights, the county has, in
effect, reallocated the resource without any cost to its local
citizens. This is not the type of “planning” which leads to a
considered and orderly distribution of essential commodities
— particularly those regulated by federal agencies in fur-
therance of Congressional purposes, goals and mandates.

lil. THE COLORADO COURT OF APPEALS’ DECI-
SION WAS IN ERROR

A. Standing to Sue

Relying upon dicta in Town of Orchard City v. Board of
Delta County Comm’rs, 751 P.2d 1003, 1006 (Colo. 1988),
and this Court’s opinion in Coleman v. Miller, 307 U.S. 433
(1939), the Court below found that the mere identity of the
cities stood as an absolute bar to standing under the Fifth and
Fourteenth Amendments to the United States Constitution.
App. 29a.

As previously noted, the above conclusion is directly
contrary to the black letter law upon this subject, as well as
the decision of the Delaware Supreme Court in New Castle
County School District v. State, 424 A.2d 15 (Del. 1980). See
1 Julius L. Sackman, Nichols on Eminent Domain § 2.225[1]
at 2-158 (3d Ed. 1993). In support of the determination that
standing does exist in such cases, Nichols cites numerous
court opinions, including such early decisions of this Court as
City of New Orleans v. New Orleans Waterworks Co., 142

temporary or permanent deprivation of the reasonable use of its property,
that entity lacks any incentive to reach a mutually satisfactory resolution
where competing local interests are at stake.

19

U.S. 79 (1891) and City of Worcester v. Worcester Consol. St.
Ry. Co., 196 U.S. 539 (1905), in which a proprietary/govern-
mental distinction was explicitly recognized. The same con-
clusion is reached at A.S. Klein, Annotation, Condemnation
of Public Entities’ Land, 35 A.L.R.3d 1293 at 1307 (1971):

The common constitutional provision against the
taking of private property without payment of com-
pensation is generally held to be applicable to the
taking by the State or subdivision or agency thereof
of the property held by another subdivision or
agency in its proprietary capacity.

Cases finding an absence of standing in such situations
are the descendants of Trustees of Dartmouth College v.
Woodward, 17 US. (4 Wheat.) 518 (1819), wherein New
Hampshire was prohibited under the Contract Clause to the
U.S. Constitution from modifying a charter that the colonial
government had issued to the College. In the famous dicta to
that decision, Chief Justice Marshall sought to avoid a situa-
tion wherein citizens of the state could claim they had a
“contract” with the state, because such an interpretation
would bar the state from impairing any such contract. This
would leave a state practically unable to legislate or allocate
political power within its subdivisions. Justice Marshall’s
solution was to enunciate the principle that certain guarantees
of the U.S. Constitution should not be interpreted to interfere
with a state’s control over the allocation of its political
powers.

Typical of the series of cases following Dartmouth is
City of Trenton v. New Jersey, 262 U.S. 182 (1923). In City of
Trenton, the state modified a charter that it had previously
given to the municipality. In holding that the municipality had
no standing to challenge the change, the Court quoted exten-
sively from Hunter v. City of Pittsburgh, 207 U.S. 161, 178-9
(1907), which is considered the leading example of such
standing limitations. Rogers, 588 F.2d at 1067, 1068.22

22 The Cities submit that the Supreme Court implicitly acknowledged
in Hunter, 207 U.S. at 179-80, that a municipality can raise a claim that its
“private” contract and property rights have been impaired.

20

However, when these cases were decided, “standing”
meant something different from what it means today. See
Rogers, 588 F.2d at 1057. The old legal standing test went to
the merits of the case. Association of Data Processing Serv.
Org. v. Camp, 397 U.S. 150, 153 (1970). By resolving these
substantive issues under the rubric of standing principles,
these decisions have been misinterpreted as a broad denial of
access to the courts. As a result, substantive issues have
become distorted and parties’ claims have been deprived of
the full consideration they deserve. Case Comment, Munici-
pal Corporation Standing To Sue The State: Rogers v.
Brockette, 93 Harv. L. Rev. 586 at 590, 591 (1980).

This Court subsequently discussed its prior rulings on
this topic in Gomillion v. Lightfoot, 364 U.S. 339 (1960).
While recognizing that the numerous decisions dealing with
the creation of municipalities and with taxation clearly state
that the due process clause affords no immunity against “mere
inequalities in tax burdens .. . as an indirect consequence of a
State’s exercise of its political powers,” the Court noted that
the Hunter opinion itself “intimates that a state legislature
may not be omnipotent even as to the disposition of some
types of property owned by municipal corporations.”
Gomillion, 364 U.S. at 344. The Court warned that “exalting”
the State’s political power to an absolute would “misconceive
the reach and rule” of Hunter and related cases:

. a correct reading of this seemingly unconfined
dicta of Hunter and kindred cases is not that the
State has plenary power to manipulate in every
conceivable way, for every conceivable purpose, the
affairs of its municipal corporations, ....

Id. at 344.23

23 In City of South Lake Tahoe v. California Tahoe Regional Planning
Agency, 449 U.S. 1039 (1980) (White, J., dissenting from denial of cer-
tiorari), Justice White was critical of what he termed the “per se rule” of
standing, finding it to be inconsistent with the decision in Board of
Education v. Allen, 392 U.S. 236 (1968). In addition, Justice White refer-
enced Rogers v. Brockette, supra, a decision upon which a conflicting line
of cases has developed.

i aeceneenaemnnmeenreesiisinssiaiiiiiiiaiiiiiitiiiiiiaiiaiiiiiéd

21

In this case, the court below operated under such a
misconception. Rather than a situation involving the alloca-
tion of political authority, it was faced with a set of facts
which ran directly to the property interests of the cities, i.e.,
their water rights and water delivery facilities.24

Furthermore, the “creature of the state” rationale simply
cannot apply to all Colorado municipalities. The “home rule”
provisions of the Colorado Constitution, Colo. Const., Art.
XX, Sect. 1 and 6, confirm that the cities are not creatures of
the state legislature. Rather, they derive certain powers
directly from the state Constitution,25 powers which cannot be
abrogated by legislative fiat. City of Thornton v. Farmers
Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382,
389 (1978).2© Therefore, the language found in Hunter ». City
of Pittsburgh and City of Trenton v. New Jersey, supra, allow-
ing the state “at its pleasure” to “modify or withdraw all such
powers” to “take without compensation such property,”
“repeal the charter, and destroy the corporation” is neither
relevant nor applicable to the facts presented here. City of
Trenton, 262 U.S. 182, 187 (1923); Hunter, 207 U.S. 161,
178-9 (1907).

Finally, it must not be forgotten that the cities are acting
in their proprietary capacity as the owners and developers of
decreed conditional water rights. See City and County of
Denver v. Colorado River Water Conservation Dist., 696 P.2d

24 The water rights and federal location approvals of the cities are
vested property interests. See Public Serv. Co. of Colorado v. FERC, 754
F.2d 1555 (10th Cir. 1985), cert. den., 474 U.S. 1081 (1986), Wiebert v.
Rothe Bros., 618 P.2d 1367 (Colo. 1980).

25 One such power bestowed upon Colorado home rule munici-
palities is the authority “within or without its territorial limits to construct
... Maintain, conduct, and operate water works . . . and everything required
therefore .. . .” Colo. Const., Art. XX, Sect. 1.

26 In addition, the Colorado Supreme Court has expressly stated that
“as a home rule city with its own constitutional underpinning, Denver
[Colorado Springs and Aurora] was not a political subdivision of the
state... .” Mesa Verde Co. v. Montezuma County, 831 P.2d 482, 485 (Colo.

1992).

22

730, 742 (Colo. 1985) (in operating a waterworks system a
city acts in its proprietary or business capacity and not in its
political or governmental capacity); see also City of New
Orleans v. New Orleans Waterworks Co., 142 U.S. 79 (1891)
and City of Worcester v. Worcester Consol. St. Ry. Co, 196
U.S. 539, 551-553 (1905). None of the rationale concerning
actions by “creatures of the state” is pertinent where a munic-
ipality is acting in such a capacity. Rather, it is to be treated
essentially the same as a private corporation. Castlewood
Corp. v. Denver, 41 Colo. App. 565, 567, 594 P.2d 1062
(1978); see also Duquesne Light Co. v. Barasch, 488 U.S. 299
(1989) (“private” utility allowed to bring Fifth Amendment
takings claim).

B. Federal Preemption

Pursuant to the Property Clause of the United States
Constitution, art. IV, § 3, cl. 2, Congress has exclusive and
unlimited power over the use and disposition of federally-
owned lands. Kleppe v. New Mexico, 426 U.S. 529, 537, 539
(1976). State law cannot divest Congress of that power. Utah
Power and Light Co. v. United States, 243 U.S. 389, 403-405
(1917). Though the state may exercise its civil and criminal
jurisdiction over lands belonging to the United States,

[T]his jurisdiction does not extend to any matter
that is not consistent with full power in the United
States to protect its lands, to control their use, and
to prescribe in what manner others may acquire
rights in them.

243 U.S. at 404. Stated another way, “where those state laws
conflict with . . . legislation passed pursuant to the Property
Clause, the law is clear: the state law must recede.” K!eppe,
426 U.S. at 543; Fidelity Federal Savings and Loan Ass'n v.
de la Cuesta, 458 U.S. 141, 153-154 (1982).

The question in this case is an extension of that faced by
this Court in California Coastal Comm’n v. Granite Rock Co..,
480 U.S. 572 (1987), i.e., “whether Congress has enacted
legislation respecting this federal land that would preempt”
the permit denial by a local branch of government. /d. at 581.

23

State law can be preempted in either of two general
ways. If Congress evidences an intent to occupy a
given field, any state law falling within that field is
preempted. [Citations deleted]. If Congress has not
entirely displaced state regulation over the matter in
question, state law is still preempted to the extent it
actually conflicts with federal law, that is, when it
is impossible to comply with both state and federal
law, [citations deleted] or where the state law stands
as an obstacle to the accomplishment of the full
purposes and objectives of Congress, Hines v.
Davidowitz, 312 U.S. 52, 67 [85 L.Ed. 581, 61 S.Ct.
399] (1941). Silkwood v. Kerr-McGee Corp., supra,
at 248, 78 L.Ed.2d 443, 104 S.Ct. 615.

480 U.S. at 581.27 Just such a conflict and frustration of

Congressional interests exists in this instance.

1. Conflict with Federal Laws

The 1897 Organic Administration Act established the
management mandate for the forest reserves and identified
their primary purposes:

No national forest shall be established, except to

improve and protect the forest within the bound-

aries, or for the purpose of securing favorable con-
ditions of water flows, and to furnish a continuous
supply of timber for the use and necessities of
citizens of the United States.
16 U.S.C. § 475 (1985). In interpreting the above provision,
this Court has held that the national forests were created “for
only two purposes”, i.e., to secure favorable conditions of
water flows for Western settlers and to furnish a continuous
supply of timber for the people. United States v. New Mexico,
438 U.S. 696, 707, 718 (1978). In particular, favorable water
flows were to “be used for domestic, mining, milling, or
irrigation purposes, under the laws of the State wherein such

27 Federal regulations have no less preemptive effect than federal
statutes. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984).

24

national forests are situated, or under the laws of the United
States and the rules and regulations established thereunder.”
Id. at 712; 16 U.S.C. § 481 (1985).

In rejecting the government's claim in New Mexico that
Congress intended to reserve water in national forests for
“secondary” uses, such as “aesthetic, environmental, recre-
ational, or wildlife preservation purposes,” /d. at 705, this
Court stated:

Not only is the government's claim that Congress
intended to reserve water for recreation and wildlife
preservation inconsistent with Congress’ failure to
recognize these goals as purposes of the national
forest, it would defeat the very purpose for which
Congress did create the national forest system. . . .
As this provision [16 U.S.C. § 481] and its legisla-
tive history evidence, Congress authorized the
national forest system principally as a means of
enhancing the quantity of water that would be
available to the settlers of the arid West. The Gov-
ernment, however, would have us now believe that
Congress intended to partially defeat this goal by
reserving significant amounts of water for purposes
quite inconsistent with this goal. (emphasis added)

Id. at 712-713. These “inconsistent purposes,” i.e., flows for
aesthetics, recreation and environmental enhancement, are the
very objectives utilized by the County to deny the cities the
permits necessary to complete their water delivery system.
The conflict between the County’s actions and the federal
legislative scheme is undeniable.

In addition, the Forest Service Management Plan for the
area in question specifically states that the White River
National Forest is for multiple use. This is in keeping not only
with the language of the Organic Act as quoted above, but
also with the provisions of the Federal Land Policy Manage-
ment Act (“FLPMA”), 43 U.S.C. § 1701, 1732 (1986), the
National Forest Management Act, 16 U.S.C. § 1600, 1604
(1985), et seqg., and the Multiple Use Sustained Yield Act, 16

25

U.S.C. § 528 (1985).28 Included within the “multiple uses”
encouraged by each of these Acts is water resource develop-
ment. 43 U.S.C. § 1761(a)(1) (1986) specifically authorizes
the Secretary to grant rights-of-way over the national forest
system for “reservoirs, canals, ditches, flumes, . . . and other
facilities and systems for the impoundment, storage, transpor-
tation, or distribution of water.” Nothing in these Acts would
counsel in favor of “local” supremacy over decisions affect-
ing the forest lands.29

Though § 505(a) of FLPMA, 43 U.S.C. § 1765(a) (1986),
states that rights-of-way granted thereunder are to contain
terms and conditions which “require compliance with state
standards for . . . environmental protection . . . if those
standards are more stringent,” the regulations at issue here are
“local” in nature, and hence do not fall within the clear terms
of the statutory language. Columbia Basin Land Protection
Ass'n v. Schlesinger, 643 F.2d 585 (9th Cir. 1981); City and
County of Denver v. Bergland, 695 F.2d 465, 485 (10th Cir

28 As previously noted, in Granite Rock, 480 U S. at 585, this Court
correctly “assumed” that the National Forest Management Act and the
Federal Land Policy Management Act “preempt the extension of state land
use plans onto unpatented mining claims in national forest lands.” /d. at
585. See 16 U.S.C. § 1604(a) (1985); 43 U.S.C. § 1712(c) (1986). The
same preemption analysis holds true for water projects on federal lands.

29 See, e.g., 43 U.S.C. § 1712(c)(9) (1986) (federal land use plans are
to be consistent with state and local land use plans to the “maximum
extent” the Secretary “finds consistent with federal law” and the purposes
of FLPMA); 16 U.S.C. § 530 (1985) (Secretary is to “cooperate with
interested state and local governmental agencies . . . in the management of
the national forests”); 16 U.S.C. § 1612(a) (1985) (state and local govern-
ments are given an “opportunity to comment upon the formulation of
standards, criteria and guidelines applicable to Forest Service programs’).
The pertinent federal regulations governing the management of national
forests likewise support the cities preemption analysis. See, e.g., 36 C.FR.
Part 219 (1983) (establishment of a coordination effort, § 219.7, wherein
local government input is solicited, § 219.6, and an appeal process !s
available, § 219.10.) However, the Forest Service remains the final deci-
sion maker, 36 C_ER. §§ 219.8, 219.10 (1983).

26

1982); Citizens for a Better Henderson v. Hodel, 768 F.2d 1051
(9th Cir. 1985).3° Further, the Forest Service expressly found that it
complied, through the incorporation of stipulations and conditions
in the FLPMA permit, with the requirements of this statutory
provision, App. 49a-50a, and concluded that “appropriate state and
local agencies” would specify “mitigation measures for non-federal
lands ... .” App. 46a.*!

In Granite Rock, this Court took as true the Coastal
Commission’s assertion that it did not seek to veto or prohibit
the activity, but only to regulate the environmental aspects
thereof. 480 U.S. at 586, 587. Given the “as yet unidentifiable
conflicts with the federal scheme” and the “barren record,”
the Court cautiously accepted the possibility that the state
might impose certain reasonable environmental controls. /d.
at 594.32 In other words, the state had a role in deciding
“how” an activity was to be conducted on federal land, bw
had no authority to decide “if” that particular activity was
going to go forward.

30 As concluded in Montana v. Johnson, 738 F.2d 1074 (9th Cir.
1984), this provision of FLPMA does not require compliance with local
permit procedures, but only a consideration of state substantive standards
by the permitting “federal” agency. In accord, Columbia Basin, 643 F.2d at
605 (to require “state” certification “would imply that the state could deny
the permit.”)

3! The FLPMA permit indicated that “Eagle County . . . advise[d] the
Forest Service that various permits are needed,” App. 67a. This is not an
indication of Forest Service concurrence in the application or propriety of
local regulations, and is certainly not dispositive of the preemption anal-
ysis. See Brubaker, 652 P.2d at 1057 (since state law is not applicable if it
is preempted, the scope of a federal permit’s reference to compliance with
applicable state and local requirements is dependent upon, rather than
determinative of, the proper resolution of the preemption issue).

32 The “state” regulatory scheme referenced in Granite Rock, 480
U.S. at 583, is absent in this instance. See City and County of Denver v.
Bergland, 695 F.2d 465, 485 (10th Cir. 1982) (regulations under the
Colorado Land Use Act are deemed “local” promulgations).

33 The Court warned that “one may hypothesize a state environmen-
tal regulation so severe that a particular land use would become

27

In the present instance, the record is voluminous and it
clearly demonstrates that the County did not seek to impose
reasonable environmental conditions. In fact, it made no
attempt whatsoever to cooperate with the cities or federal
agencies in identifying potential mitigation conditions, argu-
ing instead that it was not the County’s duty to propose any
mitigation requirements.34 Rather, the County vetoed the fed-
erally-approved project, despite the extensive federal permit
requirements which were based on the same set of facts and
addressed the very same concerns. The County thus created
an irreconcilable conflict with federal law, and erected an
unlawful barrier to fulfillment of the water supply purposes of
national forests as envisioned by Congress.

As previously indicated, the Colorado Court of Appeals
decision is likewise inconsistent with the opinion of the Ninth
Circuit in Ventura County v. Gulf Oil Corp., 601 F.2d 1080
(9th Cir. 1979), aff'd mem., 445 U.S. 947 (1980). See also
Federal Power Comm'n v, Oregon, 349 U.S. 435 (1955); First
lowa Hydro-Electric Coop. v. Federal Power Comm'n, 328
U.S. 152, 164, 181-183 (1946) (local veto power which con-
flicts with the federal scheme is preempted). As in Ventura

commercially impracticable.” 480 U.S. at 587. To the extent one could
characterize the County regulations as “environmental,” this is such a
situation. The “commercial” value of the Prcject lies in its yield, yet the
county decided that the water should remain in the stream for purposes of
wetland flooding, aesthetics, and recreational rafting.

34 Though the county has argued that it did not prohibit other “alter-
native projects,” this response ignores the fact that (a) Colorado has no
NEPA-type statute; (b) the cities had no decree for alternate points of
diversion; (c) the cities had only one set of federal permits and easements;
(d) the alternatives analysis had already been performed as part of the
federal EIS process; (e) the cities had only one Congressional exemption;
(f) the county had no alternative analysis requirements in its regulations;
(g) the county found the application complete without requiring an alterna-
tives discussion; and (h) the county specifically found, in response to a
motion in limine filed by the cities, that it could not require an alternatives
analysis.

28

County, Eagle County seeks to prohibit the federally autho-
rized activity, having denied the requested permits.

Finally, even assuming for purposes of argument that
local “denial” authority could be exercised where local “envi-
ronmental” regulations are being applied, the County’s char-
acterization of its findings herein as other than “land use”
controls is nothing more than an attempt to definitionally
obfuscate the issues.35

2. Conflict With Congressional Wilderness
Exemption

As noted at the outset, in 1980, Congress provided the
Project with a specific exemption from those additional con-
straints which would be associated with the creation of the
Holy Cross Wilderness. That exemption stated, in part:

Provided, that no right or claim of right, to the

diversion and use of existing conditional water

rights for the Homestake Water Development Pro-

ject by the cities of Aurora and Colorado Springs

shall be prejudiced, expanded, diminished, altered,

or affected by this Act. Nothing in this Act shall be

35 The “quality and quantity of the river rafting experience” is a land
use determination, i.e., will the county allow domestic water diversions to
support residential and commercial growth or preserve aquatic play-
grounds. Similarly, regulation of the area as a “wilderness” is a clear land
use choice. Further, the application of “nuisance” factors as a basis for
permit denial also constitutes the application of “land use” controls. Nui-
sance factors, such as increased traffic and dust from construction activ-
ities, have been historically characterized as matters within the ambit of the
“local zoning” authority. See Village of Euclid v. Ambler Realty Co., 272
U.S. 365 (1926) (a regulatory zoning ordinance is analogous to the com-
mon law of nuisance); Brendale v. Confederated Tribes, 492 U.S. 408
(1989) (zoning is driven by concerns such as health and safety, aesthetics,
or other public values and closely parallels nuisance law); Robinson Brick
Co. v. Luthi, 115 Colo. 106, 111, 169 P.2d 171 (1946) (where the legislature
has declared by statute and zoning resolution what activities may be
conducted in a certain zone, it has in effect declared what is a public
nuisance).

29

construed to expand, abate, impair, impede, or
interfere with the construction, maintenance or
repair of said project, nor the operation thereof, or
any exchange or modification of the same agreed to
by the cities and the United States, acting through
any appropriate agency thereof.

P.L. 96-560, § 102(a)(5), 94 Stat. 3265 (1980). App. 313a.
Thus, a compromise was reached wherein the cities would not
oppose the creation of a wilderness area which encompassed
their previously decreed points of diversion. In return, devel-
opment of the cities water rights would not be adversely
impacted by the new land designation.*©

However, both the County and the Colorado Court of
Appeals ignored this Congressional directive and specifically
considered the impacts of the Project upon so-called “wilder-
ness” values, thereby undermining Congressional intent. See
App. 14a; App. 147a-148a.

36 In the Final Environmental Impact Statement for the project, the
Forest Service acknowledged the above compromise by stating:

The wilderness was established recognizing the cities’ pro-
posal. As a result, the Homestake Phase II proposal is not
subject to the Wilderness Act (16 U.S.C. 1131, et seq.). Con-
gress has determined that the Homestake Phase II Project
proposal should be reviewed as if it were in a portion of
National Forest allocated to non-wilderness use.

*

55a

The following discussion highlights the impacts of each
alternative and describes the features which were impor-
tant in the consideration for selection. Sections 2 and 4 of
the FEIS discuss the alternatives and the consequences of
implementation of each alternative. Exhibit 6, which is
attached hereto, is a summary of the consequences identi-
fied and discussed in the FEIS. It is noted that the Forest
Service has only one application before it at this time -
the Cities’ proposal represented by Alternative 6.

Alternative 1 — No Action

This alternative causes the least impacts to the
local biological and physical environment of the
project area and, on that basis, is the environ-
mentally preferable alternative. The “no action”
alternative would actually be a denial (see Sec-
tion II, above) and would force the Cities to
obtain the needed water from alternative
sources. The cost of water from the alternative
sources, such as the condemnation of agri-
cultural water and development of groundwater
described in the FEIS (Section 2.1.1, page 2-5),
could be higher. Furthermore, the secondary
effects on farmlands, agricultural economies,
and the holders of rights to groundwater could
be severe (FEIS Section 2.1.2, page 2-7). If the
“no action” alternative were adopted, the Cities
could likely not acquire and develop water
resources in time to meet the projected demands
for water. Finally, the Forest Service does not
have the authority to require the Cities to adopt
the non-structural alternatives described in Sec-
tion 2.1.1 of the FEIS, pages 2-1 through 2-7.

56a

Alternative 2 - 1962 Homestake Phase II Align-
ment

This alternative is based upon a land use autho-
rized by Grant C-103867 issued on December 29,
1960, and assigned to the Cities on July 31, 1962.
The Grant authorized a series of tunnels, open
canals, and conduits to divert water from nine
locations in the Holy Cross Wilderness. This
alternative results in the disturbance of 253
acres of surface area. About 30,000 acre-feet of
water could be diverted annually and seven
streams could be dried up for portions of each
year. There is no provision to require permanent
bypass flows in this alternative and as a result,
five miles of streams would have inadequate
flows to maintain fisheries and other environ-
mental benefits. The implementation of this
alternative would adversely affect 220 acres of
the Holy Cross Wilderness. About 14 Acres of
wetlands would be lost. Alternative 2 is less
environmentally preferable than Alternative 6.
Because of the adverse effects on wilderness,
streamflow, surface area disturbance, and wild-
life habitat, Alternative 2 was not selected.

Alternative 3 — Tunnel and Pipeline Systems

This alternative is a combination of tunnels and
pipelines. Diversions of water would occur in
the Holy Cross Wilderness at eight locations.
There would be one diversion outside the Wil-
derness. Two large pipelines or conduits would
be installed in the Wilderness; one 42 inches in

57a

diameter and 21,000 feet in length; the other 54
to 66 inches in diameter and 63,000 feet in
length (See FEIS, Section 2.2.3, page 2-19).
About 103 acres of surface area would be dis-
turbed, of which 70 acres would be within the
Wilderness. Annual water diversion would be
23,900 acre-feet. Bypass flows would be required
at all diversions and the streamflow would be
adequate for fisheries and other environmental
benefits at all times. No stream would be dried
up. About 14 acres of wetlands would be lost.
Alternative 3 is less environmentally preferable
than Alternative 6. Because of the adverse
effects on wilderness, surface area disturbance,
and wildlife habitat. Alternative 3 was not
selected.

Alternative 4 — Upper Valley Reservoir

While Alternative 4 has not been selected, it has
some merits. It would provide for west slope
storage and it would allow the Cities and others
to develop their State-decreed water rights. It
would provide for flat water recreational oppor-
tunities; however, it wculd also result in the loss
of 290 acres of wetlands. In this alternative, 16
acres of Wilderness, near the boundary, would
be adversely affected. Alternative 4 was not
selected because it proposes a complex joint
venture that does not exist between the decreed
water rights holders nor does the Forest Service
have an application for such an alternative. I
would consider Alternative 4 to be consistent
with the laws and regulations governing the use
of National Forest System lands. The State of
Colorado would be, in my judgment, the logical

58a

governmental body to initiate and plan such a
venture.

Alternative 5 — Water Trade

This alternative is conceptual in nature and does
not at this time include any specific sites or
development proposals. The alternative is
included in the analysis to provide a more com-
plete disclosure and to provide some compari-
sons, even though they are speculative in
nature. This alternative would require an
exchange of water rights between Aurora, Colo-
rado Springs, and Denver and modification of
Green Mountain Reservoir rights (FEIS Section
4.1.2, page 4-15). In Section 2.2.5, page 2-30 of
the FEIS, some conceptual facilities are assumed
to be required for Alternative 5. These are:

1. A west slope replacement reservoir to be
located in the Colorado or Eagle River
basins. The capacity of the reservoir could
vary depending on the yield of the water
rights to be exchanged. No specific reservoir
sites have been identified. The 35,000 acre-
foot Eagle-Colorado Reservoir site near
Wolcott may be a possible location.

2. A pump station(s) at Green Mountain Reser-
voir and an estimated 21 to 23 miles of
pipeline from Green Mountain Reservoir to
Dillon Reservoir. The pipeline may be
located above ground or below ground
depending on the site-specific conditions
encountered and would be between 48
inches and 84 inches in diameter, depending
upon the volume and delivery schedule of
transported water.

59a

—_———3.—Approximately 10 to 20 miles of temporary
roads would be required for access to the
above facilities. The amount of roads could
vary depending on the facilities involved in
the water trade.

4. An east slope reservoir(s) to store water
delivered from the exchange. The size and
location of any east slope storage facilities is
unknown.

Alternative 5 would have no effect on the Holy
Cross Wilderness. Outside the Wilderness, about
1,000 to 2,000 acres of surface disturbance
would occur. Annual water diversion of 120,000
acre-feet, of which 38,500 acre-feet would be the
Cities’, is assumed in the analysis. No streams
are presumed to be dried up and adequate
streamflows for fisheries and environmental
benefits would be provided at points of diver-
sion. Some wetlands would be lost, but no esti-
mate of the amount was made due to the
conceptual nature of the alternative. This alter-
native would require substantially more site-
specific information for implementation. State
water planning would be a requirement since
adverse effects on junior water right holders
and entities other than the Cities and Denver
could occur. The modification of storage and
management of Green Mountain Reservoir
would require changes in Federal legislation
(FEIS Section 4.1.2, page 4-15). The need for
additional information and planning would
require additional time and the alternative
would not meet the Cities’ short-term need for
water. In my judgment, Alternative 5, as
described here and in the FEIS, is less environ-
mentally preferable than Alternative 6. Because

60a

the Forest Service does not have the authority to
require water right trades, and because there is
no indication that State water planning will be
conducted, Alternative 5 was not selected.

Vil. PUBLIC INVOLVEMENT

During the preparation of the Homestake Phase II EIS,
the Forest Service issued several public notices and
attended or held numerous public meetings dealing with
the proposal. Section 6.1.1 (pages 6-1 to 6-5) of the FEIS
summarizes the specific public involvement activities.
Eight public meetings were held for scoping purposes
prior to December 10, 1981.

The following is a summary of public involvement activ-
ities during the preparation of the Draft and Final Envi-
ronmental Impact Statements. All meetings listed were
open to the public:

12-10-81 Forest Service provided notification of the
Homestake Phase II proposal to the Colorado
Division of Planning in compliance with Part II
of OMB Circular A-95.

12-30-81 Forest Service mailed EIS scoping document.

01-04-82 Discussed EIS scoping at Eagle County Com-
missioners meeting.

01-06-82 Discussed EIS scoping at Minturn Town Coun-
cil meeting.

01-20-82 Discussed Homestake Project at Minturn Town
Council meeting.

02-01-82 Public meeting with Red Cliff Town Council.

02-01-82 Public meeting with Lake County Commission-
ers and Leadville City Council.

02-24-82

05-21-82

05-27-82

06-04-82

06-07-82

06-09-82

06-10-82

06-11-82

06-22-82

07-06-82

07-09-82

07-13-82

6la

Meeting with American Wilderness Alliance in
Minturn.

First mailing of DEIS and DEIS Summaries. A
total of 350 DEIS’s were distributed along with
500 executive summaries.

News articles start, in weekly printed news
media, concerning DEIS release and public
meetings to be held.

Public meeting in Minturn Middle School,
Minturn, Colorado. Estimated attendance — 350
people.

Public meeting at Lake County Commissioners
regular meeting, Leadville, Colorado. Esti-
mated attendance - 20 people.

Public meeting at City Administration Build-
ing, Colorado Springs, Colorado. Estimated
attendance — 96 people.

Public meeting at Municipal Building, Aurora,
Colorado. Estimated attendance - 52 people.

Notice of Availability of DEIS was published in
the Federal Register.

Public meeting at Avon Town Council regular
meeting, Avon, Colorado. Estimated attendance
— 20 people.

Public meeting with Town of Vail Council, Vail,
Colorado.

Public meeting at Holiday Inn, Frisco, Colo-
rado. Estimated attendance - 220 people.

Open House held at Minturn, Colorado. Atten-
dance - 11 people.

62a

07-14-82 Public meeting with Town of Minturn Council,
Minturn, Colorado. Estimated attendance - 15
people.

07-22-82 Public forum for comment held at Battle Moun-
tain High School, Avon, Colorado. Attendance
— five people.

07-26-82 Close of written comment period on DEIS.

In addition to the above public activities, there were
numerous meetings and contacts with individuals, orga-
nizations, and agencies. News media coverage was given
in the Eagle, Grand, Summit, and Lake Counties, and the
Colorado Springs and Denver areas.

Also, a special public hearing was called on November
12, 1982, by the U.S. House of Representatives Committee
on Interior and Insular Affairs, Subcommittee on Public
Lands and National Parks. Chairman Seiberling and Rep-
resentative Kogovsek were present from the Committee.
Attendance was estimated at 120 people.

Subsequent to the Subcommittee hearings and at the sug-
gestion of Chairman Seiberling, a meeting was held with
the State of Colorado on December 9, 1982, to provide the
State an opportunity to review Forest Service proposed
changes in the DEIS and responses to comments submit-
ted by the State. On December 29, 1982, the Colorado
Division of Wildlife (CDOW) provided their latest input.
According to Bill McDonald, Coordinator for the State,
the comments from the CDOW would be the only ones
submitted as a result of the December 9 meeting.

63a

The Forest Service met with the Environmental Protection
Agency (EPA) on December 13, 1982, for the same pur-
pose. On January 4, 1983, John Brink of EPA telephoned
the Forest Service with final suggested changes.

In addition to the comments that were received during
the public comment period and published in Section 6.2
of the final EIS, we have considered other comments that
were received up to the time of printing the FEIS. These
comments are paraphrased and referenced to relevant
Sections of the FEIS (Exhibit 7).

VIII. IMPLEMENTATION

In order to comply with FSH 1909.15, Section 37.2 (46 FR
57012), ground disturbing activities will not be allowed
sooner than 30 days from the date of publication of the
Notice of Availability of the FEIS in the Federal Register
by EPA. In addition, the following are required: 1) con-
struction plans must be approved by the Forest Service as
required by the Easement; 2) ali Federal, State, and local
requirements for permitting must be met before construc-
tion begins; 3) prior to initiation of construction, the
Cities must obtain State Water Court approval for
changes in points of diversion in accordance with the
selected alternative; and 4) the Cities must implement the
Phase I streamflow adjustments and have the Phase I
improvements in place or initiated, as described in the
FEIS, Section 4.1.17, pages 4-54 through 4-58 and Exhibit
4, Easement Condition No. 22, attached.

a

64a

IX. RIGHT TO ADMINISTRATIVE REVIEW

This decision is subject to appeal pursuant to 36 CFR
211.18 (Federal Register, Vol. 48, No. 63, March 31, 1983,
pages 13420 to 13426). Notice of appeal must be in writ-
ing and submitted to me at 11177 West 8th Avenue,
Lakewood, Colorado 80225 within 45 days from the date
of this decision. A statement of reasons to support the
appeal and any request for oral presentation must be
filed within the 45 day period for filing a notice of appeal.

/s/ Craig W. Rupp 5/16/83
CRAIG W. RUPP DATE
Regional Forester

EXHIBIT 1!

Cooperating Agencies and Permits Required

Cooperating Agencies

The following agencies cooperated in preparation of this
document:

The U.S. Environmental Protection Agency (EPA) pro-
vided guidance and comments for compliance with its
duties in addressing environmental impacts and with
review of issuance of 404 Dredge and Fill Permits.

1 Taken from FEIS Sections 1.6.1 and 1.6.2, pages 1-18
through 1-19.

eA ROR EERE Rs

e
ES
¥

65a

The U.S. Army Corps of Engineers (COE) provided guid-
ance and comments in order to use this document in the
review of the Cities’ application for a Section 404 Dredge
and Fill Permit.

The Fish and Wildlife Service (FWS), U.S. Department of
the Interior, provided review comments, guidance, and
consultation on threatened and endangered species, and
wetlands; and also participated in on-ground review.

Permits or Approvals Required for the Cities’ Proposed
Project

Four Federal, three State, and three local permits or
approvals have been identified for project development
alternatives. They are:

Federal

1. An easement from the Forest Service under
authority of Federal Land Policy and Man-
agement Act Of 1976 (FLPMA), 43 USC
1761-1771 plus 36 CFR 251. This document
allows construction and operation of the
facilities associated with the project on
National Forest lands. The easement would
contain terms and conditions to carry out
the purpose of FLPMA and minimize dam-
age to environmental values.

2. A 404 Dredge and Fill Permit from the Corps
of Engineers (33 CFR 320-329). Section 404 of
the Federal Water Pollution Control Act as
amended by the Clean Water Act of 1977 (PL
92-500) (33 USC 1251 et. seq.) requires a
permit be obtained from the Corps prior to
the discharge of any fill material into waters
of the United States.

66a

3. Compliance by the Forest Service and COE
with requirements of Section 7 of the Endan-
gered Species Act of 1973 (PL 93-205 as
amended) by conferring with the Secretary
of the Interior on the effects of the Federal
action on threatened or endangered species
and their habitats. Since consultation has
occurred, a “no jeopardy opinion” on the
project is required.

4. A RCRA Permit (Resource Conservation and
Recovery Act of 1976, PL 94-580) would be
required from EPA for transport and dis-
posal of hazardous materials if used during
construction.

State

1. Permit to Discharge Wastewater under the
Colorado Water Quality Control Act of 1973
(CRS 1973, 25-8-501 through 505) is required
from the Colorado Department of Health,
Water Quality Control Division. During pro-
ject construction, water discharged from the
tunnels and settling ponds would require a
National Pollutant Discharge Elimination
System (NPDES) Permit.

2. Under the Colorado Water Quality Act (CRS
1973, 25-8-101 et. seq.) a Section 401 Certifi-
cate for Dredge and Fill Operations from
Colorado Department of Health, Water
Quality Control Division is required. This
permit is in conjunction with the Corps of
Engineers 404 Permit.

3. The State Historic Preservation Officer must
evaluate inventoried sites for significance to

OE

67a

comply with the National Historic Preserva-
tion Act of 1966 (PL 89-655) and Executive
Order 11593 of 1971.

Local

Eagle County and other Counties advise the
Forest Service that various permits are needed.
These permits would include:

1. An Eagle County building permit.

2. Permits pursuant to Eagle County’s or other
Counties’ HB-1041 process.

3. A Special Use Permit pursuant to Section
2.06.01(3) of the Eagle County Land Use
Regulations.

EXHIBIT 3

Description of Alternative Six!

This alternative is developed from the Cities’ proposal
and would divert water from the Cross Creek and Fall
Creek drainages and transport it by underground tunnels
to the existing Homestake Reservoir (Figure 2-11). From
there it would enter the Cities’ existing water delivery
system to the east slope. The proposed collection system
and facilities are described below.

1. Diversion structures on main, West, and East
Cross Creeks, and Fall Creek.

* From Text of FEIS Section 2.2.6, page 2-32.

68a

2. Approximately eleven (11) miles of under-
ground tunnels connecting the four diver-
sion structures to the existing Phase I
pipeline at the Fancy Creek portal.

3. A buried 66-inch gravity pipeline extending
3,000 feet from the tunnel portal at Fancy
Creek to a point near the north portal of the
Missouri Tunnel providing a capacity to con-
vey the total Cross Creek Tunnel flow to the
Missouri Tunnel. The Cross Creek flow
would initially be conveyed from Fancy
Creek portal to the Missouri Tunnel by the
existing Fancy-French gravity conduit; but
as additional streams are diverted, the con-
duit capacity would be exceeded and the
additional 66-inch parallel pipeline would
be required.

4. A power distribution line adjacent to the
Homestake Creek valley.

All four diversion dams would be located within the
Holy Cross Wilderness resulting in a total of six (6) acres
of direct wilderness disturbance. This alternative would
produce about 350,000 cubic yards of tunnel muck if drill
and shoot construction methods are used, and about
210,000 cubic yards of muck if boring equipment is uti-
lized.

The estimated average annual water yield for this alterna-
tive is 19,600 acre-feet. This alternative would develop
only a portion of the Cities’ undeveloped Eagle River
basin water rights and would not develop those rights
decreed to the Eagle-Arkansas project. It is estimated that

i a ee

69a

about 19,000 acre-feet of decreed water rights would
remain undeveloped.

EXHIBIT 4
Easement

(Tunnel, Diversion, Pipeline, etc.)

THIS EASEMENT, dated this 16th day of May, 1983
from the UNITED STATES OF AMERICA, acting by and
through the Regional Forester, Forest Service, U.S.
Department of Agriculture, hereinafter called “Grantor,”
to the Cities of Colorado Springs and Aurora, Colorado,
hereinafter called “Grantee.”

WITNESSETH:

WHEREAS, the Grantee has applied under the Act of
October 21, 1976, (90 Stat. 2776; 43 USC 1761), and under
the Regulations of the Secretary of Agriculture, 36 CFR
251 (45 FR 38328, June 6, 1980) for a tunnel, pipeline,
diversion dams, and service road necessary for the collec-
tion and transmission of water on, over, across, under or
through certain lands owned by the United States in
Eagle County, State of Colorado, and administered by the
Forest Service, Department of Agriculture.

NOW THEREFORE, Grantor does hereby grant to
Grantee an easement under 36 CFR 251.53(1)(1) for a right
of way for the construction, operation, and maintenance

70a

of a tunnel, pipeline, diversion dams, other related facili-
ties, and service road on, over, across, under or through
portions of the following described lands of the United
States in Eagle County, State of Colorado:

Sixth Principal Meridian —- Colorado

T. 6 S., R. 81 W. (unsurveyed)
Sections 29 and 32

L. 7? oe oe
Sections 3, 4, 5, 7, 8, 17, 18, 20, 29, 32,
and 33

T. 7 S., R. 82 W.
Sections 11 and 12

The area authorized by this easement is limited to
improvement areas specified on a plat as submitted in the
Design Report dated February 22, 1983. The maximum
pipeline and road right-of-way width will be 50 feet.
Copies of the above designated plats are on file at the
White River National Forest Supervisor’s Office, Glen-

wood Springs.

7la

Authorized improvement areas are more particularly
identified as follows:

Cross Creek diversion 0.85 acres
West Cross Creek diversion 0.15 acres
Fall Creek diversion 0.35 acres
East Cross Creek diversion 0.20 acres
Subtotal surface occupied

Within Holy Cross Wilderness 1.55 acres
Fancy Creek tunnel portal 0.05 acres
Fancy Creek Access road

(1,200 feet long) 1.40 acres

Pipelines: Fancy Creek to Missouri Creek -
66" diameter pipeline;
3,400 feet long 3.90 acres
72" diameter pipeline; 800 feet long 0.90 acres

Subtotal surface occupied
outside Wilderness 6.25 acres

Total surface occupied 7.80 acres

Subsurface improvements are the following tunnels,
which have a 10-foot diameter bore:

Beneath Holy Cross Wilderness -

East Cross Creek Tunnel 9,303 feet
Fall Creek Tunnel 17,178 feet
Cross Creek Tunnel 19,070 feet

Subtotal of tunnels beneath
Holy Cross Wilderness
45,551 feet or 10.46 acres
Beneath non-Wilderness land -
Cross Creek Tunnel
11,600 feet or 2.66 acres

Subtotal subsurface occupied 13.12 acres
: Total of all surface and subsurface
| occupied 20.92 acres

72a

Upon completion of construction, however, the Grantee
shall furnish the Forest Service with four sets of “as
constructed” location plats. This easement will then be
revised as deemed necessary by the Regional Forester to
authorize the continued occupancy and maintenance of
the rights-of-way as constructed.

This grant is made subject to the following conditions
applicable to Grantee, its agents, contractors, and sub-
contractors:

1. This grant is issued for a period of 50 years
ending December 31, 2033, but is renewable
provided Grantee will comply with the
then-existing rules and regulations govern-
ing the occupancy and use of National For-
est lands. If necessary in order to meet
changing times and conditions, this grant
may be revised after 30 years from the date
of issuance.

2. The Grantee will pay to Grantor the sum of
$208.00 for the period from the date hereof
to December 31, 1983, and thereafter on
January 1, will pay the sum of $357.00. The
charges for this use may be readjusted,
every five years if necessary, to place the
charges on a basis commensurate with the
value of use authorized by this easement.

3. A late payment charge in addition to the
regular fees shall be made for failure to
meet the fee payment due date or any of
the dates specified for submission of state-
ments required for fee calculations. The
late payment charge shall be $15 or an
amount calculated by applying the current

EEE

73a

rate prescribed by Treasury Fiscal Require-
ments Manual Bulletins to the overdue
amount for each thirty-day period or frac-
tion thereof that the payment is overdue,
whichever is greater. If the due date falls
on a non-workday, the late payment charge
will not apply until the end of the next
workday.

Upon demand, the Grantee shall pay to the
United States such sums as the Grantor
shall determine to be required, but not to
exceed $40,000 annually, to reimburse the
United States for administrative costs
incurred directly by the United States in
inspection and monitoring the construc-
tion, operation, and termination of the
facilities pursuant to this easement. This
condition shall only apply after such time
as the Secretary of Agriculture promulgates
regulations for cost recovery.

This grant is subject to all outstanding
valid rights existing on the date of the
grant.

This grant shall not be conveyed, or other-
wise transferred in whole or in part, with-
out the advance written approval of the
Regional Forester.

The Regional Forester may take action to
suspend, revoke, or terminate this ease-
ment: (1) upon abandonment; (2) for non-
compliance with any conditions of this
grant, provided however, that the Grantee
shall have been given written notice of the
grounds for such action and reasonable
time to cure any noncompliance. Such
action will be in accordance with the Rules

74a

of Practice Governing Formal Adjudicatory
Proceedings and instituted by the Secretary
under 7 CFR 1.130-1.151.

The Forest Supervisor or his designated
representative may order immediate tem-
porary suspension of any project activity,
when it is deemed necessary to protect
public health, safety, or the environment.
Within 10 days, if so requested by the
Grantee, the Grantor will review the action
to affirm, modify, or cancel the temporary
suspension.

The Grantee shall also be subject to all laws
and regulations which apply to the
National Forests and the Holy Cross Wil-
derness in the construction, operation, and
maintenance of the improvements autho-
rized by this Grant. The Forest Service
remedies for breach of any condition or
term of this Grant shall include all those
available under the laws applicable to the
National Forests and the Holy Cross Wil-
derness.

8. Upon abandonment, revocation, or termi-
nation of this grant, unless the requirement
is waived in writing, the Grantee shall, so
far as it is reasonably possible to do so,
restore the land to a condition satisfactory
to the Grantor.

9. The conditions set forth below shall attach
to and run with the land:

The described property and its appurtenant
areas and its structures and facilities
whether or not on the land therein granted
will be operated as part of a municipal

ee

75a

water supply system in full compliance
with Title VI of the Civil Rights Act of 1964
and all requirements imposed by or pur-
suant to the regulations issued thereunder
by the Department of Agriculture and in
effect on the date of this document to the
end that no person in the United States
shall, on the ground of race, color, or
national origin, be excluded from participa-
tion in, be denied the benefits of, oz be
subjected to discrimination under any pro-
grams or activities provided thereon; and

The United States shall have the right to
judicial enforcement of these conditions not
only as to the Grantee, its successors and
assigns, but also as to lessees and licensees
doing business or extending services under
contractual or other arrangements on the
land herein conveyed.

In the event of a breach of any of the condi-
tions set forth above, all right, title, and
interest in and to the above described prop-
erty shall, at the option of the Grantor,
revert to and become the property of the
United States of America, which shall have
an immediate right of entry thereon, and
the Grantee, its successors or assigns, shall
forfeit all right, title, and interest in and to
the above described property; provided,
however, that the failure of the Grantor to
insist in any one or more instances upon
complete performance of any of the said
conditions shall not be construed as a
waiver or a relinquishment of the future
performance of any such conditions, but
the obligations of the Grantee with respect

76a

to such future performance shall continue
in full force and effect. The procedures
applicable to the foregoing shall be in
accordance with 7 CFR 15, and other perti-
nent laws and regulations.

10. This grant confers no rights upon the
Grantee to the use of water involved; such
rights must be obtained under State law.

11. This Grant is issued subject to the provi-
sions of the Boulder Canyon Project Act of
December 21, 1928 (45 Stat., 1064), partic-
ularly Section 13.

12. The Grantee shall have the structures
inspected annually. The inspection shall be
made by a qualified engineer to ensure
protection to the structures. Repairs shall
be made in accordance with recommenda-
tions by the inspecting engineer. A quali-
fied engineer is one authorized to practice
engineering in the State either by reason of
his employment by the State or Federal
Government or by registration as provided
by law of the State. The engineer shall sign
a written report of said inspection. Three
copies of each report shall be mailed to the
Forest Supervisor of the White River
National Forest.

13. The Grantee further agrees that Forest Ser-
vice Representatives may inspect the struc-
ture at any time. If the Forest Service is not
satisfied with any safety, operation, main-
tenance, or physical condition of the struc-
tures and appurtenances, upon a finding
and written notice thereof, the Grantee
shall comply with a request to correct,
adjust, or change same.

14.

77a

The Grantee shall annually submit for For-
est Service approval an Operation and
Maintenance Plan. This Plan shall include,
but is not limited to, the following:

a.

The Grantee shall take necessary pre-
cautions to prevent pollution of, or
deterioration of lands, air, or waters
which may result from the exercise of
the privileges extended by this grant.
The Grantee shall be responsible for
securing any permits, certificates,
licenses, or other forms of approval
required to comply with Federal and
State standards for public health and
safety, environmental protection, siting,
construction, operation, or mainte-
nance.

The Grantee shall take such soil and
resource conservation and protection
measures, including weed control, on
the land covered by this grant and
which is affected by the construction,
maintenance, operation, and repair of
the project facilities as the Grantor may
request.

The Grantee shall not use chemical
materials to control undesirable weedy
and herbaceous vegetation, aquatic
plants, insects, rodents, fish, and other
pests without prior approval of the
Grantor.

The Grantee shall protect the scenic
aesthetic values and the fish and wild-
life habitat values of the area under
this easement, and the adjacent land, as
far as possible, during construction,

LS.

78a

operation, and maintenance of the
improvements.

e. The Grantee shall be responsible for
the prevention and control of soil ero-
sion and gullying on lands covered by
this easement and adjacent thereto,
resulting from the operation or mainte-
nance of the authorized use. The
Grantee shall so operate and maintain
the improvements to avoid the accu-
mulation of excessive heads of water
and to avoid encroachment on streams.
The Grantee shall revegetate all ground
where the soil has been exposed and
shall construct and maintain terracing,
water bars, lead-off ditches, or other
preventive works that may be required
to prevent and control erosion within
one growing season or as prescribed by
the District Ranger.

The Grantor, in addition to its other rights
not specifically enumerated herein,
reserves the right of occupancy and use for
itself, its permitees, contractors, and the
public without charge and without the con-
sent of the Grantee, to any part of this
grant across land of the United States
within the exterior boundaries of said
National Forest including the right to grant
additional easements or permits for com-
patible purposes on, over, under, or adja-
cent hereto when not inconsistent with the
enjoyment of said grant by the applicant. It
is further understood that management of
the surface of the grant above the tunnels
authorized by this easement shall remain

16.

17.

79a

with the United States as long as such man-
agement does not interfere with the
Grantee’s use of the area.

The Grantee shall take reasonable action,
both independently and on request of any
duly authorized representative of the
United States, to prevent and suppress fires
on or near the lands to be occupied under
this grant, including making available such
construction and maintenance forces and
equipment as may be reasonably obtain-
able for the suppression of such fires.
Unless the origin or spread of the fire is
determined to be caused by the intentional
or negligent actions of the Grantee or its
agents, the Grantee shall be entitled to pay-
ment for such services at those rates then
prevailing in the Forest Service for services
of a similar character.

The Grantee shall be held liable for all
injury, loss, or damage, directly or indi-
rectly resulting from or caused by the
Grantee’s use and occupancy of the area
covered by the grant, regardless of whether
the Grantee is negligent or otherwise at
fault, provided that the maximum liability
without fault shall not exceed $500,000 for
any one occurance and provided further
that the Grantee shall not be liable when
such injury, loss, or damage results wholly,
or in part, from the negligent act of the
United States, or an act of a third party not
involving the facilities of the Grantee.

18.

19.

20.

21.

80a

Liability for injury, loss, or damage, in
excess of the specified maximum, shall be
determined by the laws governing ordinary
negligence of the jurisdiction in which the
damage or injury occurred.

The Grantee shall indemnify the United
States for any and all injury, loss, or dam-
age the United States may suffer as a result
of claims, demands, losses, or judgments
caused by the Grantee’s use or occupancy.
Grantor shall not compromise or settle any
claims under this paragraph without the
prior written consent of the Grantee.

The Grantee shall replace in kind or
assume responsibility for expense of mov-
ing and relocation any fences, buildings, or
other structures as might be made neces-
sary by this grant and shall build and
maintain necessary and suitable crossings
for all roads and trails that intersect the
works constructed, maintained, or oper-
ated under this grant. (FEIS Section 2.4.1,
page 2-37)

Prior to the start of construction the
Grantee will present evidence of relin-
quishment and termination of U.S.D.I.
Easement C-013867 to Grantor.

Prior to the start of construction, the
Grantee will present evidence of a State
Water Court decree for changes in points of
diversion from the decreed diversion
points to the relocated diversion points, as
specified in the letter of September 2, 1982,
from Grantees’ consulting engineers to
Grantor.

8la

Prior to the start of construction on Phase
II, the following mitigation will be started
on the existing Phase I portion of the
Homestake project. Work necessary to com-
plete the following Phase I mitigation will
continue to be prosecuted after work starts
on Phase II and will be completed by no
later than the time Phase II is completed.

a.

A hiking trail will be constructed adja-
cent to Homestake Reservoir, to pro-
vide access to upper Homestake Lake.
(FEIS Section 4.1.17, page 4-56)

A trailhead will be developed at the
access point to the East Fork Home-
stake Creek trail. This trailhead will
provide joint access to the East Fork
trail as well as to the trail constructed
around Homestake Reservoir. (FEIS
Section 2.4.1, page 2-37, Section 4.1.17,
page 4-56)

The portion of the Homestake Road
accessing the east side of the Home-
stake Reservoir will be improved, and
resurfaced, allowing low clearance
vehicles to access the reservoir and the
trailhead at East Fork Homestake
Creek. The Forest Service and the Cities
will equally share maintenance respon-
sibilities for this section of road after
construction of Homestake Phase II.
(FEIS Section 2.4.1, pages 2-36 and 2-37,
Section 4.1.17, page 4-56)

The Missouri Creek trailhead will be
relocated and rebuilt to provide cen-
tralized access to all trails initiating

82a

near the Missouri Creek area. (FEIS
Section 4.1.17, page 4-56)

Revegetation will be started on Phase I
facilities, including access roads, diver-
sion dams, and pipeline routes, where
adequate vegetative cover is lacking.
These areas will be reseeded, and if
necessary, topsoil and fertilizer will be
used. (FEIS Section 4.1.17, page 4-54)

The disturbed areas adjacent to existing
Phase I diversion structures will be
revegetated and stocked with seedling
trees. The diversion structures will be
modified to be less obtrusive and to
blend into natural surroundings. Dis-
turbed stream channels below Phase I
diversions will be revegetated and
restored to a more natural condition.
(FEIS Section 4.1.17, pages 4-54 and
4-58)

Instream flow bypasses will be pro-
vided on all Phase I streams as follows:
(FEIS Section 4.1.17, pages 4-54 through
4-57)

Existing Phase I diversion structures
will be modified to ensure that the
required bypass flows pass the diver-
sion structures at all times.

Sopris Creek Diversion Dam 2 cfs
Missouri Creek Diversion Dam 3 cfs
Fancy Creek Diversion Dam 1 cfs
French Creek Diversion Dam 1 2/3 cfs
East Fork Homestake

Creek Diversion Dam 2 2/3 cfs
Middle Fork Homestake

Creek Diversion Dam 6 cfs
Homestake Creek at

Gold Park 24 cfs

y xR

83a

h. As construction commences on Phase
II, the following additional mitigation
will be performed on Phase I, and will
be completed by the time Phase II is
completed.

1)

2)

Tunnel muck will be placed as a top
priority in upland areas over the
existing and proposed conduits
between French Creek and the Mis-
souri Tunnel. The muck will then
be shaped to designed natural con-
tours, covered with a minimum of
four inches of topsoil, and revege-
tated with native grasses and seed-
ling trees.

Tunnel muck will be placed over
the diversion conduits spanning
Missouri Creek to form a small rec-
reational impoundment.

In order to minimize damage to fish and
wildlife, and otherwise protect the environ-
ment, the following environmental mainte-
nance instream flow bypasses will be
required at all times: (FEIS Section 4.1.2,
pages 4-3 through 4-5)

West Cross Creek - 5 cfs
Main Cross Creek - 4 cfs
East Cross Creek - 3 cfs
Fall Creek - 3 cfs

In order to accomplish the environmental
maintenace [sic] instream flows, the
Grantee will design diversion structures to
allow a permanent and unadjustable flow

84a

to bypass the structures to ensure that
required environmental maintenance flows
are always provided. This diversion struc-
ture design will also ensure that required
environmental maintenance flows are pro-
vided prior to allowing water to enter the
diversion pipeline. (FEIS Section 2.4.1,
pages 2-35 and Appendix E)

24. The Grantee will remove, as necessary, sed-
iments trapped behind diversion dams
through diversion tunnels to approved
upland disposal sites outside the Wilder-
ness. (FEIS Section 2.4.1, page 2-37)

25. Prior to the start of construction, the
Grantee will develop and implement a
Water Quality Maintenance and Monitor-
ing Plan to ensure that project activities or
facilities do not cause water quality to vio-
late stream water quality standards estab-
lished by the State of Colorado. This Plan
will be approved by the Forest Service
prior to its implementation. The Plan will
be updated and revised as necessary every
five years. (FEIS Section 2.4.1, page 2-37)

26. The Grantee will relocate the East Cross
Creek trail to route visitors around the
diversion site prior to the start of construc-
tion activities. (FEIS Section 2.4.1, page
2-37)

27. Mitigation of the effects of the project on

: threatened and endangered species of wild-
life will be completed by the Grantee, as
specified in Appendix I of the FEIS, prior to
the diversion of water.

85a

28. The Grantee will operate diversion struc-
ture gates and valves by remote control to
minimize the need for travel to the sites,
and will design the structures to be as van-
dal-proof as possible to minimize the need
for repair crews to be transported to the
site. (FEIS Section 2.4.1, page 2-35)

29. The Grantee will comply with the attached
Construction Stage Stipulations consisting
of clauses contained on the attached pages
numbered 14 through 22, which are hereby
made a part of this grant.

IN WITNESS WHEREOF, the Grantor, has executed this
easement pursuant to the delegation of authority to the
Chief, Forest Service, United States Department of Agri-
culture, 7 CFR 2.50, and the delegation of authority by the
Chief, Forest Service, United States Department of Agri-
culture, (47 FR 36465, August 20, 1982).

UNITED STATES OF AMERICA
By /s/ Craig W Rupp

Regional Forester, Forest
Service,

United States Department

of Agriculture

86a

CONSTRUCTION STAGE STIPULATIONS

As referred to in Condition 29 of the Tunnel and Diver-
sion Easement Deed between the United States, acting
through the Regional Forester, and the Grantee, the
Grantee will carry out the terms of the following Stipula-
tion during the Construction Stage. The Construction
Stage begins when construction activities are ready to
commence on land administered by the Forest Service
and compliance with Easement Conditions Numbers 20,
21, 22, and 23 has been demonstrated to the Forest Ser-
vice. Construction Stage ends when the Forest Service
and the Grantee mutually agree that any work done
thereafter will be considered as operation or mainte-
nance, EXCEPT, that the Forest Service reserves the right
to reinstate the terms of this Stipulation when the
Grantee subsequently submits plans for reconstruction or
alteration of the project works covered by the aforesaid
easement.

The following terms of this Stipulation apply to the
Grantee:

1. CONSTRUCTION PLANS:

Prior to the start of any construction or reconstruc-
tion on the area authorized by this grant, the
Grantee shall submit final construction plans and
specifications for approval by the Forest Service. A
copy of the approved plans will become a part of
this easement and will be retained in the office of the
Forest Supervisor at Glenwood Springs, Colorado.

2. OPERATING PLAN:

Prior to beginning construction on the project, the
Grantee shall prepare an Operating Plan for the pro-
ject for approval by the Forest Supervisor. Approval

87a

of the Operating Plan will be based upon require-
ments deemed necessary by the Forest Supervisor
for proper management of the project. The Operat-
ing Plan shall include but not be limited to the
following:

a.

A schedule for the development and construc-
tion of all facilities needed for the project. The
schedule shall include a list of planned improve-
ments and the scheduled date for completion.
The Grantee may accelerate the scheduled date
for construction of any improvement authorized,
provided the other scheduled priorities are met
and that all authorized priority installations are
competed to the satisfaction of the Forst [sic]
Supervisor prior to the scheduled due date. All
required plans and specifications for site
improvement and structures included in the con-
struction schedule shall be submitted to the For-
est Supervisor at least 45 days before the
construction date stipulated in the development
schedule.

A fire plan that details the fire prevention, pre-
suppression, and suppression measures that will
be taken by the Grantee, its employees, contrac-
tors, and subcontractors and their employees in
all operations during the construction stage. The
Grantee shall ensure its contractors comply with
all provisions of the fire plan and burning per-
mits required for disposal of flammable mate-
rials.

Plans for controlling soil erosion on the granted
area and adjacent lands during construction,
operation, and maintenance of the project. This
shall include identification of areas and depth
where topsoil will be stripped and stockpiled,

88a

methods to be used to obtain revegetation, and
areas to be rip-rapped.

d. Designation of the location and standards of all
gates, crossings, cattle guards, fences, roads,
campgrounds, habitat improvement work, and
other improvements to property owned by the
Grantor that will be constructed, relocated, or
performed by the Grantee to mitigate impacts on
wildlife, livestock, ranchers, recreationists, and
other users of the National Forest as required by
the Forest Service. The plan shall specify the
mutually agreed upon time frame for completing
the required work and maintaining the improve-
ments.

e. Precautions to be taken in using explosives.

f. Identification of specific areas to be cleared and
methods of disposal of the timber cut including
merchantable material and slash.

g- Identification of any construction camp locations
and operations within the easement area and
dates during which construction activities will
occur.

h. Post construction cleanup.
i. Annual schedule of construction activities.
3. QUALIFIED ENGINEER:

It shall be the responsibility of the Grantee to
employ a qualified engineer to stake out the project
prior to construction, and said engineer shall super-
vise construction operations and furnish the certi-
fication of compliance with the final drawings and
specifications. Written copies of each inspection
report, including soil compaction and concrete tests,
are to be furnished the District Ranger each week

89a

during construction. When the project is completed,
the Grantee shall have the qualified engineer make a
final inspection of the project in company with the
Regional Engineer’s representative and submit to
the District Ranger a certified statement that the
project was constructed in accordance with the
approved plans, designs, and specifications.

GRANTEE’S CONTRACTORS AND SUBCONTRAC-
TORS:

Grantee will include a copy of the easement condi-
tions and stipulations in any contract awarded for
construction of the authorized project; and the
Grantee’s contractors and subcontractors shall be
bound by the conditions and stipulations of the
grant.

ROW DESIGNATION:

The Grantee shall survey and clearly designate the
right-of-way limits prior to commencement of con-
struction or other surface or vegetation disturbing
activities. Said marking shall be done utilizing stak-
ing, flagging, or some other method that will result
in minimal environmental damage, and shall be
done at frequent enough intervals to readily identify
the exterior limits on the ground. All activities
directly or indirectly associated with construction or
maintenance of the easements granted herein must
be conducted within the limits of the grant.

GEOLOGIC INVESTIGATION:

The Grantee will conduct site-specific geologic
investigations prior to any construction activity. If
hazard areas are identified, modification of project
design or development of mitigations, as appropri-
ate, will be required. (FEIS Section 2.4.1, page 2-37)

90a

7. CULTURAL SURVEY:

Cultural and historical survey for areas not already
surveyed (see FEIS Section 3.1.14) will be completed
on areas where surface disturbance will take place in
accordance with 36 CFR 800 and Executive Order
11593. (FEIS Section 2.4.1, page 2-37)

8. EROSION CONTROL:

The Grantee will ensure slope stabilization and pre-
vent soil loss throughout the authorized area by
carrying out the following erosion control provi-
sions:

a. Topsoil shall be stripped from construction areas
and be deposited in storage piles in approved
locations apart from other excavated material.
After construction has been completed, and the
resulting disturbed azeas have been reshaped as
required, the stored topsoil shall be evenly
spread over exposed subsoil to the extent that
may be practicable, and shall be revegetated.

b. All earth cut or fill slopes favorable to revegeta-
tion, or other areas on which ground cover is
destroyed in the course of construction, will be
revegetated to grasses or other suitable vegeta-
tion as required by the Forest Service. Seeding or
planting will be done at a time of the year, in a
manner, and with species which the District
Ranger considers offer the best chance of success
and will be repeated until such areas are
accepted in writing by the District Ranger as
satisfactorily revegetated and stabilized. Only
native plant species will be used within the Holy
Cross Wilderness. (FEIS Section 2.4.1, page 2-36)

. : .

10.

11.

9la

RESTORATION:

At the conclusion of construction operations, tempo-
rary access roads, mobilization and operation areas,
parking areas, pipeline easements, diversion sites,
dam sites, spoil areas, and other areas scarred by
construction will be restored and revegetated in a
manner satisfactory to the Forest Service. Construc-
tion sites will be restored as nearly as possible to
their original condition. Construction scars will be
covered with the best available topsoil within the
immediate area or with subsoil material from exca-
vated areas, fertilized, and seeded with native
grasses and mulched. Seedling trees will be planted
in areas that were originally forested. To inhibit ero-
sion and to add organic matter to the soil, chipped
tree slash and underbrush will be stockpiled and
spread over the restored areas. (FEIS 2.4.1, pages
2-35 and 2-36)

ACCESS ROADS/CONSTRUCTION:

Access roads along the pipelines and to tunnel por-
tals will be constructed to planned grades and will
be graded and drained to inhibit erosion. No roads
will be constructed in the Holy Cross Wilderness.
(FEIS Section 2.4.1, page 2-36)

TUNNEL MUCK:

Excess tunnel muck not needed for mitigation of
Phase I of the Homestake Project will be deposited
in approved disposal areas outside the Wilderness,
compacted and shaped to designed natural contours,
and then covered with a minimum of six inches of
topsoil material from excavated areas. The surfaced
area will then be fertilized and revegetated as
described in 8.b., above. (FEIS Section 2.4.1, page
2-36)

ye

ik

14.

15.

92a

VISUAL MANAGEMENT:

In right-of-way surveys and construction (Stipula-
tion 5), the Grantee will selectively remove trees
designated by the Forest Service to avoid having a
straight line appearance. (FEIS Section 2.4.1, page
2-37)

ESTHETICS:

The Grantee will cover all diversion structures
except for access hatches, the spillway, and the main
water entrance with earth or native material. Native
materials will be used for riprap embankments. All
new pipelines will be buried, unless Forest Service
approves otherwise, for safety or environmental rea-
sons. (FEIS Section 2.4.1, page 2-35)

All exposed structures will be a non-specular color
or composed of a material that will blend in with the
surrounding natural setting. All exposed concrete
will require a color additive. (FEIS Section 2.4.1,
page 2-36)

WILDLIFE HABITAT:

The Grantee will replace wildlife habitat capacity
lost because of inundation or disturbance. Wildlife
habitat mitigation will be accomplished by the pro-
ponent in the general vicinity of the project, but
outside the Wilderness boundary. Required improve-
ments will be coordinated by the Forest Service with
the Colorado Division of Wildlife and projected lost
habitat capacity will be replaced in locations speci-
fied prior to start of project development. (FEIS Sec-
tion 2.4.1, page 2-35)

POWER LINE:

The power line adjacent to the Homestake Road will
be buried. (FEIS Section 2.4.1, page 2-37)

16.

17.

18.

93a

SOLID WASTE:

Solid wastes will be collected periodically and
stored for recycling or buried in landfill sites located
outside of the Wilderness, as approved in the Con-
struction Stage Operating Plan (Stipulation 2). After
construction is complete, landfill sites will be
restored as described in Stipulation 9, Restoration,
above. (FEIS Section 2.4.1, page 2-36)

WATER POLLUTION:

No waste or by-products shall be discharged to a
stream if it contains any substances in concentra-
tions which will result in substantial harm to fish
and wildlife, or to human water supplies, or will
result in the violation of application water quality
standards established by the State.

Storage facilities for material capable of causing
water pollution, if accidentally discharged, shall be
located outside the Wilderness and in such a place
so as to prevent any spillage into water, or channels
leading into water, that would result in substantial
harm to fish and wildlife or to human water sup-
plies. (FEIS Section 2.4.1, pages 2-36 and 2-37)

STREAM PROTECTION:

Construction activities in stream channels will not
be allowed between April 15 and July 15. (FEIS
Section 2.4.1, page 2-37)

Pollution of streams with turbid runoff from con-
struction areas will be prevented. Construction of
temporary sedimentation basins to intercept runoff
from construction areas, tunnel drainage, and other
turbid water will be required. Plans for runoff con-
trol and construction of temporary sediment basins
must be submitted to the Forest Service for review
and approval prior to their construction. Chemical

94a

treatment facilities and/or sediment basins may be
required to maintain water quality. (FEIS Section
2.4.1, page 2-36)

19. FOREST SERVICE INSPECTION:

The Grantee shall allow the Forest Service inspection
of the project at any time during construction. To
facilitate such inspections the Grantee shall:

a. Make available any construction records,
reports, tests, schedules, or other material
requested by the Grantor’s authorized represen-
tative.

b. Allow access to and give such assistance as may
be requested by the Forest Service to ascertain
that construction is as prescribed in the
approved plans and specifications.

c. Make additional tests as the Forest Service may
request.

d. In advance of construction, advise the Forest
Supervisor or his designated representative of
the scheduled performance of significant con-
struction items and of any changes in the con-
struction.

20. GRANTEE REPRESENTATIVE:

Grantee shall designate a representative at the site
who may be served written orders or notices during
construction respecting matters contained in this
grant, and who would have authority to take the
required action. The Grantee shall inform the Forest
Supervisor, Glenwood Springs, Colorado, in writing
of the name and address of such agent. If a substi-
tute agent is appointed, Grantee shall immediately
so inform the Forest Supervisor.

95a

WILDERNESS ACCESS:

Helicopter access to diversion sites within the Holy
Cross Wilderness will be prohibited except for emer-
gency purposes or where approved by the Regional
Forester. (FEIS Section 2.4.1, page 2-37)

PERFORMANCE BOND:

As a further guarantee of the faithful performance of
the provisions of this Stipulation, the Grantee agrees
to deliver and maintain a surety bond in the amount
of $250,000 prior to starting construction. Prior to
undertaking additional construction or alternative
work not provided for in the above clauses, or when
the improvements are to be removed and area
restored, the Grantee shall deliver and maintain a
surety bond in the amount set by the Forest Service,
which amount shall not be in excess of the estimated
loss which the Grantor would suffer upon default in
performance of this work. Should the sureties or the
bonds delivered under this Stipulation become
unsatisfactory to the Forest Service, the Grantee
shall, within thirty (30) days of demand, furnish a
new bond with surety, solvent and satisfactory to the
Forest Service. In lieu of surety bond, the Grantee
may deposit into a Federal Depository, as directed
by the Forest Service, and maintain therein, cash in
the amounts provided for above, or negotiable secu-
rities of the Grantee having a market value at time of
deposit of not less than the dollar amount provided
above.

The Grantee’s surety bond will be released, or
deposits in lieu of bond will be returned, thirty (30)
days after certification by the Forest Service, and
upon furnishing by the Grantee of proof satisfactory
to the Forest Service that all claims for labor and
material on said installations have been paid or

96a

released and satisfied. The Grantee agrees that all
moneys deposited under this Stipulation may, upon
failure on his part to fulfill all and singular the
requirements herein set forth or made a part hereof,
be retained by the Grantor to be applied as far as
may be to the satisfaction of this obligations
assumed hereunder, without prejudice whatever to
any other rights and remedies of the Grantor.

23. TRAVEL MANAGEMENT AND DUST CONTROL:

The Grantee will develop and implement, after
approval by the Forest Supervisor, a Travel Manage-
ment Plan that identifies public access roads and
provides for public safety, necessary road improve-
ment and maintenance, mitigation of increased traf-
fic effects to wildlife and recreational users, and the
protection of structural improvements. (FEIS Section
2.4.1, page 2-38, Section 4.1.13, pages 4-46 and 4-47)

The Grantee will post and maintain warning and
traffic regulation signs on Homestake and other ser-
vice roads in accordance with Eagle County traffic
and safety regulations. (FEIS Section 2.4.1, page
2-37)

As part of the Travel Management Plan, the Grantee
will develop and implement a Fugitive Dust Control
Plan to ensure that project-related vehicular traffic
does not cause particulate concentrations to exceed
acceptable levels. (FEIS Section 2.4.1, page 2-37)

The Grantee shall spray the roads and staging area
with water, Pentaparime, or any approved dust pal-
liative, as directed by the Grantor or its authorized
representative, and in conformity with applicable
State regulations, to control dust from wind, vehi-
cles, and equipment.

OL eee

24.

yn}

26.

27.

97a

FACILITY OPERATION:

The Grantee shall be guided by the following provi-
sion for transporting water on National Forest lands
during the construction stage: Since construction
work for the water transmission will take place over
a two to ten year period, transportation of water
may continue through the existing facilities and
through completed portions of the new water trans-
mission structure, provided the new sections are
constructed in accordance with the approved plans
and specifications and are accepted by the Forest
Supervisor.

EMPLOYEE TRANSPORTATION:

The Grantee will convey construction workers to
construction sites, by vans, busses, or car pools.
(FEIS Section 2.4.1, page 2-37)

Where tunnels are involved, the Grantee will disas-
semble and move construction equipment and crews
to the diversion construction site through the under-
ground tunnels and riser shafts to minimize surface
disturbance. (FEIS Section 2.4.1, page 2-35)

EMPLOYEE SAFETY:

The Grantee shall carry on all operations in a work-
manlike manner, having due regard for the safety of
employees; and shall safeguard with fences, barriers,
fills, covers, or other effective devices, pits, cuts, and
other excavations which otherwise would unduly
imperil life, safety, or property of other persons.

EXPLOSIVES:

The Grantee shall transport, store, handle, and use
explosives and flammable materials in accordance
with the Occupational Safety and Health Adminis-
tration standards including Department of Transpor-
tation; Bureau of Alcohol, Tobacco and Firearms;

28.

29.

30.

98a

and Mine Safety and Health Administration regula-
tions; and other applicable State of Colorado
requirements. Where necessary, blasting operations
will be subject to the use of “blankets” to protect the
environmental and/or public safety.

ARCHAEOLOGICAL DISCOVERY:

If, during excavation work, items of archaeological
or paleontological value are discovered, or a known
deposit of such items is disturbed, the Grantee will
cease excavation in the area so affected. He will then
notify the Forest Service and will not resume excava-
tion until written approval is given.

CORNER PROTECTION:

The Grantee shall protect all survey monuments,
benchmarks, witness corners, reference and other
monuments, and bearing trees against destruction,
obliteration, and damage. If any monument or cor-
ner is in an area subject to disturbance or destruc-
tion, the monument will be referenced by a
registered land surveyor in such a manner that it can
be replaced within 0.1 foot of its original position
and properly recorded in compliance with Colorado
Revised Statutes 38-53-101 through 38-53-112 (1973).

VIOLATIONS OF OPERATING PLAN OR CON-
STRUCTION STAGE STIPULATIONS:

If conditions of the Operating Plan or the Construc-
tion Stage Stipulations are violated, the Forest
Supervisor or his designated representative may
order immediate temporary suspension of any pro-
ject activity. Corrective action, as required by the
Forest Supervisor, may be ordered as deemed neces-
sary.

99a

EXHIBIT 5
Granting
Document Mitigation Measures!

Easement Conditions (EC):

EC 14(d)* The Grantee shall protect the scenic aesthetic
values and the fish and wildlife habitat
values of the area under this easement, and
the adjacent land, as far as possible, during
construction, operation, and maintenance of
the improvements.

[1,2,5,6,7,9,10]2

EC 19 The Grantee shall replace in kind or assume
responsibility for expense of moving and
relocation any fences, buildings, or other
structures as might be made necessary by this
grant and shall build and maintain necessary
and suitable crossings for all roads and trails
that intersect the works constructed, main-
tained, or operated under this grant. (FEIS
Section 2.4.1, page 2-37)

[1,2,5,6,7,9,10]

“Mitigation measure which was proposed or designed by the
Cities as part of their Environment Protection Plan (FEIS, Sec-
tion 2.4.1, pages 2-35 - 2-38).

' Ref. FEIS, Section 2.4.1 pages 2-35 through 2-38.

* The numbers following the Mitigation Measures refer to
specific provisions of Section 505 of the Federal Land Policy and
Management Act (FLPMA), attached, upon which the Mitiga-
tion Condition or Stipulation is based.

EC 23

EC 24

EC 2

100a

In order to minimize damage to fish and
wildlife, and otherwise protect the environ-
ment, the following environmental mainte-
nance instream flow bypasses will be
required at all times:

West Cross Creek - 5 cfs
Main Cross Creek - 4 cfs
East Cross Creek - 3cfs
Fall Creek - 3 cfs

In order to accomplish the environmental
maintenance instream flows, the Grantee will
design diversion structures to allow a perma-
nent and unadjustable flow to bypass the
structures to ensure that required environ-
mental maintenance flows are always pro-
vided. This diversion structure design will
also ensure that required environmental
maintenance flows are provided prior to
allowing water to enter the diversion
pipeline. (FEIS Section 2.4.1, page 2-35 and
Appendix E)

[1,2,6,9,10]

The Grantee will remove, as necessary, sedi-
ments trapped behind diversion dams
through diversion tunnels to approved
upland disposal sites outside the Wilderness.
(FEIS Section 2.4.1, page 2-37)

[1,2,5,6,9,10]

Prior to the start of construction, the Grantee
will develop and implement a Water Quality
Maintenance and Monitoring Plan to ensure
that project activities or facilities do not cause
water quality to violate stream water quality

EC 26

EC 28*

101la

standards established by the State of Colo-
rade. This Plan will be approved by the For-
est Supervisor prior to its implementation.
The Plan will be updated and revised as nec-
essary every five years. (FEIS Section 2.4.1,
page 2-37)

[1,2,3,5,6,7,9,10]

The Grantee will relocate the East Cross
Creek trail to route visitors around the diver-
sion site prior to the start of construction
activities. (FEIS Section 2.4.1, page 2-37)

[1,2,5,6,9,10]

The Grantee will operate diversion structure
gates and valves by remote control to mini-
mize the need for travel to the sites, and will
design the structures to be as vandal-proof as
possible to minimize the need for repair
crews to be transported to the site. (FEIS Sec-
tion 2.4.1, page 2-35)

[1,2,5,9,10]

Easement Stipulations (ES):

ES 6

ES 7

The Grantee will conduct site-specific geo-
logic investigations prior to any construction
activity. If hazard areas are identified, mod-
ification of project design or development of
mitigations, as appropriate, will be required.
(FEIS Section 2.4.1, page 2-37)

[1,2,5,6,7,9,10]

Cultural and historical survey for areas not
already surveyed (see FEIS Section 3.1.14)
will be completed on areas where surface dis-
turbance will take place in accordance with 36

102a

CFR 800 and Executive Order 11593. (FEIS
Section 2.4.1, page 2-37)

[1,2,5,6,9,10]

ES 9* At the conclusion of construction operations,
temporary access roads, mobilization and
operation areas, parking areas, pipeline ease-
ments, diversion sites, dam sites, spoil areas,
and other areas scarred by construction will
be restored and revegetated in a manner sat-
isfactory to the Fore

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2211%3A1. Public record. Not legal advice.