Court of Appeals denies the Thornton Water Project

City considers next steps

Luke Zarzecki
lzarzecki@coloradocommunitymedia.com
Posted 9/9/22

The Colorado Court of Appeals sent the city of Thornton back to the drawing board as they upheld the decision by the Board of Larimer County Commissioners to reject the city’s application for …

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Court of Appeals denies the Thornton Water Project

City considers next steps

Posted

The Colorado Court of Appeals sent the city of Thornton back to the drawing board as they upheld the decision by the Board of Larimer County Commissioners to reject the city’s application for the Thornton Water Project. 

City Spokesperson Todd Barnes said the city will decide between three ways to move forward: asking for a rehearing at the Court of Appeals, appealing to the Colorado Supreme Court or applying for a new permit. 

The project will now cost the city an additional $126 million because of the delays and increase in labor and steel costs. 

“While we are disappointed with the court’s ultimate decision, we appreciated that the court acknowledged Thornton’s lengthy and active efforts to work with Larimer County and its citizens as we went through the permit process,” said Barnes. 

The entire Thornton Water Project is 74 miles long and potentially will deliver water from a reservoir near Fort Collins, nearly doubling the city's current water supply. Twelve miles of the pipeline will run through Larimer County, 34 miles through Weld County, and five miles through Adams County. The rest of the pipeline will go in municipalities throughout those three counties. 

Weld County landowners were influential opponents of Thornton when the city went through the permit application process. In 2019, the Weld County Planning Commission recommended approval of the project, but protests from landowners caused the planning commission to reverse its recommendation in 2020. Residents' complaints were also cited by commissioners as a reason for denying the permit at a hearing on May 5, 2021.

Thornton’s city council decided in June 2021 to override Weld County’s denial of the permit, and authorized the pipeline’s construction. 

“Thornton has followed all the processes, regulations required in every jurisdiction that our project impacts,” said Thornton Mayor Jan Kulmann at a June 29, 2021 meeting. “But at the end of the day, we have to use every option that we can to make sure that the pipeline is constructed, and the water arrives here in Thornton.”

The last hurdle is Larimer County.

Thornton bought water rights in the Cache La Poudre River in the mid-1980s, to the tune of 289 shares. Then Thornton spent years in litigation to obtain a water decree. 

The judges explained in their opinion that the water decree mandated Thornton to divert its water at two points (both north of Fort Collins,) transport that water through the Larimer County Canal and withdraw the water at WSSC Reservoir. 

To get the water, Thornton then needed to apply for a 1041 permit to build the project. 1041 permits must be approved by Larimer’s Board. 

The Larimer County Planning Commission voted to deny the permit on May 16, 2018. In response, Thornton worked to address the concerns raised by the Commission.

Thornton then submitted a revised application, which included changing the preferred route: a corridor approach that was recommended by the Commission.

With the new edits, the Commission recommended to the Board of Commissioners to approve the project. 

However, the Board voted unanimously to deny the application on Feb. 11, 2019, saying the project did not meet seven of the 12 criteria. 

Thornton took the decision to the District Court, claiming the board abused its discretion in denying Thornton’s application. While the Board said that seven of the criteria weren’t met, the District Court ruled that there were only three instances with competent evidence to support the Board’s conclusion.

Thornton appealed the decision at the Court of Appeals, who dealt a blow to Thornton, but recognized the Board’s abuse of power.

“Although we agree with Thornton that the Board exceeded its regulatory powers in several respects, we ultimately affirm its decision to deny the permit application,” they wrote in the opinion.

However, the decision goes both ways. Gary Wockner of Save the Poudre mentioned repeatedly that the water should flow down the Poudre River through Fort Collins.

“We’ve told Thornton for over 10 years that the water should flow down the Poudre River through Fort Collins,” Wockner said in a statement. “This is potentially a win-win project, but Thornton refuses to use the River as a conveyance and continues to waste everyone’s time and money in court.”

The Larimer Board of County Commissioners also recommended Thornton use the river, but Thornton said that running that water through the City of Fort Collins would degrade the water.

The Court of Appeals said the method would also require modification of the water decree and ruled in favor of Thornton. As well, that court noted that making that request is outside of the Board’s power.

Additionally, the Court of Appeals ruled the Board abused its discretion by suggesting Thornton’s potential use of eminent domain weakened its application because it was “disfavored by property owners.” The Court said that can’t be considered in the 1041 process.

“It is clear that the Board may not consider Thornton’s potential use of eminent domain during its 1041 review,” the judges wrote. 

If Thornton decides to apply for another permit, Larimer is ready for their application.

"Larimer County has received the order and will review it closely. Because this involves a pending project by Thornton, the Board understands that it will likely be called on again to make a decision on a permit for the project, and it is committed to an open and fair process,” the Larimer County Board of Commissioners wrote in a statement. 

Michelle Bird, a spokesperson for Larimer County, said they can’t comment on the case further.

“Given that there is likely to be a hearing in the future, we are limited in our comments regarding the application outside of the general land use process itself. The Board of County Commissioners is like the judge in these types of land use application processes, so it would be inappropriate for them to speak on behalf of either side of the application,” she wrote in an email.

With the delay of the project, Barnes said the city might need to delay permitting developments. 

“There’s a high likelihood that without our water from Larimer County, Thornton will have to slow down development activity because we can’t ensure projects will be entitled with water. We’ve been communicating with the Home Builders Association monthly about the status of our project. Larimer’s denial of our pipeline is definitely affecting the business community’s property rights and ability to operate plans that have been years in the making," he said in a statement. 

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