By cvlopez | firstname.lastname@example.org
A confidential legal memorandum on Douglas County’s interest in the Renewable Water Resources proposal to export water from the San Luis Valley’s confined aquifer was the subject of discussion at Tuesday’s commissioners work session, and listed in it are pitfalls laid out by the special counsel advising the three county commissioners.
Commissioner George Teal said he remained in favor of negotiating an agreement with RWR but was held back by Commissioner Abe Laydon who said he still planned to visit the area to “hear from those in the Valley who may not have been comfortable going to a large format.”
Short of Laydon’s visit, Teal was ready for the next step which would be to complete an agreement with Renewable Water Resources that would include Douglas County paying RWR $10 million to be a party to state water court proceedings asking for a change of use from agricultural to residential. If approved by the water court, Douglas County would then be asked to meet RWR’s asking price of $19,500 per-acre foot for 22,000 acre-feet, or $429 million.
If the state water court denied the change in use, Douglas County would own Rancho Rosado northwest of Crestone, a ranch that RWR says is worth $15 million, according to the current proposal before the commissioners.
Douglas County hired Steve Leonhardt from the law firm Burns Figa & Will to analyze the proposal. Leonhardt held a two-hour executive session meeting with the commissioners on March 21, where he and hydrologist Tom Hatton presented their analysis of the RWR proposal.
Leonhardt presented a “privileged legal analysis of the proposal” that the commissioners discussed Tuesday on whether to release to the public.
“Steve (Leonhardt) made it clear there are pitfalls in this agreement that must be addressed that just aren’t in the proposal right now,” Teal said. “That content is not there. It’s this next phase, should we decide to take it, that quite frankly I see being when the hard work starts.”
The commissioners continue to discuss the RWR proposal despite widespread opposition from public officials and agriculture and environmental groups. The commissioners on Tuesday received a letter from more than a dozen groups within the Rio Grande Basin asking Douglas County to reject the RWR plan. The letter sent by WildEarth Guardians outlines the “cascading effects” of the project on downstream communities in the Rio Grande Basin.
Douglas County has other water proposals that it could pursue instead of RWR if it decides to get into the water business. One pathway for Douglas County to become a water provider would be through an enterprise fund that would allow the county to issue revenue bonds and retire the debt of those bonds through fees collected from the sale of water. Douglas County established a voter-approved enterprise fund in 1997 that it has never funded.
Commissioner Lora Thomas asked when the commissioners would be comfortable releasing the legal memorandum from Leonhardt. County Attorney Lance Ingalls said under Colorado Open Records law, the document “never becomes a public record unless and until the board decided to make it so.” The memorandum, he said, was a “privileged legal analysis of the proposal” to help the commissioners understand the legal issues of the RWR proposal.
Teal and Laydon said there would have to be more negotiation and agreement with RWR before they would want to release the document for public consumption. “We may come to a period of time in that negotiation where the contents of the legal memorandum should be released perhaps as a bargaining chip, if you will,” Teal said.
Teal said for the memo to be used as a bargaining chip would probably also mean the negotiations with RWR were failing. But, he said, “the contents of that memo, that’s a bargaining chip in our favor.”
Before any tax dollars are given to Renewable Water Resources, Douglas County would need an understanding of the relationship between Douglas County and RWR before going into water court, Teal said.
“We will need to hammer out a deal that is to the benefit of the people of Douglas County at a minimum … We want a win-win to be achieved out of the Valley, but we need to have that benefit to the people of Douglas County at an absolute minimum.”
“That memo,” said Laydon, “has a series of pretty critical inquiries and questions that are complicated, cross cutting. I imagine that I will come back from the Valley with additional questions.”
Once Laydon makes the visit, the commissioners will decide whether to move ahead with RWR. Teal is a yes if terms are finalized, Thomas is a firm no, and Laydon will decide later.
“So, more to come,” Commissioner Laydon said.
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