Monday, September 11, 2017

Chris Richardson and the Denver Basin

So a friend of mine, who just happens to be a Republican, sent me the following Chris Richardson diatribe from the Elbert County Republicans Page: 

"In terms of water, this is very well thought out project. The developer has a strong conservation component to the community. A CAT III (treated to almost drinkable levels) water plant will capture and treat all the water used in the homes of the community and reuse it for irrigation of open spaces and individual lawns - through this method, the amount of water allocated to the project by the state (only water that exists under the boundaries of the property itself) will provide for over 500 years of supply. This is far in excess of the 300 years we require in Elbert County (we and El Paso County require 300 years - all other counties only require 100 years supply).
Additionally, during the hearings we made the developer change his plan to ensure that there could be no shipment of water outside of the county from this property. Additionally, any shipment of water to support any individual or entity outside of the property (but within the county) would have to be requested by those that would receive the water and could only be approved after a publicly noticed hearing so no changes could be made secretly in the future. Again - any changes considered would have to meet our 300 water requirement." 
Ever the comedian, Chris started his post with a deep pun: "...this is a very WELL thought out project."  Now, that right there is some funny stuff on several different levels, five different levels, as a matter of for each aquifer in the Denver Basin.  Was this project carefully thought through as much as Chris describes?  Yes, it was! I have no doubt that the lawyers, water district officials, and investors would not have settled for less.  They have poured a ton of money into this project. I am sure the orders came down from the very top of the water chamber of command,  "Think of a way we can get that water out from under Elbert County!" someone hollered.  And with that...the stage was set.  

In capital letters Chris Richardson defines the water treatment as a "CAT III!"  Damned if that does not sound as serious as a heart attack or at least a hurricane bearing down on Florida.  At one point Hurricane Irma  was designated a CAT III! You have captured our attention now, Commissioner Richardson.  Richardson then quickly lets you know just how serious this whole thing is by saying the water will be treated to near drinkable levels!  Wow. Here's a fact for Commissioner Richardson: Urine is near drinkable! Was this treatment process thing designed by NASA?  I find myself now thinking (tongue firmly in cheek) that I would be damned lucky to have near-drinking  water running out of a tap at my house.  Oh, and by the way, I hope I am spelling this correctly. Should this new term be hyphenated?  Merriam-Webster failed to cue me in on the proper spelling of "near-drinking." Maybe the taps will be color coded.  Clear PVC is potable water while yellow PVC is near-drinkable.  I am feeling a little sorry for my colorblind friends right now.

The good commissioner then goes on to show how the 300 year water rule protects us from running out of water in Elbert County.  What could possibly go wrong there? I mean, Douglas County didn't want to wait 300 to 500 years to run out of water.  They did it in a matter of a mere couple of decades. As a result, we now  have people  just like former commissioner Kurt Schlegel running around trying to purchase water for places like Falcon, Castle Rock and Franktown. What?  You thought Kurt was at the BOCC meeting because he wants to grow Elbert County?  It was more likely he was there as the head of the Cherokee Water District, which is trying to purchase water for El Paso County residents.  

With a population of less than 30,000 people in Elbert County, near-drinkable water standards, and a 300 year water rule, we must be in great shape.  And with an expected price for an acre foot of water from the Denver Basin to top $30K, nobody can make any money on a resource that experts are calling the new gold.  Does that make sense to you?  Oh well, you can can trust Kurt and Chris.  They were elected after all.
As for building in protections from transferring  water to another water district by saying they would have to have a hearing,  they just voted unanimously to okay a project on a flawed PUD.  That is not me saying that;  that is a law firm ready to go to court against Elbert County saying that. The BOCC would okay making declaring water skiing the official sport of the county if Independence developer Tim Craft's attorneys were requesting it. 

I would also like to remind Mr. Richardson that you can say anything you want to your lawyer.  Craft can sell his water no matter what you do to coerce him with your highfalutin lawyer.  Mr. Craft was agitated that Mr. Richardson made approval of the proposed development, contingent upon not transferring water to another water district without first gaining permission from the BOCC.  That said, the water rights are his, adjudicated, a personal asset and if he wants to sell them?  Well, let's just say that you, Mr. Richardson, do not have any say-so in that regard.  All you did was make his payout a one time event instead of a regular paycheck.  Look it up.
Now, in a more serious tone:  Unlike Mr. Richardson, I do not profess to be a water expert but I have been working on water issues since the mid-1990's.  I sat on a couple of very important Restoration Advisory Boards (RAB's).  There were some very serious issues of contamination to the Denver Bedrock Aquifers from the Rocky Mountain Arsenal, the Denver Waste Management Super Fund site on Gun Club Road, and the Former Bombing and Gunnery Range for Lowry Air Force Base.  In order to be on any RAB and make a difference, you have to keep up with a host of experts provided to you nonstop from the Army Corps of Engineers.  You have to do your homework.  You have to learn about how aquifers work, what their designations mean and who stands to make or lose money when it comes to selling, buying, polluting or making false claims about water in an aquifer system.  That is how my wife and I came to be somewhat knowledgeable about water.  Not experts, but I am confident in my claims.

I am not exactly sure what would prompt Mr. Richardson to boast that there impenetrable layers of rock exist between the five layers of the Denver Basin, but I have a lot of research that would indicate that while that might be true in areas of the Basin, it certainly is not true for the entire basin.   
He goes on to say, 
"The wells that will support this community will pull water primarily from the deep Denver and Arapahoe aquifers, not from the more shallow Upper and Lower Dawson Aquifers that people with individual wells use. There is no communication between the 5 aquifers (Upper and Lower Dawsons, Denver, Arapahoe, and Laramie-Fox Hills) that fall under the property. So usage of water from one aquifer doesn't effect water levels in another. (NOTE: Some usage of Dawson wells already permitted on the property is envisioned until the reuse/irrigation system is online - this usage is approved by the state and the allocation is minimal). Bottom line - the water used by this community will not affect local existing wells. I know that people are concerned but, the facts should minimize those concerns."
Mr. Richardson likes terms like "communication" when speaking about aquifers.  Of course it is a nonsensical use of terminology because water is not sentient and only seeks to find its level.  The Denver Basin and its five aquifers were formed by the breaking down of our Rocky Mountains, which actually used to be very much larger than they are today.  As a result, there are a lot of different kinds of layers of rock.  There is a great deal of conglomerate rock that is very porous.  There are some vast and very dense areas of expansive clays.  There is a great deal of sand, which is why our aquifers have given many the impression that there is lots and lots of water below our feet.  Not so fast, cowboy.

But if you sit down with the geologists who specialize in aquifers and the formations in which they reside, you soon learn that there are plenty of mathematical calculations that present educated guesses at the amounts of water in the Denver Basin.  None of them are necessarily accurate.  Those geologists just do not know how much water is in the Basin.  They cannot know because the formation is comprised of so many different kinds of features that they have no way of knowing, when they do a core sample, just what it will reveal.  

Talk to any well digger along the Front Range.  Talk to anyone that has to do percolation tests to see if your ground is suitable for a septic field.  Those people will tell you about clays, sandstone, sand lenses, and thick slabs of conglomerate rock.  Look up at the escarpments next to Kiowa and Cherry Creek.  Does that rock appear to be solid granite?  Even the most impenetrable layers of bentonite clay hide lenses of sand.  

I am reminded of a geologist from the Army Corps of Engineers who wanted to dig a seventy-five foot deep trench around the Denver Waste Management Super Fund Site in Aurora off of Gun Club Road and Quincy over twenty years ago.  He insisted that, if you fill the trench with expansive clay, it would make an impenetrable wall around the cesspool of Benzene and other deadly toxins in the groundwater because the landfill sat squarely on a layer of what was said to be solid rock.  Of course, we looked at it but did not allow them to build the trench barrier without test wells outside the proposed wall's perimeter.  Within a few months of completion of the clay wall,  toxins were found in the test wells.  After doing more bores, it was determined that there were significant sand lenses in the rock.  One scientist said that those lenses might be as wide as seventy-five feet.
When Chris Richardson tells you he knows what the Denver Basin looks like and whether it will or will not allow for water to migrate from one aquifer to another, he is just spouting half-truths.  If I had a dollar for every time Grant Thayer has announced publicly that he had a prosperous career as an engineer and knows a thing or two about oil, gas and water,  I wouldn't need to stop by the ATM for a month of Sundays.  What I never hear either one of them ask the people (who they are about to school in Aquifers 101) is if  they just might have a background that might shed a bit more light on the subject.  Never was that so apparent as it was during the testimony on the Independence development.   

The commissioners in this county, for as far back as I can remember, act as if they are anointed to the high station of Elbert County Commissioner by their Maker and that they are the font of all wisdom.  They are not, and neither am I, but at least I am willing to do my homework and learn.  

I have been active in the fight for people to take charge of their property rights for many years.  There is some irony in the fact that a Democrat has to remind a Republican BOCC that water districts are a bane to the water rights of the average homeowner in this county.  It goes without saying, these three commissioners have been on board with the Independence development since they began their campaigns over a year ago.  There were and still are conflicts of interest and most definitely intellectual dishonesty.  

The citizens  were ignored and the Central Committee of the Elbert County Republicans are responsible for the future outcome of this project, not the rank and file Republicans who only wanted their elected officials to demand a reset on this project.

Friday, September 1, 2017

A Pertinent Complaint on the Independence Matter

The following is a letter shared with me by Jackie Tugwell.  She gave me permission to post.  This is very important complaint to be aware of as we head into the September 5th. meeting of the BOCC at the Elbert County Fairgrounds.

Letter from Folkestad, Fazekas, Barrick, & Patoile, P.C. regarding Independence Specials Districts non-compliance with Elbert County Zoning Regulations. A HUGE thank you to Tony Corrado for your knowledge and helping to bring attention to this issue.
Sent via email to:
Elbert County Assistant County Attorney:
Bart Greet
P.O. Box 924 Kiowa, CO 80117
Board of County Commissioners:
Chris Richardson, District 1
Danny Willcox, District 2
Grant Thayer, District 3
August 31, 2017
Re: Independence Special Districts/Incomplete Applications
This firm represents Jackie Tugwell and Shelly Rodie, as property owners within ¼ mile of the proposed Independence Subdivision and related proposed Special Districts. This letter shall serve as notice to the Board of County Commissioners that the Applicant’s Special District pre- and final applications are incomplete and must be rejected for failure to comply with applicable County regulations.
The Special Districts that are the subject of this letter are:
1. Case # SR-17-0020 The Independence Water & Sanitation District;
2. Case # SR-17-0021 The Independence Overlay Metropolitan District;
3. Case # SR-17-0022 The Independence Metropolitan District No. 1;
4. Case # SR-17-0023 The Independence Metropolitan District No. 2;
5. Case # SR-17-0024 The Independence Metropolitan District No. 3;
6. Case # SR-17-0025 The Independence Metropolitan District No. 4.
Pursuant to Resolution 13-13, as recorded in the real property records of Elbert County SR-17-0021 (the “Resolution”), the County has adopted local regulations governing the approval of Special Districts. These regulations were incorporated into Part II, Section 26 of the Elbert County Zoning Regulations, effective April 24, 2013.
As detailed below, the Developer’s pre-applications and final applications are incomplete in various areas. Pursuant to Section C(3) of the Resolution: “If/when either a pre- or final application is found to be incomplete, Community & Development Services shall inform the Applicant, return the Application, and restart the timeline clock only after a completed application has been received.”
Pursuant to Section C. (2)(b)(i) of the Resolution, both the Pre-application and Final Application are required to include certain information specified in Appendices A and B of the Resolution. In this regard, the Developer’s Pre-applications (and final applications) were incomplete in the following regards:
• Appendix A failed to include a list of all parties, individuals and entities providing funding and/or receiving revenue [Resolution, Appendix A, Section A(2)]
• Appendix A failed to include a list of all parties, individuals and entities that are part of the Special District delineating their roles and responsibilities. [Resolution, Appendix A, Section A(3)].
• Appendix A failed to include a report delineating the success of failure of related endeavors in which the same parties, individuals and entities have been associated, including bankruptcies or turn over of Special Districts to other entities for operation. [Resolution, Appendix A, Section A(4)].
• Appendix A of the Independence Water & Sanitation District failed to include an analysis regarding the cost and source of replacement water should the primary water source prove inadequate. [Resolution, Appendix A, Section E(2)].
• Appendix B (and referenced exhibits) apparently fails to provide for 50% funding in excess of the projected 10 year costs to provide for cost overruns. [Resolution, Appendix B, Section B(4)].
The apparent shortfall is exacerbated in light of the Developer’s use of an overstated and illegal residential assessment ratio. See Anderson Analytics Review of Financing Plans prepared for Elbert County Community & Development Services, June 19,2017 (“Anderson Review”) at 7, attached to Addendum to June 16, 2017 Staff Report Document. The Anderson Review further stated that “the residential assessment ratio correction should be made to the Finance Plans (which lowers the amount of debt that can be supported)”. Anderson Review at 8. The County apparently failed to direct the Developer to correct and resubmit the Financial Plan and Service Plans to correct the identified error. As a result, numerous financial conclusions and predictions within the various pre- and final applications are erroneous.
The Resolution clearly mandates that in the event a pre or final application is deemed to be incomplete, the County must return the application and shall restart the “timeline clock” once a completed application is received. Accordingly, based upon the omissions identified above, the Pre-Applications were incomplete and the BOCC is required to direct Community & Development Services to return the applications to the Developer and vacate the September 5, 2017 agenda items regarding Case Nos. SR- 17-0020, SR-17-0021, SR-17-0022, SR-17-0023, SR-17-0024, and SR-17-0025 (The Independence Water &
Sanitation District, The Independence Overlay Metropolitan District, and The Independence Metropolitan District Nos. 1-4, respectively).
The Board of County Commissioners is required to adhere to the unambiguous language of the Resolution, and a failure to do so would constitute an abuse of discretion by the Elbert County Board of County Commissioners. See Friends of the Black Forest Preservation Plan Inc. v. Bd. of Cty. Comm’rs of El Paso County and Black Forest Mission, LLC, 381 P.3d 396, 400 (Colo. App., 2016) (“A governmental body abuses its discretion if its decision is not reasonably supported by any competent evidence in the record or if the governmental body has misconstrued or misapplied applicable law.”).
Please feel free to contact my office with any questions.