Larimer-Thornton water dispute still unresolved after appeals court ruling

FORT COLLINS and THORNTON — The city of Thornton is again considering its options after being dealt another setback in its lengthy efforts to build a pipeline that would carry water it owns through Larimer County for delivery to the growing northern Denver suburb.

The Colorado Court of Appeals on Thursday upheld a Feb. 11, 2019, decision by the Board of Larimer County Commissioners to deny Thornton’s application for the initial 27-mile-long, 48-inch-diameter Larimer segment of a 72-mile-long pipeline that would carry water from farmland it owns northwest of Fort Collins eastward into Weld County, then south through Weld and Adams counties to Thornton.

Thornton now must consider whether to appeal to the Colorado Supreme Court or pursue an agreement outside the legal system. 

The commissioners’ denial of the permit in 2019 prompted Thornton to sue the county slightly more than a month later, but in February 2021 the Larimer County District Court upheld the county’s decision. Thornton then took its case to the Colorado Court of Appeals, but lost there as well on Thursday.

In a statement issued to BizWest this afternoon, county commissioners said that “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 is committed to an open and fair process.”

Thornton bought Cache la Poudre River water shares in 1985 – as well as thousands of acres of Larimer County farmland and those tracts’ water rights – in anticipation of the burgeoning growth it now is seeing. With a population around 140,000 now, it projects a growth cap of around 260,000 by 2065. But in 2020, it began telling developers that if it can’t deliver enough water, it might have to stop issuing building permits.

“Although we agree with Thornton that the board exceeded its regulatory powers in several respects,” the appeals court wrote in Thursday’s ruling, “we ultimately affirm its decision to deny the permit application.”

Thornton had applied for what’s known as a “1041” permit, which refers to House Bill 1041, which the Colorado Legislature passed in 1974. The bill was later codified as the Areas and Activities of State Interest Act, a statute that empowers local governments to regulate areas and activities of state interest.

Larimer County had listed 12 criteria – as outlined in its land-use code – that Thornton would have to meet to gain its approval for the Larimer County segment, but the district court ruled the county exceeded its authority on several of the criteria, including consideration of the pipeline’s effect on agricultural interests and wildlife.

The most contentious item was the commission’s requirement that Thornton consider alternative routes, including one that would leave the water in the Cache la Poudre River as it flowed through the city of Fort Collins, then have it taken out at a point east and south of the city.

That was the preferred alternative for the city of Fort Collins, which wanted to protect the health and steady flow of the Poudre through the city, as well as rural property owners concerned about the massive excavation that the pipeline would require. Conservation groups also sided with Fort Collins and Larimer County, fearing that Thornton’s extraction of water upstream from Fort Collins would leave the Poudre at no more than a trickle as it flowed through the city.

Thornton has insisted that letting water flow through Fort Collins would degrade its quality. Todd Barnes, a Thornton spokesman, told BizWest today that the Fort Collins option was “just not an option, and the courts have backed that up.”

Barnes said “water that we own has not flowed through Fort Collins since 1890,” and if it were to flow in the Poudre through that city today, it would be degraded because of “urban runoff” and because the river “goes past several sewage plants that put effluent out.”

Fort Collins-based conservation groups including Save the Poudre and No Pipe Dream, which intervened in the case before the appeals court in support of Larimer County, have proposed construction of a water treatment plant along the Poudre downstream from Fort Collins to clean up whatever degradation occurred as the river flowed through that city. Barnes refused to comment on that proposal, but said Thornton has “consistently been trying to reach out to Larimer County to engage in any kind of talks. We even tried to do some mediation, and they’ve not come to the table.”

In a statement sent to media outlets, Barnes wrote that “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. We also appreciate that the court agreed with us that the commissioners abused their discretion by considering certain improper factors.

“We will take some time to analyze what the court said in the ruling and consider our next steps. Thornton remains committed to bringing the high-quality water we own down to the people in our community. We are also committed to continue seeking solutions outside of the legal process that can meet the needs of our community and those in Larimer County.”

In a written statement, Gary Wockner, who heads Save the Poudre, said his group “has been telling Thornton for over 10 years that the water should flow down the Poudre River through Fort Collins. 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.

“Thornton must now decide if it will appeal the ruling to the Colorado Supreme Court, or propose a new pipeline route in Larimer County, or simply let the water flow down the Poudre River to Windsor, which is an outcome that doesn’t even require any kind of permit in Larimer County,” Wockner wrote.

“Once again, we offer to collaborate with Thornton rather than litigate. By working together, we can restore the Poudre River and Thornton can get the water.”

After leaving Larimer County, the pipeline would traverse 34 miles of unincorporated Weld County. Weld’s county commissioners had also denied the pipeline permit in 2021, but Thornton sued Weld a month later and its city council voted to invoke its rights under state law and supersede the county’s ruling. In subsequent talks, Weld County – while acknowledging Thornton’s right to override the county’s decision – asked it to adhere to several conditions regarding the construction phase, including sharing plans and working with property owners. Thornton agreed to the conditions.

Under Colorado law, counties have two choices when a local government such as Thornton wants to build a public project within the jurisdiction of another local government. They can use the 1041 permitting process, which Larimer County did, or a “location and extent” process, which Weld did. The latter process gives the governmental entity that wants to build the project the ability to overrule the government where the project would be built.

The case in Larimer County District Court was 2019cv30339. In the appeals court, the case number is 2021ca0467.

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