Bleak House, Revisited

Another in our occasional series to mark the 70th anniversary of the outbreak of the war. In July we published fine pieces by Vicente Navarro and George Galloway. AC / JSC

I was in Durango, Colorado, for a week in April. Unfortunately, I spent my time in a courtroom watching an army of lawyers rise from their seats like pipes on a crazed calliope with objection played out over objection. The cause for all this lawyerly lather was a diligence trial in Water Court.

What was being contested was the water that will be needed to fill Nighthorse reservoir, nee Ridges Basin reservoir–the essential and, yet, assuredly, only the initial feature of the monstrous Animas-La Plata Project. Since no points of delivery or uses have ever been divulged for most of the water, another big bill to us, the taxpayers, for a water distribution system beckons.

It was an interesting week despite the legal cacophony. Chief among the claims of project proponents, namely the SouthwesternWater Conservation District, the United States Department of Justice, the Colorado Attorney General, the Animas-La Plata Water Conservancy District, and the two small Ute tribes, was that they maintained rights to 57,000 acre-feet of depletion on every river system in the San Juan basin, not just the Animas River and not just for the A-LP. Right folks, that means they claim the same depletion rights on the Florida, the Pine, the Navajo, the Dolores, the Mancos, the La Plata, the Piedra, the Rio Blanco, and the San Juan, as well as McElmo Creek.

From the 57,000 acre-feet depletion figure (one acre foot is equal to the residential needs of 10 people for a year), the proponent’s expert witness, Denver consulting engineer Dr. Leo Eisel, also was forced to admit that this could result in water diversions up to twenty times the depletion allowance if the bulk of the water were used for residential purposes. This could occur because, on average, residential depletions are only 5 percent of actual use. Most of the water we use in our homes, for toilet, shower, laundry, dish washing, etc, goes right back into the river system after treatment. Thus, theoretically, A-LP could result in diversions of over 1,100,000 acre feet. Shocked?

Another interesting feature of Dr. Eisel’s testimony was that, though he was testifying as to the adequacy of the water supply for the project, he did not know of a restriction in a previous court decree that limits diversions at Nighthorse Reservoir to the amount of water legally available at the original diversion point. That original point is many miles upstream from Durango, near the town of Silverton where the water supply is much more limited. All this our attorney, Alison Maynard, was forced to point out to him.

Shaken, neither could he find the original diversion point on the court-room map.

This bumbling execution of “expertness” led to the additional disclosure that there is no storage right at Nighthorse Reservoir. SWCD’s attorney, Janice Sheftel, has since secretly informed the District’s board that they will file for a storage right at Nighthorse Reservoir, but not until after Judge Lyman, before whom all this is being presented, has issued his decision on the diligence case. No need to heap new embarrassment on old it seems.

Dr. Eisel has already received over $47,000 from project proponents, compliments of the taxpayers of Durango and surrounding counties, with the promise of more to come as he testifies in the next A-LP trial starting in Durango on August 7.

Another revelation, this from Durango resident Steve Harris, former Bureau of Reclamation employee, SWCD consulting engineer, and board member to the Colorado Water Resources and Power Development Authority, was that project proponents intend to go ahead with the agricultural portion of A-LP. He was smirking, often winking at colleagues in the audience, when Ms Maynard asked him if that wasn’t counter to the agreement struck with Congress back in 1999, for Congress insisted the agricultural portion be eliminated before it would consider funding for the project. In Mr. Harris’ opinion their agreement to delete agriculture from the project was only transitory, a feint, if you will, in order to get the $500,000,000 federal construction subsidy. To his mind, permanent abandonment of A-LP agriculture was a “deal killer.” He did not elaborate on where they might have found another handout of $500,000,000.

In further questioning, Harris admitted that the La Plata Water Conservancy District, a tiny agricultural district west of Durango, had received a grant of over $400,000 from the state to study the feasibility of a new reservoir called Long Hollow in the La Plata river drainage, a river which is already badly over appropriated. He also stated that while the CWRPDA, on which he sits, had approved a grant of an additional $15,000,000 for the construction of Long Hollow, the money had not yet been transferred. When transferred, it will constitute a $15,000,000 gift from the people of Colorado if the water stored in the prospective reservoir is used for agriculture. Many of us think A-LP water will eventually find its way to Long Hollow despite Congressional prohibitions to the contrary. Call us crazy.

And, please, remember that just last year most politicians in this state were in Chicken Little mode, declaring that if we did not vote for increased funding of state government the sky would fall. Yet, the CWRPDA, sitting atop well over $1,000,000,000 in taxpayer assets, was never asked, despite our urging, to ante up a dime to stem the imminent collapse of state government. Indeed, it is going ahead with a $15,000,000 gift to a small water district whose largest landowner is state senator Jim Isgar, himself a royal guest at the federal farm subsidy banquet where he has received well over $500,000, mostly for not farming.

The testimony of Fred Kroeger, the longtime President of the SWCD, was also revealing. In questioning by Ms Maynard, he said he thought the District’s budget was around $600,000 annually, but wasn’t sure. In fact the District has adopted a budget of over $1,000,000 for 2006. Its 2005 budget is $941,547, according to records at the Colorado Division of Local Government. It’s also true that the District’s mill levy is almost twice what is allowed under state legislation limiting spending. This legislation is called TABOR, or the Taxpayers Bill of Rights. The state legislature has blessed this ruse, accepting the self-serving district argument that someday property values may fall and then the districts in the state would have to raise their mill levy, better to over collect in anticipation of property value collapse, say they, for collapse could be just around the corner. Lacking oversight funding, apparently, the state is not sure what is done with the excess tax collections, but assumes it is returned to taxpayers as a refund the following year.

In further questioning Ms Maynard asked Mr. Kroeger why the invoices from Washington lobbyists for A-LP showed no itemization and why he had authorized payments totaling hundreds of thousands of dollars on so little documentation? He said there was a lot of trust between the District, its lobbyists and lawyers. He demurred when Ms. Maynard asked him if this procedure complied with state money management standards.

In fact, the SWCD’s budget is mostly a transfer mechanism from local taxpayers to lobbyists and lawyers. In the past three years over $600,000 has gone to lawyers, the lion’s share to the Durango law firm of Maynes, Bradford, and Sheftel and the Denver law firm of Hill and Robbins.

About $250,000 has gone to lobbyists, with the bulk to Kogovsek and Associates. Another $400,000 has gone to “small districts” in support of their water development efforts. Can one doubt that most of this money found its way to the La Plata Water Conservancy District? The La Plata Water Conservancy District, incidentally, only taxes itself to the tune of about $7,000 annually. But why pay for your own house when you’ve got your friends doing it for you with other people’s money?

The SWCD has also budgeted another $230,000 for cloud seeding. It’s about here that one becomes convinced these people are just a little loony and not really smart or honest enough to spend millions in other people’s money with little or no oversight? We tried several years ago to get information from the SWCD specific to A-LP and the Navajo Nation. We did this under the state’s Open Records Act. We were served with a SLAPP suit. We lost!

In addition to the SWCD’s money machine, there is its spawn, the Animas-La Plata Water Conservancy District. This district is not to be confused with the earlier discussed La Plata Water Conservancy District which it overlaps. The ALPWCD taxes many of the same people as SWCD. And like the SWCD it over taxes through its mill levy. In the past three years it has taken in over $500,000 from local property owners, primarily those in Durango. And like the SWCD, the lion’s share of its budget has gone to the same lawyers and lobbyists.

It may be fair to say, based on the foregoing that on any reasonable scale for measuring ethical behavior, the water districts that have championed water development in southwest Colorado and their political hacks in Washington and Denver are Lilliputian, for they are the model of a moral midget. Yet, as we’ve seen, they have carte blanche to tax mightily, creating one entity on top of another to advance the interests of a small number of large land owners and developers. Their boards are unelected and obviously feel more obligation to development interests than they do to the taxpayers who fund their enterprise. The state hides from the embarrassment it has created through faulty legislation and seems incapable or unwilling to correct the larceny.

The trial starting on August will be contested over the Animas-La Plata Indian reserved rights. Stay tuned as even bigger embarrassments in public probity unfold.

PHIL DOE, who once worked in the Interior Department, is chair of Citizens Progressive Alliance in Littleton, Colorado. He can be reached at: