Background: In September 2009, Yellow Jacket Water Conservancy District filed three applications for diligence with the Division 6 Water Court: 09CW48 (Sawmill Mountain Reservoir and the North Fork Feeder Conduit), 09CW49 (Colorado White River Reservoir at Warner Point) and 09CW50 (Yellow Jacket Canal, Ripple Creek Reservoir, Lost Park Reservoir and Lost Park Feeder Canals). The district’s filing named specific land owners as being impacted by the filings. The district voluntarily moved to dismiss Case No. 09CW49 and the court subsequently canceled the Colorado White River Reservoir at Warner Point water right on March 14, 2011.
The lack of public information on the size, location and scope of the proposed projects caused impacted land owners to file statements of opposition with the Division 6 Water Court.
After reviewing public documents and requests to the district for information regarding “how their land would be impacted,” opposition filed a motion for summary judgment in the District Court, Water Div. 6, Colorado based on:
• At the time the diligence applications were filed, the terms of appointment for the directors of district Nos. 1, 3, 6 and 7 had expired and the director for district No. 8 had resigned.
• The district held a meeting on May 14, 2009, at which, a quorum of the directors was not present and the meeting minutes do not reflect any discussion of the diligence applications.
• The district held a meeting on Sept. 29, 2009. In attendance were the purported directors for division Nos. 1, 2, 4, 5, 6, 7 and 9; of which the terms of appointment for the directors of divisions No. 1, 6, and 7 had expired. Only four out of nine proposed directors were properly appointed and in attendance.
• The district lacked the legally mandated quorum of the board of directors at the Sept. 29, 2009, meeting. The meeting minutes do not reflect a discussion of the diligence applications or indicate that the board authorized the district’s attorneys to file the diligence application.
• The May and September meetings were the only meetings of the board of directors in 2009 before the diligence applications were filed in 09CW48, 09CW49, and 09CW50.
On July 1, 2011, the court ruled in favor of the motion for summary judgment.
Opinion: The motion for summary judgment captured, in many ways, what has been wrong with the district. Specifically, that a taxing public agency is so disconnected from the interests of its constituents that it doesn’t bother to properly appoint board members in manner consistent with Colorado law and basic notions of representative democracy. “Taxation without representation” is, in my view, an apt description of how the district has functioned over — at least — recent years.
Other aspects of the project that disturb me is that the size and scope of these water rights were well in excess of any apparent reasonable estimate of water needs in the district. The district claimed interest in expanding agriculture didn’t appear at all likely to be able to financially support the project. So even looking at the district’s intent in the best light possible, the project likely still involved a massive subsidy from somewhere — oil shale appears to be the most likely candidate. These decisions have a huge impact on the quality of life in the valley and deserve a community debate. As it is, only a handful of individuals, including some who might benefit financially from selling/leasing these rights to energy companies, seem to have influence over the direction of the district.
Moving forward, the district could play a constructive role if the actual water needs of its constituents become paramount. State law gives the district a broad mission and powers to serve in the district’s public interest. The purpose of the district is not, as claimed, “to build the Yellow Jacket Project.” The end of the Yellow Jacket Project could help ensure that the district’s focus is on meeting all the district’s reasonable water needs including those of agriculture, municipalities, industry within the district, recreational water needs and the needs of fish and wildlife.