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 In March, Cherokee Metropolitan District appealed the January ruling by 4th District Court Judge Larry Schwartz in the matter of Cherokee versus the Upper Black Squirrel Groundwater Management District. In that ruling, Schwartz upheld the UBS district's authority to make rules with regard to the use and transport of groundwater within the district.
The appeal is another step in Cherokee's multi-year battle with the UBS district over water.
In dispute are four UBS rules, issued Aug. 5, 2003, limiting the amount of water that can be withdrawn from wells in the UBS district and requiring that the water be used on site, rather than piped to another location, such as a subdivision, within the district.
The UBS district includes Falcon and Peyton and roughly follows the boundaries of the Black Squirrel Creek drainage basin.
According to their Web site, Cherokee provides water to the Cimarron Hills development in Colorado Springs. Cherokee also has water agreements with developments in the Falcon area.
Kip Peterson, Cherokee's general manager, said he doesn't expect a decision from appellate court any time soon. "It could easily be six months, if not longer," he said, adding that the Meridian Ranch metro district is a party to the appeal.
Larry Bishop, district manager of the Woodmen Hills Metro District, said his district plans to file an amicus brief in the matter. An amicus brief is also known as a "friend of the court" brief.
On March 19 at a county board meeting, Kathy Hare, former president of the UBS board, queried the El Paso County Board of Commissioners about their Feb. 26 executive session in which the board directed the county's legal staff to prepare an amicus brief on the matter as well.
"Any time a government body goes into a trial with an amicus, they're giving their support to whichever side they pick," Hare said.
"If you're taking an action that's not going to improve or increase the water supply in this county, why are you joining in a battle on the side of somebody that sells water against the side of the board that wishes to protect water quality?"
Commissioner and board chairman Jim Bensberg disputed Hare's claim that the county is siding with Cherokee but declined to disclose the county's position.
"All we're doing is filing an amicus brief," Bensberg said. "We've not spent any dollars on this, so the taxpayers are not impacted. Until we see that amicus brief, it's inappropriate to comment on its contents, but I will tell you, just as a general rule, we seek to maintain the proper amount of control over our dominion here in the county."
William Louis, county attorney, added to Bensberg's statement about maintaining control.
"I can't tell you what was discussed in executive session ... but what I can tell you is the essence of the issue was whether or not the (UBS) regulations were unduly infringing on local government control in the area of land use," Louis said. "It was the opinion of my office that it was, and we wanted to bring that to the attention of the board of county commissioners."
Hare said the UBS rules have been in force for six years and the Colorado Groundwater Commission has twice held hearings on the rules and deemed them as valid.
"Aren't you concerned with the ethical implications of joining one or two private [companies] against a state board that is there to protect the water quality and quantity for the people within the Black Squirrel basin, which is about one third of this county?" Hare asked the commissioners.
Commissioner Wayne Williams challenged Hare on whether a district like Cherokee is a private company or a public entity.
"I've talked to a lot of constituents from Woodmen Hills and Meridian Ranch, and they certainly believe the districts are interested in making money," Hare said.
"Metro districts are concerned with recouping costs of investment and providing services," Williams said, adding that "because of the county's financial situation, we require metro districts to do a lot more than is often the case in other places."
Williams assured Hare that the county's position with regard to the appeal would be made public.
"As to what the amicus brief will actually provide, that will be part of a public agenda item," Williams said. "It will be noticed on our Web site, as well as posted. We will also put it on our Web site so everybody can see it."
However, at the March 24 meeting, the agenda included a resolution to develop the amicus brief as well as submit it. If the board had adopted the resolution, they would not have had a chance to review it before submittal.
Commissioner Amy Lathen caught the discrepancy.
"I would like to see the amicus brief before it is submitted," she said.
Williams agreed.
"Because it's litigation between public districts, each representing citizens of El Paso County, perhaps we ought to be a little more involved in reviewing the arguments we're making, not so much from a legal standpoint as from a political standpoint," he said.
Louis said his staff doesn't typically bring individual motions and briefs for the board to review.
"If you want to see this one, we certainly can do that, but please realize that if you approve this, you're authorizing the expenditure of time and expenses both by your attorneys and attorneys in the private sector to work on this, and if we draft this and you make the decision not to submit, that could have some financial impacts," he said.
The board voted 4-0, with Bensberg abstaining, to approve the development of the amicus brief, with the stipulation that the board must be given the opportunity to review the brief before it's submitted to appellate court.
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