Prepared remarks at the Action 22 Housing Summit: The imperative of investing in sound infrastructure (April 29, 2022)

It is great to join Action 22 for this important conversation. We are at a moment in time when we need to consider how we can best invest in infrastructure for future generations and the health of our local economies. I take my role as your partner seriously and want to work with each of you to ensure you have the tools and resources necessary to help our rural communities thrive.

A Land Where Life Is Inscribed in Water

We all know the saying that “whiskey is for drinking and water is for fighting.” But it doesn’t have to be that way – and it shouldn’t. As the Colorado Water Plan makes clear, there is a right way to manage water in Colorado—and there is a wrong way.

A glaring example of the wrong way to manage water is by draining it out of our rural communities and sending it to suburban developments in the Denver area. We’ve seen this plan many times before; and now we see it in the proposal to pipe water from the San Luis Valley to the Front Range. A company called Renewable Water Resources proposed a $600 million project to bring water from the Valley to Douglas County. At present, the Valley is already facing challenges in managing and protecting a depleted aquifer. That is why this “buy-and-dry” proposal will devastate the San Luis Valley—draining it of one of its most valuable resources. We know what happens when rural communities fall victim to ill-conceived projects that undermine their agricultural economies. We cannot let that happen to the Valley.

The citizens of the Valley recognize the danger of this proposal—and the harm it will cause to their jobs and rural economy. After State Senator Cleave Simpson and I condemned this project, many elected officials, including our Governor, both Senators, and the local member of Congress, came out against this project. But it will take more to ensure this proposal finds its way to the dustbin.

Rather than supporting wrong-headed schemes which take water from agricultural communities, the Water Plan calls for “innovative solutions and additional conservation and efficiency measures [] to stretch Colorado’s water supplies and maintain aging reservoirs, canals, and distribution systems.” To that end, I continue to push our legislature to set aside funds – not token funds, rather a major investment of $100 million – to invest in water infrastructure and make the most of the available funds from federal recovery dollars.

I recognize that we will have a range of water projects proposed to manage our crucial resource. One category of water projects are called “alternative transfer mechanisms” or ATMs. Here is what the Colorado Water Plan states about ATMs:

alternative transfer methods can keep agriculturally dependent communities whole and continue agricultural production in most years, and if such arrangements can be made more permanent in nature, they will provide certainty to both municipal water providers and agricultural producers. Options include lease-fallowing agreements, deficit irrigation, water banking, interruptible supply agreements, rotational fallowing, water conservation programs, and water cooperatives. The State will encourage innovation and creativity by agricultural producers and research institutions to maximize the productivity of every drop of water.

A critical question for Colorado is how we can ensure that all water projects, including ATMs, serve all of our communities as envisioned by the Colorado Water Plan.

As we manage our water for a growing population during times of drought, we will need a range of tools to do so, including investment in additional water infrastructure. To evaluate what water projects are most promising, we should rely on four criteria.  First, any such projects that transfer water out of one basin into another one should be supported by the impacted community. And I don’t mean token support from a handful of people, but broad community involvement and agreement.

For us to respect one another and not increase distrust and rural-urban divides, we need to take seriously that, too often, the negative impact of water projects are concentrated in communities where the water is taken from. In the worst cases, the negative impacts can sometimes threaten the very existence of rural communities, for example, by decimating their local economies and contributing to population decline. As the saying goes—“if you are not at the table, you are on the menu.” That’s why rural communities have to be involved in any plans that impact their infrastructure and their future.

Local communities must have a seat at the table in shaping the water projects that impact them. It is arrogant for other communities to dictate what is best for other’s towns and communities. And, that’s not just true for water projects. At our best, water projects are shaped by the local knowledge and needs of the impacted communities. It is the local communities themselves who have the unique insight required to shape the new, creative approaches that are critical to developing the solutions necessary to tackle our complex water challenges here in Colorado.

Second, we need to leverage and invest in legal frameworks that give communities the right to have that seat at the table. One such framework lies within local governments’ authority to exercise what are called “1041 powers.” This 1041 authority allows local governments to identify, designate, and regulate areas and activities of state interest through a local permitting process. While the proper use of this power is contested, underdeveloped, and uncertain, there is some promise—and precedent—that 1041 powers (or practical alternatives) can be reasonably exercised and provide a vehicle for local governments to facilitate cooperative, win-win solutions.

Third, we need to start with a spirit of “we are all in this together.” That means what is bad for the San Luis Valley is bad for Douglas County, too. I recognize that there will be temptations and short-term strategies to pit communities against one another. We cannot allow these efforts to succeed. Rather, we should pursue the path of collaboration.

Finally, we must remember that water is limited and precious. There are consequences to projects that move water in ways that may damage our outdoors or harm communities. We have to build infrastructure to manage our water in a way that improves our resilience for times of droughts and wildfires. But we are going to need innovative thinking and creative problem solving to do so effectively.

Our Democracy as A Team Sport

As I mentioned above, we need legal frameworks that facilitate water management approaches that work for our entire state. As I mentioned, one such structure lies in the so-called “1041 powers” held by local governments. Let me take a few minutes to explain this authority and how our department can work with local governments.

Broadly speaking, a local government can use its 1041 powers to limit the negative impacts associated with the development of certain “areas” or “activities of state interest.” Such areas or activities might be related to everything from water infrastructure to buy-and-dry projects. Overall, these powers are intended to allow local governments to protect our lands, their value, and their use.

In principle, a local government’s 1041 powers can be used as a framework for bringing together a wide spectrum of parties to the table to craft mutually beneficial, cooperative, and creative solutions. Consider, for example, the Windy Gap Firming project. In 2012, after years of complex negotiations, the Grand County Board of Commissioners approved the 1041 permit for the Windy Gap Firming Project for construction of Chimney Hollow Reservoir which would serve participants in the northern front range of Colorado, provide secure water supply for water users in Grand and Summit counties, guarantee perpetual reservoir releases, and reconnect the Upper Colorado River to its channel around Windy Gap Reservoir. This permit included a long list of negotiated conditions and related agreements all designed to protect the Colorado River and Grand Lake. The success of this project resulted from extensive, collaborative work with interested stakeholders.

The 1041 framework, if managed properly, can help local communities have a seat at the negotiating table when water projects impact their communities. With the 1041 framework as a backstop, I believe there are other creative arrangements that can be developed to manage water infrastructure and shared water access arrangements. As noted above, the goal should be developing win-win arrangements that leave impacted communities and the whole state better off.

As in other areas, we are committed to supporting local governments, whether in the development of their 1041 regimes or, more promisingly, in considering alternative frameworks that can operate with 1041 authority in the background. The promise of these alternative regimes is that they can avoid some of the delays and challenges that can take place in the 1041 context. More generally, we are interested in helping to offer guidance and learn from best practices as to the most innovative, workable, and fair strategies for water management.

On the topic of supporting innovation, it merits emphasis, as detailed in the Colorado Water Plan, that we face a projected total water supply-demand gap of 310,000 to 560,000 acre-feet by 2050. This is due to many factors, like dwindling snowpack and prolonged drought.  This means we have to get creative. But projects like the Renewable Water Resources proposal are stuck in the past and represent the wrong way to tackle our water challenges.

The Imperative of Ubiquitous Broadband Access

For those doubters about the importance of investing and ensuring robust access for broadband for all Coloradans, the pandemic represents a clear reminder that next to water and electricity, access to broadband is not a luxury but an essential. During the pandemic, when some students did not have access to broadband and couldn’t connect for remote schooling, our department secured access to free wireless hotspots. And we pushed the federal government to support this critical need for our kids.

Investing in broadband is a key component for how we build our economies throughout Colorado. Along with other important resources like water and housing, broadband is a critical enabler for all Colorado communities, improving agriculture, smart infrastructure (including water), and supporting commerce, education, and healthcare. That’s why I led a bipartisan coalition of Attorneys General to push for Congress to fund broadband deployment in recent legislation.

The passage of the Bipartisan Infrastructure Act, and the inclusion of tens of billions of dollars in funding for broadband, creates a once-in-a-generation opportunity that will not return. We must take full advantage of this opportunity. But as with water infrastructure, we need local input and support to do this right. To partner with our state broadband office, we are now hiring a lawyer dedicated to the work of implementing this crucial opportunity and to work hand-in-hand with your local governments.

Finally, as we approach the oversight phase of providing broadband, we will continue monitoring and evaluating whether those who committed to provide broadband are doing so as required by law. And we will make sure providers deliver the broadband speeds they advertise to the public.

Investing in Affordable Housing

Finally, as others have recognized, the need to invest in affordable housing is an imperative for Colorado. Our department has a relatively modest role to play in this area, but we are looking for creative ways we can support you in developing the housing stock you need for your communities to grow.

First off, our department will be vigilant in enforcing our laws requiring fair treatment of tenants. Too often we see mobile home park residents taken advantage of – particularly our older neighbors. That is why I’m building out a new section of our office to enforce state laws and protect people who get taken advantage of in their housing arrangements.

Second, we will look for opportunities to make creative investments to spur new housing and rehabilitation of outdated housing. That’s why I launched a housing program with Trinidad State College and Lamar Community College, training students and renovating blighted housing in Trinidad and Lamar. We’re now looking to expand this effort to include Pueblo Community College, and while nothing has been set into stone, I hope to share details of the potential expansion in the late summer.

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At crucial times in American history, investing in infrastructure generated tremendous public and private sector benefits and impacted people’s lives for the better. At the Department of Law, I pledge that we’ll always work closely with your communities to support new opportunities and ensure they are planned in a smart, innovative, and fair manner.