Sprawling To Kansas  

Water planners are quick to claim they are not land planners, but that is like a cardio-vascular surgeon saying, “I don’t do cardio, I only do vascular.”

Most water utilities are vaguely familiar with the land approval process, steering clear of controversial land use decisions and saying they just supply water. Likewise, many planning and zoning boards, city councils and county commissioners show little concern for how much water a subdivision needs or where it comes from.[1] One does cardio, the other does vascular, and they don’t talk much to each other. It’s an old model that’s more out of touch with each passing year.

Steve Harris, a Durango water engineer and the legislative appointee on the Southwest Roundtable, recommends that 70 percent of all municipal water use should be used indoors and no more than 30 percent should be used outdoors for all new development. In Colorado, the indoor-to-outdoor ratio is 58:42, meaning that 42 percent of municipal water is used for outdoor landscaping.[2] Reducing our current indoor use by 50 percent and outdoor use by 33 percent would get us down to about 120 gallons per person per day and close to Harris’s 70:30 ratio. That is the break-even number that I estimate would prevent us from diverting more water from rivers—on both the west and east slopes—or drying up any more agriculture beyond the farms that cities sprawl onto.

Techniques to reduce outdoor water use include reducing the square footage of grass turf, particularly in new developments, and xeriscaping with native plants. Denver Water probably knows as much about this subject as any water utility in the country. Educating or licensing landscaping companies to use water saving plants and efficient irrigation systems, and having them do regular water use “checkups,” will help homeowners limit overwatering. Smart utility bills that point out how much water is used compared to how much was used in the prior year or by the neighbors, with penalties for increased use, also reduce water consumption, as Boulder has learned.

Laura Belanger of Western Resource Advocates, the Boulder environmental nonprofit, came to the Colorado Roundtable in January 2024 to request a letter of support for a grant to study whether Colorado should have a landscaper licensing program that shows proficiency in waterwise landscaping techniques. We’ve been discussing this at roundtable meetings for at least fifteen years. Ten other states have licensing programs, and a majority of landscape supply companies and 82 percent of water managers support them. It just takes such a long time to move forward in the water world!

Nearly all water used indoors returns to the nearest river, while almost all water used outdoors is evaporated by plants and lost to the local water supply. The Southwest Roundtable is the only roundtable that has suggested a numeric target like this. Steve Harris once said, “After the 2002 drought I learned that conditions just weren’t getting any better. I just think we’ve got to do this. If we want to keep water on the Western Slope we have to limit the amount we use outdoors.”

Former University of Colorado professor Patricia Limerick addresses the land and water connection in her book, A Ditch in Time, a history of Denver Water that the utility helped underwrite. She describes five myths that shroud western water decisions.[3]

Table 11.1 Myth versus reality in land use planning (via Limerick)

Myth

Reality

Water controls growth.

Land use planning controls growth.

Water power is centralized

Water power is fragmented.

Water is better used on farms than cities.

Cities and farms need each other, and water use should be sensibly balanced between urban and rural needs.

Engineers will come up with the best solution if we just leave them alone.

Citizens should pay more attention to what engineers do and partner with them to determine sensible water policies.

Water is for fighting.

Most water disputes are negotiated.

After population growth, land use planning is likely the hardest issue that Colorado will face. The 2015 Colorado Water Plan carefully defends “local control,” referring to it fifteen times and devoting an entire section to it.[4] “Local control” emphasizes that local water utilities should be able to decide how much water their customers use; cities should be able to decide how large they will grow; developers should be able to decide how much bluegrass to plant and what type of sprinkler efficiency measures to install; and farmers should be free to decide what plants to grow and how to irrigate their fields and when to sell their water rights, all free of state and federal regulation.

But the 2023 plan doesn’t refer to “local control” at all, instead emphasizing integrated land use planning that aligns growth and development with forecasted water supplies. Since 2017 the CWCB has funded “Colorado Growing Water Smart,” a project of the Sonoran Institute to align growth and development with forecasted water supplies. The program consists of a two-to-three day intensive workshop where water planners, land use planners, and elected officials create an action plan for integrating water and land use planning. Over fifty communities representing over 62 percent of Coloradoans, nearly 4 million people, have participated in the Sonoran Institute programs.[5]

Battles over a landowner’s right to control his or her property have raged in the United States for a hundred years. It was not until 1926 that the U.S. Supreme Court even supported the right of cities and counties to implement zoning laws.[6] The Colorado legislature finally permitted counties to exercise control over land development in sensitive areas like riparian areas or wildlife corridors in 1974 when it permitted them to adopt “1041” powers, named for the originating legislation in the Colorado state house, HB 74-1041.

County 1041 powers are based on the American Law Institute’s model land development code, which stated in 1974, “The long period of unquestioned acceptance of the local prerogative to control land development is clearly over.” [7] Since that was written—the year I graduated from high school—the United States population has grown by over 125 million and Colorado’s by nearly 3.5 million. “Local control” is every bit as contentious today as it has ever been, with population pressure one of the root causes of the controversy. Around 2014, we started hearing the phrase “adult conversation” at roundtable gatherings. At a meeting of the four Western Slope roundtables in December 2014, some participants said we needed to have an “adult conversation” that there really isn’t any water left to develop in the Colorado River. Someone else we needed an “adult conversation” about irrigation water efficiency, as leaving more water in the river would eliminate return flows and hurt Colorado agriculture. As clichés often do, the frequent use of having an “adult conversation” got almost comical in certain water meetings, but I’m afraid that, yes, land planning really does demand a serious adult conversation.

How are land use decisions made today in Colorado?

A landowner who wants to develop property needs county or city land use approvals and a building permit. These are readily available in much of the state, particularly in rural counties. They are relatively difficult to obtain in Boulder and Pitkin counties, but they are the exception. Colorado is very gingerly stepping into the arena of passing legislation to mandate water conservation practices. For instance, it passed a law in 2024 that prohibits the installation of nonfunctional turf, invasive plants and artificial turf on most commercial, industrial and state government property. The ban includes medians, parking lots and along roads, and it goes into effect in 2025 for government buildings, and 2026 for commercial properties.[8] But a developer who has an adequate water supply can still plant bluegrass and exotic shrubs to the residential property boundaries without limit.

In 2014, the Southwest Roundtable supported a statewide statute that would have limited blue grass to 15 percent of the land area in farms that are converted to subdivisions. Intending to save water for agriculture by limiting how much could be consumed in landscaping, farmers and cities blocked it, claiming it interfered with their local control.

Ironically, a bill designed to protect farming was blocked by farmers. Ultimately the bill would have lessened demand for the farmer’s water, and there goes their 401(k) plan. Since 1972 landowners have been able to subdivide property into 35-acre parcels in Colorado without having to obtain county approval. Thirty-five acres amounts to a square with each side about the length of four football fields. In 1996 the legislature allowed landowners to carve tracts into even smaller 17 ½ acre-parcels if at least two-thirds of the land in the subdivision is dedicated as open space. These are called “cluster developments.” Like the 35-acre exemption, they permit a landowner to subdivide land without requiring county approval.[9]

A water right automatically comes with each 35-acre parcel, allowing the landowner to drill a well to irrigate up to an acre and to obtain water for indoor domestic use and livestock. Parcels less than 35 acres can still obtain a well, but the water can only be used indoors. Many western states have similar subdivision exemptions, but Colorado’s is one of the more lenient. In Montana, ranchers can only subdivide parcels into plots that are at least 160 acres, a quarter the size of a square mile.[10] The 35-acre subdivision exemption encourages rural sprawl. Between 1960 and 1990, land carved up into rural ranchettes in Colorado grew three times faster than the population growth rate. By 2000, two million acres of agricultural land were converted to ranchettes since the 35-acre subdivision exemption was passed in 1972. Two million acres amounts to an area 55 miles square, over two-thirds the size of the greater metro Denver area.[11] It is almost as much land as we irrigate in Colorado, which the USDA estimated was 2.3 million acres in its 2022 census.

The Gunnison County commissioners discussed problems with Colorado’s automatic approval of  35-acre subdivisions in a meeting on September 16, 2009, as reported in the Crested Butte News.[12] “There’s an ongoing, never-ending question at the legislative level—particularly brought up from rural resort counties—about the inability, or perceived inability, to control 35-acre subdivisions beyond roads, building permits and things of that nature,” Gunnison County Commissioner Hap Channel said before heading to a meeting of Colorado Counties Inc., a non-profit, membership association that assists county commissioners, mayors and council members. “There’s a feeling that the counties don’t have enough jurisdiction over land use. So it’s a matter of how we want to look at it.”

Gunnison County Commissioner Jim Starr said the problem is sometimes that the newly subdivided land is often in far-flung areas where services are unavailable and access on roads is tough to maintain. “Why is the law even there in the first place?” asked Starr. “It creates the most difficulty we have in preserving ranching. It enables someone to cut up land in a way that doesn’t save hay meadows and in a way, I feel, that has maximum impacts on adjoining ranchlands.”

“The plus-35-acre rule was created as an exception to the definition of subdivision,” Gunnison County Attorney David Baumgarten said. “So the easiest way to solve the problem is to eliminate that as an exception to subdivision [through legislation] so that every time you divide land it’s a subdivision. That would be the most straightforward way of dealing with the problem.”

Baumgarten continued, “A second way to regulate that land would be one that the state has never had courage to deal with. It would say ‘You can’t develop on a piece of land unless you can show ‘x’ years of dependable water supply.’”

But that would have to get the endorsement of CCI, Gunnison County Manager Matthew Birnie said, because “if CCI can’t get behind it, it doesn’t have a chance [in the legislature].” The political will still isn’t there, as 15 years later the 35-acre subdivide-by-right law is still on the books.

David Theobald of the CSU Natural Resource Ecology Lab is also critical of the 35-acre limit. “Rural sprawl has a larger footprint—between five and ten times the amount of land as urban and suburban development—throughout the West,” he told the Christian Science Monitor in 2004.[13][BG1] 

As far as wildlife is concerned, a square-mile section of land (640 acres) subdivided into eighteen 35-acre lots might as well be a subdivision. Rick Knight, a wildlife conservation professor at CSU, compared biodiversity on ranchlands, protected lands, and 35-acre “exurban” developments. He says the exurban sections populated by dogs, cats, and people were far worse for biodiversity.[14] Robins and magpies replace native songbirds, and badgers and mountain lion give way to red fox and coyotes.

Large lots also cost more in services. Colorado Counties, Inc., estimated in 2006 that large-lot rural developments cost $1.65 to service for every dollar of property tax the counties receive. Costs associated with rural sprawl include the cost of building and maintaining roads, plowing them in the winter, extending water and sewer lines, and providing emergency police and fire services.[15] It amounts to a subsidy for the rural landowner that everyone else in the county pays.

One problem that plagues municipal land planning departments are obsolete subdivisions that were approved long before anyone planned to actually develop them. Counties must approve lots smaller than 35 acres, but it can be years before approved properties are developed, especially in areas once far from city lights. When developers sell lots in so-called “paper subdivisions,” the new lot owners often obtain vested rights that cannot be limited thereafter without risking a lawsuit.

Cities typically adopt stricter land use regulations and charge additional fees to pay for services as they grow, but Colorado law prevents the new rules from applying to previously approved paper subdivisions.[16] In many counties today, land use approvals have expiration dates that require development to occur by that date, but these cannot be applied retroactively to earlier-permitted subdivisions.

While any landowner can subdivide land into 35-acre tracts (or 17½ acres in clustered developments), counties that have adopted 1041 powers can impose development conditions before issuing building permits.[17] 1041 powers allow counties to regulate how steep a road can be cut into a hillside, or whether houses can be built in sensitive areas like forests that are prone to wildfire, or on steep slopes prone to rockfall or avalanche, or in wildlife habitats such as stream banks or elk-calving areas. Counties can also adopt 1041 requirements to regulate how development impacts a community or surrounding area. They can govern how building impacts population densities, or phase development so it occurs with an eye to protecting the environment.

Former Grand County Manager Lurline Underbrink Curran credited 1041 powers with keeping water in the upper Colorado and Fraser rivers in Grand County. She recommended that all Western Slope counties enact 1041 powers.[18] There is not one size fits all—counties can limit their scope. Grand County, for instance, limits them to matters involving streams and water supply. The Colorado Supreme Court upheld Grand County’s 1041 powers in 1989 even though they impact citizens in the city and county of Denver. Still, many rural counties refuse to enact them, with county commissioners fearing political backlash from property owners. [19] Garfield County, whose county seat is Glenwood Springs, refused to adopt them despite urgent pleas from Battlement Mesa homeowners who say they’re needed to regulate nearby oil and gas drilling.[20] But when Rocky Mountain Industrials, Inc., wanted to expand a limestone quarry from about 16 acres to 447 acres directly above Glenwood Springs and next to the Glenwood Caverns Adventure Park, the Garfield County Commissioners unanimously adopted 1041 powers to allow them to regulate gravel operations and mineral extraction.[21]

The real value of western agricultural land and water rights lies in their development potential. The American Farmland Trust estimates that land is worth 30-100 times more than the economic value of the hay being produced on it if carved into ranchettes.[22]

Since a well permit is available to any land that is 35 acres or larger, that too is not a barrier to development, provided a well is drilled and water can be found. Search online for “35-acre lots” in any given county in Colorado, and page after page of offers come up.

Martha Pagliotti and her husband moved to Larimer County about twenty minutes outside of Fort Collins because development was closing in on them at their Arvada home. "Don't tell me I changed Colorado because I have 35 acres of land. I'm trying to live within the land of the Colorado I love," she told the Christian Science Monitor.[23] There is no practical limit to the amount of land in Colorado that can be subdivided by right—Colorado’s 104,094 square miles could theoretically be subdivided into more than a million 35-acre parcels after subtracting the 34 percent of land owned by the BLM and Forest Service.[24] They own nearly all the state’s mountainous land, a point that developers are quick to point out when mountain communities attempt to rein in development. But the BLM and the Forest Service own a tiny fraction of the eastern plains—the Pawnee and Comanche National Grasslands amount to under 1 percent of Colorado land area—so water is the only realistic limitation that will stop Colorado from sprawling all the way to Kansas, one 35-acre parcel at a time.

Could water be a factor that limits growth?

In 2008, Representative Kathleen Curry of Gunnison sponsored legislation that would have required local governments to demand that developers prove an adequate water supply. Developers objected, claiming it was a hardship to acquire water rights before subdivision was approved. The Colorado Association of Homebuilders, Colorado Water Congress, Colorado Counties, Inc., and the Colorado Municipal League all lined up against her bill. A watered-down version of the bill passed, and its preamble even addressed the local control bogeyman, stating, “while land use and development approval decisions are matters of local concern, the . . . adequacy of water for new developments is a matter of statewide concern.”[25] In fact, water has not proved to be the limiting factor that bill opponents feared. Developers do not have to acquire water rights, they just have to obtain a letter from an engineer or a water provider stating there is adequate water for the proposed development. That’s not hard to do. Since we use about 85 percent of water in the state in agriculture and there are no barriers restricting irrigators from selling it to cities and developers, water won’t be limiting population growth in Colorado for decades.

Kevin Lusk, who worked in water-supply management for Colorado Springs Utilities, once said he regularly received calls from farmers asking him to purchase their water rights. But Lusk said he was rarely interested in acquiring water from individual farmers—it is typically available in small amounts, is often contaminated with salts or chemicals from irrigation runoff, and the utility must construct pipelines and delivery infrastructure to get it to the city.  That explains why Colorado Springs is still pushing for more diversions from pristine headwaters in the Eagle, Fryingpan, and Roaring Fork watersheds along the Continental Divide. That water is free, clean, and the infrastructure is already in place to get it to the Arkansas River and Colorado Springs.

The WUI

County 1041 powers can be used to limit growth. For example, Pitkin County uses 1041 powers to limit building in the WUI (pronounced “whooey”), the wildland urban interface. The county defines the wildland–urban interface qualitatively as a place where "humans and their development meet or intermix with wildland fuel.”[26] This refers to the transition zone between unoccupied land and human development. Lands and communities surrounded by wildlands are at risk of wildfire. Wikipedia says the WUI was the fastest-growing land use type in the United States between 1990 and 2010—12.7 million more houses and 25 million more people occupied the WUI in the United States in 2010 compared with 1990.[27] While the WUI development growth rate slowed in the 2010s—as housing did everywhere following the 2008 financial crisis—the US Forest Service says 2.6 million more homes were built in the WUI nationally between 2010 and 2020. In Colorado, 43.3 percent of all housing is in the WUI, with higher levels in rural counties. One reason that Southern California wildfires are such a regular occurrence on TV news is because they keep developing the WUI—from 1990 to 2020, Riverside County experienced 74 percent growth in WUI housing and 23 percent growth in WUI area.[28]

Insurance companies may start limiting growth as they either pull out of issuing fire risk coverage in Colorado or they are significantly raising prices as is now occurring in the Roaring Fork valley where I live. Colorado landowners have already built over 1 million buildings in the WUI, which covers 4.5 million acres, about 45 times the size of the City of Denver. [29] Colorado State University researchers estimated in 2007 that the developed WUI area will triple in Colorado from 715,000 acres in 2000 to 2,161,400 acres in 2030.[30] What the robust growth in the WUI is telling us is that we’ve already developed the most habitable land in Colorado. It’s one more sign of overpopulation.

According to the insurance industry, 373,600 homes in Colorado are at high or extremely high risk from wildfires, more than any other western state other than California and Texas. Most of Colorado’s largest wildfires have occurred since 2000, with nearly half of the largest fires occurring in Front Range counties that keep sprawling further into the WUI. Twenty firefighters and three civilians died in these fires. Governor Hickenlooper convened a task force in 2013 to investigate the second El Paso County fire at Black Forest, and it concluded that we need tougher building codes, more controlled burns, and to thin more trees around homes in the WUI. The blue-ribbon committee recommended charging extra fees to WUI homeowners and suggested creating a state-run insurance program so it could cover losses in high-risk burn zones. That way, city residents would not be burdened.[31]

One obvious suggestion, tougher state building codes, was resisted by real estate developers. They claim this is a local matter best left up to counties.[32] I guess that means I have to drive 140 miles to Colorado Springs to object to their WUI building practices. The insurance task force ran into more interference when it suggested that real estate contracts call out the increased wildfire risk for homes in the WUI when they’re put up for sale. The Colorado Association of Realtors recommended that we instead create a special website where prospective homeowners can look up the risk that their prospective home could be torched. Since that requires an extra step by prospective homebuyers, and will likely facilitate quicker home sales, I interpret it as one more step to keep WUI development humming along.

Figure 11.1 Cycle of development in WUI (Ransford)

The one recommendation Hickenlooper’s insurance task force failed to make is the obvious one—stop building in the WUI. Two-thirds of Colorado’s wildfires are caused by lightning, and lightning tends to strike similar places year after year.[33] Consider the Palmer Ridge, the high point along Interstate 25 between Denver and Colorado Springs. The Palmer Ridge channels warm air upward into cloud formations that generate spectacular Front Range thunderstorms. It also receives twice as many lightning strikes as either Denver or Colorado Springs.[34] Black Forest is on the Palmer Ridge about seven miles south of Palmer Divide Road. But, we’re building there again, replacing the homes that burned in 2013.[35] All but about 40 of the burned homes had been rebuilt by July 2015.[36]

Fire risk may slowly be taking care of itself—I am observing that as fires ravage hillsides, particularly south-facing ones, forests are not growing back. It is simply too hot and arid, so once a forest burns, the fire risk is eliminated. That likely happened before, between 1480 and 1500, when researchers believe every tree in the Southwest perished from extreme drought. And that is not an excuse to keep building in the WUI.

Great and Growing

Does Colorado water law limit a city’s ability to get additional water? In a word, “no.”

The Colorado Supreme Court facilitated water transfers to cities in a 1939 decision that resulted what is now called the “great and growing cities” doctrine. Normally, one can only perfect a water right in Colorado by putting water to beneficial use—holding it for later use is considered speculation, and that’s forbidden. But in Denver v. Sheriff, the Colorado Supreme Court held that cities can purchase more water than they currently need if they have a plan to grow into it. “A specified tract of land does not increase in size, but populations do, and in short periods of time,” the court said eighty years ago. “With that flexibility in mind, it is not speculation but the highest prudence on the part of the city to obtain appropriations of water that will satisfy the needs resulting from a normal increase in population within a reasonable period of time.”[37] One of the first cases heard in the new Grand County Courthouse in Hot Sulphur Springs in 1937 pitted Denver Water against Grand County irrigators who claimed that Denver Water’s proposed diversion of 600 cfs of water through the Moffat Tunnel was speculative. Paul, Willard, and Carl Taussig owned the Ute Park Ranch and they sought to keep water in Grand County. Willard Taussig’s grandson David is a well-known water attorney in Denver today. The Western Slope judge agreed with the Taussig irrigators and limited Denver’s diversion right to 335 cfs. But the Colorado Supreme Court disagreed, establishing the great and growing cities doctrine. The doctrine is alive today, but just how far into the future cities can plan their growth is unclear. In another case that shapes how cities and towns approach water supply, the Colorado Supreme Court held in 2009 that Pagosa Springs could not hoard water for the next 100 years of growth. Trout Unlimited sought to limit Pagosa Springs to a 30-year planning horizon. In that time a city growing 2.4 percent per year will double its population.

The Colorado Supreme Court held in 1939 that the Western Slope “miss[es] entirely the outstanding fact that more than one-third of the population of the state is seeking a measure of security in water supply. Courts are not to shut their eyes to the realities of business life.” Today’s reality is the same as it was in 1939—the Front Range is growing fast. Courts have also made it clear that Denver can sell water outside of its service area.[38] This permits Denver to control far more water than it can use within its city and county limits. On one hand, this makes sense—why not let Denver use its expensive diversion works to deliver water outside the city limits? On the other hand, it lets Denver bring its enormous resources and political power to keep pushing for more and more growth. If Denver had been restricted to supplying water to the area it serves today, it would not need any more water.

The Colorado River Cooperative Agreement, which permits Denver Water to divert 18,000 more acre feet each year into an enlarged Gross Reservoir, restricts Denver Water from taking more water from the Western Slope. For more on the CRCA, one of the most significant developments in Colorado water the past 20 years, see Chapter 19. But Denver Water can still purchase water from Front Range irrigators, and it can also develop conditional water rights it holds outside of the Colorado River basin (Division 5), the most famous of which is Two Forks Dam. So it is misleading to state that the CRCA reins in Denver Water’s future development plans.[39]

Colorado has two types of law, home rule and statutory, that govern cities and counties.[40] Each home rule city or county, including Denver, operates according to rules that it adopts.[41] Statutory cities and counties, on the other hand, only have the powers granted by state legislators through statutes the state legislators pass.  In 2024, Superior in Boulder county voted to become the 103rd city to adopt a home rule charter in Colorado, motivated in part so its city council could have a greater say over oil and gas fracking within the city limits.[42] As long as state law does not preempt an issue, home rule cities can do whatever their charters permit. Denver delegated complete authority over water to the Denver Board of Water Commissioners. Among other things, Denver voters have specifically authorized the Denver Water Board to lease water for use outside Denver’s boundaries.

What tools are available to control the rate of growth?

Growth management caps are controversial, difficult to pass, and subject to constant attack if they do pass. Conservation easements take an alternate tack since they are voluntary agreements that preserve land and keep it from being later developed. For instance, a landowner could agree to put no more than three houses on a 250-acre ranch, leaving the remaining acreage for agriculture or open space.

Conservation easements are the best tool in my opinion to control growth. Tax benefits help pay for conservation easements, but voters have to be convinced to pay for them.[43] Adams, Boulder, Chaffee, Denver, Douglas, Eagle, Grand, Gunnison, Jefferson, Larimer, Park, Pitkin, Routt, and Summit County voters have passed open space taxes to purchase conservation easements to create open space buffers and keep neighboring cities from encroaching.[44] Any community that is serious about using conservation easements to manage growth must raise money to buy them. And tax incentives matter. Colorado enacted a tax credit to promote conservation easements in 1999 and the legislature has consistently increased it. As of 2023, landowners could receive up to a $5 million tax credit for a single conservation easement, in increments of up to $1.5 million a year.  

Conservation easements are a rare program that Republicans and Democrats both support. The graph below shows how easement growth at the Aspen Valley Land Trust, Colorado’s oldest land trust, took off after Colorado enacted a tax credit for conservation easements in 1999.  The Land Trust received 33 easements in 43 years from 1967 to 2000, but registered 173 easements in the next 23 years after the tax credit was enacted. The decline in easements beginning in 2008 mirrors the real estate bubble and Great Recession.

Figure 11.3 AVLT conservation easements 1967-2023

Landowners, typically ranchers, receive a Colorado tax credit equal to 90 percent of the value of the development rights they give up, capped at $1,500,000 per year. It takes over $34 million income to use up this amount of a tax credit, so most ranchers end up selling their credit for cash to big corporations like King Soopers that owe a lot of Colorado income tax. Tax credit buyers and brokers keep up to 20 percent of the tax credit, reducing the landowner’s potential share to $1,200,000.[45] Colorado state tax revenue still declines by $1,500,000, so the state’s practice of requiring land-rich, cash-poor farmers to sell their credit through brokers instead of just paying them a refund is bad policy. It simply creates another layer of complexity and transfers 20 percent of the credit from the deserving landowner to the lucky broker and tax credit buyers.

A graph that compared easements recorded in Colorado counties with open space tax funding compared to counties lacking open space funding would likely resemble the graph above.[46] Counties in Colorado that have not yet passed an open space tax will almost certainly see a large increase in conserved land once they do.

Figure 11.4 Easements per 1,000 sq miles (NCED)

As illustrated above, growth in the number of conservation easements took off in the U.S. after 2000. States that grant conservation easement tax credits over $100,000 received over twice as many easements between 2000 and 2010 compared to states that offered less than $100,000 or no credit at all. Conservation easements protect agriculture. The South Platte Roundtable recommended in 2015 that they be used to restrict property to future agricultural use, but also permit water to be diverted to cities during droughts. This would meet future water supply needs and protect agriculture. Water could be freed up by temporary fallowing, switching to less water-intensive crops, or by deficit irrigation. Yes, conservation easements generate tax deductions, but the most a landowner can save is the income tax rate which, at under 50 percent, is generally far less than the value of the development rights that are given up. Most landowners are motivated by a genuine concern to protect land, not solely to cut their tax bill. Yes, easements are permanent, but that is the point—if they are temporary and eventually expire, the land will be developed. They are entirely voluntary, and they usually cost the landowner significantly more than the landowner gains in tax savings. Easement tax breaks favor the rich, but that’s because nice parcels of land are expensive. The public overwhelmingly supports conservation easements.

The University of Wyoming polled 500 Wyoming residents in 2004, finding that nearly two-thirds supported land conservation easements. Party affiliation did not matter, as 72 percent of Democrats, 64 percent of Independents, and 62 percent of Republicans supported conservation easements. An almost identical percentage, 64 percent, favored a law requiring counties to develop master plans to manage growth and development and zoning laws to preserve open space and agricultural land.[47] About a quarter, 26 percent, opposed conservation easements, but pollster Karen Raucher says about 25 percent of the population opposes everything the government proposes anyway.[48]

In 2012, 46 of the 57 conservation funding measures on ballots across the country passed, an approval rate of 81 percent.[49] This is true despite polls that show Americans place the economy, jobs, terrorism, and education ahead of the environment.[50] The Trust for Public Land, a nonprofit public charity, helps local governments craft ballot measures that create new public funding for parks and land conservation. The program is so effective that more than 486 ballot measures it has worked on have passed, again at an impressive 81 percent success rate. Together, these measures have raised $59 billion. The Trust for Public Land estimates that every $1 invested in this program has generated more than $2,000 in new public funds.[51] In Colorado, 2.1 million acres have conservation easements that received GOCO funding or a state tax credit, about 3.2 percent of the total land in the state. GOCO stands for Great Outdoors Colorado, and it is funded by the state lottery, which devotes half its winnings to open space preservation. The conserved land includes 1.5 million acres of land mapped “crucial habitat,” 300,000 acres of prime farmland, 270,000 acres of elk severe winter range, 4,100 miles of river frontage, and 19 percent of the Gunnison sage-grouse production areas that occur on private land. Researchers at CSU Fort Collins estimate that Colorado residents received an estimated $5.5 to $13.7 billion of ecosystem benefits from land conserved by conservation easements, including the filtration and purification of water, wildlife protection, and soil retention. Colorado has invested roughly $1.1 billion from 1995 to 2017 in purchasing these easements, $280 million from GOCO and $772 million from the conservation easement tax credit program. That represents a return of $4 to $12 for each dollar invested.[52]

One obvious reason that Colorado is growing so fast is because it is so nice to live here. But another is the network of laws we have that allow land development to proceed with as little “interference” from the people who live here as possible.

So what to do? Well, local communities can weigh in on development in the following ways:

·      we can build up, not out, as former Colorado Agricultural Secretary and U.S. Congressman John Salazar recommends. We can mandate higher density and limit sprawl. The town of Fruita near Grand Junction does this by offering transferable development rights to farmers who restrict development. These can be sold to developers who need them to develop land closer to town;

·      counties that haven’t passed open space taxes can pass them. The Trust for Public Land awaits your call;

·      water utilities can collect voluntary contributions from ratepayers to raise funds to acquire conservation easements to protect farms and open space;

·      county and city planners can adopt daily per capita water targets and require developers to live within water budgets to achieve these targets;.

·      counties can adopt 1041 regulations and restrict development in the WUI; and

·      we can develop permanent land planning roundtables where existing residents can help shape new development.

I’m convinced these initiatives must come from citizens. If we do not attend local land use hearings and speak up, we cannot tell our children in forty years there was nothing we could have done to stop Colorado from morphing into California. That would be a lie.

Figures

Figure 11.1 Cycle of development in WUI

Figure 11.2 Berthoud growth rate 

Figure 11.3 AVLT conservation easements 1967-2012

Figure 11.4 Easements per 1,000 sq miles (NCED)

Notes for Chapter Eleven

[1] Shively, M., “Land Use Planning and Water Efficiency Planning,” Section 4.3.4, Arkansas Basin Roundtable Basin Implementation Draft, pg. 7, downloaded August 1, 2014.

[2] SWSI 2010 Appendix L, Municipal and Industrial Water Conservation Strategies, Table 8, page 44.

[3] Limerick, P., 2012, A Ditch in Time, 255-274, Golden: Fulcrum Publishing.

[4] Colorados Water Plan, 2015, Sec. 2.3, pgs. 2-21 to 2-24. The 2015 state water plan repeats roundtable concerns that providers be able to determine municipal conservation targets and regulations (pt. 6-66); assures us that integrating land planning and water planning will not dilute local control (pg. 6-83); touts the Colorado River Cooperative Act as an example for how a multi-party water development agreement can preserve local control (pg. 8-3); says that “Colorado’s Water Plan upholds Colorado’s water law system . . . and local control structures” (pg. 9-3); and states in the introduction that “local control allows us to effectively respond to our water challenges” (pg. 4).

[5] Colorado Water Plan, CWCB, 2015, pg. 187.

[6] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[7] The American Law Institute (ALI) was established in 1923 to clarify and simplify U.S.  common law. The late Supreme Court Justice Antonin Scalia voiced concern about ALI rewriting the law as they want it to be instead of as it is. Wikipedia, “American Law Institute,” last modified June 20, 2016.

[8] Schmelzer, E., “Under Colorado’s new water-saving law, here’s where grass will be banned starting 2026,” The Denver Post, March 18, 2024.

[9] Land can be subdivided without county oversight if the resulting parcels are at least 35 acres per C.R.S. § § 30-28-101(10), originally enacted in 1972 by Senate Bill 72-35. Clustered subdivisions cut this in half as long as 2/3 of the land in the tracts is dedicated as open space per C.R.S. § 30-28-403. For an explanation of cluster developments, see, “Issues concerning the State’s 35-acre Requirement and Cluster Development,” Oct. 8, 2013, a memo prepared by the Office of Legislative Legal Services for the Water Resources Review Committee.

[10] Mont. Code Ann. § 76-3-103(15), adopted in 1973.

[11] The Metro-Denver area is 4,532 square miles, equivalent to 2,900,480 acres. MetroDenver Economic Development Corporation, "Demographics," downloaded June 25, 2016, http://www.metrodenver.org/do-business/demographics/.

[12] “County commissioners seeking change to 35-acre subdivision rule,” Crested Butte News, September 16, 2009, https://crestedbuttenews.com/2009/09/county-commissioners-seeking-change-to-35-acre-subdivision-rule/

[13] Davis, M., “County Perspectives, A report on 35 acre subdivision exemption in Colorado,” Aug. 2006, Colorado Counties, Inc.

[14] Paulson, A., “The new pioneers of sprawl,” Mar. 29, 2004, The Christian Science Monitor.

[15] Davis, “County Perspectives,” footnote 10, pg. 1.

[16] “No impact fee or other similar development charge shall be imposed on any development permit for which the applicant submitted a complete application before the adoption of a schedule of impact fees or other similar development charges by the local government pursuant to this section.” CRS § 29-20-104.5(6). Also see CRS § 24-68-102.5. Also see “Growth Management Tools Workbook Prepared for Park County, Colorado,” 2000, Clarion Associates.

[17] 1041 powers refer to the bill number that enacted them in 1974. They are contained in C.R.S. § 24-65.1-101, et. seq., and in C.R.S. § 29-20-101, et. seq.

[18] Grand County’s 1041 powers are valid even if they impact residents in Denver County; City and County of Denver By and Through Board of Water Corm’s v. Board of County Com'rs of Grand County, 782 P.2d 753 (Colo. 1989).

[19] For a 2005 article cataloging 1041 powers adopted county-by-county, see, Dischinger, J., “Local Government Regulation Using 1041 Powers, Dec. 2005, 34 The Colorado Lawyer 79.

[20] Williams, D., “Battlement Mesa seeks to use county power to fight Antero drilling plan,” June 24, 2010, The Colorado Independent, http://www.coloradoindependent.com/56120/battlement-mesa-seeks-to-use-county-power-to-fight-antero-drilling-plan.

[21] Stroud, J., “Garfield County adopts new 1041 powers regarding gravel, resource extraction,” Glenwood Post Independent, May 12, 2020, https://www.postindependent.com/news/garfield-county-adopts-new-1041-powers-regarding-gravel-resource-extraction/

[22] Davis, “County Perspectives,” footnote 10, pg. 1.

[23] Paulson, A., “The new pioneers of sprawl,” The Christian Science Monitor, Mar. 29, 2004.

[24] National Forests and BLM land occupy 22.8 million acres Colorado has 11 national forests and two national grasslands, totaling about 14.5 million acres, as reported in Colorado national Forests Fact Sheet, Defenders of Wildlife, downloaded Oct. 21, 2024, https://defenders.org/sites/default/files/publications/FACTSHEET-Colorado-National-Forests.pdf. The BLM manages 8.3 million acres of public lands, as reported in “What we Manage in Colorado, Bureau of Land Management, downloaded Oct. 21, 2024, https://www.blm.gov/about/what-we-manage/colorado.

[25] CRS § 29-20-301(1)(b).

[26] Stein, Susan M.; Comas, Sara J.; Menakis, James P.; Steward, Susan I.; Cleveland, Helene; Bramwell, Lincoln; Radeloff, Volker. "Wildfire, Wildlands, and People: Understanding and Preparing for Wildfire in the Wildland-Urban Interface" (PDF). USDA Forest Service. USDA. Retrieved May 8, 2018.

[27] “Wildland-urban interface,” last modified March 18, 2024, Wikipedia; Radeloff, Volker C.; Helmers, David P.; Kramer, H. Anu; Mockrin, Miranda H.; Alexandre, Patricia M.; Bar-Massada, Avi; Butsic, Van; Hawbaker, Todd J.; Martinuzzi, Sebastián; Syphard, Alexandra D.; Stewart, Susan I. (March 27, 2018). "Rapid growth of the US wildland-urban interface raises wildfire risk". Proceedings of the National Academy of Sciences. 115 (13): 3314–3319.

[28] “Understanding the Wildland-Urban Interface (1990-2020), USDA Forest Service Northern Research Station, Sep. 20, 2023, https://storymaps.arcgis.com/stories/6b2050a0ded0498c863ce30d73460c9e/print

[29] “1 Million Coloradans Live in Areas with Elevated Risk of Wildfire,” Colorado State Forest Service News, Sep 28, 2023, https://csfs.colostate.edu/2023/09/28/1-million-coloradans-live-in-areas-with-elevated-risk-of-wildfire/

[30] “Colorado’s Wildland-Urban Interface, Current and Projected,” Colorado State University, fromt eh  2007 Report on the Health of Colorado’s Forests, https://csfs.colostate.edu/wp-content/uploads/2015/03/07_Forest_Health_Insert_web.pdf

[31] Finley, B., “Colorado wildfire task force tackles building in burn zones,” June 17, 2013, The Denver Post.

[32] Finley, B., “Task force: Colorado homeowners should pay to live in burn zones,” Sep. 30, 2013, The Denver Post.

[33] “Wildfires,” Denver Museum of Nature and Science, downloaded February 15, 2015.

[34] “Researchers try to predict patterns in lightning strikes,” April 15, 1985, Associated Press. Also, men are four times as likely to be struck by lightning as women, Saturday is when most lightening fatalities occur, and soccer players experience the most lightning fatalities. See, Gonzalez, R., “New statistics on lightning deaths in the U.S. reveal weird patterns,” June 24, 2013.

[35] There are 154 new homes in the Black Forest neighborhood, and nearly 18 months after the devastating fire more than half of the hundreds of houses destroyed are on track to being rebuilt. See, Handy, R., “Black Forest Fire recovery process has been long and diverse,” Nov. 30, 2014, The Gazette.

[36] Investigators suspect that the Black Forest fire was human-caused, but they cannot identify the exact cause, nor do they have enough evidence to prosecute anyone. “Black Forest fire residents must show rebuilding progress,” Associated Press, Aspen Daily News, July 9, 2015, pg. 10.

[37] City and County of Denver v. Sheriff, 105 Colo. 193, 96 P.2d 836 (Colo. 1939).

[38] Denver v. Colorado River District, 696 P.2d 730, 741-742, (Colo. 1985).

[39] Denver Water can purchase East Slope water rights for use outside its service area which means it can purchase farmer water rights on the East slope; “The Colorado River Cooperative Agreement,” April 28, 2011, draft, paragraph I.C.2, pg. 6. Denver water can also develop its already-existing conditional water rights in Division 5 listed on Attachment A, and it can develop conditional water rights in Division 1 (the South Platte Basin) listed on Attachment E; Id, CRCA paragraph I.C.3, pg. 6.

[40] Section 6 of Article XX of the Colorado Constitution permits any city with at least 2,000 residents to elect to be a home rule city, and Section 16 of Article XIV permits a county to become a home rule county, regardless of population size. The City and County of Broomfield separated from Boulder, Weld, Adams and Jefferson Counties to become its own home rule city and county in 2001 pursuant to Section 10 of Article XX of the Colorado Constitution.

[41] Home rule cities have more flexibility than statutory cities to create new tax sources to meet local financing needs, establish maximum debt limitations, or establish time lines to repay municipal debt. See the Northwest Colorado Council of Governments Study On the Costs and Benefits of Home Rule Status, 2000.

[42] Hahn, A., “Superior could become a home rule town to fight future drilling, though questions linger,” Colorado Hometown Weekly, Dec. 27, 2018, https://www.coloradohometownweekly.com/2018/12/27/superior-could-become-a-home-rule-town-to-fight-future-drilling-though-questions-linger/. Bueche, K., “A History of Home Rule,” Nov. 2009, Colorado Municipal League, pg. 8-10, 17, Colorado enabled home rule cities in 1902. The home rule movement grew in the early 1900s as part of the Progressive movement. In 1920, 39 percent of the state population lived in home rule cities, rising to 66 percent by 2007. Among people living in cities, 65 percent lived in home rule cities, rising to 90 percent by 2007.

[43] Tax benefits alone can reimburse landowners for the decline in value resulting from conservation easements if they pay both income and estate tax at the maximum tax brackets.

[44] Colorado Open Space Alliance, “COSA open space tax: which counties and municipalities have one?,” downloaded October 26, 2024, https://coloradoopenspace.org/emails/2020/12/cosa-open-space-tax-which-counties-and-municipalities-have-one-2/.

[45] Landowners must also pay income tax if they sell the tax credit.

[46] “Promoting Conservation Easements on Private Land with State Tax Credits,” Mar. 22, 2012, Chicago Metropolitan Agency for Planning.

[47] Boelter, A., “Public Opinion in Wyoming on Conserving Agricultural Lands and Open Space,” 2004, William D. Ruckelshaus Institute of Environment and Natural Resources, University of Wyoming.

[48] Comment made by Karen Raucher at the 2015 Colorado Water Congress, Colorado’s Weather in a State of Constant Change, January 29, 2015.

[49] “Outdoor Ballot Initiatives Win Big on Election Day,” downloaded June 26, 2016, Wildlife Management Institute.

[50] Armsworth, P., Sanchirico, J., “The Successes and Unknowns of Conservation Ballot Initiatives, “Feb. 23, 2015, SNAPP.

[51] “Conservation Finance,” downloaded June 26, 2016, Trust for Public Land.

[52] Seidl, A., Anderson, D., Bennett, D., Greenwell, A., and M. Menefee. 2017. Colorado’s return on investments in conservation easements: Conservation Easement Tax Credit program and Great Outdoors Colorado. Colorado State University, Fort Collins, Colorado, pg. 9, https://www.cnhp.colostate.edu/download/documents/2017/ColoradoStateU_CE-ROI-study_web.pdf..  pg. 3.

 [BG1]This footnote appears to correspond to footnote 14, not 13. Not sure where 13 goes now.