Questions, budget grow with Boxelder flood mitigation project

In the end, the fate of a major flood mitigation project in Larimer County may be determined by dirt.

A huge pile of dirt.

Enough dirt to build a 30-foot-tall earthen berm to divert flood waters flowing from the Boxelder drainage area in northeastern Larimer County.

The story is complicated, with enough twists and turns, obfuscation and failures-to-disclose to cause real-estate developer and broker James Day, one of six generations of the pioneer Akin family to own and live on land now affected by the Boxelder Basin Regional Stormwater Authority’s actions, to come up with the word “devastational” to describe what’s happening.

Legal bills are piling up for the Day family as they fight a plan by the stormwater authority to remove soil from 80 acres of their farm to build a floodwater diversion berm, and in the process turn off the irrigation tap for their tenant organic farmer.

The deadly Spring Creek flood in 1997 resulted in the enlargement of the existing Larimer County floodplain by the Federal Emergency Management Agency. Larimer County, Fort Collins and Wellington entered into an intergovernmental agreement in 2008 to create the stormwater authority, charged with implementing several regional flood mitigation projects envisioned by the Boxelder Stormwater Master Plan. The authority was also given powers of eminent domain.
Three major improvements were to be undertaken: the Coal Creek Flood Mitigation Project, Edson Reservoir (now called East Side Detention Facility) and Middle Basin Improvements (now called the Weld and Larimer Canal Crossing Structure). The total cost was estimated at $12 million to be shared by FEMA, the county, Wellington and Fort Collins. (The authority revised the total cost of the projects to $15 million on its website in July 2013. The Coal Creek project, in Wellington, has been completed at a cost of $5.1 million.)

From the beginning the plan was unpopular.

In 2009, 30 property owners in Waverly and Wellington, and some who lived east of Interstate 25, objected to being included in the fee-collection area, claiming that the authority’s storage reservoir No. 8 would contain floodwaters east of County Road 11. They wondered why the fee area’s northern boundary was County Road 70 instead of following the authority boundary to the state line.

Calling themselves the Boxelder Coalition, they asked why fees were imposed without a vote of the property owners, and they expressed a belief that property owners and developers along I-25 and well south of Wellington would be the main beneficiaries of the plan. The group hoped to establish a dialogue. “We’re not anti-growth or anti-development,” coalition spokesman Larry Newman said at the time.

The stormwater diversion and storage project was designed to remove 642 properties from the Boxelder Creek 100-year floodplain, resulting in an immediate economic benefit to the area, according to the authority’s website. These property owners would be released from FEMA flood insurance requirements and floodplain land-use restrictions. It was also suggested that avoiding possible problems with raw sewage in homes and businesses during a flood would benefit the area by reducing demand on emergency services during a flood.

The Boxelder Basin is vast and relatively undeveloped, covering 260 square miles from the Wyoming border to southeastern Fort Collins. The southern portion of the basin near I-25 including Wellington, part of Fort Collins and an ag-business and research corridor where Budweiser, and Colorado State University Horticultural and Agricultural Research facilities are located, has become increasingly urbanized. It has far more manmade structures, such as streets and buildings, than are found in the northern portion of the basin.

Present and planned development in this area stands to gain significantly from being removed from the floodplain.

James Day has become the primary spokesperson as he and his family attempt to preserve the 200-plus acres that remain of a 3,000-acre spread accumulated by Day’s great-grandfather, Victor Akin. To complete its East Side Detention Facility, BBRSA is taking 80 acres of Day’s land for an easement, which is visible from the home of Day’s mother, Jan Day Iodence, off County Road 52 east of I-25.

Iodence maintains that stormwater authority manager Stan Myers explained the easement condemnation proceedings to her in 2012. “There was no discussion,” she said. “Just a statement.”

Easements that facilitate underground utilities — water, sewer and electrical lines and gas pipelines — allow for existing above-ground uses, such as farming, to continue. In the case of the BBRSA, a 30-foot retention structure and associated diversion channel would render most of the easement incompatible with current surface use (farming).

The process of eminent domain allows governmental entities to acquire, by condemnation, easements, rights-of-way and real property for public use when they can prove a need to do so for the health, safety and welfare of the public.

Public entities, such as the stormwater authority, are required to negotiate a fair market price for land being acquired for easements. When a price cannot be agreed upon, the condemnation process starts and a court makes a final decision.

The good news for Days is that when built, the proposed stormwater diversion structure will decrease the likelihood of flooding on the rest of their land that is not part of the acquired easement. But Iodence maintains that no monetary offer was made at the time she was approached about the easement by Myers.

Thus began a battle that continues to this day and includes several Day family members, the Wellington town board and its attorney, Brad March, lawyers for the Day family and lawyers for the stormwater authority.

Along with delays come mounting costs — and squabbles among stormwater authority board members.

Recently District Judge Thomas French reversed his prior decision that allowed the stormwater authority to remove dirt from the easement on the Day property to construct a 30-foot-high wall for the East Side Detention Pond Project. He based the reversal on the finding that the easement did not include removing dirt; that the authority would need to own the land outright to do so.

If the reversal holds, it is likely to have a profound effect on the future of the entire stormwater authority.

Stormwater authority board member Richard Seaworth said in a letter to the Wellington Board of Trustees that there are no other cost-effective options for obtaining a large quantity of dirt to finish the project. Boxelder attorney Joe Rivera has filed an appeal in hopes of reversing Judge French’s decision once again.

The Day family has support from individuals and groups who have become disillusioned by the existence and actions of BBRSA.

“The thing is just a mess. They’ve (BBRSA) altered budget numbers yet again to try and make things look doable on paper. It’s still benefiting a slim few down south in the affected area, which is coincidentally slated for tens of millions worth of public and private redevelopment,” Wellington town trustee Travis Harless said. “So while Timnath, Fort Collins and the county cash in and come out in the green, Wellington (or rather its citizens) are left high and dry in the corner wearing the dunce cap and seeing red the entire time.”

Harless regrets that Wellington approved BBRSA seven years ago when a $1 million flood mitigation alternative was available, although he acknowledges that the cheaper alternative would have caused an issue with additional water added to Boxelder Creek from Coal Creek. “The project, which was touted as a beacon of safety and protection, boils down to about the same thing everything else does these days: Money,” he said. “Greed seems to outweigh all else.”

With the loss of 80 acres of farmable land to the stormwater authority, the Day family also will lose shares of Big Thompson water, which are allotted based on the total number of acres owned. This means their tenant organic farmer will suffer losses and is considering a lawsuit.

Day and his family already have accumulated $60,000 in legal fees. And Day said that BBRSA will need to find a way to pump water across the new dam to the family’s remaining property.

Day is reconciled to the fact that BBRSA will own an easement on 80 acres of his family land.

The best option in his mind — to keep his family’s farm — is gone.
None of the family members want to sell or develop their land. They only want to live their lives in a place with a heritage that stretches over 100 years.

What he wishes for is to be treated fairly by the stormwater authority when it comes to compensation for what the family has lost.
“You shouldn’t get emotionally attached to property,” Day said. “But it’s hard not to.”