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PAWSD vs TU, Round Four |
Glenn Walsh | 10/30/08
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Monday afternoon, Andrew Peternell, director of the Colorado Water Project for Trout Unlimited, filed an appeal of Judge Gregory Lyman’s September 11 judgment awarding the Pagosa Area Water and Sanitation District and the San Juan Water Conservancy District an additional water storage right of 19,000 acre feet for their Dry Gulch Reservoir project and the right to pump water from the San Juan River at the rate of 150 cubic feet per second.
PAWSD presently has the right to divert 6300 acre feet of water from the San Juan River for storage and to pump 6.9 cubic feet per second from the river to its Snowball treatment facility. The 150 cfs grant in Lyman’s decision represents a more than twenty-fold increase. Significantly, the 150 cfs right is 700% larger than the right the water districts’ engineer Steve Harris claimed was necessary to meet 2040 demand in his initially engineering report for the Dry Gulch reservoir.
 The 150 cfs right would permit the Dry Gulch Reservoir to pump more than 25,000 acre feet of water from the San Juan in less than 3 months. This right was reduced from the original 280 cfs right granted by Water District Judge Gregory Lyman in his 2006 decision which granted the water districts conditional water rights of 64,000 acre feet per year.
PAWSD currently supplies about 2000 acre feet of potable and irrigation water to its 7,000 customers.
It was the water districts’ original claim to pump 280 cfs from the San Juan — an amount permitting the filling of a 35,000 AF reservoir in two months — that motivated Trout Unlimited to challenge the districts’ Dry Gulch project.
Lyman’s original decision was a seeming knockout win for the advocates of the 35,000 AF reservoir planned for a site one mile north of the Town of Pagosa Springs. It granted the districts a nearly one hundred year planning period, accepted population growth figures 30% greater than the Colorado State Demographer forecast (and 60% greater than present projections for 2010), and accepted water conservation savings for the year 2100 which had already been achieved in 2003.
However, the Supreme Court overturned Lyman’ decision in October 2007. If not a knockout, the Court’s decision, authored by the Court’s water law expert Gregory Hobbs, was a unanimous decision against the 100-year, 64,000 AF decision of the lower court.
Hobbs returned the case to Lyman, demanding a more reasonable planning period, reliable population growth projections, and substantiated projections of future water use which incorporate future water conservation
Hobbs also demanded that the lower court provide finding demonstrating the financial ability of the water districts to actually construct and put into use the water rights conferred on them. The Court did not limit Lyman to facts before him in the 2006 proceedings, but opened the case up to further findings of fact regarding water usage, population growth and the ability of the water districts to actually construct the Dry Gulch reservoir.
Hobbs showed a clear preference for PAWSD’s original plans for a 12,500 acre foot reservoir at the Dry Gulch site, based upon a 35-year planning period, which asserted the need for an additional 18.5 cfs of water from the San Juan River.
Lyman issued his second ruling on the case six weeks ago. The judge reduced the planning period from 95 years to 50 years, and the conditionally water rights for the initial fill from the river from 29,000 AF to 19,000 AF, leaving the water districts 25,300 AF of diversion rights at the Dry Gulch site. Combined with the existing storage of nearly 5000 AF in existing reservoirs within the Stollsteimer watershed, PAWSD would possess over 30,000 AF upon completion of a 25,000 AF reservoir at Dry Gulch.
Lyman’s decision was a very confident restatement of his previous decision, tailored to a fifty-year planning period. At one point Lyman characterized the Court’s Bijou doctrine as “sufficient” to his present case.
Lyman chose to take no more evidence regarding population growth, water usage, or the ability of the districts to actually construct the Dry Gulch reservoir with the financing tools they assured the court would be sufficient to construct the storage facility. Those financing tools, principally a set of impact fees dedicated to the new reservoir, are presently collecting little more than 2% of the revenue which was forecast in 2006.
The issues before the Supreme Court remain the same. Is the 50-year planning period the Court applies to most complicated water projects appropriate for a relatively straightforward project in a very small district (PAWSD only deliver 1500 AF of water to customers, apart from its strikingly high 34% loss rate).
What is the likely rate of growth in population within the PAWSD district? Present growth has slowed to a near halt, but when and if local residential and commercial growth resumes, will it approach the original forecast of a County population exceeding 150,000 early in the next century?
How much water will the average customer within the PAWSD district be consuming when the Dry Gulch reservoir comes on line in thirty years. The districts have contended, and Lyman has accepted, that water usage will be reduced to 200 gallons per day per person by the year 2100. Yet PAWSD's own Conservation Plan published two months ago demonstrated that usage has already been reduced to 175 gallons per day, a figure which includes system losses of 34% of potable water.
Peternell anticipates that the Supreme Court will require briefs from the contending parties this winter and oral argument next spring. He expects a decision from the Court within one year, with the likelihood that the case will be returned yet again to Lyman with more explicit direction from the Supreme Court regarding population growth projections and water usage.
The Supreme Court opened the case up to updated population, usage and financial feasibility examination when it returned the case to Lyman last October. Lyman chose to take no new evidence on these critical questions. Will the Court direct Lyman to reconsider these key questions based on new arguments?
We are likely to find out this same time next year.
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