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Funny Smelling Water Facts, Part Six |
Bill Hudson | 12/8/08
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Read Part One
In 1997, a modestly successful motel called the Spring Inn — later to become the much more successful Springs Resort — was in the process of expanding. Beginning with a couple of fiberglass hot tubs filled with geothermal mineral water, owners Bill Dawson and Matt Mees had begun building a series of attractive outdoor bathing pools, overlooking the scenic San Juan River.
To fill all these attractive new pools, the Spring Inn would need plenty of “naturally therapeutic” geothermal water, rich in minerals and heated to at least 110 degrees. And they had found a possible source: the waste water outflow from the Town’s municipal geothermal heating system which had been built in 1980. That water was being dumped into the San Juan River — during the winter heating season — at a temperature of about 120 degrees, and Dawson and Mees had filed a claim on that waste water, as they were allowed to do under Colorado law.
Such a claim would mean that the Spring Inn could recycle the still-hot and very useable water through their own facility — but only when the Town happened to be running its heating system. Unfortunately, that would not help them much during the summer tourist season.
Could they get the water year-round, instead?
Let’s see… How about changing the diversion point for the Rumbaugh Well?
 The Town’s legal water rights for its PS-5 Well clearly stated that the water was for “municipal use associated with geothermal heating.” That implies that the Town was legally allowed to pump water only during the winter heating season. When installing its municipal heating system in 1980, the Town had faced considerable opposition from other geothermal water users, who feared the municipal system would overtax a limited resource. So the Town specifically agreed to use the water only during the winter heating season, and that agreement is, in essence, written into two legal documents — the PS-5 water rights decree, and the PS-5 well permit.
This limited use would supposedly allow the Great Pagosa Hot Springs aquifer to recover from any overuse, during the summer months. No one would want to overtax the aquifer, after all.
The legal limitation written into the Town's geothermal water right was, as noted above, that the water could be used only for “municipal… geothermal heating.” This is the legal wording that Springs Resort representatives Matt Mees and attorney Jim Anesi were echoing last month, when they carefully avoided giving straight answers to my questions about summertime use of the Town’s water:
“It’s just a heating system…”
“They are leasing it for a municipal purpose…”
“We are using water, year round, in a heating capacity...”
This carefully chosen language echoes a May 15, 2008 letter sent to the Town by its Durango water attorney Janice Sheftel:
“The use decreed for Geothermal Wells PS-3 and PS-5, in Case 81CW60 (made absolute in 87CW35) is ‘municipal use associated with geothermal heating.’ I think the Town has an argument that the decree does allow summer leasing of geothermal water from the wells, because the decree does not indicate the geothermal heating of what, and municipal use is not defined. Municipal use is a very broad.”
Translation: the Town can simply decide, on its own, that the Springs Resort's recreational bathing pools are part of a "municipal" geothermal "heating system" and everything is hunky dory. The only way anyone can challenge that decision is to hire a lawyer and take the Town to court.
Sheftel might be correct. But perhaps we can find some clarification contained in Case No. 89CW19, adjudicated by Judge Gregory Lyman in July, 2000. That decision is intriguing for a couple of reasons.
First, we need to look at the 1997 lease between the Town and the Spring Inn, leasing 200 GPM of the Town’s geothermal waste water during the winter heating season. That lease is currently still in effect, and good through 2012, though the Springs Resort is now trying to negotiate a new lease.
Here is what that 1997 lease says, in part:
“Since the Company’s recreational use of geothermal water is a year round activity, the Company wishes to lease the 200 GPM on a year-round basis. The availability of the the 200 GPM during the summer may depend upon the resolution of Case No. 89CW19, District Court, Water Division 7, the Water Court’s interpretation of the Town’s decree in Case No. 81CW160, and other obligations of the Town.” [My emphasis.]
Case No. 89CW19 was an attempt by the Town of Pagosa Springs to transfer certain water rights from its Rumbaugh Well — located in the center of the downtown commercial block — to its PS-5 Well, located near the Spring Inn. The Rumbaugh Well had been appropriated in 1923 and had been historically used to heat numerous downtown buildings — and for recreational bathing.
Unlike the water rights assigned to the PS-5 Well, which were limited to "heating," the Rumbaugh Well's water rights decree had explicitly allowed "recreational bathing," ever since 1923.
But opening up a water rights case is always a risky business. The judge who had assigned the water rights to the Rumbaugh Well in 1923 was obviously not the same judge who would hear this new case, Case No. 89CW19. Yes, the judge might allow the Town to change its diversion points — but he could also look closely at the situation and make reductions in the Town's rights.
Risky business.
If the Town were allowed to change the “point of diversion” from the Rumbaugh Well location to its PS-5 Well location, the Town would have 6 CFS of water rights available at PS-5 — and the allowed uses would now include “recreational bathing.” That would have legally allowed the Town to lease summertime water to the Spring Inn — and so, of course, the 1997 lease specifically refers to that potentially important Case.
But for some reason, Judge Lyman wouldn’t allow the diversion point change. In fact, Judge Lyman also set specific limits on the amount of water the Town could draw from the Rumbaugh Well, as well as the uses allowed:
“The uses of the Rumbaugh Ditch and Well water rights… are changed to the uses set forth in paragraph 7… for up to 150 GPM during the historic Town of Pagosa Springs heating season, approximately October 1 through May 30, but for a season as long or short as interior room heating is needed by a reasonable number of Town customers, and 35 GPM during the non-heating season.” [My emphasis.]
Not only did the Town fail to move the "recreational bathing" water to the PS-5 Well, but it saw additional restrictions placed on the Rumbaugh Well.
Lyman's ruling also did two other intriguing things: it defined the historic heating season, and it defined what “heating” means. 'Heating' means “interior room heating.” Lyman is very clear: the Town may use the Rumbaugh Well to heat interior rooms from October until May and may use 35 GPM during the summer for other uses — such as, say, recreational bathing.
As we have seen, the 1997 lease specifically mentions Case No. 89CW19 as a possible way for the Town to deliver water to the Spring Inn during the summer 'non-heating' season. The Town lost that case.
But instead of respecting Judge Lyman’s ruling, the Town proceeded to deliver water year-round to the Spring Inn as if nothing had happened. After all, their attorney, Janice Sheftel, had told them “the Town has an argument” that privately owned recreational mineral pools can be legally construed as merely another part of the Town's “municipal heating system.” The Town has embraced Sheftel's interpretation — which is in clear conflict with the ruling in Case No. 89CW19, as far as I can tell — and has continued to deliver water from the PS-5 Well during the summer months.
But, really, who is the proper authority in this matter, attorney Janice Sheftel or Water Court Judge Greg Lyman?
Luckily, the Town Council has still another place it could look for a legal opinion.
On February 19,1987, the Town of Pagosa Springs was issued a well permit, No. 27, allowing the Town to appropriate “geothermal fluid” from the PS-5 Well. Prior to receiving that well permit, the Town was operating PS-5 as a “geothermal exploration well.” Well Permit No. 27 gives, as its allowed uses, just one single use:
“Extraction of energy from geothermal fluids for a municipal heating system.”
The well permit, in other words, allows the Town to extract “energy” from the hot water. Significantly, the uses do not include “leasing the water to private resorts for recreational bathing.” Just "extraction of energy."
Permit No. 27 then continues with a set of conditions, including this one:
“Annual diversions pursuant to this permit are limited to the amount reasonably necessary for use in the applicant’s heating system.”
Did Jeris Danielson, the State Engineer who signed the well permit, intend to include the recreational bathing pools at the Springs Resort as part of “the applicant’s heating system?” Perhaps the other conditions of the Permit will shed some light on that question.
For example, once the water has had its energy extracted, what shall the Town do with the water? The permit is fairly clear:
“All return flows from the use of this well must be discharged to the San Juan River through a closed, non-consumptive system.
“The rate and volume of return flow to the San Juan River must be measured by a method acceptable to the Division Engineer.
“Water temperature must be measured at the well head and return flow discharge points so the amount of geothermal energy recovered may be determined. The measurement records must be maintained by the well owner and submitted to the Division Engineer upon request.”
Since signing its lease with the Springs Resort in 1997, the Town of Pagosa Springs has failed to discharge “all return flows” to the San Juan River “through a closed, non-consumptive system,” — because the Springs Resort has been pumping an unknown quantity directly into the Great Pagosa Hot Springs, and the rest into its recreational bathing pools.
The Town has failed also to measure the volume of the return flow, since the Springs Resort — which is ultimately discharging the water — has no water metering system.
The Town has additionally failed to measure the water temperature at the return flow discharge points, or to keep records of those discharge temperatures.
I'm not a lawyer or a judge, just an interested citizen. But from what I can tell, the Town’s current delivery of year-round “waste water” from its PS-5 Well, used in recreational bathing pools at the Springs Resort, very clearly violates the legal uses allowed by Permit to Appropriate Geothermal Fluid No. 27.
So I suppose we are left with two crucial questions:
Why would the Town Council continue to lease geothermal water to a private enterprise, in obvious violation of their legal agreements with the state of Colorado? And perhaps even more intriguing, why would they be negotiating a 50-year lease to double that amount of leased water?
Read Part Seven |
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