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Water Districts Lower Their Sights on Dry Gulch |
Bill Hudson | 2/13/08
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At its regular meeting yesterday, the Pagosa Area Water and Sanitation District Board got a first look at the briefs filed by its legal council, Collins Cockrel & Cole, and by the attorney for Trout Unlimited, Andrew Peternell, in the continuing case of the Dry Gulch Reservoir project. The briefs were fresh off the presses, having been filed just that same morning, and the PAWSD staff had not yet had a chance to read the documents and comment on them.
PAWSD is collaborating with another Archuleta County special district, San Juan Water Conservancy District, to jointly build a large reservoir on land about two miles north of downtown Pagosa Springs, recently purchased by the districts for about $9 million. The reservoir would provide recreational uses as well as secure water storage to help meet PAWSD new One-year Safety Supply Margin policy.
It appears that the two districts have lowered their sights somewhat, and reduced the amount of water they are seeking in the case.
 In 2004, PAWSD and the San Juan Water Conservancy District filed a joint application for conditional water rights for a new project — the Dry Gulch Reservoir. In their application, the water districts requested the right to pump 200 cubic feet per second (cfs) from the San Juan River. The district justified that amount of water based on 100-year population predictions developed by Steve Harris of Harris Engineering in Durango. PAWSD currently pumps less than 7 cfs from the San Juan.
The presiding judge of the District 7 Water Court, Judge Greg Lyman, ruled in favor of the districts in May 2006, granting them conditional water rights — rights that would become “absolute” once they were actually developed, at some point in the future. It appeared that Dry Gulch had cleared its first hurdle.
There were, however, some fishermen unhappy with that decision. Trout Unlimited, a national organization with an active presence in Colorado, appealed the decision to the Colorado Supreme Court, arguing against the new conditional water rights.
Peternell, who argued the Supreme Court case for TU, held that the districts' population figures were inflated — Harris’ projections were about twice as high as the figures available from the Colorado State Demography Office, or from a recent economic study produced for the Town of Pagosa Springs by Economic Planning Systems. Additionally, TU’s appeal claimed that it was unreasonable for a municipality to make claims on water 100 years into the future. Also, TU claimed Harris’ projections failed to take into account water conservation measures that will likely reduce per capita water use in the future.
The Supreme Court did not reverse Lyman’s decision, but did send the case back to him for “additional findings of fact.” The two briefs submitted yesterday will supposedly provide Lyman with the facts he needs to reconsider the case.
Although this reporter has not yet had a chance to thoroughly study the briefs, it appears that PAWSD and SJWCD have made concessions in a few areas, while sticking to their guns in other areas. Its reductions in the requested water rights appear to be based mainly upon the Districts’ decision to reduce their planning period from 100 years to 75 years. The 75-year timeline is apparently based on District concerns that a shorter planning period could result in building a reservoir that would need to be enlarged as soon as it was completed.
Changes to the proposed decree suggested in yesterday’s brief by Evan Ela, the attorney for the two Districts, include:
- Reducing the diversion to storage from 200 cfs to 100 cfs
- Reducing the initial fill from 29,000 acre-feet to 23,000 acre-feet
- Reducing the annual total fill from 64,000 acre-feet to 29,000 acre-feet
- Changing the priority date from March 2000 to December 2004
- Adding a “reality check” stipulation, to include reassessment of need over time
TU’s brief proposes that the longest appropriate planning period is 36 years, based on the length of time it would take to plan, permit and build the initial reservoir.
Ela’s brief for the Districts maintains that Harris’ original population estimates are accurate, as are his estimates of water conservation improvements. The Districts’ brief suggests over 90,000 people within the PAWSD service area by 2080.
The TU brief basically states that the Dry Gulch Reservoir is not needed at all. TU holds that the population within the appropriate planning period — 36 years — will not exceed 35,000; that water conservation efforts will reduce daily per capita use from 215 gallons to 180 gallons; and that PAWSD already has sufficient water rights — including over 8000 acre-feet of storage rights — to serve a future 2040 population.
At Tuesday’s meeting, PAWSD Manager Carrie Weiss expressed her disappointment that the case was costing the Districts “thousands and thousands of dollars” in continuing legal fees. She noted that it was not the local Colorado Trout Unlimited organization that is funding the opposition to Dry Gulch, but rather the national organization.
“I’m frustrated. I’m sorry, but I’m really very disappointed in this process. The cost is getting outrageous. We have no choice but to proceed, but it just irritates me that a national organization, most of whom don’t even have a clue where Pagosa Springs is, is fighting this. And they have a lot of money and a lot of power. It’s frustrating.”
Weiss noted that even this current round of legal arguments could possibly be appealed by TU.
The two water districts will be discussing their Dry Gulch strategy further at their joint meeting on February 25. |
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