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A Bit of a Stink about Hot Water, Part Four |
Bill Hudson | 7/3/08
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Read Part One
Yesterday, in Part Three, I ended with a quote from Division 7 Water Commissioner Pete Kasper’s May 13 letter to the Town of Pagosa Springs, stating that, in his opinion, the Town “should not be operating wells PS-3 or PS-5 unless it is producing geothermal heat with its heat exchanger.”
While it is certainly a “fact” that Kasper submitted this letter to the Town, Kasper’s view of the Town’s water rights is not a “fact,” but rather his professional opinion as a water commissioner with 25 years of water law experience in Colorado.
If the Town went with Kasper’s opinion, it would probably have to deny the Springs Resort’s new request for the year-round lease of water from the Town’s PS-5 well, at a flow of 400 gallons per minute (400gpm) — and also its current lease for 200gpm during the summer.
Fortunately for the Springs Resort, there are numerous other opinions to choose from. Continued...
The steel pedestrian bridge across the San Juan River, leading from Centennial Park to the Great Pagosa Hot Spring, carries more than pedestrians. Beneath the bridge is a black pipe that carries "waste water" from the Town's geothermal wells — up to 200 gallon per minute — over the the Springs Resort. The water is still clean and packed with "therapeutic minerals," even after a trip through the Town's heat exchanger. In the summer, of course, the water comes straight from the well, because the heat exchanger does not operate in the summer months — so it is in no way "waste water. |
The Town’s water attorney is Janice Sheftel, whom I have yet to meet or talk with. Sheftel has been advising the town for many years, and recently had a meeting with Pete Kasper, to better explain the Town’s legal approach to its municipal water right.
In a May 15 letter to interim Town Manager Tamra Allen, Sheftel stated, in part:
“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.”
“If it should be determined by the Water Court that the 80CW61 decree does not allow municipal use for geothermal heating of pools, I would argue that the Town can still lease water from the wells outside the heating season, because the Pagosa Springs aquifer is not on call in the summer. Therefore the Town can use water from its wells in the summer, just not under the 80CW61 water right.”
There are a couple of interesting aspects to Sheftel’s opinion. As she notes, the Town’s water right decree indicates merely “geothermal heating,” but does not fully define what may be heated. So we would need to look at what the court may have meant. Again, these are opinions we are dealing with, not "facts."
 Besides the two wells, PS-3 and PS-5, which are used by the Town’s geothermal heat exchanger, the Town owns another geothermal well known as the Rumbaugh Well, located near the CenturyTel office on Lewis Street. If you look at the decree for the Rumbaugh Well, that right also has decreed uses.
The court specified them fairly clearly, and the rights include “heating” as well as “sidewalk de-icing, laundromat, car wash, and recreational bathing.”
So in the case of the Rumbaugh Well, the various types of uses are named — uses that utilize heat but have nothing to do with “heating a building.” Specifically, the Rumbaugh Well decree mentions “recreational bathing” as a separate item from “heating.”
Attorney Sheftel, however, suggests that “recreational bathing” such as the Springs Resort offers its visitors is arguably just another form of “heating.”
Curiously, during the 1990s, the Town tried to get the rights from the Rumbaugh Well — including its decreed uses — transferred to the PS-3 and PS-5 wells. They were not successful in getting those rights transferred, as far as I can tell. I am not clear at this point why the Town was trying to transfer those rights, though it may be worth noting that those rights included “recreational bathing.”
Sheftel also notes that the word “municipal” is not clearly defined and may have broad applications. It’s very obvious, for example, that the Town has been using its geothermal heating system to serve numerous private downtown businesses and residences — about 20, by my count — and that the term “municipal” can be applied to a heating service provided by a municipality to private businesses.
From that point of view, Sheftel is right on the money: the term “municipal use” would clearly allow the lease of water to the Springs Resort. Continued...
After crossing the pedestrian bridge, the black pipe continues along the bank of the San Juan toward the Springs Resort bathing pools. A new retaining wall, seen to the right in this photo, is part of an expansion project that will add five additional bathing pools to the resort's existing 18.
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Sheftel’s final comments noted above are a bit more complicated to get a handle on. Sheftel notes that, even if the water court “does not allow municipal use for geothermal heating of [recreational] pools, I would argue that the Town can still lease water from the wells outside the heating season, because the Pagosa Springs aquifer is not on call in the summer. Therefore the Town can use water from its wells in the summer, just not under the 80CW61 water right.”
The key phrase here is “not on call in the summer.”
In Colorado, it is typical for a citizen or business to begin developing a new water use, without first applying for the right to use that water. For example, the Giordano family — developers of the Spa at Pagosa Springs, across the street from the Springs Resort — began using the water from the Pagosa Springs Aquifer in 1936. They did not go into court and get that right adjudicated until 1978.
This technically means that — should there be a shortage of water coming from the Pagosa Springs Aquifer — the Giordano wells would have to hold off taking any water until everyone with rights older than 1978 had taken their fair share. Likewise, everyone with water rights dated after 1978 — which includes the Town of Pagosa Springs PS-3 and PS-5 wells — would have to wait until the Giordanos had taken their own fair share. A water situation where rights holders are waiting their turns is known as “being on call.”
As Sheftel notes, as long as the water is “not on call” the various water users are legally allowed to use as much water as they wish — so long as they are not wasting the water.
As far as I can tell, there has never been a call placed on the Pagosa Springs Aquifer. Springs Resort developer Matt Mees told me he thought the steady output of the aquifer was around 3cfs, about 1,350 gallon per minute. So far in Pagosa’s history, it appears that all the combined water users have never used a total of 1,350gpm.
But that is hard to determine, it seems.
I asked Pete Kasper if the users of the Pagosa Springs Aquifer are monitoring their water use, so that everyone has a clear picture of how much total water is being taken from the aquifer. This might be particularly important in the case of a deep underground aquifer which is not affected noticeably by heavy rainfalls, or drought, up on the surface — and where the water taken is not returned to the aquifer.
If the Town, for example, was pumping 600gpm instead of 400gpm, would the Division of Water Resources office know about that?
“I wouldn’t know it the minute it happened, no,” Kasper replied. “But we do keep records. The Town has two meters on their well; they have an instantaneous meter that shows what’s pumping right at the moment, and they have a continuous flow meter that shows how much they have used over the period of time. So I suppose they could pump 600gpm for an hour and then shut off for and hour, and it would average to 300gpm.”
The Town maintains its own records of water use, and Kasper checks those records “now and then.”
Because the corrosive mineral water from the Pagosa Springs Aquifer plays havock with the ordinary in-pipe, impeller-type meters using in drinking water monitoring systems, the Town installed Doppler meters that read the water flow from outside the pipe.
From what I have been told by Marcia Preuit at the Spa at Pagosa Springs, and Matt Mees at the Springs Resort, neither of those two businesses have any meters installed on their mineral water systems. Because the Spa runs all of its outflow through a single white plastic pipe that empties into the San Juan River, Kasper is able to get a rough measurement of the water used, by seeing how long it takes to fill a 5 gallon bucket. Not very scientific, but it’s an estimate, at least.
Mees at the Springs Resort verified that the Springs Resort has no meters on its incoming pipes nor on its outgoing pipes. Mees said several of their bathing pools spill directly into a cooling pond, and therefore the resort’s outflow cannot be easily measured. We know that the Springs Resort is currently getting around 180gpm from the Town wells, through their current lease. They are have the adjudicated right to draw about 100gpm from a pipe that goes deep into the Great Pagosa Hot Spring, but have no meter on that pipe, according to Kasper.
No one can see the total supply of water in the Pagosa Springs Aquifer, so the amount of water available to all users is guesswork. We also know that two of the three main users of the aquifer have only unscientific measurements of their water use.
We really have only two significant gauges to measure the health of the aquifer: the amount of artesian pressure, and the level of the mother spring.
What can those two measures tell us about the wisdom of selling 400gpm year-round from the Town’s PS-5 well to the Springs Resort? And is the Town Council interested in those two measures?
More tomorrow… |
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