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Tangled Waters, Part Three |
Bill Hudson | 7/9/08
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Read Part One
As part of the negotiations between the Town and the Springs Resort, resort representative Bill Whittington has proposed that the Town and the resort “resolve and reach an overall agreement” on thirteen issues. Besides the requested agreement to increase the Town’s geothermal water delivery to “the full extent of the Town’s maximum usage”, Whittington is asking for a 50-year lease on the geothermal water delivery, and that the Town cease submitting objection letters “as it relates to renewing any existing water rights or future filings on new water rights.” Specifically, the Town should agree that it “will not oppose the Springs filing for additional water rights out of the main spring.”
In summary, the Springs Resort wants full use of the Town’s adjudicated geothermal water from its main well, plus a promise that the Town will not object to the Springs filing for new water rights from the Great Pagosa Hot Spring — or from any of the other several wells and springs owned by the resort.
 In the past, the Town of Pagosa Springs has, in the interest of protecting its own access to geothermal water, filed objections to practically every new water rights filing in the county. It appears that other geothermal water rights owners have also done the same. I understand that a failure to file objections can limit the Town's legal options into the future.
Specifically, the Town has objected to the Springs Resort filing for rights to the Town’s geothermal heating plant outflow.
For one thing, it’s not clear that Colorado water law allows the assignment of rights to “waste water” from a geothermal plant. And for another, the Town Council voted at its last meeting to explore the possibility of a downtown municipal greenhouse, which might be heated by geothermal waste water.
Meanwhile, Whittington is apparently asking the Town to step aside and allow the resort unhindered access rights to the Great Pagosa Springs Aquifer.
Part of the exchange Whittington is offering include access easements needed by the Town if it plans to go ahead with its San Juan River Restoration project. That controversial project appears to have been “personal” project of former Town Manager Mark Garcia, initiated with very little Town Council oversight and even less community participation. In a 2005 interview with the Town’s then-Special-Projects-Coordinator Julie Jessen (now Julie Simmons), I was told that the citizen committee that approved the proposed project consisted of only a handful of people: Garcia, Jessen, boating enthusiast Anthony Doctor, developer Fred Schmidt and a couple of other names I don’t recall.
The project as currently sketched is actually not a “restoration” in any sense of the word, but rather an attempt to make a new white water park out of a relatively mild-mannered, mildly sloping river.
The Springs Resort is demanding that the only completed portion of the “restoration” project — the much-criticized and equally-much-admired Davey Wave — be removed, due to its negative impacts on river erosion, sediment build-up, and “the desert effect it has had on the area in front of the Chamber of Commerce…”
At this month’s regular Town Council meeting, as noted in Part One, Council Mark Weiler expressed his lack of confidence that the project, which so far appears to have been bungled by Garcia and designer Gary Lacy of Recreational Engineering and Planning. Mark had suggested that perhaps the Town needed to start the project over with a new designer.
At that same meeting, Councilor Stan Holt noted the role that additional easements will play in the project completion.
“I doesn’t really matter who we use to design the river features — though to start over would be very expensive and time-consuming. But if Mr. Whittington isn’t going to agree to an easement, it really doesn’t matter which consultant we use, it’s not going to get done. So I think we need to come to a consensus here, and get an agreement before we even consider what consultant we’re going to use or whether we are going to start over. Without Whittington’s agreement, we’re just wasting our time.”
“I feel like we need to be very clear what our vision for the river is, and let that dictate what our actions are,” responded Councilor Angela Atkinson. “I think, to try and presume, or try and second guess whether [Whittington] is going to say yes or no — I think we need to be the leaders in this process. And half of these Council members are new — including myself — so we never approved [the current] plan, and if this plan doesn’t fit this Council’s philosophy, I think we need to start from there. I think that would be a shame, frankly, but we need to decide what we want for the river and let that guide the negotiations [with Whittington.]”
The 1995 “Fishing is Fun” river enhancements, designed by hydrologist Dave Rosgen, cost the Town about $381,000 — including over $100,000 in easement acquisition costs. Does the current Town Council really want to spend hundreds of thousands of dollars to tear out those enhancements and add more “Davey Wave” structures of the type already causing issues at the one existing location?
And if so, is the Town willing to trade the full amount of its geothermal water rights — and agree to stop objecting to all future water rights acquisitions by the Springs Resort?
Obviously, the Town Council needs to make some crucial philosophical decisions about the river enhancements and about the allocation of the Town’s geothermal water resources — though some decisions may be limited by Colorado law and by the Town Charter. In a May 9 response to Whittington’s 13 point negotiating list, interim Town Manager Tamra Allen noted, “The Town does not have the ability to extend a lease to Springs Resort Company for a term longer than ten (10) years, according to Section 10.4C of the town charter…. The town may, in the future, consider issuing an RFP to determine appropriate market rate for the leasing of the geothermal water.”
Allen also wrote, “The town will retain the right to object to or intervene in any filings that are made on geothermal water rights within the community. It has come to our attention that the Springs Resort has filed a request for adjudicated rights to the town’s effluent. This filing for geothermal water is in violation of the town’s charter (Section 10.4C) which states, ‘Any such franchise, right or privilege [lease] shall terminate automatically if necessary to preserve or maintain the property or right or the town’s ownership [of its geothermal water rights.] Based on this section of the charter, the town requests the Springs resort immediately withdraw its request for a waste water right from the Town of Pagosa Springs Well PS-5 (440gpm summer time and 370gpm winter time)…”
Read Part Four
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