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Tangled Waters, Part Four |
Bill Hudson | 7/10/08
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I have to admit, at this point in researching and writing a multi-part article about the tangled water issues currently facing all of us — the Pagosa Springs Town Council, the Springs Resort, downtown businessman Jeff Greer, and the citizens of our little 1,800-person town and our 10,000-person county — I am still confused about the “easement issue.”
It’s clear, from Springs Resort representative Bill Whittington’s January 22, 2008 memo — and from the Town Council’s non-decisive discussions about “river easements” at recent meetings — that the Town needs some kind of river easement from the resort before it can go ahead with its planned white water park enhancements in the San Juan River. It’s also clear that Whittington is proposing some kind of negotiated agreement that would trade those “easements” for a very sizable annual delivery of geothermal mineral water from the Town’s PS-5 Well — up to 200 million gallons per year, by my calculations.
What exactly are those easements, and why does the Town need them? Those waters are still a bit muddy for me.
 At a Town Tourism Committee (TTC)) meeting several weeks ago, the subject of easements was brought up during a discussion of the Pagosa Quality Fishing Project, a group of local fishermen and businessmen who were asking the TTC for $58,000 to be spent on large stocked trout and related marketing and PR. The stretch of river slated for those trout stockings would be the downtown San Juan — including the stretch that was enhanced in 1995 by hydrologist Dave Rosgen’s “Fishing is Fun” boulder structures. Those “Fishing is Fun” structures were partly funded by the federal government, through a grant overseen by the Colorado Division of Wildlife (DOW).
The subject of easements came up at that meeting, as well.
As I noted in yesterday’s installment, the 1995 “Fishing is Fun” river enhancements cost the Town about $381,000 — including over $100,000 in easement acquisition costs. From what I can gather, the federal government and DOW — as part of their granting process for “Fishing is Fun” — required the Town of Pagosa Springs to obtain access easements along the San Juan River. This is quite sensible, considering the nature of fishing, which normally involves a person standing on the banks of a river, casting a line into the water and hopefully pulling out one or more fish.
Why would a town like Pagosa Springs spend nearly $400,000 to build structures aimed at enhancing fishing habitat, unless the public had access along the river — places to stand and cast? According to Colorado real estate laws, a property owner with riverfront property owns the riverbanks and the riverbed under the water, out to the centerline of the river itself. So a stretch of river with private owners on both banks is not legally accessible to the fishing public.
As it turns out, most of the “Fishing is Fun” structures were placed in the San Juan in a stretch where at least one side of the river is owned by the Town, and where access is provided by the Town’s Riverwalk trail system. Any fisherman — local resident, or visitor — can easily fish the “Fishing is Fun” stretch of the San Juan, standing on Town property.
So why did the Town need to spend $100,000 in 1995 for “easement acquisition costs?” What did the Town obtain with those monies?
At the TTC presentation by the Pagosa Quality Fishing Project, a local fisherman stated that, according to his research, the Town had obtained a ten-foot-wide easement all along the San Juan River, from the east end of the downtown stretch, through town and down to the 6th Street Bend. If this research is correct, it implied that a fisherman can easily fish all along the downtown stretch of the San Juan — not only in the areas where the Town owns the riverbanks, but even along privately-owned stretches of the river.
This fact, if true, would make the Pagosa Quality Fishing Project much more valuable, since the whole stocked stretch would be accessible.
Putting two and two together, I naturally assumed that the $100,000 spent on easement acquisitions in 1995 helped pay for this ten-foot-wide fishing easement. I have not verified those facts.
So here’s my (only partly-informed) version of the easement discussion, as of two days ago:
The Town spent $400,000 installing fishing enhancements in 1995 — which included purchased riverbank easements all along the downtown San Juan River, so fishermen could enjoy the fish that were thriving as a result of those 1995 enhancements. The enhancements, incidentally, also made kayaking and rafting more fun during times of high water flow.
Then in 2004, Town Manager Mark Garcia and a small group of boating enthusiasts became excited about the possibility of creating a white water kayaking park in the same stretch of the San Juan where the “Fishing is Fun” structures had been installed nine years earlier. Garcia signed two Contractor Agreements with engineer Gary Lacy of Recreational Engineering and Planning (REP) in early 2005, agreeing to pay REP in the neighborhood of $55,000 to design biddable construction documents for a white water park and oversee construction of the new park — work which supposedly included obtaining the proper permits for the river work.
Before proper permits were obtained, however, Garcia and Lacy moved into the San Juan River in March 2005 with a small crew of heavy equipment operators provided at no cost by Wolf Creek Ski Area owner Davey Pitcher. The crew removed several “Fishing is Fun” structures and built a U-drop white water feature.
This work elicited a “stop work immediately” order from the Army Corps of Engineers and DOW, and led to three years of contentious negotiations with those two government entities. Lacy’s plans were modified and the Springs Resort — which had initially expressed some support for the new U-drop feature — asked to have the new "Davey Wave" removed.
As I understand it, the Town still has plans to remove ALL of the “Fishing is Fun” enhancements south of the Hot Springs Boulevard bridge, and replace those enhancements with new Lacy-designed U-drop structures. As a result of some apparent negative impacts of the current "Davey Wave," support for the white water park by the Springs Resort has become more tentative.
And for some reason, this new work will entail the acquisition of new easements, from the resort and several other property owners, even though numerous easements were obtained in 1995.
My understanding of the new easements is admittedly fuzzy.
Because the DOW is looking at losing the fishing enhancement structures it helped fund. DOW has asked the Town to mitigate the loss of those structures. From listening to Town Council discussion, I had the impression that the revised Lacy plan was simply moving the “Fishing is Fun” structures farther downstream — and that’s why the Town needed new easements, so that fishermen could access the new enhancement locations. Since the DOW had helped fund the structures expressly for fishing enhancements, it wouldn’t be a true mitigation — in my mind — to relocate the Rosgen-designed structures in a stretch of inaccessible river.
According to a brief interview with interim Town Manager Tamra Allen yesterday, I have it all wrong.
Allen and I looked at the Lacy plans and noted that REP has no intention of relocating the W-shaped and V-shaped “Fishing is Fun” structures designed by hydrologist Rosgen. Those fishing-oriented structures — which cost us nearly $400,000 in 1995 — would simply disappear and be replaced by U-drop, kayak-oriented structures. Farther downstream, the Lacy plan shows some “J-Hook” structures. I am not clear if those are aimed at enhancing fishing.
According to Allen, the “new easements” being negotiated with Whittington — and possibly with other property owners along the river as well — have nothing to do with fishing access and would not include any riverbank easements. The new easements would include merely the riverbed property — the land underneath the water where the new Lacy-designed U-drop structures would be placed.
Allen suggested that the Springs Resort easement was absolutely necessary to the Lacy project, but that other downstream easements might conceivably be worked around.
I asked Allen how much was budgeted for all this work. I had naturally suspected, if the original work in 1995 had cost nearly $400,000 and the new work would cover much of the same area PLUS move the Rosgen structures farther downstream — and since the 2005 Contractor Agreement with REP specifies the creation of “biddable” documents — that the Town must have budgeted around $500,000 for the white water park construction.
Again, it seems I had it all wrong. Allen said the Town has about $50,000 in its budget — the total amount allocated for our new white water park, including, I assume, the new easements. The Rosgen structures would not be replaced; they would simply disappear into Pagosa's history.
The new easements are necessary, Allen said, because the old easements applied only to the Rosgen structures.
In 1995, the easements alone had cost the Town $100,000. Now Allen was telling me the total budget for a white water park was $50,000. Fascinating — about 1/8th of the 1995 budget. How would the Town pay for the construction of its new water park?
“We have not bidded any of the work. Most of it has been volunteer in the past, and we anticipate that it will largely be a volunteer project, with Davey Pitcher from the ski area providing tractor and backhoe work like he did before [helping build the Davey Wave]. There will obviously be some materials costs associated with the concrete. We have boulders already purchased and we’ll continue to pay our design contractors, REP, for their work.”
The question obviously arises, I suppose: with such an under-capitalized $50,000 budget, and noting a cost of over $100,000 spent on easements for the 1995 project, is the Town in the awkward position of negotiating away all of its geothermal water rights simply to get the necessary easements from the Springs Resort — for a white water park it can’t afford to bid out?
And how do the town's fishermen feel about losing all those fishing enhancements?
Read Part Five
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