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Tangled Waters, Part Five |
Bill Hudson | 7/11/08
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Read Part One
Several years ago, the Town of Pagosa Springs did a survey of its sewer system, and found a large quantity of water coming from a central downtown building — formerly a single building, but now owned as two separate stores by Ben Lynch and Jeff Greer. Looking into the problem, Lynch, Greer and the Town found an old geothermal well, improperly capped and pouring highly-mineralized geothermal into the town sewer lines, at a rate of about 30 gallons per minute.
Not a healthy situation for an already-overloaded sewer system. And probably the cause of the annoying “egg-smell” about which Greer’s tenants had been complaining.
 Several tens of thousands of dollars later, Lynch, Greer and the Town had re-directed the geothermal leak through a pipe running under Main Street and into a new “water feature” beside the San Juan Riverwalk, from where it emptied into the river — thus saving the Town considerable trouble at the sewer end of things.
As Greer looked into his building’s basement one day, watching the gallons of mineral water headed for the river, he began to wonder whether that water could be put to some community use. He began to research water rights and geothermal mineral water chemistry, and decided that locals and visitors might enjoy a Main Street mineral spa location. He acquired the rights to use the well water for recreational bathing before sending it into the San Juan River, and started construction on a new downtown spa.
A few months ago, the Town Council sent out a Request for Proposal on a different downtown well known as the Rumbaugh Well and Ditch. That well had water rights that included building heating, sidewalk de-icing, car washing, and recreational bathing — but no one was making use of those adjudicated rights. Under Colorado law, a water right that goes unused for a significant length of time can be revoked — entailing expensive legal processes to re-establish the water right later on, if needed. So the Town had an interest in seeing the Rumbaugh Well put to a “beneficial use” as required by Colorado water law.
Copies of the RFP were reportedly sent to Greer, the Springs Resort and the Spa Motel — three businesses potentially interested and capable of making use of the Rumbaugh Well resource.
According to Greer’s research, however, it appeared that the Rumbaugh Well water right was limited to use within the original Pagosa Springs survey — in other words, within the old original downtown area. That apparently left the Springs Resort and the Spa Motel outside the allowed area of use. Greer decided to respond to the RFP, and was the only respondent to reply by the deadline. The Town Council voted unanimously to accept Greer’s offer, and directed Town staff to write up a legal contract to lease the water to Greer’s new downtown spa.
That lease document was up for approval at this month’s July 1 Town Council meeting, but the approval was tabled by Mayor Ross Aragon. It appeared that the Springs Resort had questions about the resort’s legal right to the Town’s water — including the Rumbaugh Well — based on the resort’s 1997 lease for the Town’s geothermal “waste water.”
One of the joys of the English language is its versatility. A section of a written contract may seem to mean something very obvious to my lawyers, but may mean something totally different to your lawyers. The question then becomes: can I afford to pay my lawyers more than you are paying your lawyers?
Bill Whittington, representing the Springs Resort, is negotiating with the Town for additional geothermal water from the Town’s PS-5 well. That well’s water rights do not specify use for “recreational bathing,” but only for “ municipal use associated with geothermal heating.” By comparison, the adjudicated rights to the Rumbaugh Well specifically mention “recreational bathing” as an allowed use.
How shall our lawyers interpret those facts?
As noted in earlier articles, our new Division 7 Water Commissioner Pet Kasper has sent the Town staff a clarification letter, stating that in his opinion, the Town may not sell geothermal water to the Springs Resort unless the Town first uses it for its own geothermal heating purposes.
The Town’s water lawyer, Janice Sheftel, says it is perfectly legal to lease water from the PS-5 well to the Springs Resort, whether the Town uses it first or not.
So we find the Pagosa Springs Town Council in a quandary. Two prominent local businessmen are asking for geothermal water. Both want to increase the bathing opportunities for people living in and visiting Pagosa Springs.
Differing opinions about legal rights are on the table.
Whittington has Town-approved sketch plans for a $250 million resort expansion over the next ten or so years, but is asking for a very large amount of mineral water — 400gpm — from a source that the Water Commissioner says cannot be used for resort purposes. Such a resort expansion would no doubt employ many dozens of local contractors and, eventually, many dozens of regular full-time employees.
Greer has an approved but unsigned lease for 35gpm, and is in the midst of spending probably less than $1 million converting an old retail space in the center of downtown Pagosa. The new spa may employ a handful or two when it’s up and running.
It is not clear, from the past research, how much water can be pumped from the Great Pagosa Springs Aquifer — the single aquifer that apparently supplies every mineral spring and well in the downtown area — before the uses begin to drain the aquifer faster than it can be replenished. According to the person probably the most familiar with the geothermal resource, former Springs Resort owner Matt Mees, the aquifer should be able to pump out about 1,200gpm without any problem.
Doing the math, based on my own limited information, the multi-million dollar Springs Resort may now using around 300gpm at the height of its geothermal use. A $250 million expansion would have a real estate value of perhaps ten times the current market value.
Would such a large resort complex — ten times the current size — also require access to ten times the current amount of geothermal mineral water? That would add up to about 3,000gpm — well over two times what Mees suggests is available to all users.
Does the Town think it wise to put all its egg-smelling water in one basket — even if such a move might support a project with a substantial economic benefit to the whole community? What is the value to keeping the geothermal water use diversified — and accessible to many different users and uses?
Throw into the tangled water story, the Town’s stalled “river restoration” kayak park in the San Juan River, and the easements needed from Whittington’s resort before that minimally-funded project can proceed. Have we asked all the right questions about that project? Do we really want to tear out $300,000 worth of grant-funded fishing enhancement structures — which historically have also attracted boaters — to try and complete an even more extensive river project with a mere $50,000 and volunteer labor?
Certainly we have numerous boaters in town who support the new kayak park idea — but we also have many fishermen who currently use the river. Many of those fishermen are also visitors at the Springs Resort, and at the Spa Motel.
How will the fishermen feel about casting their line into a kayak park full of boaters?
After two weeks of researching these tangled water issues, I feel like I have barely scratched the surface of a myriad of questions surrounding our local geothermal resource — and the planned San Juan River white water park, now related to the geothermal resource due to the easement negotiations with the Springs Resort. I don’t envy the Town Council, tasked with making the best decision about so many interrelated water issues — issues that will change the character of Pagosa Springs for many years to come. |
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