Dry Gulch Reservoir: Trout unlimited files Petition for Rehearing with Colorado Supreme Court saying storage safety margin reserve constitutes speculation
November 21, 2009
From the Pagosa Daily Post (Sheila Berger):
In its petition, Trout Unlimited requests the Supreme Court to remove from its November 2 opinion its endorsement of a one-year safety supply reserve, stating that, “the Districts would add a volume of water equivalent to a one-year’s demand to the amount of storage they would otherwise require, essentially doubling the size of the reservoir.” Trout Unlimited also alleges in its petition that planning for a one-year storage reserve constitutes speculation.
A one-year safety supply is, by definition, enough storage to supply one year of demand in the situation that a drought or another catastrophic event prevents PAWSD from diverting water from its stream sources. For example, in the summer and fall of 2002, even with sand bagging, a very minimal amount of river water was available for diversion. Because there had been no runoff in the spring of 2002, reservoirs were dangerously low. Even with severe drought restrictions, the District was very close to “running dry.” In 2002, the District had no storage safety margin. Currently, the safety margin is provided by the recently completed Stevens Reservoir Enlargement. For the first half of the 2002 drought year, sufficient river water was available for diversion. Reliance on storage became necessary in late June. The Trout Unlimited claim that a one-year safety supply doubles the size of the reservoir is an erroneous statement, as some of the first year demand would be served through river diversions and some of the storage reserve would be supplied by existing District reservoirs. Future drought patterns cannot be predicted with certainty, and the District has implemented its one-year safety supply margin to prudently plan for that uncertainty. The water districts feel that planning for severe drought is not speculative given the long historical record of, and recent occurrence of, severe droughts in the southwestern United States.
The response of the Supreme Court to the Petition is anticipated to be forthcoming in the next month. Meanwhile, the Districts will hold a special joint meeting at 6:00 p.m. November 30, at the PAWSD offices to discuss the case and the necessary next steps to preparing for another trial with the District 7 Water Court.
Here’s the release from the Pagosa Area Water and Sanitation District.
More on last week’s Colorado Supreme Court ruling on Dry Gulch Reservoir planning horizon
November 13, 2009
From the Summit Daily News (Bob Berwyn):
According to Drew Peternell, of Colorado Trout Unlimited’s Western Water Project, the Supreme Court laid out a new test for public utilities. In the Pagosa Springs case, the court ruled that the city’s claim for water based on a 100-year planning horizon was not reasonable. “They have to show that claim for water is based on realistic projections for population growth. They can’t just pull numbers out the air,” Peternell said.
Undeveloped (conditional is the legal term) water rights are subject to periodic hearings in water court. Every six years, the water providers have to show their claim on the water is still valid. When the time for those hearings comes, they will be held to the new standards spelled out by the court, Peternell said.
Denver Water, the biggest player in Summit County, joined in the court case on the side of Pagosa Springs, along with other water providers from around the state. “We wanted the court to maintain a degree of deference to governmental entities that have to plan for future growth,” said Denver Water attorney Casey Funk. Funk said the Supreme Court decision established some new factors that water courts have to consider before awarding water rights, but that water providers still do have some flexibility in planning for future needs. Essentially, the ruling partly clarified some of the conflicts between the “great and growing cities” doctrine, which provides flexibility to plan for future water needs, and the anti-speculation doctrine, which limits pie-in-the-sky water claims.
More water law coverage here.
From The Pagosa Springs Sun (Chuck McGuire):
In this most recent ruling, the high court upheld the districts’ 50-year planning horizon decreed by Judge Gregory G. Lyman of District Court, Water Division 7 in a September 2008 ruling, and endorsed the districts’ planning approach to maintain a one-year water safety supply margin in its storage reservoirs. For a second time, however, the Supreme Court also remanded the case back to the District 7 Water Court for additional evidence regarding specified decree provisions and determination of “water amounts reasonably necessary to serve the districts’ reasonably anticipated needs in the 2055 period, above its current water supply.”[...]
In a press release issued Tuesday, a districts representative stated, “In its opinion, the Supreme Court endorsed statewide water rights planning efforts recently coordinated by the Colorado Water Conservation Board. The Supreme Court opinion also linked land use planning requirements recently enacted by the Colorado General Assembly to water court determinations of conditional water rights. In doing so, the Court introduced unprecedented legal elements into future water court determinations. “Additional trial before the Water Court will enable the Districts to extend their evidence of long-term growth patterns within Archuleta County in support of their 50-year water rights planning horizon and to demonstrate the actual reliability of water rights upon which the Districts currently depend.”[...]
From TU’s point of view, however, the Supreme Court decision reinforced the principle that Colorado municipalities must base water projects on clearly demonstrated and credible projections of future need. “The Supreme Court reaffirmed today that it will not tolerate public utilities speculating in water,” said Drew Peternell, director of TU’s Colorado Water Project, who argued the case before the state’s highest court. “This is a victory for reality-based water planning.”[...]
In its most recent appeal, TU argued that the districts’ revised figures were still not in line with credible future water use projections and amounted to speculation. In Monday’s decision, the high court unanimously agreed, finding insufficient evidence to support the quantities of water Lyman awarded, either in direct flow rights or storage. In its decree, the Supreme Court ruled that the 23,500-acre-foot size approved by the water court is based on “speculative claims, at least in part.” In response, TU insists that, “Unless the Pagosa districts can now demonstrate a ‘substantial probability’ that a reservoir of that size is needed to meet future needs, the water court must reduce the amount of their claimed water.”
More water law coverage here.
Meanwhile, the Pagosa Area Water and Sanitation District board approved a change in the diversion plan for Dry Gulch Reservoir recently. Here’s a report from Chuck McQuire writing for The Pagosa Springs Sun. From the article:
According to engineers, the modified plan will reduce water treatment costs while meeting current and short-term future demands, preserve senior West Fork water rights and allow incremental system development as needed…
As designed, Option 6A involves reconstruction of the Snowball pipeline from the West Fork diversion to a proposed treatment plant at Dry Gulch. Until development of the Dry Gulch plant is necessary, the Snowball treatment plant will be upgraded and expanded, while a segment of the Snowball pipeline (leading to the Snowball plant) is maintained. As the Dry Gulch plant is eventually built, workers will connect both plants with a new pipeline, and construct the pipeline from Dry Gulch to the cemetery tank. Meanwhile, as engineers further scrutinized the original options, they also realized that the quality of water coming from the West Fork was notably superior to that found in the main stem of the San Juan. By continuing to utilize West Fork water, PAWSD could reduce projected water purification costs, while maintaining stringent water quality requirements. Also, because the elevation of the West Fork diversion is hundreds of feet higher than the proposed Dry Gulch treatment plant, it will naturally pressurize the plant, thereby reducing the cost of building and operating expensive pumps. Too, building a new diversion at the Dry Gulch site would require transfer of the Snowball water rights from the West Fork to the main stem, through a Colorado Water Conservation Board in-stream flow water right. Based on discussions with the CWCB, doing so would likely result in subordinating the Snowball rights to the CWCB right, thus removing them from priority much of the year. The end result would be a less-than-firm water supply for District Two. According to PAWSD, Option 6A will allow system development in stages, as funding and demand dictates. An upgraded Snowball treatment plant and a newly-aligned Snowball pipeline segment around the Jackson Mountain slide area would come first, with an upgraded stretch between the slide area and the West Fork diversion next. Eventually, as the Dry Gulch treatment plant is built, an extended line would connect it and the Snowball treatment plant.
Here’s the release from Colorado Trout Unlimited (Randy Scholfield):
Colorado Supreme Court hands down anti-speculation water ruling
Trout Unlimited hails decision as a “victory for reality-based water planning”
(Denver)—The Colorado Supreme Court today handed down a decision that reinforced the principle that Colorado municipalities must base water projects on clearly demonstrated and credible projections of future need.
In the case, Pagosa Area Water and Sanitation District and San Juan Water Conservancy District v. Trout Unlimited, the Court ruled that Pagosa area water districts had not sufficiently demonstrated a need for the amount of water they claimed for the proposed Dry Gulch Reservoir, based on projected population growth and water availability over a 50-year planning period.
“The Supreme Court reaffirmed today that it will not tolerate public utilities speculating in water,” said Drew Peternell, director of TU’s Colorado Water Project, who argued the case before the state’s highest court. “This is a victory for reality-based water planning.”
The ruling is the second time Trout Unlimited has challenged the district water court’s decrees in the so-called Dry Gulch case—and the second time it has won.
In 2006, TU challenged a decision by Judge Gregory G. Lyman, the District Court judge who serves as the water judge in Division 7 in Colorado’s southwest. The decision would have allowed a reservoir of 35,300 acre feet two miles northeast of Pagosa Springs, using diversions from the San Juan River totaling 180 cubic feet per second.
Trout Unlimited appealed that decision to the Colorado Supreme Court, which in 2007 reversed Judge Lyman’s findings and remanded the case back to him for reevaluation of the districts’ future water needs.
Without examining new evidence, as the Court had suggested would be necessary, Judge Lyman issued another decree in 2008, awarding the Pagosa Springs districts enough water to build a Dry Gulch Reservoir of 25,300 acre feet in size, using diversions from the San Juan River totaling 150 cfs.
Trout Unlimited appealed again, arguing that the revised figures still weren’t in line with credible future water use projections and amounted to speculation.
Today, the Colorado Supreme Court unanimously agreed with TU. While the Court did allow a 50-year planning horizon (TU had argued that a 40-year timeframe was reasonable), the Court found that there wasn’t evidence to support the quantities of water the judge had awarded, either in terms of the direct flow rights or in terms of storage.
The 23,500 acre feet size approved by the water court for the Dry Gulch Reservoir is based on “speculative claims, at least in part,” said the Court. Unless the Pagosa districts can now demonstrate a “substantial probability” that a reservoir of that size is needed to meet future needs, the water court must reduce the amount of their claimed water.
“The ruling underscored that municipalities can’t justify a new water right without real evidence to support it,” said Melinda Kassen, director of TU’s Western Water Project. “This protects Coloradoans from irresponsible water grabs and speculative development.”
Colorado law already has rules preventing speculation in water rights. Although there is an exception in some situations for municipalities, the Supreme Court today made clear that the public exception should be interpreted narrowly.
Looking ahead, TU called this latest ruling an opportunity for all water stakeholders to sit down and craft comprehensive solutions for meeting the region’s real water needs.
“We’re ready to talk with the Pagosa Springs stakeholders and craft a solution that meets a range of valid needs, including municipal growth, agriculture and recreation and wildlife,” said Peternell. “But any solution has to be based on credible, substantiated numbers about future water supply and needs.”
Link to full Court ruling: http://www.courts.state.co.us/Courts/Supreme_Court/opinions/2008/08SA354.pdf.
More water law coverage here.
From the Pagosa Sun (Chuck McGuire):
Effective May 12, a long-standing ranching family and two area water districts entered into an agreement with a local land trust to explore the feasibility of conservation easements on some or all of approximately 140 acres located nearly two miles northeast of Pagosa Springs. As Dry Gulch is now planned, a portion of the acreage will eventually lie beneath the waterline, while the remainder will become lakefront property.
The land in question is part of several hundred acres currently owned by the Laverty family, including Kitzel Farrah, Kurt Laverty and Steve Laverty. Entities hoping to acquire that portion of the Laverty property include the San Juan Water Conservancy District (SJWCD) and the Pagosa Area Water and Sanitation District (PAWSD), herein referred to as “the districts.”
Though the Lavertys have been reluctant to sell property to accommodate the reservoir, they are apparently willing to part with that which will ultimately be flooded, while preferably maintaining ownership of the rest. They are also reportedly inclined to donate certain property rights to the public (in the form of conservation easements), in order to preserve and protect the shoreline, view shed and water quality.
Of course, filling Dry Gulch may be possible without the Lavertys having to sell any land at all. According to Southwest Land Alliance (SLA) Executive Director Michael Whiting, many reservoirs exist over land permanently protected by more restrictive easements. Depending on the answers to a number of relative questions, the Lavertys might end up selling the districts all or a portion of the land, or simply holding on to it, while implementing multiple easements.
To answer questions and eliminate all doubt, the Lavertys, SLA and the districts agreed to investigate whether some combination of conservation easements and/or fee title acquisition would satisfy the districts needs, while also benefiting the Lavertys and the community overall.
Dry Gulch Reservoir update
March 3, 2009
Dry Gulch Reservoir update
February 28, 2009
Here’s an update on the Pagosa Water and Sanitation District’s proposed Dry Gulch Reservoir, from Chuck McGuire writing for the Pagosa Sun. From the article:
New numbers are in, the reservoir is shrinking and a related, controversial fee will likely decrease. Nevertheless, revised cost estimates of the entire Dry Gulch project have risen dramatically. A crowd gathered at the Vista Clubhouse Monday evening, as engineering, financial and legal consultants joined two local water districts in presenting an updated public overview of area growth projections, water demand and storage needs. The two-hour program centered on the proposed Dry Gulch Reservoir, to be located two miles northeast of Pagosa Springs…
The latest estimate considers a smaller reservoir, of just 19,000 acre feet — plus all related infrastructure — as well as a new treatment plant and transmission pipelines that will provide potable water service to meet increased demand resulting from growth. Though the comparison is hardly apples to apples, the fully-developed cost through the life of the project now appears to be $356.5 million, or more than double the previous estimate. However, the cost of the raw water component and related infrastructure alone — as was estimated before — would now run $216.5 million, or $66.5 million more than originally thought. The difference is largely attributable to a vastly more detailed analysis and calculations in 2008 dollars. Of course, the price of the treatment plant and transmission pipelines must also be included in plan projections, and is now estimated at $140 million…
A few years ago, the districts and community taxpayers decided new growth should pay for additional raw water storage and all related infrastructure. Therefore, PAWSD created a Water Resource Fee (WRF) component as part of its Capital Investment Fee (CIF), to help offset the cost of Dry Gulch. The CIF, meanwhile, generates revenue to pay for added treatment and delivery of water to new users throughout the PAWSD district. Both fees are assessed against new development. The amount of money each fee will generate through the life of the Dry Gulch project depends on the actual rate of growth the community sees. But at Monday’s presentation, PAWSD staff and consultants predicted the increase in Equivalent Units (EUs) — a widely accepted measure of water demand — would average 3.9 percent through the year 2055. If so, a WRF of $5,617 per EU, at 36,413 new EUs, would bring in nearly $205 million, while a CIF of $3,579 for the same number of EUs would draw more than $130 million. The total, then, would cover all but approximately $21 million of the entire project.
Here are Part One and Part Three (I couldn’t find a link for Part Two) of Bill Hudson’s series PAWSD Conjures $357 Million Project in Dry Gulch running in the Pagosa Daily Post.
Dry Gulch Reservoir public meeting February 23rd
February 17, 2009
From the Pagosa Daily Post (Sheila Berger): “The Pagosa Area Water and Sanitation District and San Juan Water Conservancy District will host a public presentation of the Dry Gulch Project on Monday, February 23 from 6 to 8 pm at the Pagosa Lakes Vista Clubhouse. The presentation will cover all aspects of the project, including revised future growth and water demand projections, project infrastructure, planned reservoir size, project financing and Capital Investment Fees and plans for reservoir public use. A question and answer session will follow the formal presentation.”
A dry look at Dry Gulch
February 16, 2009
Here are the links to part one, part two and part three of Bill Hudson’s series about Dry Gulch Reservoir from the Pagosa Daily Post.
