Colorado Supreme Court rules against private streams — Aspen Journalism

July 1, 2015
Spring Creek (RFC Ditch) Roaring Fork River via Aspen Journalism

Spring Creek (RFC Ditch) Roaring Fork River via Aspen Journalism

From Aspen Journalism (Brent Gardner-Smith):

The Colorado Supreme Court ruled on June 29 that the Roaring Fork Club in Basalt is not entitled to new “aesthetic, recreation and piscatorial (fishing)” water rights for a private fly-fishing stream the club created in an existing irrigation ditch.

“The club failed to demonstrate an intent to apply the amount of water for
which it sought a decree to any ‘beneficial use,’ as contemplated by either the constitution or statutes of the jurisdiction,” the court’s decision stated.

The court also found that “the club’s proposed ‘uses’ of the water in question, as expressed in its application, cannot be beneficial within the meaning of the Act because the only purpose they are offered to serve is the subjective enjoyment of the Club’s private guests,” the decision states.

“The flow of water necessary to efficiently produce beauty, excitement, or fun cannot even conceptually be quantified, and therefore where these kinds of subjective experiences are recognized by the legislature to be valuable, it has specifically provided for their public enjoyment, scientific administration, and careful measurement,” the court found.

The court, however, did side with the Roaring Fork Club in a related dispute with its downstream neighbor Reno Cerise, who is a partner in St. Jude’s Co. In its decision, the court rejected claims from St. Jude’s over access to and management of the irrigation ditch in question, and the court awarded the club attorney’s fees in that aspect of the case.

But a majority of the justices on the court said a prior water rights decree issued to the club in 2013 by the water court in Glenwood Springs was now invalid because the water was not being put to a lawfully recognized beneficial use, which is a keystone of Colorado water law.

In a brief against the club’s arguments, attorneys for the Colorado Dept. of Natural Resources told the court it had concerns that using irrigation ditches for private aesthetic purposes could dewater long stretches of streams and rivers.

“Without established limits, such uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream reach and its public aesthetic and piscatorial benefits, maximum utilization, and compact development,” the brief from the Dept. of Natural Resources stated.

As it stands now, the decision “effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” according to Peter Fleming, the general counsel for the Colorado River District, which filed a brief supportive of the club’s case.

Fleming, in an interview, said that while the court’s decision did strip the club of its decree for such uses, it did not apply to other existing water right decrees.

springcreekrfcditchroaringforkaspenjournalism

Origins of the case

In 2007 the club applied to divisional water court in Glenwood Springs for formal recognition of a right to divert 21 cubic feet per second from the Roaring Fork River into an existing irrigation ditch for “aesthetic, recreation and piscatorial uses.”

The application for new water rights were in addition to the club’s existing water rights on the ditch, which include an irrigation right.

In its application, the club told the water court that in 1997 it had improved an irrigation ditch – the RFC Ditch – which is 14-to-25 feet wide and can move up to 45 cubic feet per second (cfs) of water.

And it said it was now using the ditch, which it dubbed “Spring Creek,” as an “aesthetic and recreational amenity to a golf-course development, as well as for fish habitat and as a private fly-fishing stream.”

On its website, the Roaring Fork Club states that “fishing around the Club property includes private access to eight stocked ponds, a one-mile stretch along the acclaimed Roaring Fork River and the one-mile long ‘Spring Creek’, an offshoot of the Fork that flows through the golf course.”

The club straddles 383 acres on either side of the Roaring Fork River just upvalley of downtown Basalt. It has about 550 members and includes 40 privately owned cabins.

“The club’s fishing, non-fishing, golfing and other members and visitors enjoy the scenic beauty that is Spring Creek, as the visual backdrop of the water feature and the sound of higher flowing water combine to create a unique experience for members, cabin owners and guests alike,” wrote an attorney for the club, Scott Miller, of the Basalt law firm of Patrick, Miller and Noto, in a recent supplemental brief to the court.

Miller’s brief also notes that the irrigation ditch, now a private fly-fishing stream, includes “pools, riffles, drop structures, and spawning beds, all of which enhance the overall aquatic habitat and cold water trout fishery in Spring Creek, and which require flowing water.”

Miller could not be reached for comment on the court’s decision.

But in 2013 St. Jude’s, which also uses the RFC Ditch to receive water downstream of the club, appealed the water court’s issuance of a decree to the club for aesthetic uses to the Colorado Supreme Court, which directly hears appeals from divisional water courts around the state.

“Recognition of aesthetics as a beneficial use would effectively function as a policy decision that the visual enhancement of private property is more important than any uses of junior upstream appropriators, and also more important than maintaining streamflow in the natural stream,” St. Jude Co.’s attorney, Gregory Cucarola of Sterling, argued in a recent brief to the Supreme Court.

After review, seven of the justices on the Supreme Court sided with St. Jude’s, at least as far as its water rights arguments went.

“The water court’s judgment decreeing the club’s new appropriative rights must therefore be reversed, and the decree for aesthetic, recreation and piscatorial uses vacated,” the court ruled.

Aerial view of the Roaring Fork Club (exhibit at trial) via Aspen Journalism

Aerial view of the Roaring Fork Club (exhibit at trial) via Aspen Journalism

A variety of views

Two justices issued a dissenting opinion in the case.

“The value that Spring Creek creates, as well as the ability to determine the amount of water needed to achieve its purposes, suggests that aesthetic, recreational, and piscatorial uses satisfy the ‘beneficial use’ requirement,” the dissenting opinion stated. “So, is such a flow-through feature “tantamount to a ‘forbidden riparian right,’” as the majority asserts? I think not.”

The dissenting opinion was written by Justice Monica M. Marquez, who was joined by Justice William W. Hood, III.

The Colorado River District released a statement about the court’s decision, after an inquiry from Aspen Journalism, from Peter Fleming, the district’s general counsel.

“The River District is disappointed in the Colorado Supreme Court’s decision in the St. Jude’s Co. v. Roaring Fork Club case that effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” Fleming said in an email.

“The majority opinion mistakenly characterizes recreational and fishery uses as purely ‘passive’ uses of water. Perhaps more importantly, the opinion creates an entirely new requirement that a water right is valid only if the intended use is achieved through an ‘objectively-active’ means of production.

“As noted in the Court’s dissenting opinion, the majority opinion ‘abolishes a well-established practice of the water courts in granting applications for [aesthetic, recreational, and piscatorial flow-through water rights].’

“Many existing West Slope landowners have invested in such features – a practice that has little or no impact on Colorado’s consumptive use of its Colorado River Compact entitlement,” Fleming said. “The decision will adversely impact the future ability of private land-owners to increase the value of their property through the construction of water features.”

The “ranch owners”

Also filing a joint amicus brief in the St. Jude’s case – in support of the private club – were Roaring Fork Homeowners Association, Inc., Thomas Bailey, Galloway, Inc., Jackson-Shaw/Taylor River Ranch, LLC, Crystal Creek Homeowners Association, Inc., Charles E. Nearburg and Catamount Development, Inc., and the Flyfisher Group, LLC.

The self-described “ranch owners” told the court that together they own 27,000 acres of land in Colorado.

They argued in their brief that “private use of water” actually benefits the public.

“Private use of water for piscatorial and aesthetic purposes benefits the public and the appropriator,” the “ranch owners” brief states. “As noted above, the economy of western Colorado is changing. More and more ranches are being purchased not just for traditional ranching uses, but also for their aesthetics and fish and wildlife values.

“The resulting increase in land values significantly increases the tax base of local governments and the overall health of local economies. Moreover, it is well established in the scientific literature that ditches and man-made streams operated for fishery purposes benefit not just these off channel structures, but the fishery as whole,” the brief said.

The brief also said that “the ranch owners, and many others, have also constructed water features on their properties, such as artificial waterfalls, cascades and waterways that greatly enhance the aesthetics and value of a property. The design of these improvements often requires the services of landscape architects and engineers.”

The ranchers also argue that if private streams are valuable to a landowner, then they are “beneficial” under state water law.

“Just as beauty is in the eye of the beholder, beneficial use is principally in the eye of the (water) appropriator,” the brief states.

County and state don’t support

On the other side of the issue were Pitkin County and the Colorado Department of Natural Resources, both of which filed amicus briefs (Pitkin County, DNR) with the Supreme Court against the Roaring Fork Club’s arguments.

“A diversion into a ditch for private piscatorial, recreational, or aesthetic uses is not a statutorily or Supreme Court-approved beneficial use, but has been recognized by various water courts in unappealed decrees,” a brief filed by attorneys for the department states.

The department’s brief also noted that when it comes to the enjoyment of water, a “more is better” factor raises questions about the potential wasting of water.

“With a ‘more is better’ duty of water unsupported by scientific evidence, subjective private piscatorial and aesthetic uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream and its public piscatorial and aesthetic uses, resulting in waste and inefficiency, impairment of existing undecreed exchanges of water, and future exchanges,” the department’s brief states.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and water. The Times published a version of this story online on Tuesday, June 30, 2015.

More water law coverage here.


Watching the mouth of the Roaring Fork River — Aspen Journalism

May 24, 2015

railroadbridgeoverroaringforkrivermay2015viaaspenjournalismjeremywallaceaspentimes

From Aspen Journalism (Brent Gardner-Smith):

As my raft floated under the railroad bridge at the confluence of the Roaring Fork and Colorado rivers last week, I was wondering just how much water would flow out of the Fork and into the Colorado this year.

Certainly less than average, given that the snowpack peaked in March and began melting off, I mused, taking a stroke to catch the big eddy that forms just shy of the mighty Colorado, where the Fork comes in across from Two Rivers Park in Glenwood Springs after draining 1,543 square miles of land.

Perhaps the wet and cold weather of late April and much of May will continue to forestall a sudden flash of melting snow, so what snow we still have in the high country will come off in a nice steady fashion.

But spinning around the eddy, I knew how easy it was, as a boater, to be wrong about water and weather. It is also, as it turns out, a tricky time of year for professional hydrologists to predict run-off, as data from low-elevation snow-measuring sites tapers off and daily weather conditions can play a big role in shaping how much water flows, and when it does.

In mid-March, which felt like summer already, a trip on the Green River starting April 12 seemed like a good bet this year to enjoy some warm weather. But a big storm swept in that week and blasted the river with freezing rain.

The same storm laid down 11 inches of snow on Aspen Mountain by Friday, April 17, making for a memorable closing weekend for some.

After warming up from that trip, I ventured optimistically out again during the first full week of May, this time on the Colorado River west of Loma. And I was soon engulfed in the downpours of May 5 and 6 that lead to river levels across the region jumping up.

Between May 5 and May 7, for example, the flow in the lower Fork doubled from a 1,000 cubic feet per second to over 2,000 cfs.

So when I went out on May 13 for my first trip of the season down the Roaring Fork from Carbondale to Glenwood, I wasn’t surprised that it started raining. It’s just been that kind of season so far — in fact, through May 19, total precipitation in the Roaring Fork River watershed was 204 percent, or double the normal amount of precipitation. according to the Natural Resource Conservation Service (NRCS).

But the Fork was flowing that day at 1,110 cubic feet per second, which was enough water to have a perfectly nice float, especially as I did see some sun (and some red-wing blackbirds).

But will the river get much bigger this year, I wondered as I rowed toward Glenwood.

redcanyonfromroaringforkmay132015apenjournalimsjeremywallaceaspentimes

Below average flows

The Colorado River Basin Forecast Center in Salt Lake City forecast on May 19 that the Roaring Fork will most likely peak this year in mid- to late June at 4,300 cfs, as measured at Veltus Park, just above the Fork’s confluence with the Colorado.

That’s 73 percent of the Fork’s average annual peak of 5,920 cfs, which typically occurs between May 29 and June 23.

While this year’s likely peak flow of 4,300 cfs is certainly better than the lowest peak flow on record — 1,870 cfs on June 3, 2012 — it’s also way below the historic peak of 11,800 cfs on July 13 in 1995.

The forecast peak flow has increased given the cool and wet weather in May. So, if April showers bring May flowers, May showers are likely to bring better boating on the Fork in June.

“I would say it is very likely (the Roaring Fork) will see a below average peak flow this year,” said Brenda Alcorn, a senior hydrologist with the Forecast Center.

However, she added that what snowpack we do have “is in better shape than it was in 2002 and 2012, so I do not expect a record low peak.”

But just how much water comes, and when, is now weather dependent.

“Spring temperatures and precipitation play a significant role in the pattern of snowmelt runoff and consequently the magnitude of peak flows,” Alcorn said. “An extended period of much above normal temperatures or heavy rainfall during the melt period can cause higher than expected peaks, while cool weather can cause lower than expected peaks.”

On Friday, May 15, Julie Malingowsky, a meteorologist with the National Weather Service in Grand Junction, said the period to at least May 25 looked cooler and wetter than normal, and longer-range forecasts indicate that the next several months could be wetter than normal.

(Also, see the Intermountain West Climate Dashboard of indicators at Western Water Assessment)

But probably not wet enough make up for the skinny snowpack.

“Even though it has been a wet month, we are still drier than normal,” Malingowsky said.

confulenceroaringforkcrystalriver05132015aspenjournalismjeremywallaceaspentime

Below average supply

Another view of this year’s water picture is available from the Natural Resources Conservation Service’s “Colorado Water Supply Outlook Report,” which was published on May 1.

The report shows that the “most likely” amount of water to reach the bottom of the Roaring Fork between April and the end of July is 450,000 acre-feet, according to Brian Domonkos, a data collection officer with NRCS.

That’s below the 30-year average of 690,000 acre-feet flowing down the Fork for the period from April to August. (The Roaring Fork delivers, on average, 871,100 acre-feet of water to the Colorado River over a full year, according to the Colorado Division of Water Resources).

The water-supply report said that current conditions point to “a below normal streamflow forecast picture for much of the state heading into spring and summer of 2015.”

However, Gus Goodbody, a forecast hydrologist with NRCS, said the amount of water expected to flow out of the Roaring Fork is likely to increase from the May 1 forecast by five to 10 percent, given May’s weather so far.

“It’s going to go up,” he said.

Another indicator of potential run-off is the measure of the “snow water equivalent” at SNOTEL measuring sites in the Roaring Fork basin.

The average from the eight SNOTEL sites in the Roaring Fork basin was 108 percent on May 19, but that’s without complete data from four of the sites.

That number — 108 percent — has been climbing steadily since May 1, but it’s not an indicator that the snowpack has been growing. What it does show is that the cool and wet weather has slowed the run-off and moved the data closer to the historic average — which, again, bodes well for June boating. But in addition to the snowpack and the weather, there are other factors that dictate the flows in the Fork at Glenwood Springs.

lookingupthecoloradoriverconfluenceroaringforkaspenjournalismjeremywallaceaspentimes

Off the top

An average of 40,600 acre-feet of water a year is collected from the upper Roaring Fork River basin and sent through a tunnel under Independence Pass and into Twin Lakes Reservoir, destined for Aurora, Colorado Springs, Pueblo and Pueblo West.

The Twin Lakes diversion takes 40 percent of the water out of the upper Roaring Fork basin above Aspen, according to the 2012 Roaring Fork Watershed Plan.

Another 61,500 acre-feet is collected on average each year from tributaries of the upper Fryingpan River and sent east through the Bousted and Busk tunnels. That accounts for 37 percent of the water in the upper Fryingpan headwaters.

As such, there are many days when there are rivers heading both east and west out of the Roaring Fork River watershed, and the ones heading east can often be bigger.

For example, on May 13, while I was floating on 1,110 cfs at the bottom of the Fork, there was 136 cfs of water running under the Continental Divide in the Twin Lakes — Independence Pass Tunnel, which can, and does, divert up to 625 cfs later in the runoff season.

And the Bousted Tunnel, which transports the water collected from the headwaters of the Fryingpan River, as well as Hunter and Midway creeks in the Roaring Fork basin, was diverting 101 cfs on May 13.

Meanwhile, the gauge on Stillwater Drive on May 14 showed the main stem of the Fork was flowing, just east of Aspen, at 111 cfs.

Then there is the water diverted out of the rivers in the basin and into one of the many irrigation ditches along the Fork, the Crystal and other streams in the basin.

Ken Ransford, a member of the Colorado River Basin Roundtable, estimates that the 12 biggest irrigation ditches on the Roaring Fork and Crystal rivers divert about 115,000 acre-feet of water a year.

Most of that water eventually finds its way back to the rivers, but the diversions also leave many stream reaches lower than they otherwise would be, and few tributaries are left untouched.

According to the Roaring Fork Watershed Plan, “flow-altered stream reaches include the Roaring Fork, Fryingpan, and Crystal rivers, as well as Hunter, Lincoln, Maroon, Castle, West Willow, Woody, Snowmass, Capitol, Collins, Sopris, Nettie, Thompson, Cattle, Fourmile, and Threemile creeks.”

Another factor shaping the flows in the lower Fork are decisions made by regional water managers, including irrigators near Grand Junction and municipal water providers in Denver, that can shape releases from reservoirs such as Green Mountain and Ruedi.

Who needs water, and when, can also dictate the size of that eddy at the bottom of the Fork. So for now, I’m just glad it’s big enough to float a boat.

Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Aspen Times Weekly, and The Glenwood Springs Post Independent on coverage of rivers and water. The Aspen Times Weekly published this story on Thursday, May 21, 2015.

More Roaring Fork River watershed coverage here.


Southeastern Water board meeting recap: Lake Pueblo, swollen by 12,000 acre-feet of flood water

May 24, 2015
Fryingpan-Arkansas Project via the Southeastern Colorado Water Conservancy District

Fryingpan-Arkansas Project via the Southeastern Colorado Water Conservancy District

From The Pueblo Chieftain (Chris Woodka):

Water, water everywhere.

Not going to be a problem later in the year, right?

Hold on.

The Southeastern Colorado Water Conservancy District Thursday considered the possibilities of how water comes through the Boustead Tunnel into Turquoise Lake under the Fryingpan- Arkansas Project.

All signs are pointing toward a more-or-less normal year in terms of water supply. Lake Pueblo, swollen by 12,000 acre-feet of flood water, is 132 percent of average. The flood water already was being released on Thursday, raising Arkansas River levels in the wake of the flood surge.

Turquoise and Twin Lakes are above average in the upper reaches of the Arkansas River, while John Martin Reservoir has begun filling again to its highest level since 2010, about 82,000 acre-feet on Thursday.

Snowpack levels in the headwaters of both the Colorado and Arkansas Rivers are back to normal, but it’s late in the season and both basins fell short of peak moisture levels this year.

But very little transmountain water has come over so far, just 4,254 acre-feet of a projected 53,000 acre-feet for the season.

“It all depends on how it comes off,” said Roy Vaughan, Fry-Ark manager for the Bureau of Reclamation.

Cold temperatures are preventing the snow from melting at prime rates, as it does at this time of year in some cases.

“The tunnel hasn’t started to run at full capacity, so we’re behind,” Vaughan said.

If it warms up too quickly, the Fry-Ark structures won’t be able to capture it. And river levels have to be met on the Western Slope, Vaughan explained.

In the past decade, the Southeastern district has adopted new policies to avoid over-allocating water early in the season, so it holds back 20 percent of the allocation.

More coverage from Chris Woodka writing for The Pueblo Chieftain:

Farms will get a boost in water supply, with nearly average allocations from the Fryingpan- Arkansas Project, but reduced requests from cities for water.

The Southeastern Colorado Water Conservancy District Thursday approved allocations from the project, based on snow forecasts, which have improved since projections of water supply were made May 1.

The district projects that 53,000 acre-feet (17 billion gallons) of water will be brought through the Boustead Tunnel into Turquoise Lake. That would mean almost 45,700 acre-feet available for allocation.

Of that, about one-third will go to cities and two-thirds to farms. Under the district’s allocation principles, the split would be closer to 53 percent municipal and 47 percent agricultural.

Initially, just 80 percent of the water will be allocated in case conditions change and imports are less than expected. The remaining 20 percent will be available when imports reach the target.

If more water above the target is brought over, there could be a second allocation.

Cost of the water is $9 per acre-foot for farms and $9.75 for cities.

Municipalities reduced their requests significantly this year.

The Fountain Valley Authority (Colorado Springs, Fountain, Security, Stratmoor Hills and Widefield) requested and received 7,216 acrefeet, but was eligible for 11,625 acre-feet.

The Pueblo Board of Water Works was eligible for 4,568 acrefeet, but requested and received no water, since Pueblo Water has ample water in storage this year.

Cities east of Pueblo took slightly less water than authorized, mainly because St. Charles Mesa Water District took just one-sixth of its share. Fowler, Crowley County and Joseph Water all took significantly more water than authorized, while most others were close to average.

Cities west of Pueblo took slightly more. All received the full amount requested.

Pueblo West and Manitou Springs, which get water that was redirected from agriculture when Crowley County farms were dried up by Aurora, will each get full allocations of about 155 and 160 acre-feet, respectively.

The net effect was moving about 9,000 acre-feet to the agricultural side of the ledger, said Garrett Markus, district engineer.

On the agricultural side, Fort Lyon Canal will received the largest allocation, with 10,653 acre-feet, and it will use 3,135 acre-feet of return flows under a pilot project that allows the ditch to use its own return flows for replacement water under state irrigation rules. Only 58,618 acres of the ditch are eligible for Fry-Ark water. The ditch irrigates 93,000 acres, but owners with more than 960 acres, including Pure Cycle (which has 14,600 acres) are not eligible.

As usual, requests for ag water far outpaced the available water.

Farmers asked for 106,570 acre-feet to cover 146,000 acres on 25 canals, ditches or farms. Only 30,024 acrefeet were allocated.

Another 7,431 acre-feet of agricultural return flows were allocated, 95 percent to the three major well augmentation groups in the Arkansas Valley.

More Fryingpan-Arkansas Project coverage here.


Pueblo County considering show cause 1041 hearing for Southern Delivery System

May 12, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Pueblo Chieftain (Chris Woodka):

Pueblo County is a step closer to calling for a hearing to decide whether to repeal or significantly alter the provisions of a 1041 permit allowing the Southern Delivery System to be built through the county.

On Monday, commissioners gave direction to staff to release a report to Colorado Springs detailing the progress of an investigation into whether that city’s lack of any specific funding for storm water permits constitutes a violation of the permit.

According to the report, staff’s recommendation is that, so far, the investigation shows there’s enough evidence to go forward with a show cause hearing on the 1041 document. But staff also asked for permission to hold off on issuing such an order until the first of August.

Waiting two months would give staff time to continue working with Colorado Springs, hire Denver-based Wright Water Engineering as a storm water consultant and give the new mayor and city council in Colorado Springs time to assess the issues for themselves.

“I am confident that there is some probability of success in coming up with some solutions to bring to the board, either as revised conditions or new amendments to the agreement,” said Ray Petros, water counsel to Pueblo County.

Petros said that it’s been six years since there was any dedicated funding in place for Colorado Springs’ storm water improvements and in that time, the number of infrastructure improvements that could help mitigate flows and improve water quality in the Fountain Creek have backlogged to the point that nearly $534 million worth of projects are awaiting completion.

Staff has been investigating the issue since April. Petros said it has been difficult to ascertain what high-priority projects have been completed or what kind of money has actually been spent on projects that would be beneficial to Pueblo County.

At the core of the investigation is the Springs’ decision to disband its storm water enterprise in 2009, along with the failure at the polls in 2014 of a measure to establish a new enterprise.

“Our issue has been from Day 1 that the 1041 permit requires some kind of dedicated funding,” said Commissioner Terry Hart. “No pun intended, but it’s been six years of water under the bridge and we’re painfully aware of that.”

Petros quoted a few passages within the 1041 permit that mentioned the funding source specifically, including the environmental impact statements attached to the permit.

The original staff report noted that the delay also gave Colorado Springs Utilities time to respond to information requests, but Hart said he felt Pueblo should set the timeline on that response.

Public Works Director Alf Randall said that the information requested by staff wasn’t complicated but understood if Colorado Springs staffers preferred to wait until the new mayor and council were sworn in.

Randall also said it would be good to have the information once Wright Water’s contract with Pueblo was finalized.

“I don’t understand what would be highly complex about providing staff a list of projects in 2015,” Randall said.

He said he thought it could be done by June 1.

The commissioners then directed that the June 1 deadline be included in the memo to Colorado Springs.

There are likely more investigations to follow. Commissioner Sal Pace asked staff to consider land purchases, reclamaneighbors. tion issues and potential impacts to Pueblo West homeowners in the investigation.

But the investigation came from a resolution focusing specifically on storm water issues.

All three commissioners said they would like to see future investigations into those other issues.

The commissioners also noted that the past week’s rainfall was a reminder of the urgency for the improvements, as runoff from Colorado Springs churned mud and debris in Fountain Creek and eroded property along Overton Road.

“We have a job to advocate for our constituents and I think the representatives from Colorado Springs, whether they like the process or not, would agree there’s been an impact to the community,” said Commission Chairwoman Liane “Buffie” McFadyen.

More Southern Delivery System coverage here and here.


Colorado Springs Utilities plans to appeal judgment that favored Pueblo-area rancher — The Colorado Springs Gazette

May 11, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Colorado Springs Gazette (Billie Stanton Anleu):

Colorado Springs Utilities has filed notice that it intends to appeal a jury’s $4.6 million judgment in favor of rancher Gary Walker, who let Utilities build a 5.5-mile pipeline on his land for the Southern Delivery System.

Walker and Utilities had agreed that the easement was worth $82,900, and the pipeline was installed on his northern Pueblo County land in 2012 as a conduit for the Southern Delivery System, or SDS.

That regional project is designed to pump Arkansas River water from the Pueblo Reservoir to Colorado Springs, Fountain, Security and Pueblo West, delivering up to 96 million gallons a day to those communities. Water delivery was expected to begin in 2016.

At trial, Walker’s counsel said Walker was negotiating a conservation easement worth more than $30 million with the Nature Conservancy, but degradation of the utility easement destroyed those prospects.

Colorado Springs, which owns Utilities, “had no opportunity to prepare a rebuttal to this surprise, unprecedented argument,” said the notice of intent to appeal filed late Thursday.

The notice questions, among other things, how a property value can be agreed upon at $82,000 and then valued at more than $30 million before a jury, and whether it was appropriate to deny the jury an opportunity to view the property.

The Pueblo County District Court jury deliberated for nine days before rendering its verdict April 23.

Neither Walker and his attorneys nor the Nature Conservancy returned calls Friday.

But SDS spokeswoman Janet Rummel said storms on the land drained water onto the pipeline alignment, causing erosion after the easement had been restored.

“We’ve been working ever since to fully restore it,” Rummel said. “His attorney was claiming actually not as much about the reclamation, but really about his lack of ability to ensure future conservation easements on his property. We really saw no evidence presented that that was the case. That was changing the big concern at the 11th hour of this trial. We need to take into account the effects on our ratepayers.”

Utilities paid Walker about $720,000 to move his cattle and laid irrigation lines along the easement to ensure that plants for restoration would survive, she said.

“From our perspective, we’ve gone above and beyond to address the concerns raised.”

The Fountain Creek Watershed, Flood Control and Greenway District isn’t taking a position on the legal battle, said Executive Director Larry L. Small. But the district is supposed to receive $10 million every year for five years to mitigate the extra flow that Fountain Creek will experience.

“If this drags on, it could impact SDS from becoming operational – and our revenue. That wouldn’t be too good because we’re waiting for that money to begin doing the work we need to do.”

From The Pueblo Chieftain (Chris Woodka):

Rains along the Southern Delivery System pipeline scar through Walker Ranches is again causing flooding problems in northern Pueblo County.

“Prior to the SDS crossing Walker Ranches, we never had floods like these from that area,” said ranchver Gary Walker. “Mother Nature’s defenses took care of it.”

Walker is involved in litigation with Colorado Springs over the 5.5-mile stretch of buried 66-inch diameter pipeline. A jury in April awarded Walker $4.665 million in damages, which Colorado Springs is appealing.

On Friday, rains created a river of mud along the pipeline route, causing some flooding in adjacent areas. Walker supplied aerial photos to The Pueblo Chieftain that show water crossing and sheet off the pipeline scar, with several hundred feet of plastic irrigation pipe — used for revegetation — hanging above a chasm of rushing water.

Walker said this is a violation of Colorado Springs Utilities’ commitments under Pueblo County’s 1041 permit for SDS because the area has not been returned to pre-construction conditions.

He first raised the issue of the pipeline route, which crosses arroyos, in 2008. He wanted the pipeline to follow the route of the Fountain Valley Conduit, constructed in the 1980s, which he said would be less damaging to his ranchland.

“Now Walker Ranches will become part of the flooding problem to downstream residences of Fountain Creek and the Arkansas River,” Walker said. “These are not Biblical events. Our weather is just returning to normal and our drought is ending, as any ‘old-timer’ like me will tell you.

From The Pueblo Chieftain (Chris Woodka):

Colorado Springs Thursday appealed a $4.665 million jury award for damages to Walker Ranches by the Southern Delivery System water pipeline.

The appeal was made in Colorado Court of Appeals in Denver.

The city’s lawyers said the April 23 verdict was delivered after a nine-day trial without any other findings or calculations.

The city’s lawyers added they had no chance to rebut the closing argument of Walker Ranches’ lawyers that the SDS pipeline across 5 miles of the property had diminished the value of surrounding land and that testimony did not support the verdict.

They also claimed the basis for diminished value of the property was not revealed until opening arguments and the value itself only in closing arguments.

A court judgment on the $4.665 million award was entered Wednesday by Pueblo District Judge Jill Mattoon.

Gary Walker, whose family owns the land, said the Nature Conservancy was negotiating with him to buy conservation easements for $1,680 per acre on about 15,000 acres, about $25 million.

“The city had no opportunity to reply to this surprise, unprecedented argument,” Colorado Springs attorneys wrote in the appeal.

Neither side disputed the value of the $82,900 150-foot-wide utility easement for a buried 66-inch diameter pipeline which Colorado Springs offered $1,400 an acre.

Colorado Springs’ filing lists 14 points of law, as well as a catch-all “any other issues” that were not covered by crossappeal.

Among the points raised by Colorado Springs lawyers is whether conservation can be considered the highest and best use for property, a topic Walker elaborated on in an interview with The Pueblo Chieftain after the trial.

Walker explained that conservation is the main purpose for Walker Ranches and illustrated that by pointing out that the millions of dollars from previous conservation easements was used to purchase more land with the intent of preserving ranch land and open spaces for future generations.

Colorado Springs’ attorneys also raised the question of whether Mattoon erred by denying the jury an opportunity to view the property.

More Southern Delivery System coverage here.


Southern Delivery System: Closing arguments expected to conclude today in Walker Ranch lawsuit

April 22, 2015
Southern Delivery System route map -- Graphic / Reclamation

Southern Delivery System route map — Graphic / Reclamation

From The Pueblo Chieftain (Chris Woodka):

Closing arguments are expected to wrap up sometime today in a jury trial to determine the value of the Southern Delivery System easement across Walker Ranches in Pueblo County.

Expert witnesses for Colorado Springs testified Tuesday, the seventh day of the trial.

Attorneys for both sides indicated the testimony would wrap up soon and they were preparing to present closing arguments today. After that, the jury will begin its deliberations.

Court records indicate Gary Walker was offered $100,000 for easements on a 150-foot wide strip 5.5 miles long through Walker Ranches in northern Pueblo County. Colorado Springs, which is building SDS, also paid Walker $720,000 to relocate cattle during three years of construction.

Construction on SDS began in 2011, and includes 50 miles of underground pipeline 66 inches in diameter in Pueblo and El Paso counties. The final phase of construction in Pueblo County is the Juniper Pump Station being built near Pueblo Dam.

Walker claims the choice of pipeline route has contributed to erosion and diminished the value of his land. His court records claim SDS has caused $25 million worth of impact on his ranches, which total 65,000 acres. He’s also claiming damages under Pueblo County’s 1041 permit for SDS, which protects landowners from out-of-pocket expenses and requires Colorado Springs to use eminent domain only as a last resort.

District Judge Jill Mattoon is presiding over the trial.

More Southern Delivery System coverage here.


Ute Water hopes to lease 12,000 acre-feet of water stored in Ruedi for endangered fish

April 20, 2015
Upper Colorado River Endangered Fish Recovery Program

Upper Colorado River Endangered Fish Recovery Program

From The Grand Junction Daily Sentinel (Gary Harmon):

Aspen and Pitkin County officials are raising questions about plans to send more water from Ruedi Reservoir down the Colorado River to benefit endangered fish.

The water is owned by the Ute Water Conservancy District, which purchased 12,000 acre feet of Ruedi water in 2012, in anticipation of growth and as a backstop for its more than 80,000 customers and others in the Grand Valley should Grand Mesa supplies dry up in a drought year.

With no need for Ruedi water this year, Ute approached the Colorado Water Conservation Board about leasing the water to benefit four endangered species of fish in the Colorado — a project that the state agency is considering.

“This is Ute trying to do something for the environment,” Ute General Manager Larry Clever said on Friday.

Aspen and Pitkin County officials, however, have questions about the deal and have asked the conservation board to explain it in a meeting Tuesday in Carbondale.

Aspen and Pitkin county officials want to know more about how the lease would affect the level of the reservoir, electricity generation for Aspen, and the Fryingpan River angling industry below Ruedi Dam, among other concerns.

Ute paid $15.5 million for the unclaimed water in Ruedi and, Clever said, can call it down the river anytime it wishes.

“We knew there would be outrage at the Aspen Yacht Club” when Ute told the water conservation board that water for the fish might be available if needed, Clever said.

“You know why they’re against it,” Clever said. “If I pull water out (of Ruedi), the Aspen Yacht Club wouldn’t be able to float so well.”

There’s more to it than that, said Mark Fuller, director of the Ruedi Water and Power Authority.

“We’ve worked for years with the Bureau of Reclamation and Fish and Wildlife Service to handle releases in a way that is compatible with the recreational use on the river, and that’s worked out fairly well under normal circumstances,” Fuller said.

“Depending how these supplemental releases get managed, that could all go out the window.”

The Ruedi Water and Power Authority supplies electricity generated at Ruedi Dam to Aspen and other communities. Fluctuating levels in the Fryingpan River also could make it impossible for flycasters to wade into the Gold Medal waters, officials noted.

Releasing Ute’s water from Ruedi would have another benefit, Clever said.

“My goal was to put the water in Lake Powell,” which some fear could drop so low as to hinder electricity generation at Glen Canyon Dam.

That could require the Bureau of Reclamation to take action to lower Upper Colorado River reservoirs to maintain the dam’s generating capacity.

“If I can put water in Powell, the whole upper basin is in better shape,” Clever said.

Generating capacity at Ruedi also weighs on his mind, Fuller said. “We would like to be able to work in a proactive and synergistic relationship on how to make different pots of water work together so the Fryingpan doesn’t just become a flume,” Pitkin County Commissioner Rachel Richards said.

The water conservation board remains interested in reaching a deal with Ute.

“We applaud Ute Water’s willingness to work with us on an approach benefiting a recovery program that helps water users throughout the Colorado River Basin,” CWCB Director James Eklund said in an email. “We’re all connected throughout Colorado by our most precious natural resource as demonstrated by this important recovery program.”

More endangered/threatened species coverage here.


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