Day: November 2, 2009

Colorado Supreme Court rules against Pagosa Water and Sanitation District conditional water rights while holding that a 2055 planning horizon is reasonable

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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.

Energy policy – nuclear: New rules for in-situ uranium mines under review

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From the Fort Collins Coloradoan (Bobby Magill):

Once the state approves them, those rules, now in the process of being written by Colorado Division of Reclamation, Mining and Safety officials, aim to keep groundwater contamination from the mine in check and determine how much input the public will have in the mine permitting process…

The proposed rules lay out how Powertech would have to study what the groundwater quality is at the mine site before mining begins, prove that other similar mines elsewhere have been able to prevent groundwater contamination, and how it plans to reclaim the mine once its operations are complete and return the groundwater quality to what it will be before mining begins. The rules, required by a 2008 state law regulating in situ leach uranium mines like the one Powertech is proposing, have been evolving since May. The latest revision went public Oct. 20…

Specifically, the proposed rules would require the company to, among other things:

> Compare the plans for the Centennial Project to and describe at least five other in situ leach mines elsewhere that did not contaminate the groundwater, illustrating Powertech’s ability to keep its toxic chemicals contained.

> Submit a plan to the DRMS for determining the mine site’s “baseline” water quality, or the groundwater quality prior to the start of mining. Once the plan is submitted, the public will be allowed 10 days to comment.

> Carry out that plan for five calendar quarters, describing in detail both pre-mining surface and ground water conditions.

> Create an extensive groundwater monitoring plan.

The proposed rules allow the state to deny Powertech a mining permit if it can’t prove it will fully reclaim the mine and clean any groundwater it has contaminated, there are any future domestic or agricultural uses for any of the groundwater Powertech might contaminate, or, among other reasons, Powertech willfully violates environmental protection requirements of the rules.

More nuclear coverage here.