From The Pagosa Sun (Chris Mannara):
During a strategic planning session held on Monday, the San Juan Water Conservancy Dis- trict (SJWCD) board of directors brought a familiar reservoir project back into the public eye.
That reservoir, known as Dry Gulch or the San Juan River Head- waters Project, was seen by voters on the November 2017 ballot as Ballot Issue 5A.
The SJWCD’s request for that ballot was specifically an increase to 1 mill to help with land acquisi- tion for the Dry Gulch project.
However, local voters were against this ballot issue, with 75.44 percent of voters being against the measure (2,697 votes), while only 878 voters, or 24.56 percent, were in favor.
During the work session on Monday, the SJWCD board of di-rectors came together in hopes of getting together a framework for a strategic plan that will guide the board in the future.
At one point in the meeting, the board of directors, under the guidance of volunteer consultant Renee Lewis, discussed some potential goals to include in that strategic plan.
Not every SJWCD board member may agree that the board needs to proceed with building a reservoir, Lewis stated.
“But, you also have to keep in mind that you’re still contractually obligated with CWCB [Colorado Water Conservation Board] to be the lead manager of that project,” Lewis said.
Legally, SJWCD is still the manager of that project, and also, Pagosa Area Water and Sanitation District (PAWSD) is no longer involved in this deal, Lewis noted.
The only things asked of PAWSD is to not inhibit SJWCD from accomplishing its goal and to help the district with water rights in any way that it can, she added.
Those water rights, according to SJWCD Chairman John Porco, are an asset of the district and are “virtually, entirely, keyed” to the eventual construction of a reservoir.
“That, I think, has to be in the plan, that it’s not off the table,” Porco said.
If the reservoir is somehow not involved in the strategic plan, Porco cited that legal repercussions could be incurred by the district that were “significant.”
“If we were to simply discard those, I would think that con- stituents could, if they chose to, question our serving the fiduciary rights of the district,” Porco said, “because we have, in essence, given away a compensation. We have given away a major asset of the district.”
The SJWCD as a whole should think “long and hard” about not including the potential construc- tion of Dry Gulch in its strategic plan, Porco added.
SJWCD board member Al Pfister later questioned whether or not the water has to be specifically put in Dry Gulch, or be put in another res- ervoir for the same beneficial use.
At the time of the meeting, Porco did not know the answer to Pfister’s question and suggested contacting the board’s legal counsel.
“I agree that we should not just be giving our water rights away. That to me would be negligence on our part,” Pfister said.
The Dry Gulch project should not just be abandoned, Pfister noted, but there should also be an alternative for those water rights.
Per Porco’s estimation, in talks with former legal counsel, he was informed that those water rights were for a specific use.
Another issue under the surface
Later in the discussion, SJWCD board member Bill Hudson pointed out that the district has 24,000 acre feet (AF) of conditional water rights for a reservoir at West Fork.
The SJWCD has had these water rights since 1967, Hudson noted.
According to Hudson, the district needs to file a point of diversion (POD) change on those water rights before 2021.
In addition to the POD, the SJWCD has to define a location of storage for the water, Hudson added later.
“And we haven’t even started that process. This is a 24,000 acre-foot conditional right, and that seems like a very critical piece compared to Dry Gulch, which we’ve already gone through our due diligence on Dry Gulch in 2017,” Hudson said. “But, this is in two years. We’re going to lose 24,000 acre feet of water rights if we don’t fulfill this obligation.”
As part of the strategic planning he district’s current legal coun- sel on these issues.
“Should we talk about it eventually? Yes.” Pfister said.
Amidst more discussion about whether or not this topic should be discussed, SJWCD board member Doug Secrist noted that all of these things should be included in the strategic plan.
“We are not in a position here today to settle those and to decide what we’re going to do specifically because we still have a lot of re- search to do,” Secrist said.
The West Fork water rights are a big issue and due diligence should be exercised on it, but the SJWCD needs to find out how exactly to first proceed, Secrist added later.
“Every six years the water district has gone through due diligence, gotten that right reconfirmed as conditional. We still intend to build a reservoir at the West Fork, not at Dry Gulch, at the West Fork,” Hud- son said.
In order to shed some light on this topic for the district, Lewis, who had been involved in the his- tory, offered some background.
After the local drought of 2002, reservoir discussions took place, and West Fork was listed as one of the site locations, Lewis explained.
Lewis explained that, at the time, that’s why PAWSD and SJWCD went into this deal together and then PAWSD eventually deeded its share of 10,000 AF to SJWCD.
Due to this deeding of 10,000 AF, SJWCD has been paying for the due diligence on it.
“This location was obviously abandoned once the purchase of Running Iron Ranch went through,” Lewis said.
The SUN reported in May of 2014 that Running Iron Ranch was purchased to support the original 35,000 AF reservoir plan; however, that plan eventually got reduced to the 11,000 AF plan we know today.
“It’s always been understood, whether it’s ever been written down anywhere, that at least, to my knowledge, that that is not a viable reservoir location. At least as of when the Running Iron Ranch was purchased,” Lewis explained. “So, we’re still hanging on to that right. It was always my understanding that the intent was to move that right to potentially the Running Iron Ranch location.”
Later, Lewis explained that there is a legal doctrine titled the collec- tive system theory, which is still ac- cepted in water court in Colorado.
What this doctrine means is if the SJWCD is still filing diligence on its Dry Gulch water rights and the district is still making efforts toward that project, the water court will approve its collective system water rights, Lewis explained.A conclusion?
After more brief discussion about the various water rights issue, Porco again suggested ta- bling the discussion in order to do more research and consult legal counsel.
However, Hudson responded by pointing out that the West Fork water rights are two times bigger than the Dry Gulch ones and something needs to be done on the West Fork rights in two years.
“What we’ve established is that these water rights are married together, and so that they both need to be addressed as we move forward with the strategic plan,” Secrist said.
