Here’s an update on Pueblo West’s reasoning behind their lawsuit against being required to join the Pueblo flow program as a condition of connecting to Colorado Springs Utilities’ proposed Southern Delivery System, from Chris Woodka writing for the Pueblo Chieftain. From the article:
Pueblo County, under its 1041 land-use regulations, is requiring all SDS participants – Colorado Springs, Fountain, Security and Pueblo West – to participate in the flow program set up under 2004 intergovernmental agreements. Colorado Springs and Fountain already participate.
Pueblo West claims it would lose a minimum of $5.3 million in the value of its water if it participates in the flow program, according to a lawsuit filed in district court by attorneys Tom Mullans and Robert Krassa. The estimate is based on an annual average of 531 acre-feet, about 6 percent of the annual water supply for the metro district. The suit claims, among other things, that this amounts to a taking of private property. The suit also acknowledges that Pueblo West stands to gain $3 million to $7 million by its participation in SDS because it would be able to connect to the SDS pipeline for $1 million rather than build a river intake that could cost up to $8 million. “This cost savings is Pueblo West’s sole benefit from participation in SDS,” the lawsuit states. The metro district attorneys claim the condition of participation in the flow program was not brought up until late in the 1041 process, and that Pueblo West never committed to joining the flow program…
While the county cannot directly enforce the flow program, it can hold participants to a portion of the IGA that requires their support for actions that prevent others from exchanging water against forgone exchanges, [Ray Petros, special counsel for Pueblo County] said.
Pueblo West argues that its Wild Horse Dry Creek exchange occurs above the area covered in the city of Pueblo’s recreational in-channel diversion decree and that its exchange decree from Lake Meredith existed long before the Pueblo flow program. Additionally, Pueblo West signed over the authority to negotiate all permits to Colorado Springs Utilities in a 2007 agreement, Petros said.
More coverage from Mike Spence writing for the Pueblo West View:
The SDS is a 50-mile pipeline that would take water from the north side of Pueblo Dam and pump it north to serve Colorado Springs, Fountain, Widefield and Security. Pueblo West officials had hoped to get a “T” off the pipeline as it comes through Pueblo County. That access would increase Pueblo West’s daily water capacity from 12 million gallons to 30 million gallons, assuring the community adequate water when it reached build-out. It also would give Pueblo West a second access to its water in the reservoir. But the county requirement, made as part of its 1041 permit process, would force Pueblo West to give up a portion of that water. The Flow Manage Program is part of an intergovernmental agreement signed in 2004 by Pueblo, the Pueblo Board of Water Works, Colorado Springs, Aurora, Fountain and the Southeastern Colorado Water Conservancy District. Pueblo West was not part of the IGA, nor the negotiations on flow management program – and was not a signee to the pact.
At issue is the amount of water Pueblo West would have to contribute to the Flow Management Program. Pueblo officials estimate Pueblo West’s contribution would be about 92 acre feet of water annually. Pueblo West disputes that, saying the loss could be anywhere from 1,400 to 3,200 acre feet of water annually. Colorado Springs Utilities asked MWH Engineering to model Pueblo West’s participation in the flow management program. MWH Engineering came back with an estimate of at least 649 acre feet on average would be lost under the most ideal conditions. “We think that estimate is conservative,” said Steve Harrison, Pueblo West’s director of utilities, noting that it was based on a flow rate of 100 cubic feet per second in the river’s upper gauge and did not include the loss of further re-use. Using a multiplier of 1.8 to factor in that re-usage, the amount of lost water is approximately 1,200 acre feet of water, according to Harrison. Yet, even using the Colorado Springs estimate, which is more than seven times greater than the estimate made by Pueblo officials, the cost to Pueblo West to replace the water would be millions. “Considering a conservative $11,000 per acre foot for water such as Bessemer Ditch, this would be equal to $7.139 million for replacement water,” according to a report Harrison gave to the board of directors…
If Pueblo West were to attempt to replace that water with shares from Twin Lakes, the cost would be much higher – more than double. The last time Pueblo West purchased water shares from Twin Lakes they cost $26,000 per acre foot. That cost would likely be higher now, if the shares were available at all.
Despite the lawsuit, Pueblo West officials said they still are open to a compromise. “We would be willing to be good partners and contribute some of our water to help the kayak course,” said Pueblo West metro board Chairman Stan Hren. “But not the amount the county is calling for.”
Hren said the amount of water Pueblo West is being asked to contribute to the Flow Management Program is disproportionate to the amount of water it is receiving. “What does Colorado Springs contribute to the Flow Management Program, 1,500 acre feet?” Hren asked. “Colorado Springs has 300,000 acre feet of water, that’s less than one half of one percent of their total water. If you used that percentage for Pueblo West, it would be about 50 acre feet of water a year.”[…]
[Steve] Harrison, director of utilities for Pueblo West, said the district takes water from a pipeline at the dam and releases it from a sewage treatment plant on the eastern edge of Pueblo West. The water then flows down Wild Horse Dry Creek to the Arkansas River, giving Pueblo West the right to take a similar amount again from Lake Pueblo. Pueblo West is allowed to reuse the water because it comes from Twin Lakes, which is non-native to the Arkansas basin. Now, though, the county wants some of Pueblo West’s water to flow from the dam through the city of Pueblo, which has not been done in the past…
…the bottom line is that Pueblo West would lose water, perhaps a significant amount of water to the Flow Management Program. Mullans said it would be expensive to replace that lost water, and later may not be possible at all. There are far more water users in the Arkansas Valley that there is water, he said. “It was not easy to build up this portfolio of water rights,” he said. “And we need more.”
One Pueblo West resident wondered why Pueblo West doesn’t walk away from the SDS project and built a reservoir access of its own. The cost of building a pump station would be about $8 million, compared to the cost of $1 million for the “T” off the SDS pipeline, plus about $250,000 as part of Pueblo West’s share of the SDS project. Another reason, Mullans pointed out, was that even if Pueblo West withdrew from the SDS and sought to build its own pump station from the reservoir, the county would again step in with its 1041 permit process and demand that Pueblo West participate in the flow management program. The county’s 1041 process applies to all water or wastewater pipes 12 inches in diameter or bigger.
More coverage from Chris Woodka writing for the Pueblo Chieftain:
Pueblo County is not in a position to allow Pueblo West an exemption from the Pueblo County flow management program, its water attorney said Wednesday. The reason is not that the county has any power to enforce the flow program, but because the conditions of past intergovernmental agreements require that all participants in Southern Delivery System adhere to the program, said Ray Petros, special counsel for the county…
“The county permitting process is a way of promoting universal application of the flow program. It would be unconscionable for one member not to participate,” Petros said. The March 2004 IGA among Pueblo, the Pueblo Board of Water Works and Colorado Springs has a provision that requires all parties to prevent others from exchanging against flows that are a result of curtailment of exchanges. “The 2004 agreement says that if the forgone flows are exchanged upon, then it’s King’s X for everyone,” Petros explained. The same provisions are referenced in the May 2004 IGA that brought Aurora, Fountain and the Southeastern Colorado Water Conservancy District into the flow program.
A provision of legislation for the Preferred Storage Options Plan, which included Pueblo West, and the Upper Arkansas and Lower Arkansas Valley Water conservancy districts until negotiations were suspended in late 2007, required year-round target flows of 100 cubic feet per second for the Arkansas River below Pueblo Dam. Aurora and the Lower Ark, along with most of the other PSOP partners, are supporting similar federal legislation.
Finally, Pueblo West agreed, in its 2007 IGA with Colorado Springs for SDS to support Colorado Springs Utilities as its bargaining agent for all permits required to build SDS.
In addition, Colorado Springs listed the Pueblo flow program as one of the benefits for Pueblo County in information that was distributed at meetings it sponsored in advance of Pueblo County 1041 hearings – including two in Pueblo West. “Pueblo West should have known of the contractual agreements that had been made,” Petros said. “Pueblo West does not have a case against Pueblo County. The remedy would be is not to go forward with SDS.”
Pueblo West stands to lose much more if it pulls out of SDS, Petros said. The largest loss would be a 10,000 acre-foot storage contract with the Bureau of Reclamation in Pueblo Reservoir, which is part of the SDS package, if the pipeline for the project comes from Pueblo Dam.