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

A picture named sanjuan.jpg

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.

More Dry Gulch Reservoir coverage here and here.

Leave a Reply