From The Pueblo Chieftain (Chris Woodka):
A Fountain Creek landowner has filed a complaint in Pueblo water court saying he has a right to the Fountain Creek underflow, as well as surface water.
Ralph “Wil” Williams, trustee of the Greenview Trust, filed the complaint in June, saying the state has incorrectly administered the water right to the 313-acre farm as solely surface water.
The property, located 8 miles north of Pueblo on Fountain Creek is emblematic of man’s interaction with Fountain Creek throughout recorded history. It was first settled by “Uncle Dick” Wooten in 1862 and has always been in farmland.
In the 1990s, it began to experience severe erosion from growth upstream, particularly the development in Colorado Springs.
Problems with the ditch came to a head after the 1999 flood, leading the owners to sue Colorado Springs for dumping more water in the creek, only to be locked out when the Legislature granted governmental immunity for flood damages.
In the most recent floods of the past five years, the Greenview has continued to lose land, including about 10 acres of trees to the storms in May and June.
“We’re trying to conserve the farm,” Williams said. Pueblo County, through a program in conjunction with the Fountain Creek Watershed Flood Control and Greenway District, is interested in purchasing the property as a restoration project.
The water rights are crucial to determining land value, Pueblo County Commissioner Terry Hart said.
“We weren’t successful in a Great Outdoors Colorado grant this cycle, and one of the things we have to do is shore up the land and water value,” Hart said.
Williams contends that past owners always intended to use the underflow of Fountain Creek as an alternate source to irrigate 315 acres of the property. Fountain Creek had intermittent flows, so the underflow would have been used during dry times when surface water could not be diverted, he claims.
Other water users employed the strategy in the early 1900s, when well technology was more limited. Most famously, the Ball brothers — who found success in the canning jar and aerospace industries — used the underflow of Fountain Creek to fill reservoirs in hopes of selling the water to Puebloans. The quality was unsuitable for drinking, however.
In preparing for the water court case, Williams collected old plats that show the location of underflow structures, basically horizontal wells that draw water by gravity.
The Colorado Division of Water Resources does not recognize the dual water right, and says Greenview Trust needs a substitute water supply plan if it plans to irrigate with wells.
“It’s based on an old statement that was not picked up in the decree itself,” said Division 2 Engineer Steve Witte. “It appears to us that there never was the intention to have a well.”
Williams disagrees, saying he spent two years collecting information in state files that he was initially told did not exist. “For me to have to spend two years researching the archives is ridiculous,” Williams said. “We are decreed against the source and the underflow. It’s one natural stream.”
More Fountain Creek coverage here.