Sychohants

Editorial to the Pagosa Daily Post

Re: You don’t get to Have Your Own Facts

The San Juan River Headwaters Project (“the Project”) is the official name given what was the Dry Gulch Project. San Juan Water Conservancy District (‘the District”) has made no secret of the reason for the name change so why Mike Church think it is disingenuous is odd. First, “Dry Gulch” was never an official name of the Project, but rather simply referenced what the project area was referred to on topographical maps. Second, Dry Gulch referenced a project led by Pagosa Area Water & Sanitation District (“PAWSD”), which is no longer the case so it has no say in the project name, the name of the road into the project area, the reservoir, the islands in the reservoir, the ridge above the reservoir, or anything else.

PAWSD gave up whatever rights it had as part of the 3 Way Agreement that PAWSD and the District entered into with Colorado Water Conservation Board (“the CWCB”). Finally, the Project has little in common with the Dry Gulch Project; it is not the same size, it is not filed the same way, it has far broader purposes, and it costs only a small percentage of the Dry Gulch Project.

Now, I would like to turn to the last allegation Mike makes in the angst-filled piece he wrote. As a matter of fact, the District is anticipating hiring a general manager, but at a modest salary for the sophisticated and complicated work that needs to get done. No doubt, the new GM will be working toward revisions or an entirely new 3 Way Agreement that will benefit PAWSD. Mike asserts that since the District has only a 10% interest in the Project site, this position is unwarranted. In fact, the District has just over an 11% interest in the project site land, but owns and controls all the water rights for the Project. It is the water that is critical, and that water is worth every bit as much as the land. The District is trying to find ways to delegate control of the land to an entity or entities that will make use of the property for public purposes and community development. This work is not easy, it cannot be done by a volunteer board and getting it done will happen in spite of PAWSD and not because of it.

The San Juan Water Conservancy District (“the District”) was formed just for the purpose of developing long range projects – to spearhead planning to meet future water resource needs of this community. The District is not a water provider, but rather supplies water to providers for beneficial use. Mike Church wrote a piece that appeared in both the Sun and the Daily Post, which sought to persuade voters to vote “No” on Proposition 5A, but his facts are wrong, and voters need to be informed on the need for this Project in order to make a good decision. I already referred to one mis-statement; PAWSD water storage is one-sixth the amount Mike alleges.

The mission of the San Juan Water Conservancy is taken right from the enabling legislation that gave it life.

“The mission of the San Juan Water Conservancy District is to conserve, develop,

utilize, and plan storage for current and future water needs, and to ensure that

the water resources of the San Juan River and its tributaries, and the property

and residents within the District will be benefited by our activities.”

An application for a 6,300 acre foot (AF) reservoir were filed on at the time. Why that amount of water you may ask……well, it seems the Park Ditch serves the ranches in that area and just happens to go around the reservoir site perimeter to that level. Of course, a dam would have to be built to hold the water at a narrow cut in the ridge line, but otherwise, this open pasture is a natural pool basin. The basin as a secondary purpose – it contains soil materials suitable to construct the dam.

The plan for a 35,000 AF reservoir relied on population projections that went out a hundred years, which the Colorado Supreme Court found was too speculative. Population projections now go out to 2070 to justify this project, but does not depend solely on population to demonstrate need for this Project. Storage is now recognized as a beneficial use so once built, storage alone could justify this Project. However, the District is anticipating doing so much more – providing water to extend the rafting season; providing water to supplement in-stream environmental flows; providing water for fish and wildlife habitat; providing water for expanded camping and other outdoor recreation opportunities.

Mike Church mis-characterizes the re-structured three-way agreement by and among PAWSD, the District and the Colorado Water Conservation Board (“CWCB”). His first “interesting point” is simply not true. PAWSD cannot sell the Running Iron Ranch anytime it likes. It was out of concern that PAWSD might try to sell the property already acquired that caused the State to insert “poison pills” into the 3 Way Agreement to dissuade PAWSD from trying to sell the property. The State of Colorado negotiated for an option to purchase just to keep that from happening. Further, there is nothing in the agreement that requires the District to sell its share of the ranch PAWSD would also experience delays in any sale while the undivided interest in the whole is divided.

Another reason PAWSD cannot sell the ranch any time it wants is because the State is to receive $1 Million from any sale of the property that involves the sale of the District’s ownership interest in the ranch so it is highly unlikely the State would agree to any divided interest in the whole that would deprive the State of this investment. Any attempt to sell all or part of its ownership in the Project property would be tied up in court for years. One might ask how we got to this point.

The second “interesting point” is also not true. No one has argued the reservoir is needed now so pay no attention to Mike’s assertions to the contrary. The 3 Way Agreement was never about putting this Project into “time out”. The Project is being developed for water storage. It takes decades to develop water storage projects. PAWSD, the Town, the County, and the San Juan Water Conservancy District (“the District”) have varying projections for future population, but projected population numbers are not the whole story. This community needs a dependable source of water for recreation, for wildlife, for the environment and even to just maintain the visual image of Pagosa Springs. The economic fortunes of this community short and long term depend on water.

If this community gets to the point of a water emergency, it will be too late to develop the Project. A multi-year drought would devastate the economy, property values, tax revenues and all things that make this community great. Drought too often also means forest fires, which would totally exacerbate the problem. People looking to invest in this community want to know their risks are mitigated or they won’t buy here, build here or live here.  Drought, climate change, conservation efforts, population growth projections, and tourism/second home numbers, the need may be sooner or later, but the need is coming.

The stakeholders in this community’s water future are trying to come up with a common set of numbers and projections that we all can rely on to plan.  Bullet proof numbers are tough to come up with, which makes completing the Project when that need arises doubly difficult.

As part of the 3 Way Agreement, PAWSD agrees to buy water from the Project rather than build any new water storage facilities. Further, PAWSD agrees to support due diligence on the conditional water rights to assure that the District will continue to be able to work toward perfecting those rights and making beneficial use of the water, some of which will be purchased by PAWSD.

The Colorado Water Conservation Board (“CWCB”) concluded the San Juan River Headwaters Project (formerly Dry Gulch) may be needed as early as 2025. It is not a fact that Pagosa Area Water & Sanitation District (“PAWSD”) has six (6) years of storage, nor is it true PAWSD has three and a half years of storage. What is true - PAWSD has about one year of storage, and wants to increase standby storage to two years. PAWSD believes demand of its water will outstrip supply by 2049; well within the 50-year planning horizon Colorado has adopted.

The third “interesting point” is indiscernible and means nothing to me. There is no prohibition against land trades, but that has nothing to do with the ranch property. An effort to trade the “ridge parcel” for needed Forest Service land was turned down years ago. The only land trade being considered now is to acquire additional acreage at the project site. The District has negotiated with the U.S. Forest Service to arrive at a mutually agreeable amount of land so a target property can be ascertained of comparable value to make a trade. Whatever Mike is trying to say has nothing to do with what’s happening on the ground.

The fourth “interesting point” is also completely wrong. District leadership never negotiated a loan on behalf of PAWSD. PAWSD leadership negotiated a loan for PAWSD amounting to approximately $11.2 Million. It was all done in accordance with the law, was done so transparently, and in good faith by all parties. The assertion that the 3 Way Agreement saves PAWSD ratepayers millions of dollars is probably understated.  

A memorandum of understanding (“MOU”) was originally entered between the District and PAWSD to develop the site. As the water provider and the much larger entity, PAWSD was to take the lead in the Project.  This was a good fit because the District held the conditional water rights and was formed to provide for future water rights for beneficial use, and PAWSD had beneficial uses for water as a water provider to much of the populated areas in Archuleta County. Things started out well since there was a great deal of public interest in assuring a good reliable water source.

The drought drew down PAWSD reserves, there was only six CFS flowing in the San Juan River at one point so the lack of flows could not offset lack of storage. As it turns out, PAWSD and the District over-reacted to the crisis in setting expectations for this new reservoir. Over-reacting does not mean a need did not exist, it just means the need was less than was determined in reaction to the crisis. Mike Church would have folks believe there is no need rather than putting things into perspective. He is still so angry at the process used to develop at 35,000 AF reservoir, that he cannot put a new process for an 11,000 AF reservoir into perspective.

There was also concern about fire flows in the event of a forest fire, and with good reason. and drought of 2002 showed just how tenable existing resources were. The fear of what a fire could do to this community’s water supply was pointed out again in 2012 when the West Fork fire resulted in ash and debris came down the watershed and clogged the PAWSD intake at Snowball. Fortunately, PAWSD had alternatives, but if that fire had actually crested the continental divide at other locations, those alternatives would have been lost too. As it was, costs increased, water availability and quality was compromised, and the community was the worse off for it.

PAWSD now estimates, it will have difficulty meeting peak flows in its system by 2019. Lesser peak flows means compromised fire flows. The need for additional treatment capacity is another reason why PAWSD needs to reduce its debt. The $250,000 in savings each year on the payments it was making to CWCB is contractually restricted to fixing the huge treated water losses PAWSD has been enduring for years so the cash has to come from somewhere else.

The board of directors for the District believes that the facts alone support the need for the additional mill levy revenue. The District is prohibited from advocating for the mill levy by law so I am prohibited from asking for your vote. I can ask that you become an informed voter, learn the true facts, and discount the representations made by folks without the facts. The District has put together a “Blue Book” that sets out the background, facts, and the pros and cons related to this mill levy. Please take the time to read it, and if you have questions, please e-mail me at planatlaw@gmail.com and I will do my best to get you the answers you need.