May 6, 2007

Public testimony opposes Will-O-Wisp water application
No decision yet, permit hearing continued to April 11

By Lynda James, Correspondent

A standing-room-only crowd spilled into two hallways at the Will-O-Wisp water development 1041 permit hearing in front of Park County’s Board of County Commissioners on March 28. See story below.
(Photo by Lynda James/The Flume)

About 125 citizens packed Park County's Board of County Commissioners' hearing room and streamed down two hallways on the second day of testimony in Will-O-Wisp Metropolitan District's Special Development Project 1041 permit hearing on March 28.

The permit, commonly called a water 1041 permit, is required by Park County to address impacts associated with water development projects. The metro district needs a permit to expand its water system to serve the Tanglewood Reserve development just west of Pine Junction.

On March 28, public comment was closed and the commissioners continued the hearing to April 11 at 9 a.m.

"The application has been a moving target," said Park County's 1041 Permit Administrator Lane Wyatt. Wyatt said the district had refined the application since it was submitted in June 2006 and completed additional work to answer questions raised at the first hearing date in December 2006.

Richard Toussaint, attorney for the metro district, sent a memo in late February addressing Wyatt's 13 recommended conditions for approval. According to Wyatt, the three main issues after the first hearing had been addressed. They were as follows:

1) Is the water demand forecast of 175 gallons per day per household adequate?

Originally, 280 gallons per day per household was used to forecast water demands, then it was revised to 175 based on current average use in the district. The industry standard is 280 gallons.

Wyatt said 175 gallons was adequate because the water augmentation plan and the subdivision covenants did not allow outside watering. The district's contract with Tanglewood's developers limited household use to 200 gallons per day per house.

Water required for fire protection will be stored in water supply storage tanks as required by Elk Creek and Platte Canyon Fire Protection Districts.

Wyatt recommended that an approval condition require that the district provide the county a water summary on a single-family-home equivalent basis every two years.

2) Does the metro district own sufficient water rights to provide water to Tanglewood?

Park County Water Attorney Jeff Kahn said a letter from Mountain Mutual Reservoir Company stated that it has sufficient water to augment water from Elk Creek pursuant to the metro district's ownership of company shares.

As to the right to use the Glasmann ditch diversion point, Kahn said the location was surveyed as being 330 feet from the point the metro district plans to use. Kahn said some believe the creek has moved over the past century. Water Commissioner Roger Mlodzik testified at the December hearing that the district could use the proposed point. According to Kahn, the Division of Water Resources determines if the proposed point is in compliance with law as to its proximity to the decreed point.

Kahn stated that the ownership of the diversion point and the Elk Creek water was not an issue for the commissioners to evaluate. That issue must be decided in water court.

Drayton and Vera Dunwody have filed a water court case claiming ownership of the senior 1913 decreed diversion point and water rights that the district would use if a reservoir is built. The district's junior water rights to supply Tanglewood uses the same diversion point.

3) Can impacts from the project to Elk Creek be mitigated?

The Colorado Division of Wildlife submitted a letter saying it conducted an R2Cross analysis of Elk Creek on March 2 to determine stream habitat quality. DOW uses R2Cross to measure average stream depth, average water velocity and the percent of wetted creek perimeter. These criteria must be at adequate levels to maintain aquatic habitat.

DOW determined a flow of 2.2 cubic feet per second is needed to maintain all three criteria and 2.1 cfs is needed to maintain two criteria on Elk Creek. A cubic foot of water is equal to 7.481 gallons.

Several DOW representatives met with metro district staff, including its aquatic biologist, William Logan, and the county's aquatic biologist, consultant William Walsh, to discuss mitigation.

According to DOW's letter, three options were considered; returning wastewater to Elk Creek instead of Wisp Creek; constructing a reservoir to release water back into Elk Creek, and limiting withdrawals during low-flow periods.

The metro district said the first two were not feasible due to litigation over building a reservoir and a $1.5 million construction cost to return flows to Elk Creek. Therefore, a reduced withdrawal schedule was negotiated.

The .7 cfs decreed diversion would be reduced to 0.4 cfs when a weekly average flow drops below 2.8 cfs unless that diversion is diverted to storage. When the stream flow drops to 2 cfs, the district will monitor daily flows and limit diversions of any kind to 0.4 cfs. The chart incrementally reduces withdrawals to a maximum of 0.15 cfs when the stream flow is at 0.5 cfs. That would keep a minimum of 0.35 cfs in the stream.

The two biologists, Logan and Walsh, both testified that they were satisfied with DOW's R2Cross methodology.

DOW and Walsh recognized that a reservoir returning water to Elk Creek is a better solution. If a reservoir is proposed in the future, a new 1041 permit will be needed.

Logan said the mitigation plan was adequate because a healthy brown trout population existed in Elk Creek today even though stream flows during 2002 drought conditions fell to 0.35 cfs. He said the DOW's figure of 2.1 cfs was an optimal figure.

Walsh disagreed, saying the R2Cross methodology had determined 2.1 cfs was the minimum needed for healthy habitat.

Dissolved oxygen levels were a concern raised at the hearing. Walsh said no data had been submitted to evaluate dissolved oxygen levels when stream flow was reduced. Both consultants agreed that as water temperatures rise from a reduced flow, oxgyen levels in water dropped.

Metro Districts Water Rights Questioned

Public comment

Center of Colorado Water Conservancy District attorney Jim Culichia said CCWCD commented on all water 1041 permits and was concerned that the 1041 process should be adhered to in order to protect the environment. He said the public was not given enough time to evaluate the supplemental information.

Culichia said economic and social economic impacts had not been addressed; all components of the project such as a future reservoir are required to be evaluated; a baseline for water quality and mitigation was not defined; how water would be limited to 175 gallons per household was not addressed; storage tanks' holding capacity was not adequate; and a drought plan was not submitted.

"The application falls short of insuring an adequate water supply to customers and adequate mitigation for Elk Creek," Culichia said. "It was implied that a water right trumps a 1041 permit. That is not true. "

Culichia said the application is still incomplete and the metro district should be "required to go back to the drawing board and do it correctly."

North Fork Fire District

North Fork Fire Protection District member George McCullough said recently the district had drawn 596 gallons per minute from Elk Creek's dry hydrant in Pine Grove to fight a structure fire. He said the fire district was opposed to the application due to a concern that the Elk Creek hydrant could not supply enough water for fire fighting if the permit was approved.

Trout Unlimited

Trout Unlimited board member Tom Krol said he agreed that the application did not address all issues, including the effects on the associated riparian area. He said if the willows die, the birds will disappear and the winter food supply for deer will be reduced.

UMC

United Mountain Communities representative Briggs Cunningham listed four reasons to deny the permit. One was the violation by the application of the spirit of the new Colorado law that states private property can not be condemned for the benefit of another private party.

Cunningham also challenged the estimated Elk Creek flows that were based on eight percent of the Geneva Creek measured flows at Grant. The DOW March measurement of Elk Creek was 4.5 cfs, while the same day Geneva Creek's measured flow was 200 cfs. Elk Creek was only two percent of Geneva Creek's flow.

If Elk Creek estimated flows are consistently four times higher than actual flows, water supply demands may not be met.

Cunningham showed a precipitation graph showing that the 2002 drought was not the worst in history, as claimed by the applicant.

Cunningham said that when water rights are curtailed by the call on the South Platte River, the metro district would still divert water from Elk Creek because their Spinney Reservoir augmentation water would be released to the Front Range senior rights. When enough water isn't in the river system to supply all water rights, the water commissioner puts "a call on the river", meaning junior rights can't divert water. Augmentation water is water that is released to the river system to replace water used by junior rights, insuring senior rights down stream have water.

He pointed out that augmentation water in Spinney Reservoir could not be used to put water in Elk Creek if senior rights on Elk Creek were in priority and the metro district's junior right to use water was restricted.

In October 2006, he said, the Colorado Water Support System database had changed the priority numbers of the Woodside Reservoir and the Glassman Ditch #2.

Cunningham was stopped at that point in his presentation and was not allowed to finish due to exceeding the commissioners' time limit. (See related story, page 6.)

Elk Falls

Elk Falls Property Owners Association board member Tom Schuster addressed impacts to humans such as shallow wells going dry and higher homeowners' insurance rates if water wasn't available for fire fighting. He recommended wastewater be returned to Elk Creek, or the number of homes be reduced so Elk Creek water would not be needed or that the commissioners deny the application due to lack of complete and comprehensive studies.

Lower Elk Creek

Dan Hayman, from the Lower Elk Creek Property Owners Association, said he and a neighbor own 2 cfs on Elk Creek that is senior to the metro district's water rights. He said there had been times when he could have called out junior water on Elk Creek but he didn't because he wanted to be neighborly. He was concerned that Elk Creek would not contain enough water for his agricultural uses, even though they were senior, if the permit was approved.

Woodside

Michael Schaefer, attorney for Woodside Park Units 5 & 6 Home Owners Association, spoke about the three court cases regarding the development. (See related story, page 5.) Schaefer owns Woodside Unit 5 Lot 132, where the reservoir was first proposed.

Robert Nevadomski, president of the Woodside HOA, presented aerial photos taken in 1938, 1956 and 1996 and overlays of Woodside lots, the actual 1913 survey of the Glasmann Ditch diversion point, location of the ditch and all lands irrigated by the ditch. He pointed out that the legal description of the diversion point in the original 1913 decree and the 1970s and 1980s decrees by the metro district are the same.

Yet a recent survey of the decree located the diversion 330 feet east of the point the district claims is the diversion point. The current survey corresponds to the original 1913 survey and the description of the junior diversion point entered into that water decree. That point is on Lot 133. (See map)

Nevadomski provided testimony from the 1913 court proceedings that listed all lands irrigated by the Glasmann Ditch as being in Jefferson County. He said this was further evidence that the diversion point could not have been where the metro district claims.

Dunwody challenge

Vera Dunwody added that the original survey was not in the records in any of the 1970s or 1980s water court cases that were held in Greeley.

Dunwody recently found the 1913 survey in Park County records. Early water rights cases were held in county courts before water courts were established.

Doug Windemuller - who owns Lot 133, where two surveys locate the diversion point - said if the permit is approved, the county commissioners are forgetting who they represent. For years, citizens have asked that the new development not be approved until all water issues are resolved, he said.

"The diversion point wasn't on my property, now it is. How much more will they end up condemning?" asked Windemuller. He said that only a small portion of the reservoir was on his deed. The district is now proposing something very different, particularly with the new diversion plan that would require weekly and sometimes daily travel through the meadow to take read flow measurements. He asked the application be denied until the reservoir is included in the application.

Debra Johnson said that 0.7 cfs equals 18,858 gallons per hour. She listed six reasons to deny or require additional studies and closed by saying, "This will destroy the (Elk Creek) canyon." The canyon is basically from Sphinx Park to Pine Grove.

Other citizens echoed concerns raised by those speakers, including worries about wells going dry, loss of fire fighting ability, economic impacts to individuals and businesses along Elk Creek, and impacts to the environment.

On April 11, the district will rebut the public testimony. Then the commissioners will make a decision on the permit.

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