May30, 2007

Will-O-Wisp 1041 water permit approval deferred  District must show property rights to get OK

By Lynda James, Correspondent

The Will-O-Wisp Metropolitan District still has a couple of hurdles to overcome before receiving a water project 1041 permit from Park County. Park County's Board of County Commissioners deferred the permit approval on May 29 until the district can prove it has the property rights needed to complete the project.

The permit is needed before the district can divert water from Elk Creek to provide water and sewer service to Tanglewood Reserve Planned Unit Development near Pine Junction. The commissioners conditionally approved that development in the early part of 2006.

At the May 29 hearing, the metro district was given the opportunity to rebut testimony from the public at the last hearing date earlier this spring. The district's water counselor, Lee Johnson, addressed most of the rebuttal.

The public was also given an opportunity to rebut the district's rebuttal.

Rebutting Opponents
At a meeting on May29, Lee Johnson, special water attorney for the Will-O-Wisp Metropolitan District, rebuts public testimony in opposition to the Will-O-Wisp's water plans.  (Photo by Lynda James/The Flume)

Two main issues still concerned the commissioners.

One was whether the project's mitigation proposal for diverting water from Elk Creek would adequately provide a healthy habitat for aquatic life in the stream.

The other was whether the district had all the property rights to construct the project. The necessary property rights include the water rights' diversion point as well as land to construct the project. The district's water rights for the project are the junior 1981 rights, not the senior 1913 decree that is being challenged in court.

On May 24, the county received an answer from Colorado Water Division One of the State Water Engineer's Office to questions raised by Park County Special Water Counsel Jeff Kahn. He had asked if the state would administer the district's decreed water rights on Elk Creek at a diversion point that was proposed 330 feet from the point decreed by water court.

The letter, signed by Assistant Division Engineer David Nettles, said that a diversion point had to be within 200 feet of the decreed point to be considered legal. The letter outlined two options. Either the Will-0-Wisp district could move the diversion point to within 200 feet of the decreed point or ask water court to change the diversion point.

The district's general counsel, Richard Toussaint, said the point would be moved to comply with the 200 feet limit. That may put the point on Woodside Park Unit 5 Lot 133 instead of Lot 134. The district testified that the new diversion point has yet to be determined and surveyed.

Regardless, a condemnation case filed to gain land on Lot 134 to construct facilities needed to divert and pump the water from Elk Creek now needs to be amended because that parcel is not the land the district needs for diversion.

Toussaint said the pumping station will stay on Lot 134 and the district will continue with the condemnation of that portion of the lot. Once the locations of a legal diversion point, pipeline to the pumping station and maintenance road have been determined, the condemnation case will be amended to include that land.

Board finds other criteria met, with conditions

The commissioners found that all other criteria for a permit, including impacts to aquatic life in Elk Creek, had been met by imposing conditions on the permit.

The case will be rescheduled for approval once the county receives a letter from the Colorado Division of Water Resources or the State Water Engineer's Office stating that a new proposed diversion point is within 200 feet of the decreed point and can be administered under Colorado law.

The district must also provide evidence that all land property rights have been obtained through permission or a condemnation suit for the district to construct the needed facilities to transport water from Elk Creek to serve Tanglewood Reserve.

District lawyer Toussaint testified that the current condemnation case in district court will be amended to include any additional property needed.

The district must also provide evidence that a lawsuit filed by Woodside Homeowners Units 5 and 6 for violation of covenants has been settled in the district's favor before a permit would be approved.

That lawsuit claims lots in the subdivision may only be used for residential purposes, and it claims construction of water diversion facilities is a commercial use that is not allowed.

Park County Special Water Counsel Jeff Kahn suggested adding a time limit to acquiring the needed documents.

Park County Attorney Stephen Groome said that wasn't necessary because time limits were imposed in the final plat development approval. It states each phase of the development will become null and void if a letter of credit is not in place to guarantee the construction of public improvements for that phase within three years of the completion of public improvements for the previous phase. The resolution also states a reasonable extension may be requested for good cause.

Aquatic habitat

To address commissioners' concerns regarding aquatic habitat mitigation involving creating pools, ripples and runs for healthy fisheries, Director of Tourism and Community Development Gary Nichols testified that projects he had administered over the last four year cost between $80,000 and $150,000, depending on identified appropriate restoration techniques.

Several members of the public rebutted the proposition that all criteria for approval had been met. Jim Culichia, attorney for the Center of Colorado Water Conservancy District, also questioned the hearing's procedure of not allowing cross-examination of the applicant by parties with status to the case, as permitted under the 1041 regulations.

Nearby resident Dee Dee Kruymlier, a wildlife biologist, questioned whether proposed mitigation for low stream flows on Elk Creek resulting from the project would be adequate to support vegetation needed for healthy aquatic wildlife.

The proposed mitigation reduces the amount of water that can be withdrawn from Elk Creek by the district, depending on the amount of flow in Elk Creek. The district's water rights allow .7 cubic feet per second withdrawal. The mitigation will reduce that amount incrementally down to .15 cfs when the actual flow in the creek is at .4 cfs. The district will begin reducing the amount it diverts when flows are 2.1 cfs.

Elaine Baca expressed the public's concern about impacts to aquatic life if those withdrawal rates were sustained over long periods of time.

The mitigation was based on flows in the creek during the 2002 drought. Low flows then lasted for three weeks. Briggs Cunningham testified that 2002 was not the worst drought in Colorado and on Elk Creek. He said the worst drought happened in the 1930s.

To address concerns regarding adequate aquatic habitat mitigation, the commissioners required additional mitigation involving creating instream pools, ripples and runs to maintain healthy fisheries during low flows in Elk Creek. Director of Tourism and Community Development Gary Nichols testified that stream restoration projects he had administered over the last four years cost between $80,000 and $150,000, depending on identified appropriate restoration techniques.

Doug Windemuller, owner of Lot 133, testified that the land on his lot contained more wetlands and boggier conditions than Lot 134. He questioned if the proposed mitigation for concealing the access road and the wetland mitigation would be adequate.

By moving the diversion point, Windemuller said, "We now have more unanswered questions than answered questions".

Commissioner John Tighe said the benefits of new commercial development and a grade separated intersection just west of Pine Junction out-weighed the impacts of diverting water from Elk Creek to the development.

"So far you haven't used your water. It's been running downstream and out of the county," commented commissioner Leni Walker. "It hasn't been kept (for use) in Park County."

Commissioner Doc McKay expressed concern about exacerbating a drought situation with the withdrawal rate mitigation. He said, "We have to rely on the experts and staff. But I have reservations on it. I hope it is true (that the mitigation will protect aquatic life).

Addressing Problems
Richard Toussaint, general counsel for the Will-O-Wisp Metropolitan District, testifies at the May 29 meeting in front of Park County's Board of County Commissioners.  (Photo by Lynda James/The Flume)


Conditions imposed by the county commissioners to address issues other than property rights include:

That last condition was not included as a recommended condition by Lane Wyatt, Park County 1041 permit administrator. It was added by the commissioners to address concerns by Tighe and McKay that impacts to Elk Creek needed more mitigation during a drought situation.

Once all property rights documents have been obtained, the district will request the case be scheduled for final approval.

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