March 9, 2007

UPDATE: Fifth postponement of water hearing rankles
(Rescheduled for March 28)

"Reprinted courtesy of Evergreen Newspapers"

By Pamela Lawson
Staff Writer, High Timber Times

Citizens from Park and Jefferson counties are still scratching their heads over why an applicant, for the fifth time, canceled an important water hearing in Fairplay with less than 24 hours notice.

The hearing has been rescheduled for 9 a.m. March 28 at the Park County Courts Building in Fairplay.

Park County commissioners had reserved the entire day on Tuesday, March 6, to hear testimony regarding a 1041 water permit application for the Will-O-Wisp Water District for a proposed residential development in Pine Junction.

The permit addresses water diversion from Elk Creek to serve the housing project. It also addresses impacts to wildlife and aquatic species, among other details.

But shortly after noon Monday, the applicant requested a postponement of that hearing, citing the need for more time to respond to a water study completed on Elk Creek last week by the Colorado Division of Wildlife.

The latest study was completed Friday morning, according to Park County Attorney Steve Groome — only two business days before the scheduled water hearing. The WOW water district was concerned it would not have enough time to prepare a response to the tests for the commissioners’ hearing on Tuesday.

“The county was surprised,” Groome said. “But I do not have an (answer) on why CDOW picked this timeframe — I don’t know, and I don’t want to theorize.”

The aquatic biologist who conducted the study could not be reached for comment, but Division of Wildlife spokeswoman Jennifer Churchill did try to piece together details that involved a letter sent by aquatic biologist Jeff Spohn to Park County commissioners dated Jan. 12, 2007.

The letter was a response by DOW to the 1041 application, and it cited possible adverse effects on several species of trout in locations along Elk Creek. Those concerns were based on a report by Aqua Sierra Fisheries Consultants completed in October 2006, as well as historic data collected in the 1980s by the DOW and the Colorado Water Conservation Board.

“The major limiting factor for aquatic life in Elk Creek is low flow,” the Jan. 12 letter said. “Low flow conditions can be directly correlated to aquatic ecosystem health and the carrying capacity of an aquatic system.”

The January letter further noted that, in 1984, the water conservation board acquired a 5-cubic-feet-per-second water right to the creek as a necessary measure to preserve the stream.

And it cited a 1987 DOW survey on a portion of Elk Creek near Shaffers Crossing which noted that the primary limiting factors to the fishery included domestic water diversions, irrigation water diversions and encroachment by roads.

Churchill said her agency did not learn of the 1041 hearing until Feb. 23, at which time DOW made arrangements to run the stream capacity sampling tests on March 2.

The cross-section study took about two hours to complete on Elk Creek, according to WOW water district president Rick Angelica. The study analyzes the depth, flow and velocity of the stream, he said.

Angelica said his agency was “set to go, to move this forward and get this approved,” but he asked for the postponement because he did not know how long it would take to prepare a response to the DOW report and he didn’t want to go before commissioners unprepared.

As it turns out, the DOW report was completed Monday afternoon, after Angelica had asked for the postponement. By Tuesday morning, the two agencies had met to discuss the information.

“We have come to an agreement now as to operating principles on how to operate the stream, (but) we have to put everything in writing,” Angelica said. “Part of 1041 basically says, ‘Here is how we are going to monitor the stream.’ ”

The details include daily and weekly monitoring, when WOW would pull water out of the stream and when it would rely on wells if water flow dropped below a certain level.

“All it is, is a change to operating principals — very basic, very common English language,” Angelica said.

He further said that his agency has 0.7 cfs water rights on Elk Creek but that it will take out much less.

“We can go back to wells and utilize our wells to be good citizens and stewards of the stream,” he said.

(The WOW district has agreed to provide 520 taps for the Tanglewood housing project, which would include between 425 and 450 homes, plus commercial uses.)

The latest cancellation of the 1041 hearing is not the first.

Sandy Berryman, chief administrative officer for the Park County commissioners, said WOW first scheduled the 1041 hearing date for July 12, 2006. Then it rescheduled it for Aug. 30 and later Oct. 13 before commissioners finally heard partial testimony Dec. 6. That hearing was continued by the commissioners until Jan. 24, which might have potentially allowed them to make a final ruling on the matter, but one week before that hearing, the applicant again asked that it be postponed, and that date was later set for March 6.

Angelica said the cancellations were based on a variety of reasons, including what he claims were “last-minute” requirements by the county that he provide more information.

Regardless of the reasons, postponements such as the one Monday affect the schedules of many individuals from attorneys to citizens who make special arrangements to be in attendance.

For example, attorneys like Groome, and the county commissioners, must set aside time to review documents pertaining to the case to have the information fresh on their minds, Groome said. And that applies to those testifying for or against the project, who spend hours preparing speeches or printed materials.

“I couldn’t even guestimate the hours spent,” Groome said. (The applicant pays for any increased costs pertaining to water lawyers and consultants required by the county to review the case.)

While some speculate that the latest public outcry by citizens about Elk Creek may have triggered a reaction within the DOW, Angelica said he believes it may have been a miscommunication.

“I think there was confusion in the notification process between Park County and DOW … whoever sent out the notification of change in meeting dates — I think it fell through the e-mail cracks at DOW and didn’t get to the right person,” Angelica said. “I think it was accidental, coincidental.”

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