December 15, 2006

Will-O-Wisp water development hearings continue
By Lynda James, Correspondent

Will-O-Wisp Metropolitan District's hearing to obtain a Special Development Project permit (known as a water development 1041 permit) was continued after six hours of testimony on Dec. 6 by Park County's Board of County Commissioners. The hearing will continue at 9:30 a.m. on Jan. 24.

The reason for the continuance was that one of three attorneys representing the county and the applicant's attorney both needed to leave due to prior commitments.

The permit is needed before Will-O-Wisp Metro District, located west of Pine Junction, can begin expansion of its water supply to serve the recently permitted Tanglewood Reserve Planned Unit Development. Tanglewood lies within the metro district's service area.

The project will provide water and wastewater for 570 new water tap equivalents for residential and commercial development. The metro district currently serves 119 homes from a groundwater well field.

At the hearing, Will-O-Wisp President Rick Angelica said the district currently serves 400 residents and anticipates 2,000 residents when Tanglewood is built out.

The project would divert water from Elk Creek using the Glassman Ditch 2, and install water infiltration facilities, a pipeline, a pumping station and a maintenance road. Most would be located on Lot 134 in Woodside Park, Unit 5. Water would then be pumped to the northeast corner of the development using the utility easements along Mt. Evans Blvd. in Pine Junction.

Raw water storage tanks, drinking water treatment tanks and wastewater treatment facilities would be located within the district's boundaries. The wastewater would be treated and discharged into Wisp Creek.

The construction of the Woodside Reservoir and any additional wells needed for the project are not part of this 1041 application. The district is asking to amend the permit (if approved) before those facilities are constructed.

Woodside Park, Units 5 & 6 Homeowners Association has filed a civil lawsuit against the metro district claiming the reservoir and other infrastructure would violate the HOA covenants. The lawsuit has not been heard in district court.

At the Dec. 6 hearing, Acting 1041 Permit Administrator Lane Wyatt outlined several outstanding issues to the 1041 permit approval.

Availability of water, water rights and amount of usage

Jeff Kahn, Park County's special water attorney, responded to the original application - which was based on 280 gallons of water per day per water tap - by saying that Elk Creek stream flows are not adequate to meet demand at all times, particularly during drought years and peak usage by the development.

Kahn also concluded that at times all water in the stream may not be available for the metro district's use because of senior water rights downstream.

Will-O-Wisp Metro District supplemented its original application with a daily tap use of 175 gallons per day. That was to lessen the amount of water that would be diverted from Elk Creek. That figure was used because it was the average usage by the current residents since 1998.

Brian Zick, a district consultant from the engineering firm TEC, said at the hearing that the project would still be designed for a usage of 280 gallons per day per tap.

Zick said Elk Creek's stream flows were measured from May 2001 to February 2003. Lowest flow measured was 39/100 cubic feet per second (cfs).

Using 175 gallons per day per tap, the most the district would need at build-out during peak usage would be 30/ 100 cfs with an average use of 19/100 cfs. Using 280 gallons would require 48/100 cfs and 30 cfs respectively.

Another issue is that Drayton and Vera Dunwody claim the same water by their property deed.

Also, the description of the diversion point in the Colorado Division of Water Resources' documents shows a different point in the southeast quarter of Section 26, T6S, R72W than claimed by the metro district in the southwest quarter.

Colorado District Water Commissioner Roger Mlodzik testified that software used by the division locates diversion points in the middle of a quarter-quarter section and are a general location, not meant to be the same point as the legally decreed location. Mlodzik testified that the documents had incorrectly located the Glasman Ditch diversion in the wrong quarter of the section.

Mlodzik also testified that to the best of his knowledge, water diverted to ponds on the Dunwody property has no water decree and is not in compliance with state law.

Property easements

Easements have not been obtained to construct facilities that would be located on Woodside Park, Unit 5, Lot 134 and on Hidden Valley Ranch. The original plan submitted with the application had facilities on three lots in Woodside.

The metro district plans to use the current utility easement running between Lot 134 and the Hidden Valley Ranch to the west. An additional 15 feet outside the utility easement will be needed on Lot 134. Diagrams in the application supplemental also show some facilities located on Hidden Valley Ranch.

Both properties are owned by Magness Land Holdings LLC. The district has offered to purchase the property needed for easements for $61,000. If the district can not purchase the property, it is prepared to condemn the property. At the hearing, Angelica said Magness is cooperative in the negotiations.

Elk Creek water quality

According to Wyatt's report to the commissioners, as water is diverted from a stream, existing pollutants from storm water runoff, septic systems and other sources become more concentrated in the water remaining in the stream. Water temperatures also increase above and below the diversion because less water is in the stream.

According to TEC's Oct. 4 memo, the district will remove from 3 percent to 76 percent of the water, depending on the amount of flow in Elk Creek, with an average projected at 14 percent.

TEC proposed monitoring dissolved oxygen several times a year upstream of the diversion and downstream at the fishing ponds adjacent to U.S. 285, where Elk Creek crosses the highway.

Wyatt testified that monitoring needed to include temperature and pollutants, and it would need to be more frequent and tied to specific mitigation if impacts to water quality and fish habitat are found.


The application states that approximately three-tenths of an acre of wetlands will be destroyed near Elk Creek. The district plans to replace the wetlands near its ponds on Wisp Creek because no area near Elk Creek is available to replace wetlands.

Kahn asked for documentation that enough water rights exist to augment the consumption of water by new wetlands near Wisp Creek.

The water rights engineer for the district, Tom Williamsen, testified that the district's water decree limited the diverted water to 13-acre feet per year and the development would need 10.8-acre feet. An acre-foot of water is equal to one acre covered with water a foot deep. Thus the district could augment (replace) the wetland water usage with Elk Creek water the district owns.

Impacts to aquatic life

The water 1041 regulations require that a project will not cause significant impacts to aquatic habitat or species.

That issue was of significant concern to Commissioner John Tighe because of the dewatering of Elk Creek and lack of a comprehensive aquatic wildlife survey and proposed mitigation.

The original application did not include an aquatic wildlife study. A one-time survey was included in the supplemental, dated Nov. 20.

All present agreed the study was only a snapshot in time and not a complete study by industry standards.

The study, by Aqua Sierra Inc., concludes that a healthy brown trout population and macro invertebrates that fish eat exist in Elk Creek. The report also states that effects from diversions were impossible to determine without a more comprehensive study and accurate stream flow data.

The report states that the best mitigation would be to limit withdrawals during drought conditions or use releases from the Woodside Reservoir to keep water amounts at a level to support healthy aquatic life populations. Another recommendation is to create deep pools in the stream to maintain habitat during times when the stream may be dried up. That would require permission from third-party landowners. It also states that fish would return when water levels increased.

Park County aquatic wildlife consultant William Walsh recommended a complete comprehensive aquatic habitat and wildlife study be completed. Walsh's report also stated that the mitigation proposed did not address fish eggs, newly hatched fish fry or macro invertebrates (fish food) that could not swim to deeper water or move from the area. Adult fish could return but may not have any food.

Walsh's report stated that without knowing the impacts, a sufficient mitigation plan could not be proposed.

Commissioner Tighe asked, "Without the study, aren't we putting the cart before the horse?"

Zick responded that the project would have little impact except during a drought, and that the district would be a good steward and would mitigate any future impacts that may result from dewatering the stream.

Wyatt responded, "It's like saying, in the worse case you won't be able to breathe for very long, but it will get better."

According to Toussaint, on Jan. 24 the district will finish its presentation, and he will address the county's concerns and any additional concerns raised by the public during public testimony.

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