TU appeals Dry Gulch decision

Last month, two local water districts accepted the latest court-decreed Dry Gulch water rights as a reasonable compromise to developing additional raw water storage for portions of Archuleta County.

Today, they are waiting for another Colorado Supreme Court decision based on a second Trout Unlimited (TU) appeal.

On Monday, the final day of a 45-day appeal period, TU issued a Notice of Appeal to the state’s highest court, effectively challenging a Sept. 11, 2008 ruling by Judge Gregory G. Lyman of District Court, Water Division 7. Lyman’s ruling awarded the districts water rights sufficient to accommodate a future Dry Gulch Reservoir of a maximum 25,300 acre feet in size, and included San Juan River fill and refill diversions equaling 150 cubic feet per second (cfs).

In effect, Lyman’s September decree reduced his initial September 2006 ruling that would have allowed a maximum impoundment of 35,300 acre feet two miles northeast of town, with river fill and refill diversions totaling 180 cfs. In late 2006, TU appealed that decision to the Supreme Court, which eventually reversed Lyman’s findings and remanded the case back to him for reevaluation of the districts’ future water needs.

Following four years of litigation since the districts’ original application for the rights, the boards and staff at the Pagosa Area Water and Sanitation District (PAWSD) and San Juan Water Conservancy District (SJWCD) seemed satisfied with last month’s court decree.

“We’re generally very happy to have a decision,” said PAWSD Assistant Manager Gene Tautges. “We’ve been waiting for one for many months.”

According to Steve Harris, PAWSD’s water engineering consultant, “If it doesn’t get appealed, this allows us to do all the planning work to help us decide what the size should be when the time comes.

“We hope it sticks,” he added.

Unfortunately for the PAWSD and SJWCD, it didn’t stick with TU.

According to TU attorney Drew Peternell, Lyman made appropriate improvements in his Sept. 11 decree, “but there are still flaws in his reasoning, and the diversion and storage rights are still excessive.”

Therefore, in this latest appeal, TU proclaimed an “Advisory Listing of Issues to be Raised on Appeal.” They include:

• Whether applicants (the districts) demonstrated the 50-year water rights planning horizon adopted by the water court to be reasonable, as required under the anti-speculation standard.

• Whether applicants substantiated population projections, based on a normal rate of growth, for the 50-year planning period, as required under the anti-speculation standard.

• Whether applicants demonstrated that the decreed amount of water is reasonably necessary, above their current water supply, to serve projected population through the planning period, as required under the anti-speculation standard.

The appeal also states, “The transcript of evidence taken before the trial court is necessary to resolve the issues raised on appeal.”

In a Wednesday phone interview, Peternell said the Supreme Court would not require additional evidence over and above the transcript, which is a 602-page document detailing the trial court proceedings, findings of fact, conclusions of law, judgment and decree.

For now, both sides wait to hear from the Supreme Court, at which point they’ll be allowed time to prepare and file briefs. Though that deadline has not yet been established, Evan Ela, counsel for the districts, thinks briefs will likely be due late this year, or in early 2009.

Peternell agreed, and added that an oral argument would eventually follow, before the court renders its final decision. He couldn’t say for sure how long that process might take, but said, “If it’s like last time, it could take up to a year.”

Meanwhile, according to Ela, “Due to the inherent length of time to plan and permit for a complex reservoir project, and given that the first phase of the project — a new treatment plant — will be required in the next five to seven years, the districts will continue planning for the project based upon the Sept. 11 decree.”

Ironically, PAWSD and SJWCD consultants are now working to revise future population estimates, a process that should be completed by year’s end.

When asked her opinion of TU’s latest appeal, PAWSD Manager Carrie Weiss said, “I’d rather wait until I’ve read it fully before commenting, but it’s frustrating to spend taxpayer money on something we’ve already exercised due diligence in. We have to do that every six years.”

Weiss was referring to the fact that to obtain storage and diversion rights, the districts first had to demonstrate a need, then periodically illustrate ongoing efforts to put them to their intended use.

Regardless, the districts estimate the cost of defending this latest appeal at $35,000.

chuck@pagosasun.com