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HomeMy WebLinkAbout01.28.80 Proposal of the Basalt Water Conservancy Dist.JOHN D. MUSICK, JR. STEPHEN T. WILLIAMSON ALAN E. SCHWARTZ LOYAL E. LEAVENWORTH JOSEPH A. COPE SUE ELLEN HARRISON WILLIAM T. SMITH, JR. KEVIN L. PATRICK JAMES 5. LOCHHEAD ROBERT W. WIGINGTON RICHARD M. FOSTER, JR. MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, P. C. ATTORNEYS AT LAW Glenwood Springs January 28, 1980 Garfield County Planning Commission 2014 Blake Avenue Glenwood Springs, CO 81601 75 MANHATTAN DRIVE P. 0. BOX 4579 BOULDER, COLORADO 80306 TELEPHONE (303) 499 -3990 (COLO) 1- 800332 -2140 1011 GRAND AVENUE P. 0. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE (303) 945 -2261 (COLO) 1 -800 332 -8955 Re: Pro,osal of the Basalt Water Conservanc District to Augment All Wells in Garfield County Dear Ray and Commission Members On January 14, 1980, the representatives of the Basalt Water Conservancy District appeared before you to advise Garfield County of a new "policy /direction" that it wishes to undertake. The proposal essentially was to request Garfield County to accept and /or require all new developments to be serviced by the decrees of the Basalt District. At the request of Garfield County, I submit these comments to the Commission. I present these comments on behalf of the City of Aspen, Pitkin County, and a number of our firm's clients in Garfield County. 1. The Basalt Water Conservancy District was originally organized and justified to the taxpayers and general populace as an entity to promote the construction of the Basalt Project, an irrigation project. This project was to provide agricultural subsidies (inexpensive water) to District agricultural inhabitants; the new direction which the District now wishes to pursue is that of a provider of subsidies not to agricultural interests but to new developments in the Valley (e.g., Crown Meadows, Lions Ridge Estates, etc.) . In essence, there has been a shift in philosophy to provide subsidies derived from tax dollars of District inhabitants to private benefits for land developers in Eagle, Garfield, and Pitkin Counties . 2. As to whether a legal water supply based on District decrees is workable and /or wise, it is workable, if at all, on a very limited basis. In the past, I have observed that Garfield County has not approved new developments in areas such as Missouri Heights with junior (1957) water rights; the District has no decrees senior to 1957. As the District has never constructed any of its MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, P. C. Garfield County Planning Commission January 28, 1980 Page 2 project features in its 20 -plus years of existence, no physical replacement water can be provided to water users when a call is placed on the 1957 rights. The water rights of the District are generally considered junior; water rights typically approved as legal water supplies tend to have 1880 -1930 decrees. An approval of new developments based upon 1957 water rights would, in my opinion, not be a responsible act and may subject the County to severe headaches and, potentially, litigation in the future. The District has stated that pursuant to a contract with the Colorado River Water Conservation District, a physical replacement water feature (Ruedi Reservoir) will be provided to augment their 1957 water rights. At present, neither the Basalt District nor the Colorado River Water Conservation District are entitled to any releases from Ruedi Reservoir. Press releases indicating the River District and Basalt District have firm contracts for Ruedi Reservoir" are absolutely false; neither entity, by their own admission have, as yet, initiated even preliminary negotiations with the Water and Power Resources Service. Whether or not either entity will secure water supplies from Ruedi is, at best, speculative and distant. Even if Ruedi water was eventually secured by the Basalt District, it is elementary that physical water and, in fact, legal augmentation water cannot be provided to water users upon Missouri Heights, the Crown, or to users in the Blue Creek, Cattle Creek, Crystal River, etc. drainages. A replacement water supply from Ruedi can, at best, only protect against downstream Roaring Fork or Colorado mainstem calls. As the Commission is well aware, most water problems occur between neighboring water users. Water rights injured between a development utilizing District decrees and, for example, the Roaring Fork will not be assisted by Ruedi releases. The water simply will not make a left turn at the Crystal or a right turn at Cattle Creek, etc. As to how wise the proposal of the District is, two concepts are presented: 1) By approving new developments on junior 1957 decrees (or, if Ruedi releases are later available, on an augmentation supply inadequate to protect neighboring water rights) what consequences will be presented by Garfield County approving new developments both to the County and the residents of the new developments; and 2) What will the effect be upon our valley of a glut of inexpensive (subsidized) water supplies. At the January 14, 1980, meeting, one Commission member quickly perceived the latter concept and questioned the merits of an } MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, P. C. Garfield County Planning Commission January 28, 1980 Page 3 entity seeking to market its vast quantities of inexpensive water purely for the sake of "developing" water. The reply was that water should not be a limiting factor upon growth. One needn't live in Colorado long before it becomes readily apparent that water can be the limiting factor of growth. If water is marketed purely for the rationale of developing water supplies, growth is the only method by which water may be "developed." 3. How may Ruedi Reservoir be affected by the proposal of the Basalt Water Conservancy District? The Colorado River Water Conservation District is seeking to contract with the federal government (WPRS) for the entire firm average yield of Ruedi after Fryingpan- Arkansas Project replacements. The River District has solicited demand for Ruedi water and received mixed responses. As the River District is an entity created to promote the construction of water (storage) projects, the lack of demand for Ruedi water has been somewhat of an embarrassment to that entity as well as the Basalt District. Increasing growth and therefore, generating demand is one method by which other water projects may be justified and constructed. Over one -third of the costs of construction of Ruedi have been waived by the federal treasury for fish and wildlife and recreational interests. The large federal, state, local and private investments centered around the continued tourism and recreational interests of Ruedi will be obviated by a severe drawdown of the reservoir (the minimum pool propounded by the WPRS and District is slightly more than 1 percent of the full capacity of Ruedi). This proposal for the use of Ruedi has been met with opposition from not only the City of Aspen and Pitkin County but also from the State of Colorado and other agencies of the U.S. government (a copy of a letter from the U.S. Forest Service is attached). Accordingly, the future which Ruedi Reservoir will play within the District's proposal is, at present, uncertain. Therefore, no reliance should be placed upon Ruedi to augment the junior 1957 water rights of the District. Where Garfield County wishes to stand on the issue of the use of Ruedi Reservoir is a separate issue but one not entirely separate from the issue over the future of the District's proposal. In conclusion, I do not believe it wise or legally possible for Garfield County to require new developments to have, as a legal water i MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, P. C. Garfield County Planning Commission January 28, 1980 Page 4 supply, Basalt District decrees. The County need not and perhaps should not take a position to encourage or discourage the proposed use of Basalt District decrees; such an abstention approach may well preclude problems and entanglements which may develop in the future. I appreciate the opportunity to present these views to the Planning Commission and will be available for questions at any time. Very truly yours, MUSICK, WILLIAMSON, SCHWARTZ, LEAVENWORTH & COPE, ' C. By KLP :j L. Patrick