Publish Date: Thursday July 02, 2009
Pueblo West continued to battle with Pueblo County over a condition requiring it to help maintain flows in the Arkansas River below the Pueblo Dam.
Pueblo County is requiring all participants - Colorado Springs, Security, Fountain and Pueblo West - in the $1.1 billion Southern Delivery System project to participate in the flow program as part of its 1041 permit process.
The flow program was set up under a 2004 intergovernmental agreement, also related to the Preferred Storage Options Program, and includes the 100 cubic feet per second minimum flow in winter months, as well as target levels between 250-500 cfs during other times of year.
Pueblo West officials say they were never part of the IGA and were never consulted on the flow program.
As a result, the Pueblo West Metropolitan District has sued Pueblo County over the requirement. Metro district officials say the condition - requiring the metro district to participate in the Pueblo Flow Management Program - could cause the loss of a significant portion of its water supply.
In the latest battle in the war over the water, Ray Petros, special counsel for water and land-use issues for the county, pointed to previous agreements made by Pueblo West officials for participation in the flow management program.
In a Nov. 13, 2001, agreement with the Southeastern Colorado Water Conservancy District, Pueblo West agreed to cooperate in a flow management program as a condition for future storage in Lake Pueblo under the Preferred Storage Options Plan.
On June 8, a decree in Pueblo West’s 1985 filing for reuse and exchange committed the metro district to forgo exchanges when levels in the Arkansas River fall below 100 cubic feet per second in order to maintain water quality.
The county believes Pueblo West has committed to past flow programs, and the metro district signed on to advertisements promoting protection of the Arkansas River as a benefit to the county during SDS hearings, Petros said.
“Why are they so surprised?” Petros told The Pueblo Chieftain. “For them to say they are so affected goes against their past agreements and decrees. There has been an acknowledgement by Pueblo West that the health of the river below Pueblo Dam can be a significant impact.”
Pueblo West officials concede they made those agreements. But, they maintain, there is a significant difference between their participation in the flow program then and the one that now is on the table.
The previous participation was strictly voluntary, they said. The current one is mandated.
"We were never signatories to their flow management program," said Pueblo West's Utilities Director Stephen Harrison. "Our participation in the flow program was always a voluntary, cooperative effort.
"I do not see the full Pueblo Flow Management Program as being either voluntary or cooperative."
The concern for Pueblo West is that it is unclear how much water it will lose in the flow management program. Pueblo and Pueblo County officials insist it will be from zero to 90 acre feet of water annually. A study by MWH engineering initially said the loss would be about 790 acre feet of water annually, but modified that recently to around 500 acre feet.
Replacing 500 acre feet of water could cost Pueblo West tapholders an estimated $5 million, if the water can be found.
On May 15, the metro district offered to settle the suit with a proposal that it would contribute 50 acre feet of water annually to the flow management program. So far, county officials have rejected the offer.
The flow management program would be used to maintain the river below Pueblo Dam. One goal is to preserve fish habitat, another is to keep water flowing in Pueblo's kayak course on the river.
“We don’t feel we should be forced into this situation,” Harrison said. “Every water provider knows the value of environmental flows, but there is a difference between environmental and recreation flows.”
Pueblo West simply doesn't have the water to spare, Harrison said. The metro district owns the rights to 8,400 shares of water. In dry years, the yield from those shares is 4,500 acre feet, about what the current population of Pueblo West requires.
A significant problem with the flow management program is that its demand will be greater in years during which water is in short supply.
If Pueblo West loses access to any of the water it now owns, it would be forced to stop selling water taps. That would curtail home building and also have an affect on local businesses and, perhaps, home values.
Pueblo County officials bristled at Pueblo West's stance and are taking a hard-line approach to the issue. They insist the flow program is vital because the variety of flows it helps to provide are needed for aquatic life as well as recreation, Petros told The Chieftain.
“The health of the river below the dam is important,” Petros said. “The cost of restoring the river later would be much greater than protecting the river now.”
Harrison said that stance flies directly in the face of a statement made by a county commissioner last week on Channels 5/30 that, "Water for people and homes is more important than water in the creek." Pueblo West, still stands by the 2001 agreement, which was associated with the potential enlargement of Pueblo Dam under PSOP, Harrison said.
“We didn’t think it would be that large of an issue. It was a voluntary program,” Harrison said. Petros insisted the previous agreement was more than a voluntary program, pointing out the 100 cfs limit was written into Pueblo West’s June 8 water court decree.
“This was back in 2001, long before the county permit requirement,” Petros said. “At that point, they looked at this as what would be required as a condition for reservoir enlargement. I don’t agree it’s voluntary. It’s embedded in the contract.”
Harrison disputed Petros take on the contract, pointing to the memorandum of agreement drawn up stipulating that the program was strictly voluntary.
Participating in the flow management program would erase the economic benefits of being part of the SDS, Harrison said.
It would cost Pueblo West about $1 million, plus .013 percent of the total project for associated costs, to be part of the SDS project. The pipeline would be widened from 72 inches to 96 inches for the first 800 feet of the 43-mile pipeline, giving Pueblo West an additional water capacity of 18 million gallons daily, 150 percent of its current capacity of 12 million gallons.
If Pueblo West doesn't participate in the SDS project, it faces having to build its own outlet and pump station at the reservoir. Cost of that project has been estimated at $6 million to $8 million.
County officials say, even of Pueblo West withdraws from the SDS and chooses to build its own outlet, it would require participation in the flow management program through the required 1041 permit process.
Pueblo West also is looking at a pumpback project in which it would take its wastewater, clean it, and pump it back into the reservoir for reuse. That would provide the community with an additional 700 acre feet of water a year. The Colorado Department of Public Health and Environment is considering that request. Again, the county would have to issue a 1041 permit and likely would require participation in the flow management program. Petros said the MWH report fails to consider how the Recovery of Yield program - which returns about 70 percent of forgone flows - would reduce Pueblo West's losses, and allow it to fully develop 8,400 acre-feet of water. Petros said other factors may pose a greater limit for the metro district’s ability to realize the full amount.
Pueblo West officials have looked into the Recovery of Yield program and haven't been able to work out a scenario in which they would recover a high-enough percentage of their water to make it worthwhile. “Pueblo West doesn’t want to dry up the river,” Harrison said. “I don’t understand why the county is trying to take a large chunk of our water. If we lose that water, we have to replace it, and that could be expensive.”
Pueblo officials have suggested instead of paying $30,000 per share for Twin Lakes water, Pueblo West look at Bessemer Ditch shares or shares from other entities that area available for between $8,000 and $11,000.
Harrison said Twin Lakes shares are free and clear of legal encumbrances, while Bessemer Ditch shares must be taken through water court.
"The cost per consumptive use per acre foot may be higher than with Twin Lakes water," Harrison said. "I want to protect the water we have."
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