Supreme Court denies Pagosa new reservoir

Trout Unlimited said projections for population were unrealistic

October 24, 2007

| Herald Denver Bureau

DENVER - The state Supreme Court has denied a large water right for a new reservoir above Pagosa Springs.

The reservoir, which would be called Dry Gulch Reservoir, would meet the future needs of fast-growing Archuleta County. Trout Unlimited appealed, saying the plan was based on unrealistic growth estimates.

On Monday, the Supreme Court overturned a large water right for the reservoir and sent the case back to District Judge Gregory Lyman in Durango. Lyman could order a new trial or accept new evidence and arguments.

"We couldn't really have hoped for a better opinion. We think the Supreme Court got it right," said Drew Peternell, Trout Unlimited's attorney.

The Pagosa Area Water and Sanitation District provides water to most Archuleta County residents, parks and golf courses.

District Manager Carrie Campbell said Tuesday that she hadn't studied the 46-page decision, but she hopes for another chance in Lyman's court.

"I'm hopeful and very optimistic that we're not going to lose what we've applied for," Campbell said.

The San Juan Water Conservancy District - a partner organization to the Pagosa water district - already has a 6,300-acre-foot conditional right for Dry Gulch Reservoir, and Campbell said water managers plan to build the reservoir in some form.

"We have no choice," she said.

It's needed for population growth, and the Dry Gulch site - a mile and a half east of Pagosa Springs - is the best site in the area, she said.

The case began in 2004, when the Pagosa district won a 29,000-acre-foot conditional water right in a trial in Lyman's court. The water would come from the San Juan River.

The district based its request on population projections to the year 2100. Trout Unlimited appealed, saying the predictions were unrealistic.

In 2005, the Pagosa district served 9,500 people with about 2,000 acre-feet of water, according to the Supreme Court. The Dry Gulch decree included a right to continually refill the lake, bringing the total to 64,000 acre-feet a year.

Based on 2005 water use, 64,000 acre-feet would be enough for 304,000 people, or a city twice the size of Pueblo.

"It was an enormous amount of water for what is currently a pretty small community," Peternell said.

Trout Unlimited is worried about a wild population of brown trout in the San Juan River.

"We're not trying to deprive Archuleta County and Pagosa Springs of having a safe water supply," he said.

In 2003, Pagosa's water engineer, Steve Harris, estimated Dry Gulch would need 12,000 acre-feet of storage to meet demands by 2040. But the next year, the district's board asked for a much larger water right.

In the trial, Harris testified the district was worried about a potential recreational water right for a Pagosa Springs kayak park.

"That would essentially tie up a good portion of the river, and if you don't get in ahead of it, you're essentially not going to have hardly any water left to use," Harris testified.

He also worried about future environmental claims on the river by the state or the U.S. Forest Service.

But the state Supreme Court said water rights can't be used to block other people's future uses.

The court's water expert, Justice Gregory Hobbs, wrote the opinion.

Colorado water law does not allow "speculating," or claiming large amounts of water that might never be used. The system is set up to ensure the best use of the public's water, Hobbs wrote.

However, "optimum use can be achieved only through proper regard for all significant factors, including environmental and economic concerns," Hobbs wrote.

In a previous case from the Denver suburb of Thornton, the high court decided 50 years was a reasonable time frame for water planners to use. Pagosa's 100-year plans doubled that period.

Justice Nathan Coats, however, said the 50-year standard is dangerous.

Cities need to be reined in by proving they can build their systems in a "reasonable" time period. Otherwise, they will claim vast amounts of water based solely on 50-year population projections, Coats wrote in a concurring opinion.