Essay by Ed Quillen
Water Politics – November 2007 – Colorado Central Magazine
WHEN IT COMES TO water conservancy districts, elections are something of a rarity, since their directors are almost always appointed by district judges. But this fall in our part of the world, there are two elections related to water conservancy districts. Both concern inclusion. Lake County voters will decide whether to join the Lower Arkansas River Water Conservancy District; voters in eastern Frémont, and a portion of El Paso county, will decide whether to join the Upper Arkansas Water Conservancy District.
One problem with writing about water conservancy districts, and their associated politics, is that you need to do a lot of historical explaining before you get to the current issues because conservancy districts don’t operate like other special districts in Colorado.
A hospital district or school district or fire-protection district has boundaries. Those who reside inside (or own property inside) elect a board of directors. The board collects taxes and fees, and builds facilities and hires a staff to run the hospital, educate children, or put out fires.
Water conservancy districts are like that in general, but their directors are not elected; they’re appointed by judges of the district court. One complication, though, is that one or more directors can be elected if residents of the relevant area (a division in WCD parlance) circulate petitions and get enough valid signatures.
The election is a one-shot deal, and such elections are rare. For instance, Jeff Ollinger of Buena Vista was elected to the Upper Arkansas board in 2001, but applied for, and received, an appointment to a four-year term in 2005. Steve Glazer of Crested Butte served two elected terms on the Upper Gunnison River WCD, then was appointed to a four-year term by the district judge.
One oddity in this dual system emerged as a result of litigation this year. Two four-year terms on the Upper Arkansas — those of Glenn Everett of Chaffee County and Bob Senderhauf of Custer County — expired on June 1, 2007. Both had been on the board for many years, and they applied for re-appointment. Jay Moore of Salida applied for the Chaffee seat and Paul Snyder of Westcliffe applied for the Custer seat.
And there was a lawsuit, filed by Mark Emmer of Salida, asking the court to apply the term-limit provision of Colorado’s constitution to WCDs. The judge ruled that term limits apply to elected WCD board members, but not to appointed ones. This seems rather peculiar, in that someone selected by the public has less tenure than someone selected by a judge.
Further, it appears that judges can take their own sweet time in making appointments Recall that Everett’s and Senderhauf’s terms ran out on June 1. Judge Charles Barton could have re-appointed them then, or appointed Moore or Snyder. But he hasn’t done either. The law says board members serve until new ones are appointed, and if the judge never gets around to making the appointments, well, not only do term limits not apply, but the terms can run indefinitely, rather than the four years specified by state law.
Who among us can make a judge follow a schedule?
BACK TO WCDs. There are more than 50 WCDs in Colorado. The two big ones are Northern, which operates the Colorado-Big Thompson Project, and Southeastern, which operates Fryingpan-Arkansas (Fry-Ark). Both projects divert water from the Western Slope to the Eastern through tunnels, and store and move the water with reservoirs, canals, and the like. Initially, most of the diverted water went to farms; increasingly it goes to municipalities.
The smaller WCDs don’t operate on anything like that scale. Some have small projects, some were formed to operate federal projects that are no longer under consideration by the Bureau of Reclamation, and many do little besides sell augmentation permits.
It would be possible to write many pages about augmentation. Basically, if you drill a well, you’re likely taking water out of an aquifer that is connected to a river’s surface flow. People along that river have water rights to take and use water from the river, and their water rights are older than your new well’s. Under state law, you can’t use your well water if it will interfere with their water rights.
So to use your well water, you need to supply water to the river to make up for what you’re taking from the aquifer. The usual method is to buy some irrigated farmland and dry up a portion of it, then use the water that would have been consumed by crops there to make up for what your well takes out. That’s augmentation. It’s a complicated and expensive process, but WCDs can make it simpler for the well user with an augmentation program — a sort of buy in bulk and sell at retail program for water. The UAWCD gets most of its income from augmentation permits.
NOW TO THE Lake County election. Geographically, Lake County is certainly upper Arkansas, since that’s where the river starts. The Upper Arkansas Water Conservancy District (Chaffee, Custer, western Frémont, and a sliver of Saguache counties) is right next door. So is Southeastern, which has Chaffee, as well as El Paso and Pueblo counties, among others.
But Lake County residents will be voting nest year on whether to join the Lower Arkansas River WCD. The closest Lower point is Pueblo County, about 150 miles downstream, and Lower extends east to include Bent, Crowley, Otero, and Prowers counties. State law does not require WCDs to be continuous, but still, why didn’t Lake look at joining Upper or Southeastern?
It did, according to Lake County Commissioner Ken Olsen, Jr., after the county commissioners decided the county ought to consider joining or forming a WCD. Back in 1958, Lake could have joined Southeastern, but chose not to, primarily because Climax Molybdenum opposed paying the additional property taxes.
Lake County had received about 85 annual acre-feet of water in a settlement with Aurora concerning a reservoir site on Box Creek, and the county did need to find a way to manage that water, but that wasn’t the impetus for looking at a WCD, Olsen said.
Instead, “if Lake County is going to grow, we needed an augmentation program. And that wasn’t something the county government had the expertise to administer. We also needed to address water quality, given the issues we have with mine drainage.”
Making its own WCD wasn’t appealing, Olsen said, “because we’re a small county, and it would be better to spread the engineering and legal costs as much as possible.”
So a citizens’ task force was formed, and that group basically asked Southeastern, Upper Arkansas, and Lower Arkansas to come courting with how they could work with Lake County.
“Upper Arkansas has the best augmentation plan, no questions about that,” Olsen said, “but it doesn’t deal much with water quality. Southeastern doesn’t do augmentation. It basically operates Fry-Ark, and our presence wouldn’t change those operations. Lower is very concerned with water quality. They have Fountain Creek [which drains Colorado Springs and joins the Arkansas at Pueblo], and we have the old mines, so there’s a common interest and a source of expertise. They also have some innovative ideas about fallowing farmland on a rotating basis, so that you’re preserving agriculture while making some water available. It seemed like the best fit for us.”
So the commissioners put the task force’s recommendation on the ballot for this fall. If it passes, Lake County property taxes will go up 1.5 mills, and the county will join the Lower Arkansas River WCD with one member on its board. Each county has one, except Pueblo, which has three on account of its larger population.
Jay Winner, who manages Lower Arkansas from Rocky Ford, said Lower does not currently operate an augmentation program, “but we have water available for that with shares in the Twin Lakes Project [which diverts Western Slope water with a tunnel above Twin Lakes].” It has also leased the Larkspur Ditch on Marshall Pass, another trans-mountain diversion and potential source, through trades, for augmentation water for Lake County.
Lower is the newest WCD in Colorado. It was formed in 2002 after the agricultural counties saw cities like Aurora buying ag water for transfer out of the basin. Lower buys water and leases it to towns and farmers, and it acquires conservation easements.
As the river moves east, it picks up pollutants, and so “we do work hard on improving water quality,” Winner said. “Even if Lake County is quite a ways upstream from the rest of it, we have a lot in common.”
So, even if I dislike WCDs in principle because they do not have elected boards and are thus insulated from public accountability (there’s not even a way to recall WCD board members), joining Lower Arkansas probably makes sense for Lake County. It needs some kind of water agency to help it pursue its goals, and the county government already has plenty of other stuff on its plate.
NOW TO THE Upper Arkansas inclusion election for eastern Frémont County and part of El Paso County. Upper Arkansas follows generally school-district boundaries in its organization; each school district represents a division, and each division has two directors, no matter what its population. This simplifies matters for the county assessors, but it means that because one Frémont school district extends into a relatively unpopulated part of southwestern El Paso County, that area will also be part of the inclusion election.
Some history might be in order here. In 2005, various people in eastern Frémont (the west part, the Cotopaxi school district, has been in the UAWCD since it was founded in 1979) circulated petitions to join the UAWCD. State law requires signatures from at least 25 percent of owners of irrigated land and 5 percent of owners of property in municipalities.
In days of yore, if the district court accepted the petitions, then the inclusion happened right then. That was the plan in 2005. The court would accept the petitions and the UAWCD would immediately re-organize to include all of Frémont County. One side-effect of that immediate reorganization would be to keep Patricia Alderton, Poncha Springs town administrator, from serving on the UAWCD board.
The judge had appointed her to the at-large seat on the UAWCD board. The UAWCD’s plan for re-organization would have eliminated that seat while adding four seats, two from each of the additional school districts. One can speculate why the old guard on the UAWCD board didn’t want her to take her seat — maybe they didn’t want a woman, or more likely, they didn’t want someone from a municipality. Either way, they labored to keep her off.
But the inclusion petitions were challenged in court, and found insufficient. Thus the UAWCD did not re-organize, and Alderton has served on the board since 2005. The at-large director she replaced, Tom Young of Cotopaxi, was immediately hired by the UAWCD as an adviser to do public relations.
Hmmm. I’m a journalist who writes about as much about water as anybody else in Colorado, and I live within the UAWCD, and Young has never called me. I don’t know what he’s doing to earn his $10,000 a year for part-time work, but it doesn’t fit with any public-relations work in my experience.
This indicates that the UAWCD is basically a good-ol’-boys club that looks after its own, and there’s nothing wrong with that — if they were using their own resources, instead of public tax money.
WHEN PEOPLE FILE a petition for inclusion in a WCD, and the petition is contested, the law is very clear — they have to post a bond to cover the cost of the hearing, and if the petitions are rejected, the money goes to pay the fees and expenses of the objectors. In 2005, the judge waived the bond, and even though the objection was successful, he refused to grant fees and expenses to the objectors. So much for the rule of law when it comes to WCDs. After all, technically they are adjuncts of the district court. Their directors are appointed by the judge — and it may be expecting too much for a judge to see flaws in the actions of people he appointed.
Back in 2005, the UAWCD said no election was necessary. Once the petitions were accepted, then the inclusion happened. Colorado’s state constitution has the Bruce Amendment (named for its author and proponent, Doug Bruce, now an El Paso County Commissioner) or TABOR Amendment (from Bruce’s acronym, TAxpayer Bill Of Rights).
It’s complicated, but in essence it says that a public vote is necessary to raise taxes, and since inclusion in a WCD means property owners are paying a new mill levy, their taxes are raised. Thus an election should be necessary.
But back then, the UAWCD said it wasn’t because Denzel Goodwin, a Howard rancher and then a director, said he had sat next to Doug Bruce at some gathering and Bruce had told him that this didn’t apply to WCDs. Except that was incorrect. I’d emailed Bruce with the question, and it was his written opinion that an election was necessary, since a tax increase was involved. So much for the vaunted expertise of WCD board members.
At any rate, the inclusion petitions came in this year, they were not contested, and now there’s an election. (A mail-in ballot even though a judge ruled in 2001 that under state law, WCDs could not conduct elections by mail — but we’ve already seen how much the rule of law means to WCDs).
The inclusion of eastern Frémont has been endorsed by just about everybody that’s anybody in Frémont County.
My journalistic suspicions were aroused with this reasoning:
1) Under state law, UAWCD cannot sell water outside the district, and that’s where it gets most of its money, so
2) There must be a big potential customer, like a developer who needs water, in eastern Frémont who is the driving force for inclusion.
In that scenario, the UAWCD could make money, and some developer would get water for yet another rural subdivision.
BUT IF THAT’S THE CASE, I couldn’t find it. I started with Penrose, an unincorporated settlement north of U.S. 50 just off of Colo. 115. The Penrose Water District almost ran out of water in the drought of 2002, and it seemed a likely customer for UAWCD water.
So I talked to Ron Gasser, the district’s general manager. Penrose is not a likely customer, at least not in the near future, because in 2005 the Penrose Water District bought Denzel Goodwin’s 456-acre ranch near Howard for its water rights, and is now working to transfer the water.
Goodwin had diverted up to 2,500 acre-feet a year for irrigation, but most of that went back into the river as a return flow. The amount that went into the plants and evaporated from them is known as consumptive use, and Gasser said “our engineers came up with 377 acre-feet of consumptive use a year, which is what we’re working to move.”
The plan involves leaving the water in the river until it reaches the general area of where Colo. 115 crosses the river. In that zone, Penrose will drill wells, then pipe the water to an expanded Brush Hollow Reservoir. It’s a $9 million project — $3 million just for the Goodwin Ranch — and the change in use, from agricultural to municipal, and change in point of diversion, from the Pleasant Valley Ditch to the wells near Florence, are going before the water court.
“We’re not planning on getting any water from Upper Arkansas,” Gasser said, noting that Upper Arkansas had filed an objection to the plan (which doesn’t mean that the District necessarily opposes the plan; it’s how you get the details about a water project and get a seat at the table).
Gasser supports inclusion because it would provide “a cohesive voice for the upper river. Eastern Frémont really doesn’t have a voice on the river now, and it would as part of the UAWCD, which would have a bigger voice if it included more area. And someday, Penrose might need to work with UAWCD for more water, but there’s nothing like that going on now.”
If not Penrose, then some other development? Some big rural 5-acre-lot subdivision that needs a lot of augmentation permits? I called my Realtor friend Randy Brady in Cañon City. He handles a lot of rural property, and ought to know if there was a big need for augmentation.
“Might be a couple of small places I haven’t heard about that need augmentation,” he said, but nothing major. Two big recent developments were close enough to Cañon to get city water, so they wouldn’t need augmentation or supply water from UAWCD.
That was confirmed by Mike Stiehl, a Frémont County commissioner. “We don’t have very many of those small-acreage subdivisions that might need augmentation,” he said, and he couldn’t think of any project in the county that might need to buy water from UAWCD. He supports inclusion because “we need a louder voice along the upper river.”
As for Cañon, Mayor Bill Jackson confirmed what everybody says — his city, and nearby Florence, have very good rights but could use more storage someday, although it’s not a pressing need. There’s nothing in the works with UAWCD.
Jackson supports inclusion for the same reason I kept hearing from others in Frémont County — a louder voice about operations of the Arkansas River. Plus, he looked back to the drought of 2002 when Cañon faced a water call from a downstream ditch with an 1861 water right, one of the oldest on the river. “We couldn’t meet it. We would have had to shut down our water intake, he said. We asked for help from Southeastern, but they told us their concern was Fry-Ark, not our municipal water. Upper Ark came through with some water to meet that call. That shows me they’re willing to help.”
One name that often came up as I called around Frémont County, looking for a potential UAWCD customer, was Mark Morley. He’s based in Colorado Springs, and he and his brother are major real-estate developers in El Paso County. He said they also have 6,000 acres in the Penrose area of Frémont County, so they’re logical customers. And Morley circulated inclusion petitions in 2005.
So I was sort of hoping that Morley would tell me that yes, he needed to buy a lot of water from UAWCD so he could develop those 6,000 acres in Frémont County, once all of the county was in the UAWCD.
But he laughed at that. “Upper Ark doesn’t have that much water for sale,” he said, and “we own 5,200 acre-feet of Twin Lakes water, more than enough for what we hope to do with that property someday. We don’t need Upper Ark.”
So why does he support inclusion? Part of it goes back to the drought of 2002, when Penrose and Cañon wanted help from Southeastern, and didn’t get it. “It was a slap in the face,” he said. “I don’t think we’re getting the representation we should have on Southeastern. We need somebody to look after this area’s water needs, and Southeastern isn’t doing it.”
Morley has gained some notoriety in Colorado Springs as an opponent of the current plans for the city’s new Southern delivery System. As proposed, it’s a big pipe that would pump water from Pueblo Reservoir to the city, with the return (treated sewage, storm runoff, etc.) coming down Fountain Creek to Pueblo.
Morley would like to move the intake upstream of Pueblo Reservoir, to roughly follow the Colo. 115 corridor. That could work with Penrose’s plans, as well his own for pumped-storage-hydro at Brush Hollow, and in his view, serve more purposes for about the same price. But the Springs city government hasn’t budged, and we’re moving away from the question at hand: UAWCD expansion.
AS I WROTE EARLIER, UAWCD inclusion has been supported by just about every office holder in Frémont County. Some of them talk about how the UAWCD might improve co-operation among water users there. But if the UAWCD got a report card, it would not score well in the “plays well with others” category.
There’s an ongoing dispute with Round Mountain Water and Sanitation District, which supplies municipal water to Westcliffe and Silver Cliff in Custer County. UAWCD wants to provide a blanket augmentation plan for Custer County.
Round Mountain won’t oppose that, provided that it gets a veto over UAWCD augmentations within a growth boundary, roughly a half-mile out from Round Mountains current service area and facilities. Upper Ark has countered that it wants Round Mountain to share some water rights and facilities with UAWCD in exchange for getting the veto.
Most of that is unacceptable to the elected Round Mountain board, manager Bud Piquette said, and so “negotiations are pretty well stalled now. We’ll certainly oppose it if UAWCD tries to go ahead as proposed with its augmentation plan.”
One potential problem for Round Mountain, for instance, is if UAWCD provides augmentation water for a proposed subdivision that sits over some of Round Mountain’s wells; there’s the potential for either supply or contamination problems.
Patricia Alderton, Poncha Springs town administrator and the UAWCD’s at-large board member, wonders why the district has to pick a fight with Round Mountain. “Why not just agree with them and stay out of their territory?” she asks. “This could force taxpayers to pay for both sides of what could be an expensive legal battle.”
Alderton was the only board member to vote against supporting the inclusion. (I contacted one other UAWCD board member, Jeff Ollinger, who said he wouldn’t comment on the inclusion because “that’s up to the voters, and I don’t want to monkey around with it.”)
As Poncha’s administrator, Alderton said the town needs more water storage for augmentation — its water comes from wells, “and we’re growing.” The town now has about 100 acre-feet, and would like to get more in one of three reservoirs run by the UAWCD: O’Haver, Boss, and North Fork.
“But they won’t sell us more storage,” Alderton said, “and they tell me it would interfere with the district’s plans for the future, although nobody has told me what those plans are.”
She agrees that adding the rest of Frémont County to the UAWCD could make for a bigger regional voice in water matters, “but even without inclusion, the county and its water users could join with us if we were in a major fight, and otherwise we could go our separate ways. I don’t see any benefit to Chaffee, Custer, and western Frémont in expanding the district, and those are our constituents.”
Salida, too, has had difficulties with Upper Ark, such as the time the District refused to send Salida a bill for storage in North Fork Reservoir, and then returned the check after the city caught the omission and paid anyway. Scott Hahn, the city administrator then, said the district had a competitive relationship, not a co-operative one.
That partially explains why the city spent $3.2 million to buy the Vandaveer Ranch with its 1866 water rights. No one from the city government would go on the record saying “If we didn’t buy the ranch, then Upper Ark would have, and who knows what mischief they could have caused.” I heard that and like remarks from people in city government, but not on the record.
For instance, Upper Ark could have used the water for more augmentation for more wells for more five-acre ranchettes — after all, it’s augmentation permits that provide most of the district’s income.
And that’s the real problem here. UAWCD is an entity that looks after the district, and naturally it wants income. But it gets that income from augmentations, which encourage rural sprawl. Voters here keep electing people who want to discourage sprawl and encourage growth in and near municipalities, which can provide water. So there’s a conflict between the interests of the district and the interests of the public as expressed in elections.
Voters in Chaffee County have also elected commissioners who supported a recreational instream flow right in the Arkansas River — something the district opposed because it could interfere with the district’s ability to move water around. Those commissioners also support conservation easements to keep ag water in agriculture, and the UAWCD hasn’t exactly supported that.
Such opposition isn’t inherent in WCDs — Upper Gunnison River took the lead in getting a recreational instream flow in the Gunnison River, and Lower Arkansas has acquired conservation easements.
But it does seem to be a feature of the UAWCD. It looks after the district, and seems to care little about the policies and programs of the people we elect to office. The UAWCD isn’t elected and has shown itself willing to work to keep people it doesn’t want off its board (Alderton, and more recently, its opposition to term limits that would have replaced Everett and Senderhauf), as well as its opposition to a petition for an elected seat in 2001.
Back in 1979, when I was managing editor of the Mountain Mail, I thought the UAWCD would be good for Chaffee County. But any more, it mostly works against the will of the voters of Chaffee and Custer counties, and I rather rue supporting it.
I suspect that someday the voters of eastern Frémont County will feel the same way when they discover that it won’t improve co-operation among area water users — it will instead be a competitor, with taxpayers financing both sides of the competition.
So I hope the Frémont voters turn it down. But I’m pretty sure that if it does pass, there will be litigation since for one thing, the court in 2001 was pretty clear that “the Upper Arkansas Water Conservancy District … by lack of statutory authority is not authorized to conduct a mail ballot election.”
