Metro board files suit over flow requirement
Officials say County ruling will force Pueblo West to give up as much as a third of its water to be part of SDS.
By MIKE SPENCE
The Pueblo West View
Angered at what by what they think is an excessive demand, the Pueblo West Metropolitan District board of directors voted unanimously on April 14 to sue Pueblo County over an Arkansas River flow requirement.
Pueblo County Commissioners have told the metro board that Pueblo West must participate in the Flow Management Program that provides recreation water in the Pueblo kayak course if it wants to be a partner with Colorado Springs in the Southern Delivery System.
The SDS is a 50-mile pipeline that would take water from the north side of Pueblo Dam and pump it north to serve Colorado Springs, Fountain, Widefield and Security. Pueblo West officials had hoped to get a "T" off the pipeline as it comes through Pueblo County.
That access would increase Pueblo West's daily water capacity from 12 million gallons to 30 million gallons, assuring the community adequate water when it reached build-out. It also would give Pueblo West a second access to its water in the reservoir.
But the county requirement, made as part of its 1041 permit process, would force Pueblo West to give up a portion of that water. The Flow Manage Program is part of an intergovernmental agreement signed in 2004 by Pueblo, the Pueblo Board of Water Works, Colorado Springs, Aurora, Fountain and the Southeastern Colorado Water Conservancy District.
Pueblo West was not part of the IGA, nor the negotiations on flow management program - and was not a signee to the pact.
At issue is the amount of water Pueblo West would have to contribute to the Flow Management Program.
Pueblo officials estimate Pueblo West's contribution would be about 92 acre feet of water annually. Pueblo West disputes that, saying the loss could be anywhere from 1,400 to 3,200 acre feet of water annually.
Colorado Springs Utilities asked MWH Engineering to model Pueblo West's participation in the flow management program. MWH Engineering came back with an estimate of at least 649 acre feet on average would be lost under the most ideal conditions.
"We think that estimate is conservative," said Steve Harrison, Pueblo West's director of utilities, noting that it was based on a flow rate of 100 cubic feet per second in the river's upper gauge and did not include the loss of further re-use.
Using a multiplier of 1.8 to factor in that re-usage, the amount of lost water is approximately 1,200 acre feet of water, according to Harrison.
Yet, even using the Colorado Springs estimate, which is more than seven times greater than the estimate made by Pueblo officials, the cost to Pueblo West to replace the water would be millions.
"Considering a conservative $11,000 per acre foot for water such as Bessemer Ditch, this would be equal to $7.139 million for replacement water," according to a report Harrison gave to the board of directors.
Added to that would be the cost to attempt a 71 percent recovery of water in a regional project yet to be built.
If Pueblo West were to attempt to replace that water with shares from Twin Lakes, the cost would be much higher - more than double. The last time Pueblo West purchased water shares from Twin Lakes they cost $26,000 per acre foot. That cost would likely be higher now, if the shares were available at all.
Despite the lawsuit, Pueblo West officials said they still are open to a compromise.
"We would be willing to be good partners and contribute some of our water to help the kayak course," said Pueblo West metro board Chairman Stan Hren. "But not the amount the county is calling for."
Hren said the amount of water Pueblo West is being asked to contribute to the Flow Management Program is disproportionate to the amount of water it is receiving.
"What does Colorado Springs contribute to the Flow Management Program, 1,500 acre feet?" Hren asked. "Colorado Springs has 300,000 acre feet of water, that's less than one half of one percent of their total water. If you used that percentage for Pueblo West, it would be about 50 acre feet of water a year."
Some Pueblo West officials see the move by the county as an expropriation of Pueblo West assets. They are angered by what they see as an attempt to take away through the 1041 permit process a significant portion of the Pueblo West water portfolio that has taken years to build.
One of those is Tom Mullans, the metro district's attorney.
"The amount of water we're talking about (losing in the flow program), is going to be hard to come by in the future, at any price," said Mullans. "Most of those shares are owned by Colorado Springs, Pueblo and Pueblo West."
Hren said Pueblo West was excluded from the negotiations on the Flow Management Program and doesn't understand why Pueblo West should be part of it.
"They seem to think Pueblo West has some ethical or moral responsibility to maintain water below the dam and I don't understand that," Hren said.
Harrison, director of utilities for Pueblo West, said the district takes water from a pipeline at the dam and releases it from a sewage treatment plant on the eastern edge of Pueblo West. The water then flows down Wild Horse Dry Creek to the Arkansas River, giving Pueblo West the right to take a similar amount again from Lake Pueblo. Pueblo West is allowed to reuse the water because it comes from Twin Lakes, which is non-native to the Arkansas basin.
Now, though, the county wants some of Pueblo West's water to flow from the dam through the city of Pueblo, which has not been done in the past.
"Our water never sees the other side of the dam," Harrison said.
Colorado Springs agreed to the Flow Management Program after Pueblo officials complained that water exchanges and the SDS pipeline would leave the river dry or nearly dry during certain times of the year.
That would leave the kayak course in the Arkansas River near Union Avenue virtually useless.
Pueblo County's water attorney Ray Petros scoffed at the claim that Pueblo West would lose up to a third of its water as "grossly exaggerated."
Yet, the bottom line is that Pueblo West would lose water, perhaps a significant amount of water to the Flow Management Program.
Mullans said it would be expensive to replace that lost water, and later may not be possible at all. There are far more water users in the Arkansas Valley that there is water, he said.
"It was not easy to build up this portfolio of water rights," he said. "And we need more."
One Pueblo West resident wondered why Pueblo West doesn't walk away from the SDS project and built a reservoir access of its own.
The cost of building a pump station would be about $8 million, compared to the cost of $1 million for the "T" off the SDS pipeline, plus about $250,000 as part of Pueblo West's share of the SDS project.
Another reason, Mullans pointed out, was that even if Pueblo West withdrew from the SDS and sought to build its own pump station from the reservoir, the county would again step in with its 1041 permit process and demand that Pueblo West participate in the flow management program.
The county's 1041 process applies to all water or wastewater pipes 12 inches in diameter or bigger.
"There aren't too many pipes smaller than that in Pueblo West," Harrison said.
The 1041 permit process could come into play on another Pueblo West project, which is designed to take wastewater, clean it and send it through the golf course wash and back into the reservoir. That would provide Pueblo West with an additional six acre feet of water.
"At this point, we need to know where we stand," Mullans said.
Despite the suit, Pueblo West officials said they will continue to try to reach a deal with the county. However, filing the suit keeps Pueblo West's options open to seek a legal remedy if no agreement can be reached.
"We've done our homework. We've seen the numbers," Hren said. "We think we have a strong case. But at this point, we've said all we can say. The county commissioners have said all they can say.
"It's in the bailiwick of our attorneys now. We'll see what happens."
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