Thursday, February 14, 2008

More briefs filed in reservoir litigation

By Chuck McGuire
Staff Writer

As part of ongoing litigation surrounding the proposed Dry Gulch Reservoir, two local water districts and Trout Unlimited (TU) have filed additional briefs with District Court, Water Division Seven, State of Colorado.

In a majority decision issued in October, the Colorado Supreme Court ruled in favor of a TU appeal, which challenged water diversion and storage rights originally granted to the San Juan Water Conservancy District (SJWCD) and Pagosa Area Water and Sanitation District (PAWSD) by Judge Gregory G. Lyman in September 2006.

Upon granting the conditional rights, Lyman paved the way for the districts’ development of Dry Gulch, a 35,000-acre-foot reservoir approximately two miles northeast of Pagosa Springs. Proponents of the project suggest it will meet area water needs to the year 2100.

In its October ruling, the high court cited precedent established upon review of prior water court cases, including “City of Thornton v. Bijou Irrigation Co. (Colo. 1996).” Based on that case, the court wrote, “A governmental agency need not be certain of its future water needs; it may conditionally appropriate water to satisfy a projected normal increase in population within a reasonable planning period.

“The governmental agency does not have carte blanche to appropriate water for speculative purposes. Accordingly, the governmental agency has the burden to demonstrate that its conditional appropriation is not speculative.”

Citing another segment of Bijou, the court stated, “Only a reasonable planning period for the conditional appropriation is allowed. In Bijou, the water court’s findings of fact addressed what constitutes a reasonable water supply planning period, fifty years in that case, and found the existence of substantiated population and water use projections.”

The Supreme Court added, “In accordance with the applicable statutory and case law requirements identified in this opinion, the water court should examine the evidence utilizing the elements applicable to determining whether the districts have met their burden for a non-speculative conditional appropriation, accompany its judgement with sufficient findings of fact based on the evidence, and fashion appropriate decree provisions, which may include ‘reality checks’ and volumetric limitation provisions for the districts’ conditional appropriation. The water court must also make factual findings concerning whether the districts can and will place the claimed amount of unappropriated water to beneficial use within a reasonable time.

“Accordingly, we reverse the water court’s judgment, set aside the conditional decree, and remand this case for further proceedings consistent with this opinion. The water court, in its discretion, may take additional evidence and argument as it deems appropriate on remand.”

Upon review of his and the Supreme Court’s findings, Judge Lyman ordered both sides to submit briefs “on remand.” Attorneys representing the opposing arguments did so on Monday.

In its brief, TU urged the court (Lyman) “to make finds of fact on the Districts’ planning period, future population, per capita water usage, current water supplies and future demand for Dry Gulch system water.”

Additionally, TU asked, if the court finds that there will be demand for Dry Gulch project water during the planning period, that it admit additional evidence regarding the water rights necessary to serve that demand. Further, TU suggested that even if the court accepted the districts’ demand projections, it could not decree the claimed water rights, because the amounts exceed what is reasonably necessary to meet the districts’ demand projections, and are not premised on actual water availability conditions.

In its argument, TU expressed the following beliefs:

• The court should determine the districts’ reasonable planning horizon at no later than the year 2040.

• Districts’ population estimates by 2040 should be no greater than 34,291 people.

• The districts will demand no water beyond their current supply to serve the population in the planning period.

In their brief, the districts affirm a belief that the court has already heard adequate evidence to make the findings identified by the Supreme Court in its opinion, and to grant the conditional water rights requested. They do ask, however, that if the court believes additional evidence is necessary, that it schedule additional trial time to take such evidence.

Meanwhile, the districts “have closely examined their projected water demands, and have chosen to reduce their conditional water rights claims in the interest of swiftly concluding the remand proceedings.”

Following are the claims the districts are willing to reduce from their original application:

• Diversion to storage from 200 cubic feet per second (cfs) to 100 cfs.
• Initial fill from 29,000 acre-feet (ac-ft) to 23,000 ac-ft.
• Annual storage limit from 64,000 ac-ft to 29,000 ac-ft.
• Direct diversion from 80 cfs to 50 cfs.
• Priority date from Mar. 14, 2000 to Dec. 20, 2004.
• No reuse to extinction.
• Add reality checks.

The districts also suggest a 70-year planning period is appropriate under the facts and circumstances of this case. Further, they believe population projections are substantiated, based on normal rates of growth, and the amount of unappropriated water claimed is available and reasonably necessary to serve future water demands.

The districts also contend that Dry Gulch will not adversely impact the San Juan River, “because once filled, only the actual annual water needs will be diverted, reserving the balance of total storage for periods when diversions are unavailable.” Additionally, they have proven under the “can and will” test that there is a substantial probability that the project can and will be completed with diligence, and the conditionally appropriated water will be put to beneficial use within a reasonable period of time.

At their regular monthly meeting Tuesday, PAWSD officials couldn’t say how long Judge Lyman might take to review the briefs, or whether he would seek more evidence and set another trial date. PAWSD manager Carrie Weiss did, however, voice deep disappointment in the duration and mounting costs associated with the case, and expressed hope that the matter would be resolved soon.

chuck@pagosasun.com


County parties select delegates

By James Robinson
Staff Writer

Following the Feb. 5 caucuses, the Archuleta County Democratic and Republican parties have released names of delegates and alternates to attend the upcoming county assemblies.

Democratic delegates and alternates are listed below by precinct.

Unless otherwise noted, delegates and alternates have been nominated to attend both the assembly and the convention.

Precinct 1
Delegates: David Bates, Kent Davis, Marcia Garcia, Becky Herman, Dora Manzanares, Felicia Meyer, Diana Millan, Anna O’Reilly, and Jean Smith.

Alternates: Angela Atkinson, Diane Davis, Donald Ford, Rita Jensen and Cristobal Maez.

Precinct 2
Delegates: Kevin Caves, Sandy Caves, Ron Chacey (assembly only), Kristeen Harris, Michael Ingram (convention only), Steven Koneman, Susan Purcell, Nick Toth and Carrie Toth.

Alternates: Lynnis Steinert, Elizabeth Dowd and David Schanzenbaker.

Precinct 3
Delegates: Lesli Allison (assembly only), Pauline Benetti (convention only), Virginia Douglas, Benjamin Douglas (convention only) Robert Nash, Judith Reilly and Jean Shah (assembly only).

Alternates: Lesli Allison (convention only), Pauline Benetti (assembly only), Benjamin Douglas (assembly only), Michael Killen, Leo Milner (assembly only), Robert Harrington (convention only), Jean Shah (convention only) and Dawn Truax.

Precinct 4
Delegates: Jane Amundson, Randy Fox, Rebecca Gillette and Penny Holmes.

Alternates: Sharman Alto, Mildred Appenzeller, Adele Rittmueller and David Snyder.

Precinct 5
Delegates: Jade Addison, Joanne Long, Rohan Roy and Kathy Sturm.

Alternates: Colleen Richter-Liescheidt.

Precinct 6
Delegates: Terri Andersen, Bruce Anderson, Henry Buslepp, Norma Buslepp, Barbara Conkey, Maureen Covell, Richard Goebel and Leanne Haase-Goebel, Mike Horsey, Dale Morris, Michael Piper, Nan Rowe, John Tallman, Fredric Uehling.

Alternates: Ralph Hershey, Aideen Karger, Susan Proffitt, Annette Uehling and Lynda Van Patter.

Precinct 7
Delegates: Douglas Calhoun, Nancy Cole, Sally High, Susan Hill, George Johnson, Janis Johnson, James Lincoln, Marjorie Lincoln, Ahuva Novak, Laura Pilewski, Rob Pilewski and David Swindells.

Alternates: David Davies, Paul Hoffman, Marg Jones, Tom McCollough and Brenda McCooey.

Precinct 8
Delegates: Brian Abel, Sharon Crump, Muriel Eason, Cynthia Galabota, Dorothy George (convention only) Barbara Jacobs, Donald Jacobs, Lindsey Kurt-Mason, Mary Kurt-Mason, Beth Lee-Herbert, Clifford Lucero (convention only), Bud Short, Claudia Smith (assembly only), Bonnie Sprague, Natalie Tyson (assembly only) and Bev Warburton.

Alternates: Connie Cook (convention only) Patricia Padian (convention only), Donald Pastin (convention only), Denise Rue-Pastin, Terry Smith (convention only), Natalie Tyson (convention only) and Vanessa Wilkerson (convention only).

Republican delegates and alternates are listed below by precinct.

Precinct 1
Delegates: Catherine Brackhahn, David Brackhahn, Anthony Gomez, Pat Rydz, Lisa Marie Sandoval, Stephen Schofield and David Tafoya.

Alternates: Thomas Francis, Mary Hart, Jake Montroy, Leslie Montroy, Jose Quintana, Carol Schofield and Daniel Schofield.

Precinct 2
Delegates: Darrel Cotton, Peggy Cotton, Bill Downey, Jane Downey, Randy Eoff, Shirley Eoff, J.R. Ford and Warren Grams.

Alternates: Evelyn Miner, Diana Smith and Robert Urbanik.

Precinct 3
Delegates: Sandra Bramwell, Twila Brown, Teri Frazier and Marvin Lord.

Alternates: Edward Evarts, Norm Frazier and Gregory Wells.

Precinct 4
Delegates: Janis Dotson, Ginger Jaramillo and Steve Jaramillo.

Alternate: Aimee Fischer.

Precinct 5
Delegates: Mason Carpenter, Douglas Hellman, Sylvia Hellman and Floyd McKee.

Alternates: Mary Katherine Ludwig Elliott, Jill McKee and Patti Rios.

Precinct 6
Delegates: Dennis Barber, Susan Crabtree, Pennie DeClark, Michael Haynes, Kathy Holthus, Mandy Kuhlman, Stephen Kuhlman, Donald Long, Myra Sue Long, Keven Matyniak, Roy Melius, Wally Printz, Keren Prior, Robin Schiro, Steven Wadley and Jacqueline Trujillo-Hart.
Special delegates: John Bozek, Eugene Crabtree,

Alternates: James Klaproth, Dick Printz and Sara Wilson.

Precinct 7
Delegates: John Nehring, Barbara Evans, LuAnn Ormonde, Fred Ebeling, Karen Norris, Steve Norris, Michael Knapp, Julie Knapp, Ron Levonius, Charles Gray, Margaret Schankren, Richard Dieterich, Laura Manley, Joyce Hines.

Alternates: Deborah Fredricks, Charlene Baumgardner and Pamela Levonius.

Precinct 8
Delegates: Roy Vega, Don Brinks, Ronald Maez, Steven Voorhis, Diane Kleinman, Kelly Evans, Raymond Keyawa, Catherine Keyawa, Wayne Kleinman, Barbara Voorhis, Peter Evans and Mary Dix-Caruso.

Alternates: Stephen Keno, James Rains, Jerry Evans, Vivian Rader, Marsha Sorce and James Mollendor.
Special Delegates: David Bohl and Mojie Adler.

With caucuses complete, local party delegates named on Super Tuesday will continue on to county assemblies to choose county commissioner and other candidates for the primary election ballot; voters on the other hand will have a bit of time before candidate petitions hit the streets.

Voters
The primary election is scheduled for Aug. 12. In order to vote in the primary, electors must be registered as a Republican or Democrat. The last day to register to vote for the primary election is July 14, with one caveat: Registered unaffiliated electors may declare a party affiliation at the polls, then participate in the primary election.

Before the primary election however, there are a number of ways candidates may access the primary and general election ballots. The first route allows party-affiliated candidates to be selected by party delegates during the county assembly for placement on the primary ballot. The second route is the petition process and it is open to both affiliated and unaffiliated candidates.

Affiliated candidates may choose to forego the caucus and assembly processes and opt for the petition route in order to access the primary ballot. An affiliated candidate may also use the petition route if they do not garner enough support during the assembly but receive enough support that they do not become disqualified from the process. Unaffiliated candidates must petition onto the general election ballot.

When an elector is faced with the prospect of signing a petition — due to hit the streets March 31 — there are limits to the number of petitions and types of petitions they can sign.

For example, electors may only sign a petition for a candidate from the same party, and only for as many candidates as the elector will vote for in the primary. It is not necessary to live in the same district as the candidate.

In the case of the 2008 commissioners’ race, electors can sign only one petition for each commissioner district, for a total of two signatures. Party-affiliated candidates can sign petitions for candidates in their party, or they can sign an unaffiliated candidate’s petition, again for a total of two signatures — one signature for each commissioner district up for election.

Unaffiliated voters cannot sign a party-affiliated petition, and are also limited to one signature per commissioner district. To date, the only unaffiliated candidate is running in District 2, thus, unaffiliated electors cannot sign a petition for a District One affiliated candidate.

Candidates
Candidates are also electors, however, because they are also seeking public office, certain other rules apply.

For example, unaffiliated candidates bypass the caucus and assembly process, and must seek the general election ballot via petition. Unaffiliated candidates cannot begin circulating petitions until May 2.

Affiliated candidates who go through the assembly process must garner at least 30 percent of the delegate vote for placement onto the primary ballot. If a candidate loses, but still receives 10 percent of the vote, that candidate can continue to the primary via petition. Those who earn less than 10 percent of the delegate vote at the county assembly are disqualified from the race.

Party candidates who choose not to participate in the assembly process may choose to petition onto the primary ballot, and can circulate petitions between March 31, 2008 and May 29, 2008.

james@pagosasun.com


Rowe files commissioner candidate affidavit

By James Robinson
Staff Writer

With Nan Rowe’s filing of a candidate affidavit Feb. 8, two Democrats now vie for the District 1 county commissioner’s seat.

Rowe faces Democratic challenger Ron Chacey in the bid for the party’s nod in the primary, while four Republicans will also tussle for their party’s blessing and placement on the primary ballot. The result is a field of six candidates, with the possibility of more to come.

Rowe is a 12-year Archuleta County resident, small business owner and has been an active participant in a variety of civic and other non-profit organizations, including the Archuleta County League of Women Voters, Archuleta County Victim Assistance and domestic violence prevention program, the Weminuche Audubon Chapter among others.

Before living in the Pagosa Springs area, Rowe said she worked for 13 years as an attorney, drafting federal legislation for the U.S. House of Representatives. She said the experience helped her learn the arts of building consensus and seeking compromise, skills, Rowe said she would put to effective use as an Archuleta County commissioner.

“I’m convinced that this experience uniquely qualifies me to both formulate countywide policies and to work with fellow board members in getting beneficial programs and policies approved,” Rowe wrote in a prepared statement.

In addition, Rowe said, “While working in the U.S. Congress as a staff attorney, I served two years on the House Budget Committee staff, drafting, amending and explaining to Members of Congress the then-pending annual federal budget. The knowledge and experience gleaned from both my academic and professional background will enable me to tackle and help resolve the current fiscal problems faced by our county.”

Rowe said, if elected, she will work to address short term challenges such as finances and employee morale in order to clear the way such that the county’s long term needs can be effectively addressed.

To that end, and in the short term, Rowe said she would push for weekly rather than biweekly commissioner meetings, adoption of a “legally binding” ethics code for the commissioners and formal adoption of Robert’s Rules of Order, to ensure county business “is conducted both legally and professionally.”

For the long term, Rowe said she supports impact fees on “new building, in order to enable our county infrastructure and quality of life to keep pace with county development,” and would focus on long-range, county-wide growth planning.

“Our deteriorating county road system is the most immediate and obvious consequence of neither of the above priorities being embraced by current and past BoCC’s. It’s time we got our heads out of the sand and acknowledged that our capacity to develop, without considering the resulting costs, has come to an end.”

Rowe also said years of Republican majority on the commission had resulted in “extremely poor stewardship of our community.” And as a Democrat she said she can provide a new philosophy and fresh approach to governing Archuleta County.

james@pagosasun.com


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