Wet Mountain Water War

Article by Rayna Bailey

Water – July 2004 – Colorado Central Magazine

Despite sharing a similar purpose, the Round Mountain Water and Sanitation District in Custer County, which was founded in 1969, and the younger Upper Arkansas Water Conservancy District, in Salida, which was founded in 1979, have always had a love-hate relationship marked by court battles and uneasy truces, but also periods of mutual support.

The most recent battle is currently heating up, and Westcliffe contractor Roger Camper is caught in the middle of the fray. Camper plans to develop fourteen five-acre home sites on land that adjoins the southern edge of Westcliffe, west of Highway 69. And he needs water.

Camper said he began work on his Shining Mountain Estates subdivision in January 2002. “I approached Round Mountain before purchasing the land,” Camper said. At that time he was informed that before he could tap into Round Mountain’s services for 14 new homes, the town of Westcliffe must annex the property and Camper would have to meet the town’s subdivision regulations.

“That means I would have to put in paved streets, street lights, water, and sewer and the density would have to increase from 14 houses to 270 and I didn’t want that,” Camper said. “I wanted to give people a place close to town with all the amenities but still allow them to have some space and have a horse or some chickens.”

Camper also noted that annexation by Westcliffe might obliterate the rural character of his planned development, and the cost of meeting the town’s subdivision requirements and Round Mountain’s requirements could make it difficult to continue with his plans.

Round Mountain’s district manager, Charles “Bud” Piquette, agreed with Camper’s assessment of the situation. “At Round Mountain’s current rates it is necessary to have at least three water taps per acre for it to pay for itself.” According to Piquette, “We offered Roger Camper the same terms and conditions as other subdivisions, but he didn’t want that. Coming into our system is more expensive up front than what he wants to spend. He also didn’t want to discuss increased density.”

Unwilling to have his property annexed by Westcliffe, Camper rejected Round Mountain’s service proposal, then presented a preliminary plan for his subdivision to Custer County’s zoning board and planning commission during the combined boards’ October 2003 meeting.

The county boards and commissioners approved the preliminary plan for Camper’s subdivision, noting that it falls comfortably within the county’s zoning regulations and master plan, which encourage low-density developments situated close to towns rather than scattered across the county. At that meeting Camper also agreed to provide utility easements in the subdivision that would allow Round Mountain to provide water and sanitation to any properties south of his subdivision which wanted to tie into Round Mountain’s service area.

BUT ROUND MOUNTAIN continued to object, stating that “by not participating and connecting with the city system it restricts other property owners from tying in to Round Mountain’s services.” Piquette said, “In his position we would probably all do the same thing, but that subdivision is not in the best interest of the town.”

Although Round Mountain continued to voice its objections, Camper approached Upper Ark about the possibility of the conservancy district providing a water augmentation plan so each homeowner in his subdivision could install an individual well and septic system.

Upper Ark’s general manager, Terry Scanga, said that at the request of the Custer County commissioners, the conservancy district was already working on a blanket water augmentation plan for Custer County when Camper approached with his request.

Upper Ark didn’t think the county’s water augmentation plan request, or Camper’s subdivision being a part of it, was a problem. But Round Mountain did.

“If Upper Ark has a plan here like in the Salida area they can expand wells here and Round Mountain has a problem with that,” Piquette said. He added that Upper Ark had “agreed not to encroach, not to compete, and not to infringe on Round Mountain’s potential service area.”

Round Mountain considers its potential service area to include a three-mile area, about nine sections of land, around the towns of Westcliffe and Silver Cliff that is in Round Mountain’s expansion plans. That three-mile area includes Camper’s subdivision.

Piquette continued, “Round Mountain’s biggest concern is the ability to expand our system. Our only way to prevent injury to Round Mountain’s plan by Roger’s subdivision is to oppose Upper Ark’s augmentation plan.”

Scanga said Camper’s “proposed subdivision is not in Round Mountain’s service area but they are trying to expand. We want to do what’s best for Custer County. If we put a decree together it will include as much area as possible.

“We can’t pick and choose because that would open a Pandora’s box of legal issues. We don’t have a legal right to arbitrarily decide who we serve and don’t serve; it would be discriminatory. We need to get this resolved, and I don’t think we will until we file a water augmentation plan and Round Mountain opposes it in court.” Scanga noted that a water augmentation plan for Custer County is still in the developmental stages and it could be a year or more before it appears in water court.

Piquette said, “If Upper Ark submits a court application and Round Mountain feels it will encroach we will file an opposition. We have to act in the best interest of our constituents.” He added, “We hope they submit an application that excludes our designated areas around the two towns so Upper Ark and Round Mountain won’t be competing.”

Initially there was little interaction between Round Mountain, which supplies water to the towns of Westcliffe and Silver Cliff, and the Upper Arkansas Water Conservancy District, which was organized to protect rural water supplies in Chaffee, Custer and western Fremont counties.

But Upper Ark also provides water augmentation for rural residents who wish to drill private water wells, which means that the district is not merely a protective organization; it is also in the water supply business. And that means Upper Ark is occasionally in competition with municipal suppliers.

THE FIRST BATTLE between Upper Ark and Round Mountain occurred in 1982 when Round Mountain filed a claim to all of the non-tributary underground water (see sidebar) in the Wet Mountain Valley. Custer County, area ranchers and rural property owners joined forces to keep Round Mountain from claiming that water and they turned to Upper Ark for help.

Upper Ark, along with the Wet Mountain Valley Water Association, helped Custer County fight Round Mountain’s claim in court. Custer County both won the battle, and it didn’t, when the court dismissed Round Mountain’s case but without prejudice, leaving the water tap open for future claims by Round Mountain.

TEN YEARS LATER, Custer County officials retained membership in Upper Ark, but they decided that the Upper Ark’s help was no longer needed. In an April 1993 letter, then county commissioners John Coleman, Cleo Day, and David Rumph officially protested Custer County’s inclusion in Upper Ark’s new water augmentation plan.

Round Mountain also sent a letter signed by its then president John Martin, opposing the water augmentation plan. Round Mountain’s letter stated, in part: The Custer County commissioners “have asked the Round Mountain district to remain firm in its opposition to the augmentation plan not only as pertains to tributary streams on which Round Mountain has water rights but as pertains to all of Custer County.”

Upper Ark complied with the request and cut Custer County out of its water augmentation plan.

Custer County, Upper Ark and Round Mountain ran up the white flag and went about their respective businesses as usual: Custer County watched as rural subdivisions developed their own water augmentation plans; Upper Ark implemented its water augmentation plan in Chaffee County; Round Mountain continued to welcome new town residents by adding water taps as requested, increasing their service to approximately 575 taps to date with enough water to serve 500 more.

There were few, if any problems, until about 2000 when the plug was pulled and the water drained away. Colorado lost its water battle with Kansas when the Supreme Court ruled in Kansas’s favor. That action effectively stripped Round Mountain of its water rights and water.

DURING A RECENT INTERVIEW Piquette said, “After Colorado lost the Kansas battle, Round Mountain’s wells were placed on the priority system and that essentially took away all of Round Mountain’s water rights, about $2.5 million of water.”

In addition, the water augmentation plans created by several rural subdivisions in Custer County were failing, and the Wet Mountain Valley was hit hard by the drought.

A period of mutual support began when, to keep the water flowing to its customers, Round Mountain turned to Upper Ark for help. Upper Ark, along with Pueblo West, responded and for three years — 2000, 2001, and 2002 — supplied a total of 150-acre-feet of water for Round Mountain’s customers. In return for the help, Round Mountain agreed to lease Upper Ark 50-acre-feet of water storage space in Lake DeWeese reservoir.

In ORDER TO INSURE that adequate augmentation water is available for subdivisions, in January 2003 the Custer County commissioners — Dick Downey, Dale Hoag, and Larry Handy — sent a letter to Upper Ark asking the conservancy district to consider developing a water augmentation plan for Custer County. Round Mountain also submitted a letter supporting the commissioners’ request for a countywide water augmentation plan.

Upper Ark responded to the request in writing, stating: “At your behest, the Board of Directors of the Upper Arkansas Water Conservancy District passed a resolution to pursue plans to implement a blanket water augmentation plan to serve the citizens of Custer County. This resolution was passed at the District’s March 13, 2003 Board meeting.”

But the uneasy truce between Upper Ark and Round Mountain was short-lived. In December 2003 Round Mountain withdrew its support of Upper Ark bringing a blanket water augmentation plan to Custer County, due in part to the presumed encroachment on its service expansion area by Camper’s proposed subdivision.

“We no longer need water from Upper Ark and Pueblo West and we’re not likely to,” Piquette said. Round Mountain has “160-acre-feet stored in DeWeese now and by the end of June that should be up to 200-acre-feet.” The additional water became available in 2001 when Round Mountain bought the Johnson Ranch south of Westcliffe and its water.

Round Mountain may feel content with its current water status, but Upper Ark doesn’t agree. “It isn’t wise to go in and cut out areas,” Scanga said, commenting on Round Mountain’s request that the conservancy district, as it prepares a water augmentation plan, exclude portions of Custer County, including the towns of Westcliffe and Silver Cliff and the surrounding area that also encompasses Camper’s proposed subdivision.

“We cut Custer County out in 1993 and now they’re back. Looking down the road at the future tells me and my board we need a contingency plan. We don’t want to go into Round Mountain’s service area unless we’re invited but it’s premature to say we should not serve areas adjacent to the Round Mountain area,” Scanga said.

Giving the towns of Westcliffe and Silver Cliff additional advice, Scanga said, “A blanket augmentation plan is very efficient and is good for municipalities because they can augment their wells as they grow.”

With at least four new, high-density subdivisions currently being planned within town limits, each with the potential for as many as 90-200 new homes bringing the possibility of a demand for up to 700 new water taps when Round Mountain admits it only has water for 500 more taps, Scanga’s comments may be worth considering.

But on the other hand, it does seem as though 500 new taps should be plenty — at least for the next five or six years — since Round Mountain has only 575 taps now (which means 500 is almost double). And even Custer County isn’t growing that fast.

There are also sanitation considerations involved. Horses, chickens, and homes with their own wells and septic systems can generate both odor and contamination problems. So an augmentation plan which allows for hundreds of wells right next to town may not be in Custer County’s best interests. But an augmentation plan for rural areas probably would be.

NOW THE QUESTION is whether Upper Ark and Round Mountain can agree on a plan, and that seems unlikely. Therefore, as in 1982, only time and a day in water court will probably determine the outcome of the current battle between Upper Ark and Round Mountain Water — and the court will thereby decide what Custer County’s water augmentation plan will include.

When she’s not working on an advanced degree, Rayna Bailey freelances from greater Westcliffe.