MONTROSE AND SAN MIGUEL COUNTIES – “Whiskey is for drinking; water is for fighting over,” Mark Twain once wrote.
Montrose County is asking for a big fight over water – specifically, over water rights, on the main stem and tributaries of the San Miguel River in parts of Montrose and San Miguel counties.
A little over a year ago, in a rush to beat a deadline set by the Colorado Water Conservation Board (which is seeking to guarantee minimum in-stream flows on the Lower San Miguel and Dolores Rivers) Montrose County and the towns of Nucla and Naturita filed on extensive water rights, from as far upstream as the headwaters of Fall Creek (west of Telluride) all the way to the Town of Nucla on the Lower San Miguel River. (The Town of Norwood filed hurried claims, as well, for its own potential future use.)
“It’s a big water grab,” said Jenny Russell, an attorney for Sheep Mountain Alliance, one of over 30 objectors to the filings. The Town of Telluride is officially fighting the claims, as are the Colorado Water Conservation Board, the division water engineer, San Miguel County and dozens of private individuals and ditch companies whose water and/or land and livelihood would be affected.
The series of applications, filed with the water court for Colorado’s Water Division No. 4, based in Montrose, seeks approximately 6,400 acre-feet of water per year to be stored in half-a-dozen new reservoirs and reservoir enhancements. The reservoirs, at least one of which would be in San Miguel County, would hold – if they can be filled – approximately 25,000 acre feet, roughly the size of Silver Jack Reservoir east of Montrose.
The reason for the mammoth undertaking, according to Montrose County Engineer Brian Wilson, is to “secure the future of the West End…We have identified enough water from the San Miguel Basin,” he told a gathering at Friendship Hall last month, “to provide for West End population and industrial growth over the next 60 years.”
It is not allowed under state water law to claim water rights for speculative purposes. Montrose County says it is not speculating. County commissioners Gary Ellis and David White (whose District 3 includes the West End) maintain that the mining and milling of uranium, and the possible discovery of rare earth metals in the area, will more than triple the region’s population to something in the neighborhood of 9,400 residents by 2050. West End population as of the 2010 census was around 2,000. The water claimed by the new applications would serve a population of roughly 26,000 people.
All of which has a lot of folks upset. Attorney Andy Mueller, a water expert from Ouray County who is representing seven private property owners and the J. & M. Hughes Ditch Company, said it is particularly ironic to see Montrose County repeating “without any kind of discussion, or collaboration” the kinds of water grabs historically visited on the Western Slope by Front Range entities.
“With their high-powered water counsel from Denver, and an engineering firm from Boulder, it’s no wonder it looks like something Denver would do.
“For decades, the East Slope would just take what they wanted. No discussion. Montrose County has always projected itself as a strong traditional-values county, a property rights county, opposed to eminent domain. And yet here they are proposing something that would require hundreds of millions of dollars in takings…. To see this internecine fight on the West Slope is really depressing.”
When Mueller says hundreds of millions of dollars, he is not exaggerating. Fiscal conservatives in both counties were aghast last month when the Montrose BOCC, along with engineer Wilson and Denver legal counsel Charles “Barney” White, admitted that the county had spent over $250,000 in legal and engineering fees just to file the case. More recent figures put that total closer to $700,000, according to Mueller.
And then, should Montrose win its case in water court and actually try to develop the reservoirs, Mueller said, “their own estimate puts the cost [of acquiring the rights, building the dams, ditches, diversion and pump stations] at $200-300 million.
“We believe the actual cost would be $600 million, or more.”
How would a county of 40,000 people raise that kind of money? The Denver water attorney, Charles White, said at Friendship Hall that the good news is the cost would be spread out over 50 years. “The value of water only increases over time,” he said. Commissioners have indicated they would seek state and federal help. Mueller, who is a veteran of negotiations involving the Colorado River District and Front Range communities looking for major cross-divide diversions, says state and federal dollars for big water projects – what he calls the heyday of Bureau of Reclamation dams – “has dried up significantly.”
“We think their applications are completely speculative,” Mueller concluded. “They’ll never have those populations [in the West End]. They’ll never have the money to do it. It’s a pie-in-the-sky project.”
San Miguel County Commissioner Art Goodtimes told The Watch he feels a particular betrayal on the part of Montrose County. “[They] chose to file on water rights in San Miguel County. While we have not opposed Montrose County’s approval of the uranium mill in Paradox, although Sheep Mountain and the towns of Ophir and Telluride have filed a lawsuit in opposition. We have opposed Montrose filing for rights in our county. We think that is stepping over the line in terms of interference in county authority.”
A partial list of water sources for the four main proposed reservoirs includes: Fall Creek, Trail Creek, Williams Creek, Willow Creek, Little Cone Creek, Hunt Creek, Painter Creek, Specie Creek, Spring Branch Creek, Rock Creek and Saltado Creek.
The reservoir in San Miguel County, called the Marie Scott Reservoir, would inundate Saltado Creek west of Sawpit.
The filings would have “an enormous impact on the San Miguel River,” according to Sheep Mountain’s Russell. If the new claims are granted, she said, “there would be no way to protect the free-flowing river. The minimum in-stream flow [championed by CWCB in part to protect threatened fish species] is junior to these water rights.”
The trial is set for October 29 of this year in Montrose water court. It is to be heard by Water Judge J. Steven Patrick, and is expected to last 14 days. The objectors’ challenge, according to Russell, is to prove the claims are speculative. Evidence to that effect, Russell contends, includes the fact that Energy Fuels, Inc., the Toronto-based company behind the Piñon Ridge uranium mill, has secured its own water rights to operate the mill. Similarly, the towns of Nucla, Naturita, and even Norwood, “have said they have enough water for their 50-year ‘growth horizons.’”
Speaking on behalf of his clients, many of whom are committed by conservancies to use their water in perpetuity for agriculture, Mueller said Montrose County, should it prevail in court, would have “teed themselves up for one of the largest condemnation cases in the history of the Western Slope.”
Montrose Commissioner Gary Ellis remains steadfast. “This is an opportunity that may never come again. I’m willing to risk it because of the value, the benefits and the future.”