HomeMy WebLinkAboutMINUTES Water Committee 1976-06-1000 00
BRADFORD PUBI.ISHING CO.,DENVER R E C 0 R D 0 F P R 0 C E E D I N G S
Water Committee Meeting
JJune 10,1976
Committee:Chairman Sutter,Trustees Dannels and Houston
Attending:Chairman Sutter,Trustees Dannels and Houston
Also Attending:Town Administrator Hill,Superintendent McCracken,
Assistant Town Attorney John Chilson,Consulting
Engineer Robert Kemp,Finance Officer Duncan,
Accountant Daniels,Administrative Intern Merkel
Absent:None
NCWCD ALLOTMENT POLICY ---COX-SPRUCE LAKE R/V PARK:
Assistant Town Attorney John Chulson discussed the meeting of the
Northern Colorado Water Conservancy District Board at which LeRoy
Cox requested the transfer of 10 acre feet of water from the Valley.
The Conservancy District Board stated it has no legal grounds to
refuse the delivery of Colorado-Big Thompson water and tabled the
request to further study its policies.A letter stating such
policies was later sent to the Town and is attached to these minutes.
Chilson suggested that the Town question the Conservancy District
Board as to whether or not it will be serving water within our dis
trict because this then will affect the Townts position in the Muni
cipal Subdistrict.The Committee recommends the Assistant Town
Attorney attend the next NCWCD Board meeting and pursue this matter
as per his suggestion.
Robert Kemp recalculated the water rights fee and tap fee for the
LeRoy Cox application using the A.W.W.A.Manual 22 method.This
method,which is more applicable for large commercial taps than the
current method,is based upon dimensions of weights of plumbing
fixtures.The resulting fees totaled $14,984.The Committee recom
mends the following:
1)The new cost figure of $14,984 be offered to Mr.Ccx.
2)The Assistant Town Attorney be directed to draw ordi
nances amending the Municipal Code —
a)To allow the A.W.W.A.Manual 22 method to be
used for calculating large commercial and
multiple family unit taps;
b)To amend the water rights fees and plant fees to
incorporate the current rate;
c)To allow a developer to obtain the necessary
shares of water for the Town in lieu of payment.
LIENEMANN -PUMPING STATION ANNUAL RATE:
The Committee recommends the following annual rates for maintenance of
the pumping station in Fall River Estates:
Prior to activation $750
Upon activation 3070/lot
The fees will be prorated upon changing due to activation of the pumping
station.
00 00
BRADFORD PUBLISHING CO.,DENVER R E C 0 R D 0 F P R 0 C E E D I N G S
Water Committee
June 10,1976
Page Two (2)
RURAL WATER APPLICATIONS:
Mary Esther Fenton Four rural connects to serve four
residential lots located west of
Mary’s Lake in the south 3/4 of the
south 1/2 of the NE of the SW*of
35—5—73.The Committee recommends
approval subject to a minimum size
extension of 4”to the 18”main in
Middle Broadview,inclusion into
the NCWCD,and installing pumps for
taps above the blue line.
Rev.Fred T.and
Pauline B.Ingold One rural connect to serve a resi
dence and guest house located on
Larkspur Drive in High Drive area.
The Committee recommends denial
because of its location in other
water districts.
WATER USE REPORT -MAY 1976:
Water use in May 1976 was 18%lower than May 1975.
WATER SHOP:
Two parcels of land are currently available at the landfill site for
the location of the new Water Shop.One parcel,owned by Lee Parker
and located just north of the Light &Power Shop,is available for
$18,580 (approximately one acre).The other parcel which is just
north of the Public Works Garage is owned by the Town but would
require extensive excavation at a total estimated cost of $23,000.
The 1976 budget has budgeted a $50,000 reserve account for the con
struction of the Water Shop for either 1977 or 1978.The Committee
recommends pursuing the acquisition of the Parker land.
There being no further business,the meeting adjourned.
Joan Van Horn,Secretary
TO ThE DIRECTORS:Q
ALTEATIVE CONSIDERATIONS ON
WATER ALLOThEfl POLICIES
At its May 14,1976,meeting the Board of Directors tustructed
Management to develop alternative policy considerations on Applications
For Allotment Contract Changes which,if allowed,might give rise to
questions or challenges on the appropriateness or legality of such
action by the Board.
The need to consider these alternatives was created by an application
for the transfer of an allotment contract for use Sn a location and for
a class of service which could be served by an existing allottee.The
applicant had rejected an offer for service by the existing allottee
because the charges for such service were,in the applicant’s opinion,
unreasonably high.The existing allottee did not officially object to
the Board’s granting the application but did raise a question on the
appropriateness of such action because it could adversely affect its
long—range plans for service to the area.
This specific case may be resolved by further negotiatiqn and
agreement between the parties involved,with the pp1ication for trans
fer of the allotment withdrawn.ilowever,the Board will still be faced
with the policy and legal questions raised by this issue.
Before discussing the alternatives for considerat ton by the Board,
a listing of some of the questions raised by this issue and staff comments
thereon may help keep the considerations in perspective:
1.Under its statutory authority,how far can the Board go
in limiting or denying an allotment application which
meets all requirements defined in Conservancy District
law for a given class of allotment contract?
Staff Coiinent:This question is prtmarily one of a legal nature
and the legal authority and discretion of the Board should be
reviewed carefully by Counsel to provide the Board with a guide
line as to what the limits of its authority might be.The
statute clearly gives the Board the power “to nake and enforce
all reasonable rules and regulations for the management,control,
delivery,use,and distribution of water.”
2.Should the Board allot water if it would give rise to.
conflicts between allottees?
Staff Comment:In this particular area,the type of conflict
involved and the legal ramifications of the conflict would have
to be considered on a case-by—case basis.In this area,it is
felt that the Board should retain a great deal of discretion and
flexibility in order to deal with each circumstance on a rational
and prudent basis.
3.al water be allotted for a given class of servic n
en al ready served by an cxi sting allottee under .oe
came ci ass of sel-vi cc?if so,enl 1 the renscnab].eness
of the water user’s cost in obtaining that service he
coflsldered by the Board?
Staff Cc:rnent:This area involves the granting by the Board of
the exclusive right to provide water service within a particular
area which,according to recent Court decisions would place the
ailottee in the position of becoming a pablic utility with a
monolopy on the service.If this is the general desire of the
ailottee and the various jurisdict-ions,and if a reasonable
agreement can be reached between the var ous planning jun sdic—
tines and water suppllers as to the definition of these boundaries,
then it is felt that the Board niht consider honoring such exclu
sive service in the overall best interests of the water users of
the District.As far as the reasonableness of a water users cost
in obtaining this service,it is felt that this is not an area
which should be a prima;-y concern to the Board.-
.Would denial of an allotment app]i cation because water service
for the proposed use is available thrc.ugh a pro—existing allot—
tee’s system create a Tipublic utility”status for either the
District or the allottee?Would this be desirable?
St-aff Cermont:The question of whether exclusive authority for
water service within an area would create a public utility status
i s basically a legal questi on.It is fel t that this would probably
place the wal:er utility or water servicing entity in a public
utility status,however.Whether this would be desirable or not,
would depend s-mwhat on the desires of the water user to subject
itself to the mandates of the public utility laws.It is felt
that any policies in this area should be formulated so t]iat the
District itself is not pl,r ced in the position of becoming a
public utility.
5.Should the Board require an allottee/applicant to obtain
approval of his proposed use from local junisdi ctions
(planning agencies,zoning boards,county renniss oners,
health depatmcnts,cities,etc.)before Board approval
is granted?If so,should this apply to all classes of
service?If not all classes,which ones?
Staff C:cnent:It is felt that lend use decisions and land
use regulal cry authority lie wi th the governmental cut i ties
monti cued above and that a prospective all ottoe/appl i cant
hcu]d have approval for its proposed ]aad use to put
the allotment to beneficial use.In this regard,an appli
cant who is applyng for water for a use which has not been
or possibly will not he approved by the local land use
jurisdiction would receive an allotment that cou]d not be
beneficially used.It is,therefore,felt that the Board
shc-uld request reasonable assurance from a prospective
allottee that the land use connected with the allotment
has received approval or is within the hounds of the ]egally
constituted uses d;ctated by local jurisdictions.Such a
policy,in order to he fair,should apply to all classes of
service,even though the instance of an applicant wishing
—2—
_-Th .
tO..ve an allotm-nt of watCr for ajn ciii Tu;a1 use C..3 ore
of 1 and zond to exclude such use is mawhat remote.
6.ruld tie Foard help create or 1rotet:t a service area buffer
Zone or TtgrocnbeitI around the corporate limits of a City or
Town by denying all otiaents to other potential domestic water
supply entities?
Staff Coiamont:In this regard,if the Board follows a policy as
outlined in the coumnents on quetion o.5,where it allots water
only to areas of use which are consistent with legal land uses,
the question of helping create a service area,buffer zone,or
greenbeit should not be piCseflted to the Board.This is consistent
again with the dea that land use planning and land use decisions
should remain with those jurisdictions legally constituted to make
those decisions and not become a function of the Board of the
Conservancy District.If tile Board would allot water only to
those uses approved and legal within the dictates of the local
]and use jurisdictions,then the use of water as a tool for getting
around liuitations in land use control authority would not occur.
Only those land use control restrictions which could legally be
applied by any jurisdiction would affect any prospective land user
and allottee and,consequently,the allotment policies of the Board
would not conflict with the general regional and local master
pl a 17s.
7.Would an agreement with other entities restricting the transfer
of allotnents in a given area he in possible viol ation of the
anti—trust laws?
Staff Cc’ao;ent Th S question should he researched by Counsel.
CENEBAL CCPPbNTS
It is felt that the Board should continue to love land use control
to the jurisdictions which are legally consti tuted to exercise such
controls and’should strongly resist efforts to pass the buck to the
Conservancy District to exercise vetoes on proposed land uses
through exercise of cbntrol of water all otments or water service.
It is felt,however,that the Board shou]d strongly encourage all
water supplying entities within the District to delineate their
areas of service in such a manner that ovrlap of service areas and
pro]iferat ion of icefficient small service entities does not occur.
Such deli neatiun of boundaries should be hand].ed and coordinated by
local and regional planning entities,however,and should not be a
functi on of the Board of Directors of the Conservancy District.If
such boundaries can he amicably agreed upon between various entities,
it is fe]t that these boundaries should be henored by the Board
whereverpossihie and reasonable.
With these questions in mind,the following basic allot:mont policy
positions were prepared for Board consideration.Each alternate,if
adopted,would result in one or more consequences some of which are
discussed under “cotienCflts.”
_l_
ALTERNATIVE lOLl CY POSIlIC NScC
I.float nne with the present I:rocc11re of considering onch
nppThcation an its own merits.
Coient:ThiS would retain complete Board control over all
allotment contract changes and would result in establishnt
of any new or modified allotment policies by precedent.It
could also subject the Board to continued debates between
existing ailottees and prospective ailottees over the
app;-opr lateness of Board actions.
II.Establish a policy which prohibits allotments of water
for any class of service when such service can be pro—
vidod by an existing allottee.
Ccrnrnt:Thi would protect an existing allottee from having
its area of service encroached upon by any entity providing
the same class of service,but would in effect give the existing
allottee a monopoly in its defined area of service.This would
leave unanswered the “public utility”questicrn posed in question
No.4 above.
III.Establish a policy that no ailot:nent application will be
denied solely bacause the proposed service can be provided
by an existing ailottee.
Comment:This wauld prec]ude the creation of a nonopoiy for a
service area and would avoid the question of “public utility”
but would give no protection to the existing allottee from
having its area of service encroached upon by other service
en t it leg.
IV.Establish a policy that any allotment contract change
application will be approved by the Board provided:
1.The form of the application meets all requirements
prescribed in District Rules and Regulations a•-l i.cable
thereto;and,
2.The proposed use meets all previously established
Board criteria and defined pol ides including but
not limited to beneficial use,quantity I imitatic:ns,
inc]us]ons,payment of special charges,well replace—
mont operations,etc.;and,
3.The appli cant su1mits documented evidence,suitable
to the Board,showing that approval of the proposed
use of the water has been granted by all relevant
local jurisdictions.
Comment:This would leave the question of the suitability of any
proposed water using deve]opnent or land use up to the appropriate
planning,zoning,and licensing jurisdictions and tend to preclude
the use of water avai]abiiity,or the lack of it,as a tool to
contol growth.It would “give notice”to all existing allottees
—4—
thai—i hey want to protect a water service area nut si t-’i C
c-ui UL legal jurisdictions,it will be their reponsib i i t,/
not the Distri ct’S,to establish through appropriate feruins the
controls on such area that they desire.
A SPECIAL CASE?
In addition to the general questions and considerations above,
there are othei-quest ions which could he considered in the open fic case
of the Town of Estes Park.Because of its location,and because the
Town is essentially tourist Town with extreme seasonal flucuations in
population,its water supply and other municipal service prob]ems are
unique and could thus he considered a special case compared with other
nuncpalities in the District.
Partly through its own voliti on and partly through actions or
positions taken by the District,the Municipal Subdistrict,and the
Bureau of Reclamation,the Town has developed and adopted a lT]a.for
growth”which includes a policy of “furnishing water for domestic pur
poses to the Estes Park area.”This plan includes the acquisition of
the necessary raw water supplies and the staged construction of addi
tional treatment and distribution facilities to se;-ve the Town and the
surrounding area.In 1967,prior to adoption of its “p]an for growth,”
the Town petitioned for and was granted inclusion into the District in
order for it to be eligible to acquire and use Di strict all uttod water.
Since then,and up to May 1976,the Town has acqiired a]lotment con
tracts totalling 410 acre—foot units.Tn 1968,representatives of the
Crystal Water Company requested permission from the Bureau of Reclana—
tion and the District to install water delivery facilities from Mary’s
Lake or from the Prospect Mountain conduit to serve the Fish Creek Park!
Carriage Hills area.At that time,the District and the Bureau of
Reclamation determined that it would he undesirable to peYmTt a pro
liferation of points of delivery in the Estcs Park area and so advised
tile Crystal Water Company representatives.Subsequently,through negotia
tions between the District,the Town of Estes Park,the Bureau of Roclanation,
and the Crystal Water Company,it was agreed that a single point of
service could be installed at the head of the Mar y’s Lake peiislock of a
sufficient capacity to serve the whole area.In 1970,with District
concurrence,the Town entered into a contract with the Bureau of Reclamation
for the installation of a 20—inch tap at the Mary’s Lake peiitock.At
the same time,the Te.n of Estos Park and the Crystal Water Coopany
executed a contract providing for the sharing of the cost of the Mary’s
Lake tap and for a proportionate sharing of its capacity.Also,in 1970
the Town of Estes Park joined with five other cities in the creation of
the Municipal Subdistrict for the construction of the Windy Cap Project
and,subsequently,obligated itself by allotment contract with the
Subdistrict to one—twelfth of the construction and operating costs of
the project as well as acqui ring the right to the use of one--twe1fth of the
project’s water supply.In January 1973,the Town petitioned to the
Board for the inclusion of a sizable area outside its corporate limits
for the purpose of establishing the area’s eligibility for municipal
water service by the Town.The Board’s Resolution approving that inclusion
contained the language “for the purpose of establi hing the eligibility of
—5—
said ]aries for municipal water service by said Town.‘On Dcc her 14,
1973,the Board,in its Inclusion Policy Resolution of that date,established
“eligib]e area B”in the Estes Park vicinity as an area which could lie
considered for future inclusion.The beijadaries of “oljpjb]e area B”
were drawn with the concurrence of the Town of Estes Park and the other
water user entities in the vicinity.
It seems apparent that the foregoing series of events and actions
by the Town of Estes Park clearly shows that it was,and is,the intent
of the Town to provide domestic water service to all of the eligible
area that was not already being served by another entity.It seems
reasonab]e,therefore,for the Town to pose the question “is it appro
priate for the Board to allot water for use by another entity in an area
defined and planned for service by an existing aliottee when that allottee
has committed itself to acquire the necessary water supply to provide
such service through participation in the Windy Cap Project and acquisition
of District allotments;has planned and initiated a construction program
to meet the needs for service to the defined area;has developed a
financial plan including fees and charges for plant investment,raw
water acquisition,and operation and maintenance,to pay the costs of
providing such service,the success of which is dependent upon serving
all of the defined area;has cooperated with the District and complied
with all of its requirements in regard to land inclusions,payment of
back taxes,and construction of delivery facilities;has promptly paid
all charges and assessments for water,operations and naintcnance,and
power interference;and has been one of the strongest proponents for,
and active participants in,the th2velopment of the Windy Cap Project?”
A possible response to this special situation could be a fifth
alternate as fo]lows:
V.Consider the area around the Town of Estes Park (“el igibl e
area B”as defined in the Board’s Inclusion Pol icy Resol ution)
as a special situation and restrict allotments for domestic
uses in the area to one of the four existing allottees serving
the area with domestic water.
Comment:This would assure each cxi sting allottee in the Estes Park
area that its service area would not become a hodge--pedge of service
enti ties and would thus permit the most effici ent dove]opment of
water supplies and facilities to serve the area.It would,however,
require do]ineation of each entity’s service boundary which could
in turn load to creation of public uti]i ty designation and control
by the Public Utilities Commission.
Respectfully Submitted,
Secretary—I-Tanager