Dory Lakes homeowners boiling over county’s water use
Legal dispute heats up
In August 2008, the Dory Lakes Property Owners Association (DLPOA) filed a lawsuit against Gilpin County over use of water in the Dory Lakes Subdivision lakes. That case was set to be tried in District Court last month, if mediation efforts failed. They did. The county’s attorneys requested and were granted a postponement to July and now have been granted a postponement to September. Members of the DLPOA feel the county is delaying in order to run up attorney and court costs, perhaps in hopes the DLPOA won’t be able to afford continuation. The case has cost the association more than $80,000 in attorney fees and court costs and homeowners point out they are also paying for the county’s attorney via their tax dollars. “We just want Gilpin County residents to know what the commissioners are doing,” said Bob Oatman, DLPOA president, “Gilpin taxpayers’ money should go to better purposes than legal fees.” Gilpin County Attorney Jim Petrock said the postponements were requested to allow both parties to complete discovery and obtain depositions. The County is also awaiting a ruling from the State Engineer on its application for a temporary water supply plan.
DLPOA’s lease agreement with the county dates from 1996. It allows the county to store and use up to 30 acre-feet of water from the subdivision’s lake each year. (One acre-foot equals 325,000 gallons. An average household uses a half acre-foot per year, 162,500 gallons.) The county pays DLPOA $300 per acre-foot with adjustments for inflation and a set minimum annual fee of $4,500. In 2008, the county paid DLPOA $8,605. The county uses the water stored in Dory Lakes to replenish the Ralston Creek watershed for water removed from it by the two wells at the Justice Center. That water is used to supply the Justice Center, Community Center, Exhibit Hall, Administration Building, Fairgrounds and to irrigate the ball fields. Additionally, the county has pumped water from the lake into trucks for Road and Bridge projects.
In order to meet downstream water rights, when the county takes water out of a watershed, it must return water to it in the same proportion as that taken. The Justice Center wells take water from two watersheds; Clear Creek (37%); and Ralston Creek (63%). In 2007, the City of Arvada raised objections to the amount of water Gilpin County was retaining from the Ralston Creek watershed. In February of that year, Gilpin’s water attorney, Rick Fendel, notified commissioners of negotiations with Arvada regarding how much water the County owed them. “It may mean lowering the water level at Dory Lakes,” he portended. In April 2007, it was determined that Gilpin had indeed retained more water than entitled to. “That’s why Dory Lake was full,” explained Petrock. At that point, the county had to give back 30 acre-feet in restoration and install a pipeline and other equipment (at an approximate cost to the county of $418,521) to measure and provide ongoing commensurate water return. As the water flowed downstream, and the water level dropped in their lake, objections from Dory Lake homeowners rose.
The county says it is staying within the 30 acre-foot per year allowed by the contract. But if the county wasn’t using the water for multiple uses, DLPOA says they wouldn’t need to release so much from the lake. DLPOA’s lease agreement stipulates the amount of county water stored in their lake, is to compensate for the Justice Center only, not the additional uses. That is the greatest part of the dispute. County Manager Roger Baker said the county’s interpretation of the lease agreement is that it includes all of the uses the county makes of the water stored under county water decrees. Gilpin commissioners, who must act for the best interests of all county residents in meeting county water obligations, want to continue the multiple uses. The county has now applied for a substitute supply plan from the state that allows them to take 24 acre feet. According to the Colorado Division of Water Resources (Office of the State Engineer), the county may continue to use the water at the current level, while the decision is pending
Meanwhile, the amount of water in the lake drops acre-foot by acre-foot. Because the original contract includes no cancellation clause for DLPOA (only the county can cancel it), the arrangement automatically renews every year. With no obligation to maintain the lake at any depth, the county’s water withdrawals have reduced it to about 50% capacity and it’s rapidly becoming a “mudhole,” Oatman said. DLPOA never expected their lake would be without water, said Oatman. They use it for non-motorized boat and fishing recreation. Homeowners’ fees and fishing permits (approximately $10,000 per year) pay the expenses (approximately $11,000 per year) of insurance and taxes, stocking and aerating the lake, maintaining the playground and common areas. Property owners purchased their Dory Lakes properties, in part, for the private recreational benefits of the lake, said Oatman. If the current county water use continues, the lake could be dried up by the end of the summer, he warned, and property values are reduced without it.
DLPOA wants the county to use only the amount of water needed to fulfill the requirements for the Justice Center, as the contract states. That’s usually six to eight acre-feet per year, (but has been ten and, one year, topped out at 17 acre-feet due to a leak). “We’re ok with the Community Center, too,” Oatman conceded, “It doesn’t use that much,” (less than one acre-foot per year). Ball field irrigation and road projects take four and a half acre-feet per year. They also want the county to stop driving the heavy trucks through the subdivision to pump directly from the lake. DLPOA has put all their cards on the table, said Oatman, and tried to mediate a resolution. In April, Oatman and DLPOA’s attorney met with Gilpin Commissioner Jeanne Nicholson, County Manager Baker and the county’s attorneys. They spent nine hours (and thousands of dollars in attorney fees, Oatman noted) in unsuccessful mediation. Further, the county didn’t provide information DLPOA requested, he said. “They don’t negotiate in good faith,” warned Oatman, “Every other little subdivision should beware.” “I don’t know if we can come to an agreement, now,” said Oatman, expressing frustration with county officials. At this point, he said, Dory Lakes homeowners would give up the county dollars if the county would store water elsewhere, leaving the lake in Dory Hills to fill at its natural level. Both Oatman and Baker noted it is within the county’s power, per statute, (CRS 30-20-402 and 38-6-201) to acquire private property, including water rights, through eminent domain to construct water facilities and projects. The county has not indicated it would do that. Asked whether the county is looking for alternative water storage locations, Baker responded they are always looking for additional water sources and storage just as, he expects, is every other municipality and county in Colorado.