Mountain homeowners haunted by 1970s water augmentation plan

FLORISSANT• The first time they saw the view from their little slice of mountain paradise, Melissa Rasmussen and her husband knew they were home.

“We came up and there was snow on Pikes Peak and we could sit here on our porch and we thought, ‘This is our dream home,’” she said.

But the ink on their mortgage wasn’t even dry last August when their new neighbors in Deer Mountain Ranch told them of threatening letters from the state, of upcoming meetings and the possibility of fines being levied against homeowners.

It turned out the developers who divided the land in the 1970s to sell it for houses never built a pipeline required by their court-approved water augmentation plan. And the state has decided residents are on the hook to build it, despite the fact no one lived there when the plan was approved and most have arrived only in the past few years.

“This is not our fault. We were not part of this 30 years ago. We did not allow this to happen,” said Rasmussen on a recent afternoon, sitting on the same porch where she fell in love with this place.

In a tough economy, families say they can’t come up with the $3,000 to $5,000 each it will cost to build the pipeline, but the state Attorney General’s office recently warned the 29 homeowners they could be fined $500 a day if they don’t comply.

“It makes you sick to your stomach,” she said. “It takes the fun out of having moved to your dream home.”
The issue is one of water rights.

The developers who subdivided the ranch were required to replace every drop that would be taken out of the Oil Creek watershed by the homes in the subdivision, since downstream ranchers, farmers and others have senior water rights. The plan the developers submitted to water court in the mid-1970s said they would build a pipeline from two wells they owned to bring water into Oil Creek below the subdivision, which flows into Four Mile Creek and the Arkansas River.

“The pipeline apparently never was built, but the development did proceed. So there have been wells constructed that are withdrawing water contrary to the court-approved plan, or at least not in accordance with the court-approved plan,” said Steve Witte, division engineer in Pueblo for the Colorado Division of Water Resources.
When lot buyers filed for well applications with the division, its staff checked to make sure there was a water augmentation plan, but nobody confirmed the plan was being followed, which was common practice, Witte said.

Said Witte, “I think the folks that reviewed the well permit applications in our Denver office accepted on faith that the court-approved plan was being adhered to. They didn’t follow up to verify.”

So why go after the property owners now?

In 1995, Colorado lost a court case with Kansas over flows in the Arkansas, after the U.S. Supreme Court ruled that groundwater pumping in Colorado had diverted millions of gallons from the watershed that belonged to Kansas. In the years since, Colorado has been cracking down on wells and illegal ponds in the basin and taking a look at old augmentation plans for communities and developments, to make sure they are being followed.

State officials notified residents in August 2008 they would need to install meters on their wells, which they did at their own expense, and in October informed them by letter of the problems with their subdivision’s augmentation plan.

“We didn’t have someone in here pounding on my desk saying, ‘Those people are denying me my water,’ but you have to infer, or deduce, that the reason the court decree was so specific as to where the replacement needed to take place is because of the existence of these downstream water rights owners who have a right to expect the state officials will implement plans as approved by the courts,” Witte said.

In December, the division told residents they had 45 days to stop using their wells or comply with the augmentation plan. Residents, some of whom moved here to escape neighbors, homeowners associations and strict regulations, were baffled.

“We all thought once you put in your well, you’ve put in your money. You’ve got water,” said Lenora Powers, who bought here in 2002.

Residents banded together. They held meetings, created a homeowners association and pleaded for time. In May, the state gave them another 45-day warning to begin releasing water back into the basin or cap their wells. Then last month , the Colorado Attorney General’s office sent an even more threatening letter, warning residents they could each be fined $500 a day unless they comply with the augmentation plan.

Residents say they want to comply, but it will cost at least $60,000 to build the pipeline, more if the contractor has to blast through rock. Their new homeowners association has no credit rating and can’t borrow such a sum, and the costs of trucking in water are prohibitively expensive, Rasmussen said.

“There are very few of us who can cough up five grand, so we have to ask for time,” Rasmussen said.

They are waiting to hear if the state will grant them that time. She said they need at least three years to raise the money. In the meantime, they can’t sell their homes — who would buy them with this hanging over? — and Rasmussen feels compelled to warn people who come to look at vacant lots about the situation.

Witte, the division engineer, said the state wants to work with residents, and that fines are rare.

“Our objective is not to take money from these folks. It’s simply to get them to follow the  laws that already exist and the court decrees that already exist, to enable them to not injure the property rights of others when they use water,” he said.

He acknowledged it is probably a difficult situation for residents, who say their title research revealed nothing about the water augmentation plans.

Asked how the state can force residents to fix the problem when the state did not ensure the original water augmentation plan was followed, he said, “The residents are the ones who are taking water away from those who have senior surface water rights, and it is the state’s function to protect those who have better rights from those who do not.”

“Should we allow that to continue because it has not been repaired in the past? We think not,” he said.

State Attorney General spokesman Mike Saccone said, “It’s common for residents of the subdivision to be responsible for the following of decrees. It’s binding on the subdivision.”

Residents say they understand the water rights issue, and will comply, but if the state starts fining them $500 a day, they may lose their homes — and in the case of Rasmussen, her dreams.

“We’re just asking for time. We would love for this to go away, but I don’t think it’s going to,” Rasmussen said.