Owners say water claim is not fair

After years of searching, Cherokee Metropolitan District thinks it has found a water source: underneath 85 properties outside its boundaries in northeast El Paso County.

The fast-growing district is using leases it signed in the mid-1950s with Ellicott-area

property owners when the area was a sparse collection of farms. The problem, say residents of the now more densely populated community, is that they’ve never heard of these leases, never seen a dime from them and never been told someone else owned the water beneath their properties.

Nine landowners have filed protests with the Colorado Ground Water Commission, and more are expected by Monday’s deadline. The case is expected to go before the commission this year.

Late last year, it ruled over the objections of state Division of Water Resources officials that the state should proceed with processing the claims as legitimate. The ruling has left rural residents angry and nervous.

“I don’t believe what Cherokee is doing is fair,” said state Rep. Marsha Looper, a Calhan Republican who represents the area and has spoken against the plan to the commission. “I believe if they want that water, they should make an offer to those property owners for their water but not come in under the radar with a lease that’s dated back to 1954.”

Though critics call this a new scheme, Cherokee general manager Kip Petersen said for

the past 53 years the district has kept open the expensive option of drilling into the Denver Basin aquifer and using a nonrenewable source of water. Only recently has it decided it had no other choice, he said.

A growing area of about 7,000 homes and 400 businesses east of Powers Boulevard and north of Platte Avenue, Cherokee attempted for years to drill into the Upper Black Squirrel Basin, but has been barred from continuing by the Colorado Supreme Court because the water would be leaving the basin. With the district short on future supplies — it banned lawn watering and car washing for a short time this summer — but having promised water to developing communities, it turned last year to its backup plan.

That plan stems from leases Edwin W. Hayes signed with a number of Ellicott-area property owners in 1954 in which he exchanged a promise of $200 annual payments, adjusted for inflation, for the right to drill wells and pump groundwater out of the Upper Black Squirrel. Hayes, who was part of the Cimarron Corp. that developed Cimarron Hills, sold his assets to the Cimarron Hills Metropolitan District, which later became the Cherokee

district, Petersen said.

The district developed eight alluvial wells on the land but never drilled into the aquifers. Over the years, it kept paying the original landowners, and Petersen estimated it has now shelled out $1.4 million to them, their heirs and receiverships they designated.

The problem was that nobody told the current residents and businesspeople until the Division of Water Resources informed all 85 affected property owners in Aug. 7 letters that Cherokee was claiming control of the water under their land. Property owners responded by firing off angry letters to the division.

Christopher Nadeau wrote that when his parents bought their Baggett Road property 15 years ago, it came with 100-year water rights. Michael Whedon, president of the Colorado Springs East Airport, said he was told of the leases by original property owner Inzebelle Williams, but she said they were forfeited because of nonpayment.

Marilan Luttrell and her family members run a small farm outside Calhan within the 2,720 acres on which Cherokee claims the right to drill. She said landowners fear the pumping could affect their wells and that property values will fall if they don’t own the water.

“We don’t know if other leases are out there. We’re talking to hundreds of people who haven’t been told,” Luttrell said. “If you buy a house out here you need to know.”

Petersen said the agreements that Hayes reached were with the original property owners, and payments were not required to be transferred to successive generations of residents. Those original owners also were responsible for notifying buyers about the leases, he said.

Sandy Hook, recording managing for the El Paso County Clerk and Recorder’s Office, said the leases are so old they are listed in books, not modern computer or microfilm records, meaning a less-than-complete title search may not uncover them.

“It’s unfortunate,” Petersen said. “The district is following the same process everybody else goes through. The problem occurred when the property began to be subdivided many years ago.”

That doesn’t mean Cherokee has an open-and-shut case.

Kevin Rein, manager of the state’s basins water supply team, argued originally that even though the leases mention water supplies on the properties, they do not specifically say the landowners grant the right to the Denver Basin aquifer below them. Because Colorado did not pass a law until 1973 that allocated aquifer basin water, nothing in 1954 could have been construed as guaranteeing that particular supply for Cherokee or its predecessors, he said.

Upper Black Squirrel Creek Ground Water Management District Chairwoman Kathy Hare said that pumping water out of the deeper aquifers could affect the water supply in the shallower, rechargeable Black Squirrel aquifer and hurt residents and businesses that use it. She characterized Cherokee’s plan as an “act of desperation” by a corporation that has irresponsibly committed to supplying water it doesn’t have.

“Now, so many years later, to be coming and claiming every bit of water on your property, it’s almost as if they’re collecting the tears of people on that land,” Hare said.

PUBLIC REACTION

A community meeting on the implications of the Cherokee Water District’s leases will be from 7 to 9 p.m. Friday at New Hope Church, 2150 N. Ellicott Highway.

Residents opposed to Cherokee Metropolitan District plans to drill for Denver Basin aquifer water in northeast El Paso County can submit an official letter of protest with the nature of their objections, along with a $10 fee, by Monday. Send it to: Commission Staff Colorado Ground Water Commission 818 Centennial Building 1313 Sherman St. Denver, CO 80203 People with questions can call the commission at (303) 866-3581.