BoCC Discovers a Glitch in Heritage Water Subdivision Interpretation
In a little more than an hour-long meeting on Tuesday, February 21, the Chaffee Board of County Commissioners (BoCC) approved its first five-year event permit, made quick work of the consent agenda, and approved the Shaw Heritage Water Subdivision exemption after the longest discussion of the day. They finished off by approving the eight-day County Recreational In-Channel Diversion (RICD) when Water Rights for the RICD are required to be 1,800 cfs (cubic feet per second).
Shaw Heritage Water Subdivision Exemption
Commissioners opened discussion on the Shaw Heritage Water Subdivision Exemption, which has been repeatedly continued, and immediately revealed a quirk in the exemptions that have been approved over the past few years.
The original intent of the heritage water subdivision exemption was to protect wells permitted prior to 1972 or wells that have a prior designation of beneficial use; in other words, to protect that water right.
The problem: over the past few years, the county has applied the heritage water subdivision exemption to a few applications involving wells that are newer than 1972.
“The well for this application was permitted in 2012, so it doesn’t meet the original intent of the heritage water subdivision exemption. But it turns out we’ve approved other wells just as new or newer, said Principal Planner Greg Laudenslager. “There is a need for a text amendment to the legislation for wells permitted prior to 1972 or that have a prior designation of beneficial use … the ones approved didn’t meet the intent, but they WERE approved — which highlights the need for a text amendment.”
Upon review, the BoCC confirmed there had been a handful approved in the last few years, which appears to be a precedent, even though it doesn’t meet the original intent of the permit. County staff has discussed the situation with the applicant whose pending boundary adjustment application was also on the day’s agenda.
With staff, the BoCC decided that “it would make a lot more sense for the Shaw proposed, small 2.5-acre parcel to be part of the parcel that will have a community water system, rather than be served by an exempt well, keeping the heritage well with the 35-acre remainder parcel.
There was no public comment. During deliberation, Planning Director Miles Cottom pointed out that a new state statute (SB20-155) stipulates that wells permitted after 1972 do not need to be re-permitted if they are on land that is to be subdivided.
County staff confirmed they do intend to talk with state water officials in the Division of Water Resources in charge of well permitting regarding the county’s unique heritage water subdivision exemption and how it now lines up with new state statutes.
The board voted unanimously to approve the application and to request that staff prepare a resolution for March 14 with three conditions: that the applicant obtains an augmentation certificate for the new lot, that two plat notes be added amending them and include the additional lot in the area that will be served by the community well.
After that complication, it became a straightforward matter to approve the Shaw Ranch Plat Amendment. The motion to approve included the need to reference that the community water system is to be set up from an engineering standpoint, with a resolution prepared for final approval on March 14.
The Run Through Time Application
As part of the review and amending of the Chaffee County land-use code over the past year, the BoCC adjusted its event permitting process and for the first time now allows organizations to submit for multi-year event permits.
During their discussion of a five-year Special Event Permit for the “Run Through Time”, scheduled for March 11, 2023, it was pointed out that this is not a new event, it has a successful record and there have never been problems related to the execution. The event organized by Falcon Events LLC includes a trail marathon, half marathon, and two-mile fun run.
The event runs from 8:00 a.m. to approximately 3:30 p.m. and traverses the Arkansas Hills Trail System and ends in the Salida Riverside Park. The route takes runners through land owned by Chaffee County, the U.S. Forest Service, the City of Salida, the BLM, and Union Pacific Railroad.
Commissioner P.T. Wood recused himself from deliberations due to his family connection to the organizer (Christy Falcon is his wife). Commissioner Greg Felt asked for clarification of who would be assuring that county event standards and procedures were going to be met on five-year event permits, if the BoCC will no longer see them in years two through five, and was told that department staff will be enforcing the procedures and reviews.
“Applicants still need to coordinate with Road and Bridge, Safety, Public Health, etc., so you don’t have to see it, but it still gets submitted to staff, to get the approvals County Planning Director Miles Cottom.
Setting the Recreational In-Channel Diversion (RICD) Days
Every year in March or April, the Chaffee BoCC sends a letter reflecting the eight days in June and the 30 days of the summer when it requests to receive the county Recreational In-Channel Diversion (RICD). These timeframes are when the county exercises its right to a higher cubic feet per second flow rate: 1,800 cfs for the eight days, and sets the 30 consecutive days of a higher 1,400 cfs flow into the Arkansas River.
While a larger discussion of snowpack could be had, usually the BoCC considers the major whitewater festivals of the Arkansas River Valley which are key tourist events. The group noted the major water event dates of the 2023 summer season:
- CKS Paddlefest is May 26-29
- FIBARK is June 15-18
The BoCC decided to request the first eight-day timeframe from the Sunday before Father’s Day (June 11), through the Sunday of Father’s Day (June 18). It agreed to set the 30-day 1,400 CFS for the 30 days of June. Felt made the motion, Wood seconded it and it passed unanimously.
By setting these voluntary flow time frames now, Chaffee County isn’t calling any additional water into the Arkansas River; it is taking a defensive stance against exchanges; those exchanges are the few that are junior to the RFCS exchange agreement.
The final topic of the meeting was the potential abandonment of the St. Elmo Water Rights. Chaffee County entered into a stipulation with the state regarding use of those waters.
“It lets us review to see if its feasible to put in a headgate and a measurement device,” said Chaffee County Attorney Daniel Tom, “We have until December 2023 to do a stipulation of whether or not we want to proceed to perfect this water right. Then we would have until December 2024 – to accomplish that.”
This old water right could be of no real utility, or not — the county hasn’t yet made that determination. But the BoCC unanimously agreed to at least explore this more and to make a determination on what to do with it by August 1, 2023.