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HomeMy WebLinkAboutWater Board - Minutes - 07/10/19920 WATER BOARD NIINUTES July 10, 1992 3:00 - 5:22 P. M. Water and Wastewater Utility Conference Room 700 Wood Street Council/Water Board Liaison Loren Maxey - 482-1202 Staff Suonort Person Mike Smith - 221-6681 Members Present Neil Grigg, President, Tom Sanders, Vice President, Ray Herrmann, Mark Casey, Tim Dow, Paul Clopper, Dave Frick, Terry Podmore Rich Shannon, Mike Smith, Wendy Williams, Andy Pineda, Beth Voelkel, Molly Nortier Guests City Council Liaison, Loren Maxey John Carlson, Water Attorney John Bigham, Agency Coordinator, Northern Colorado Water Conservancy District George Reed, Citizen Observer Members Absent (all excused) Tom Brown, MaryLou Smith, Dave Stewart President Neil Grigg opened the meeting. The following items were discussed: Minutes Tim Dow moved that the minutes of June 19, 1992 be approved as distributed. After a second from Ray Herrmann, the motion was approved unanimously. President Grigg welcomed Loren Maxey, the Council/Water Board Liaison to the meeting. Mr. Maxey said he appreciated being here. Update: Northern Colorado Water Conservancy District John Bigham began by saying that he was sorry he had missed the last few meetings. "Sometimes you just can't cover everything when the District's schedule is so full," he added. Mr. Bigham brought additional copies of the latest District map for those who had not received one at the last meeting. He also brought copies of the summary of participant payments and contractor obligations for the southern water supply project - Carter Lake Pipeline as of July 11, 1992. He said that the District's Board had met today, so he pulled this out of their packet for our Board meeting. "Things are moving very quickly and very positively at this point." The District thinks that the engineer's right-of-way and other aspects of the project are moving as well as can be expected for a preliminary situation. He explained that the District Board discussed three alternate routes today and those routes•will be explored further and the estimates for the preliminary engineering etc., will be determined. "You can read the handout at your leisure for more information," he suggested. Next Mr. Bigham distributed information on east and west slope streamflows (CFS), project deliveries (CFS), and project reservoir storage as of July 9, 1992. In general, there is approximately 84% of the active capacity of storage on the east side, and about 60% at Granby. Storage at Granby is going to be approximately where it was last year. "We thought we were going to be short of what we were a year ago, but because of these last rains, we've picked up a little more inflow, but probably more importantly, we maintained storage because there was less demand on the east side because of the rains," he explained. At Windy Gap, we pumped approximately 22,000 acre feet. Nearly 10,000 acre feet of the water that was made available from Windy Gap to the parent district as CBT, has been rented. The District Board recently approved an additional 4,000 Ac-ft of water that will be made available to rent as of Monday morning. The District expects a large response to the additional rental water. The District didn't think it was worthwhile to try to pump Windy Gap in July "because of the power contract running from one month into another." They would have had to go through one more demand chart, which is expensive, so they pumped for only a 60 day period, and then shut down. Actually, during the early part of the pumping season, they could have pumped with 2 pumps several times, whereas in the last month, there were only two days they could have used 2 pumps because the run-off was a little earlier, and the snow pack was low. The precipitation varied from 1.6 in. in Longmont to nearly 10 inches in the Sterling area in some places. There was considerable damage in the Sterling area and Sedgewick County. Two of the District directors in that area said that some of those storms were 10-20 miles wide and 60 miles long, very powerful storms. 2 Neil Grigg said that Larry Simpson was quoted in the Coloradoan yesterday as saying that the denial of Two Forks is going to really impact Northern Colorado. Is there anything new on that? "The unfortunate thing about,the article is that he hasn't given the speech yet," Mr. Bigham responded. The interviewer happened to be a media person who was talking to Mr. Simpson prior to his speech, which he will deliver tomorrow. The only comment he made was, because of the veto of Two Forks, there is going to be a larger demand. His speech doesn't really contain anything new. Dave Frick asked if Windy Gap water is selling for $16.00, and Mr. Bigham answered yes. President Grigg thanked Mr. Bigham for his report. U.S. Forest Service's Re -issuance of Special Use Permit for Joe Wright Reservoir Mike Smith reminded the Board that at the last Water Board meeting, they requested that staff have someone from the Forest Service come to the next meeting and explain why they want to require the City to release water out of Joe Wright Reservoir. "Austin Condon will be joining us at 4:00 to do that," he said. Prior to his arrival, our attorney John Carlson will provide background on the situation, and respond to the Board's questions and concerns. Mr. Carlson has helped the Utility with numerous issues relating to Joe Wright and the Michigan Ditch, and most recently with the Forest Service permit issue. Since our last meeting, Mr. Carlson has filed an appeal for the City, because the Forest Service was slow to act, and the permit expired. "We'll begin by asking him to give a brief history of the issues." Mr. Carlson began by saying the Joe Wright Reservoir is an old reservoir that was enlarged in 1976 by the City of Fort Collins. It was built in the first decade of this century. The original water right dates from 1904; that's the date of the appropriation. The national forest up there was created in 1905. The reservoir was apparently finished in 1908, and it was finished to about 800 Ac-ft capacity. The then owners of the reservoir, agricultural users, obtained a right-of-way from the federal government for that original reservoir under the Act of 1891. "I believe that right-of-way for the original version of the reservoir is still in existence and valid." When the City acquired the Michigan Ditch back in the 70s, it was clear that the City needed storage capacity to regulate that trans -mountain diversion out of North Park. In the middle 70s the city applied for a small water project loan from the Bureau, obtained that, constructed the reservoir, went through the environmental processes the law required, and obtained the necessary permits to construct and operate Joe Wright Reservoir. That original permit was issued; there are a whole series of conditions about the operation of the Reservoir issued pursuant to the Federal Land Policy and Management Act of 1976. There was massive environmental investigation of the Reservoir. There were suggestions that there be a permanent pool at the Reservoir and that was done. The permit was issued, and in due course the Reservoir was constructed. The original permit for use and occupancy of K National Forest Service lands, over and above lands occupied by the original reservoir, had a life of 10 years. When that permit was expiring, the City requested that the Forest Service reissue it, and they said: "We will, but first there are issues we need to deal with; it will be reissued, don't worry." Mr. Carlson said when he was involved in the Excalibur case, he became concerned that the Forest Service wasn't re -issuing or hadn't re -issued the permit, because Excalibur was saying that we didn't have a valid permit. At that time we asked the Forest Service to issue us an extension permit, which is what we operate under now. "It's a funny kind of extension permit," he said. It says that it's good through the year 1989, or until they issue a new permit. We've taken a position, and they seemed to have agreed, that it's still good because they haven't issued a new permit. In the meantime, we had the sense that the Forest Service was changing its position somewhat, and they began saying that as a condition of the permit renewal, there should be imposed on the operation of the Reservoir a requirement that the City release natural inflows during the winter months, perhaps even stored water, to sustain a flow level in Joe Wright Creek. There are a whole series of reservoirs up there. The Forest Service said they wanted a winter time release and a summer time release, and wouldn't the City offer a suggested number for that? Mike Smith and his staff met with the Forest Service a number of times and Mr. Carlson met with them, and staff and Mr. Carlson said they didn't think a winter time release was appropriate. After all, this was a renewal, the Reservoir was in place, and it didn't seem fair, just or necessary to impose new conditions on the operation of the Reservoir. In the meantime we learned that this seems to be an issue of peculiar significance and importance in this particular national forest. Greeley, Boulder, Water Supply & Storage Co. and perhaps Loveland are experiencing some of the same requests. They have largely much older reservoirs, some of which are perhaps no older than the original Joe Wright Reservoir, but their reservoirs haven't been rebuilt and enlarged as recently as Joe Wright. Apparently they also are all being requested to forego some of their water rights and make releases for instream flow purposes. One of the curious things is that this seems not to be happening in other forest regions elsewhere in the country yet. "I have made quite an investigation and I can't find other places where it's been done," he explained. It is quite common when a new structure is constructed on Forest Service land, to require a whole series of conditions, but so far as Mr. Carlson can determine, it hasn't been a policy m any national sense, to go back on existing structures and "redesign the wheel." That seems to be what's going on here, and the spearhead effort seems to be this particular region. Mr. Carlson thinks Mr. Condon is the architect of the policy, along with someone from the Forest Service general counsel in Washington --"a man named Stewart Shelton, whom I know and have great respect and admiration for," he added. The Forest Service started giving the Utility draft permits about three years ago, and the Utility commented on them, and according to Mr. Carlson, "there were some really quite ridiculous conditions in them." We would meet with them; they would go back, and six months later they 4 would provide another draft, and no one seemed to think the process was moving very fast. Mr. Condon told us that the Grand County Water & Sanitation District had litigation pending as to whether the Forest Service can impose these conditions, and he said "when a decision is made we'll use that as a precedent." Since Fort Collins was not a party to the litigation, we agreed to postpone the process and wait for the outcome of that litigation. Suddenly this spring the Forest Service became eager to address the issue. Mr. Carlson said his hunch is that the reason for their zeal to address the issue with Fort Collins has to do with the fact that Boulder, Loveland and Greeley wrote a letter to the Congressional delegation complaining about the Forest Service policy, saying it was inappropriate and unfair. Senator Brown and Rep. Allard have been quite adamant that this is an inappropriate Forest Service policy, and it shouldn't be adopted. Mr. Carlson thinks the Forest Service put these things on the fast track in the hopes that they could get it all resolved before political considerations made them back off. "Senator Brown, I believe, has been very firm with them, and continues to meet with them, and has met with the chief of the Forest Service and has expressed his displeasure." Bennett Raley, who used to be Associate General Counsel for the Northern District, now works for Sen. Brown. He has taken this project on, and has taken an acute interest in it. He is a highly qualified, intelligent and able man, and he understands exactly what's going on. He's been to Fort Collins a couple of times asking people what is happening, and has asked for information that would allow Sen. Brown to go to the Secretary of Agriculture's office and see if this can be re -adjusted. "I suspect, in the meantime, at Austin Condon's level, there is a hope that they can get it all resolved before the Secretary actually gives some kind of instruction contrary to what this particular forest, Mr. Condon and maybe Stewart Shelton want to do," Mr. Carlson continued. The City of Fort Collins has taken no formal position in this because City policy, he thinks, is that those kinds of political activities are handled by the City Council. "We've tried to discuss with them what is going on, but we haven't requested any particular help from Sen. Brown, but his office has been very kind to tell us what's going on, and asked us to share with him what's happening to us, with the understanding that we're not asking for anything," he concluded. In May, the City received two letters from Skip Underwood; "I think one of them was signed by Mr. Condon for him, or least by one of his assistants, regarding questions we had raised on the permit." They answered several different questions satisfactorily, and assured us, for example, that the City didn't need to buy liability insurance, that it could use its self insurance program to pure that there would be liability coverage. Then in a second letter, dated May 8th, they said they would be glad to meet with us again, and hoped that we could resolve these issues. On May 14th, before we had responded to the previous letter, we received a draft permit from the Forest Service that wasn't labeled draft. It said please sign and return. We then tried to find out from them whether this was a final decision. The permit did a couple of interesting things: it said "we're not going to require you to have a winter release right now." We had 11 explained to them that Joe Wright, when it was constructed and built and designed, (they approved the design) wasn't designed to pass low flows on a very measurable basis. The outlet works essentially freeze up. It's at 10-11,000 feet altitude, so you can't operate the gates up there at that time of year. We must have spent five meetings with them, and generated considerable correspondence. We submitted that data to them to show them that we couldn't meet the conditions. They wrote back on May 14th and said for the time being, they would not demand a winter time release, but the City should be advised that at the first practical opportunity, when it came to the Forest Service's attention that the City was going to have to do work on the Reservoir, they would require us to change the outlet works. "The funny thing about having made that seeming concession, was that, in the draft permit, the Forest Service said that a stream flow bypass would be required from March 15th through November 1st at the rate of 5 cfs of time. It's still winter up at Joe Wright Reservoir long after March 15th, and the gates are not workable then, so it wasn't a meaningful concession," Mr. Carlson continued. It's obvious that the City can't, in reality, comply with that particular condition. Mike Smith has related that there have been years when as late as June, it's still frozen up there. The Forest Service also said, you will never release more than 95 cfs through the structure. We pointed out to them that "if the good Lord creates a condition where more than 95 cfs is coming in, and the Reservoir is full, it's going to go out." Second, if the call on the River is such that the 95 cfs is owed, we have to release it. With respect to the 5 cfs, we again said two things: first, we didn't think it was appropriate for them to pose that bypass condition on an existing structure and second, that the imposition of it ignored the fact that Joe Wright Reservoir's original decree predated the creation of the forest for 800 Ac-ft, and storage should be allowed under that decree and that right-of-way, because the right-of-way had never been surrendered; it's still in existence. We hoped to hear back from them with some sort of amelioration. We also then said to them, "we're not sure whether or not this is a final decision that you have made, and please advise us whether or not it is, so we can try and work this out." We never heard anything from them. If indeed this was a final decision, some sort of an administrative appeal, if you will, or a sort of request for review on an administrative level, was required as of June 29th. Mike Smith spent many hours on the phone that prior week trying to get them to respond. Apparently nobody was able to respond. We then submitted a notice of appeal under the administrative code, and asked the regional forester to review this decision. "We stated the grounds which I have essentially gone through with you here." That's the current status on the issue. We're waiting word from them as to whether they think this is in an appeal posture, or whether they are going to write us and say; "we don't think an appeal is necessary." We advised them if they would confirm that a final decision had not been made, we would of course withdraw this and continue to try to discuss and work it out. Mr. Carlson pointed out that Mr. Condon's theory is: "The Forest Service is not seeking a water right. We are only trying to follow the Forest Management Plan, which was mandated through 6 Ll the Forest Management Planning Act passed years ago by Congress." He also pointed out that elsewhere in the Country, forest supervisors have taken the position that the Forest Management Plan is a broad schematic, programmatic goal, and not a mandate in the kind of way that Mr. Condon is saying here. Mr. Carlson related that Sen. Brown's Office is working through the NCWCD, and the District has been very gracious and helpful trying to work with the Senator's office, and call to his office all pertinent information. Greg Hobbs and Bob Trout and Larry Simpson have all taken quite an interest in it. "That's where we are so far," he concluded. He then asked for questions. Tom Sanders said he believes that the obvious solution is to let the Forest Service treat the bypass as a water right, and let them buy into it. Why isn't that an option? he wondered. He calculated that the cost of the 5 cfs would be between about $500,000 and $1.5 million of actual loss of property, if they require the City to do this. Mr. Carlson responded that Dr. Sanders' analysis is absolutely correct, but Mr. Condon will say: "we're not acquiring the water right — we're just protecting the bio-aquatic life that exists there, and that's our purpose." Neil Grigg asked if staff has quantified the 5 cfs. "Would that be an upper end loss, or have you looked at how much water we would really lose?" Staff has calculated that it would be about 500 Ac-ft. out of the 5,000, and about 260 Ac-ft in safe yield. Tim Dow added, that's assuming we can deliver, it doesn't include the cost of extra construction. Dr. Sanders said he wasn't talking about that. John Carlson pointed out another important element. The Poudre Valley has been unique in Colorado in that it has had a long history of a great deal of internal cooperation, prior to Thornton coming up here. Fort Collins has a program of storing water high in the reservoir out of priority, and saving it for release later. It's good water management; it's efficient; it minimizes the need for the construction of additional facilities; it minimizes evaporation, so there is storage in Joe Wright sometimes that Fort Collins has to let go to other downstream calls. Sometimes, as often as not, that water is not needed downstream, and it reverts to Fort Collins. That quantity is extremely hard to quantify, and is very much threatened by the proposed action of the Forest Service. "I suggested to Greg Hobbs yesterday to make a point with Sen. Brown's office that this management that the users have cooperatively worked out here, may be threatened." Tim Dow asked what's the basis of the authority for changing the terms of the requirement. Mr. Carlson replied that the FLPMA says that permits are issued for a term of years and when the Forest Service examines them, they impose such conditions that are required. Austin Condon relies on that for provisions. There's also a condition in FLPMA that says that FLPMA will not impair vested water rights. We say the Forest Service is ignoring that. They are really taking our water rights by doing this. Secondly, we say the forest was created originally, and is still under statute for multiple use, and a primary purpose of the forest was to aid water use by entities such as Fort Collins to accommodate that. Now they are trying to take something 7 back in derogation of that primary purpose. They say, "we're not taking everything." The scary thing for Fort Collins is that their permit will have another term of years. "The Forest Service told us that they will at some point, be requiring modification of the outlet works, and who knows what the next round of conditions will be?" he stressed. There is some amount of existing storage space, and yield of water rights associated with it, that the City would lose by virtue of accepting this permit condition. Tom Sanders asked if that 5 cfs has to be on just that 6/10 of a mile right out of the outlet works? Mr. Carlson replied that with that 6/10 of a mile there is some drainage through the toe of the dam that is seeping, and maybe 100 yards down from the Reservoir, as he recalls, there is a little side tributary that has some substantial flow, and it keeps the stream alive, essentially. Fort Collins tends to release water from the Reservoir in times of low flow, but what the Forest Service is wanting to do, he thinks, "is stop us from ever storing when we are in priority when the flow is low, and that can bite you." Where is their data for the 5 cfs? Tom Sanders continued. "They have not furnished it to us," John Carlson responded. "What they did was go to the State Division of Wildlife and got their R2 Cross (It's the methodology that is used by the DOW in establishing state minimum stream flows for filing by the Colorado Water Conservation Board.) Paul Clopper added, for habitat. They gave us the numbers, and we requested the underlying data, but that has not been provided. Mr. Carlson stated that the Forest Service has denied that they're trying to go back to virgin conditions. "They don't want to acknowledge the existence of the small Joe Wright Reservoir," he added. Paul Clopper asked what a typical release series looks like in an average year in Joe Wright with respect to this 5 cfs as far as the Reservoir is concerned? Andy Pineda gave an example. Normally, once the Michigan Ditch starts up, we're storing that water in Joe Wright. Basically the gates are closed at that time. In late to mid June we start passing the ditch water through, so there are some pretty good flow rates at that time. Right now we're passing 25 cfs through, and still holding the Reservoir storage the same (Joe Wright capacity is just under 7200 Ac-ft.) Inter on in the summer, we will get our exchanges made out of the Reservoir, and typically the people that take those exchanges, take them at a fairly constant rate; normally between 50 and 75 cfs per day gets released out of the Reservoir. Normally they'll take that up through about the third week in September. That can change from year to year, but that is usually the typical pattern. "We usually don't get started up there until at least mid -May," he pointed out. Dr. Grigg asked if there is any relationship between the philosophy the Forest Service is pursuing and the Reserve Water Rights case? "In a way, yes," Mr. Carlson replied. During the Reserve Rights case, they said they identified points of flow in the stream where they would make a claim. They suggested that Fort Collins drop out of this case because the Forest Service was not claiming a water right on any point on the Poudre River system below Joe Wright Reservoir, so Fort Collins was not imperiled by the water rights claim. "We said that's correct, and we verified that we weren't, so we did not spend any money on the case." Neil Grigg asked if the Forest Service has tried to determine what the environmental good of this is, and the benefit in terms of a fishery. "We have asked them to try to articulate what good they think would come of it, and there have been no data or studies forthcoming." Their most recent response was, at one point, "if you think that it's not harmful, why don't you do an EIS and show us that?" Dr. Grigg asked if we have any analysis of what the benefit is. Mr. Carlson answered, "No, we have not undertaken scientific analysis." Neil Grigg verified that staff has looked at how much we would lose in safe yield, and that was 260 Ac-ft. Tom Sanders wondered what would happen if we don't sign the permit. Mr. Carlson said if we don't sign the permit, we either have to appeal or, theoretically, we have to remove our structure from the forest and restore the lands, because we would be a trespasser. He continued by saying that we are at a point that we have to reach a solution. If there is a final decision that the City ultimately determines is unacceptable, then the City would have to pursue an appeal, and if it loses the appeal, it would have to comply. Dr. Sanders asked if we could go to court. "Yes, you could go to court," Mr. Carlson replied. Dr. Sanders also asked if there are any political groups like Friends of the Poudre, starting to step on the bandwagon to support this. Mr. Carlson said he didn't know of any. "I don't think thus far that the Forest Service has generated any constituency out there." President Grigg welcomed Austin Condon to the meeting. Mr. Condon began by saying that he wanted to make it clear that "it's not his job to antagonize and aggravate as many people as possible in the shortest amount of time. I don't think we're that far apart," he stressed. In 1990, during the process of reviewing the City's permit, the Forest Service met twice with Mike Smith and his staff, and John Carlson. "The first time we had a very preliminary draft; the second time we had one that was pretty close," he recalled. At that time the Forest Service was just getting involved with a couple other water users: namely Grand County Water & Sanitation on the Western Slope, and the City of Boulder on a pipeline issue. Fort Collins didn't have a permit; it had terminated in 1987. The City was self insured. It didn't seem that the Forest Service was that concerned about having the City's water system up there. "We weren't making any threatening actions to make you pull the dams out, or anything like that," he stressed. In the City's June 17th letter you indicated that one of the things you were a bit surprised about, was that we presented you with a permit, "when the latest discussion I had with John Carlson and Mike Smith was we weren't all that concerned about it." The Forest Service just thought it was about time to review the permit. "We had an exchange of letters on the permit, and we thought we were close enough at resolving the issues we talked about before, so I sent you a permit." "It was my intention that you would find the permit acceptable and would see your way clear to sign it," Mr. Condon stated. After reviewing the City's letter of June 17th, and also the appeal that was filed, Mr. Condon said he could understand why the City chose not to sign it. There were several points in that letter on which "I think we need to make some adjustments." 9 The Forest Service had fully intended to avoid the period of icing on Joe Wright Reservoir, Mr. Condon continued. It was not our intention to require any flows through the structure when icing was a problem for you. We have always tried to make it clear that our interest is only in native water, not the water imported through the Michigan Ditch. He pointed out that generally they don't deal with those kinds of things in permit language itself. John Carlson has raised the issue that probably in this case, it would be a good idea. "I'm not adverse to that; I think we can draft some language that would make it work," he concluded. He went on to say that maximum flow is another issue that they always seem to have a problem dealing with. Our permits, as with any contract or agreement, deal primarily with the normal routine. There are always those unexpected emergency situations that are difficult to cover in any kind of a document. Those would be the emergency situations that would require opening the gates all the way and releasing the pressure behind the dam when influent's coming in. The 95 cfs is a maximum flow; it's what we measured as being bank -full discharge in tributary load reservoirs. We recognize that your outlet works are designed to release a passive flow of 300 cfs. "I imagine that 300 cfs is probably calculated on a maximum flood event with a good margin for safety. We understand that." It was not the Forest Service's intent to preclude you from releasing water as a result of safety measures or other contingencies. What we want to recognize is, as a part of routine operations, we don't want to see the releases exceed the natural capacity of the channel, he related. Mr. Condon prepared some briefing information for the Board. One document was a general briefing paper that discusses bypass flows specifically, some of the reasons for them, and how the Forest Service sees them. The other document he brought was a briefing paper that was familiar to both John Carlson and Mike Smith. It is the one that they have used over the last three years to provide information on authorities and the legal aspects as the Forest Service sees it. "I am aware that your Council takes a different view on it," he said. Mr. Condon said he would go through the documents to provide a quick overview. President Grigg said that would be worthwhile, because they are the kinds of issues the Board is interested in: the benefits of this, what it will do for us in terms of water management flexibility, and what the Forest Service has done in terms of hydrologic studies. We're also interested in the authority and procedures. Mr. Condon encouraged the Board to ask questions as each document is discussed. Mr. Condon explained that in the Forest Plan before Roosevelt and Arapaho National Forest Management Plans were approved back in 1984, there were a couple of sections dealing with water and wildlife, and with expected or projected population growth, and demands on resources in the national forest. The forest plan is quite lengthy, he stressed. The Forest Service had not reviewed the Forest Plan previous to that question on whether water had been an issue, and they subsequently discovered that it had been an issue. In fact, there was quite a lot of discussion in the Forest Plan on water. "We even made the prediction at that time that the question might have to be 10 settled in the courts; that the issue would be hot enough, and that there would be enough differing interests, that we might very well have to go to court to settle the issue," he related. One of the problems that we anticipated was that the situation of overappropriation of the water rights system would lead to a continuing drain on the natural flows, or residual flows of the systems, and that it was going to create a problem for us in maintaining fisheries and the ecology of our aquatic habitat. In our Forest Plan we dealt with the idea that on renewal of special use permits, per municipal and private water systems, that they would have to include some conditions that would limit how those facilities would operate in the future. "Since this was done in 1984, have you checked your predictions?" Terry Podmore asked. "Yes," Mr. Condon replied, "and it is occurring." Generally what we have found is that currently we don't have that many systems that are under severe stress because of diversions from the system; there are a few. Joe Wright Creek doesn't seem to be one of them right now. Generally, the communities have not been making demands on the full ability to draw from those systems, or in the timing of the draw from the systems. As a result, your operations have coincidentally maintained the aquatic habitats and the fish habitats in the interim. We anticipate though, as the communities continue to grow, and you adjust the timing of how you release your water for when you're going to need it, that may not always be the case. You're not always going to have the operation that is going to be consistent with the natural needs of the channel. "Following up on the Board member's question," John Carlson began, certainly it's true on Joe Wright Creek that there are no new diversions, and as a general matter isn't it true on the forest, that there are no new substantial municipal or other kinds of diversions under any sort of post 1984 water rights?" Mr. Condon replied "no." What's happening is there aren't any new structures, but there are changes in the way the existing systems are being operated that are then changing the residual amount of water that's left in the stream at any one time. He used Boulder Creek as an example. The City of Boulder and Public Service Co. between them, have a number of sources of water. At certain points during the year, they basically shut off the outlet gate at Barker Dam and the main stem, Middle Boulder Creek, which is dry from Barker Dam down to the power plant. That doesn't happen all the time; it happens as there is the demand for power, and the demand for water, and as the City and the Public Service Co. decide to utilize Middle Boulder Creek rather than some other creek. Dave Frick observed, "but that's diverting water out of the creek." Mr. Condon replied, "That's right." "But we aren't doing that," Mr. Frick responded. "No, but sometimes you're holding it," Mr. Condon asserted. "We're only holding it to the capacity of the Reservoir; the capacity's not changing," Mr. Frick pointed out. "But if you're holding it at a time when the process of holding is not letting sufficient water go past that holding, that depletes the ability of fish to exist below your structure," Mr. Condon countered. "But when you do that you're abrogating a right that we bought and paid for," Tom Sanders insisted. Let the federal government buy the right. "We don't believe we're doing that," Mr. Condon asserted. Two federal courts have held that water rights are not in conflict with conditions of land use on federal land, or even many state courts have held that a water right 11 doesn't bring with it the right to use any incumbered property across which the water is transported, he continued. Dr. Sanders said, "you're citing cases I don't know anything about, but I do know 5 cfs is worth $500,000 to $1.5 million; that's how much it cost us to develop it, and that's how much it would cost us to replace it." If you're talking about replaceable rights, like they do in real estate as eminent domain, there is a legitimate basis for this. "To release that water at your timing, not ours, abrogates our right to meet our water needs and calls downstream, Dr. Sanders contends. "I think there could be a reasonable way that you could buy into the system, and use it as a water right," he concluded. "What the Forest Service believes is that, as part of using the public's land, that you have an obligation to minimize your adverse effects, and that means not having a severe or unreasonable adverse effect on fish life and aquatic systems," Mr. Condon asserted. "If our dam weren't there, there would be no fish in that part of the river --there wouldn't be flow at all," Dr. Sanders emphasized. This is one of the questions that we would like to probe --what studies of aquatic life have been done?" Dr. Grigg asked. "What we do in determining the fishery, and the numbers we include in the permit came from the DOW. We did not create those numbers," Mr. Condon replied. "We understand they have a standard methodology," Dr. Grigg remarked. Mr. Condon pointed out that the DOW didn't apply it; they had it already as a part of their records for Joe Wright Creek. President Grigg paused to point out the expertise of the people gathered around the table. "First of all, they are all environmentalists, or they wouldn't be here," he smiled. We also have several hydrologists; engineers that apply these methods, and know a lot about these methods. It's our understanding that basically that number came from the application of IFIM (?). It came from R2 Cross, Mr. Condon replied. "Isn't it similar?" Dr. Grigg asked. "No, it's not similar at all. As I explained earlier, R2 Cross is a system that takes into account strictly the channel morphology. It takes the cross section of the channel and it has three or four parameters: wetted edge, depth, pool and ripple ratios, and there may be others, he explained. "I admit I am not a hydrologist or a fisheries biologist or an engineer." What he understands the Division of Wildlife does, is take the channel condition and calculate how much water is needed to fill that channel to various levels that will support fish life. They have various categories for that too. They have minimum flows, they have maintenance flows, and they have flows that would be best termed enhancement flows. Dr. Grigg said the Board can accept that as a method that has been applied. What we were wondering about earlier was whether some studies had been done on how much fish life or aquatic resource was sustained historically up there at all. "I can't tell you that, but we can find out," Mr. Condon replied. The DOW maintains an inventory of fisheries, streams that they believe to have a significant fishery within them --Joe Wright Creek is one of those. There are some streams that they do not have in their inventory where we have projects developed on forest land. When that occurs, they go out and check. They hadn't determined that for Joe Wright Creek. We made a request that the Dow tell us if Joe Wright was a stream that had a fishery in it, and give us a recommended number, and they did that. Neil Grigg wondered when they say significant fishery, do they mean historically a significant fishery; pre -development? 12 "I would hate to put words in their mouth, but I would presume so," Mr. Condon replied. When that evaluation is made, is there an elevation limit above which that fishery does not exist? Terry Podmore wanted to know. Mr. Podmore and Mr. Condon engaged in the following dialogue: "Basically it's wherever they have found fish," Mr. Condon replied. "But if you say Joe Wright Creek, that's the whole thing —its a spatial variable," Mr. Podmore continued. "They gave us the point at your facility," Mr. Condon explained. "Does your R2-Cross take elevation into account?" "No, it takes the channel at that point in." "But we're also looking at fish conditions." "Right --realistically, the higher in elevation you go, the more water you need in a channel, or the deeper you need a channel to be relative to its width. Because of icing you need more pool area. Pool and ripple ratio become more important for winter time, but as I pointed out earlier, I am not a fisheries biologist." "What if that condition has not historically existed?" "There have been fish in Joe Wright Creek historically. That's what Fish & Wildlife has told us." "At the location we are discussing?" "Yes," Mr. Condon answered. John Carlson interjected, "Prior to 1905? I think they were talking about fish being there because of the water coming in from North Park. I've heard a lot of testimony from people to the effect that, in those high altitudes, you don't have a native fish population. What you have is a "put and take" fishery that's created by man. Is it the Forest Service objective to sustain a put and take fishery here?" Austin Condon replied: "No, no, in fact our objective is to maintain a naturally reproducing fishery. If it were a put and take fishery, it would be all right to allow the stream to be dried at certain times of the year. That is not the standard in our Forest Plan. The standard in the plan calls for a naturally producing fishery." Terry Podmore wanted to pursue this subject further by asking an hypothetical question. "If it could be shown that there was no natural fishery, could this stream bypass be waived?" Mr. Condon replied that the Forest Service could probably construct a rationale to do that. "Politically and publicly, I don't think it would probably get past the appeal process," he stressed. Mr. Podmore asked why. "Because, if you have created a fishery, and it's now established, if the City says 'we're going to destroy it,' politically that probably is not going to be accepted," Mr. Condon asserted. "But, that's not in your plan --you just said so," Mr. Podmore countered. "That's not what I'm saying," Mr. Condon insisted. "We could probably construct a rationale through an environmental analysis process, and do that. What I'm saying is, there are others out there in the public sector, who will probably call us to task for that." Mr. Podmore asked "why under those circumstances, wouldn't you support what you just did?" "Oh we might," Mr. Condon replied. "We could probably construct that rationale if we came to that decision." However, others to whom they have to answer, would probably take issue, he said. "You say others. Do you mean other agency people?" Neil Grigg asked. "No, I'm talking about Trout Unlimited, Sir Isaac Walton League, Audubon Society, folks who are beginning to show a real interest in the bypass flow restrictions," Mr. Condon responded. Terry Podmore contends that that part, assuming the scenario goes through, is not the City's problem; it's the Forrest Service's problem. "No, that would be your problem. We would be responding to your request," Mr. Condon asserted. Terry Podmore responded: "You've just said that you could agree to a construct that would avoid the bypass." Mr. Condon replied, "at your request." Mr. Podmore countered: "Yes, but you've just agreed to it, under hypothetical circumstances, 13 okay?" "That's right" Mr. Condon replied. "Then it's up to you to defend that to these other entities," Mr. Podmore maintained. Mr. Condon insisted that the Forest Service doesn't defend somebody else's proposal. "It's not somebody else's. You defined the construct under this set of circumstances," Mr. Podmore pointed out. Mr. Condon explained that when someone applies for something and says "we want to use national forest land," they are fully responsible for defending and rationalizing their project. All we do is analyze it, disclose to the public what the effects are, and come to the conclusion whether it is consistent or inconsistent with our Forest Plan. "Under the hypothetical scenario that you just constructed, what I said was, we could construct a rationale that says we could find that it is consistent with our Forest Plan. It would still be your responsibility to defend your proposal to the public and others, that you intend to dry up the Creek, or to reduce the fishery; not us, we won't do that. We will not defend your proposal," he concluded. Tim Dow asked if, under the same rationale, shouldn't it be your burden to convince us of the real need for this, and the real benefit for it, since you are changing the terms of a pre-existing permit on which we have relied and spent several million dollars? "In your special use permit there is a clause that says you only have the right to use the national forest for a certain period of time," Mr. Condon began. "After that period of time, the permit (which you signed) says that you would agree that we would be able to make changes in that permit for the next term, and that's what we are doing." The Forest Service will then make it consistent with their existing Forest Plan, conditions of use, regulations, laws, etc. "It seems to me that the Forest Service is perhaps dealing in a very theoretical realm, because there doesn't seem to be any evidence, that we know of, that there was ever an historical, natural fishery in that area," Mr. Dow remarked. It almost seems like the Forest Service and the Division of Wildlife have a presumption that since there is a creek, of whatever size and volume, we are all going to pre -suppose that means it's a natural area that had fish and aquatic life, and merits protection. "It seems to me that if you're the one who wants to preserve that, you ought to establish that as the case," Mr. Dow concluded. "We believe we already have, because it's in our Forest Plan," Mr. Condon replied. "Is it really my understanding that the City is proposing to take whatever existing fishery may be there, and has existed for the past 75 years, and over future years, erode it until it no longer exists? Is that what you want us to do in an environmental study?" "To the contrary," John Carlson responded. "There has been a reservoir that was first appropriated in 1904, and that reservoir periodically dried up the stream, and you know that's true. In 1976, the Forest Service approved a new reservoir, and that has been in place, and it periodically, like the old reservoir, dries up the stream. I don't think the City has proposed any change whatsoever." What the City is proposing is "let's carry on the way we've been doing things. I think what you're suggesting is to go back to some pro- 1904 condition." "No, we believe that it's time to take a look at the situation and adjust your operation so you no longer periodically dry up the stream," Mr. Condon responded. Dave Frick asked if in 1984 there was a naturally reproducing fishery along Joe Wright? "I don't know." Mr. Condon answered. "Then how can you say that you're trying to maintain the 14 Forest Plan if don't even know that you had a fishery there?" Mr. Frick asked. "Because we have a naturally reproducing fishery there now, and that's what we are stuck with maintaining because it's the current condition in the forest," he replied. Mr. Frick asked if we have minimum flows now. Mr. Condon said, "no, we don't have any in the permit." Mr. Frick explained that the City has no minimum flows. The City is maintaining a naturally reproducing fishery now by shutting the gates at Joe Wright Reservoir, and not maintaining minimal flows. "What we find is there has been some seepage," Mr. Condon pointed out. Mr. Frick said the seepage can't be stopped. Mr. Condon responded that it can also be calculated as part of the bypass flow. Dave Frick presented the following hypothetical scenario: "Let's say we agree to minimum flows. As a result, Joe Wright Reservoir yield goes down, so our reservoir dries up more often. Are we going to get stuck with the fact that we have a naturally reproducing fishery that we are going to be killing off periodically in the Reservoir, to have flows downstream that already has a naturally reproducing fishery?" "Is that your concern, that the Reservoir is going to dry up? That has not been presented to us at any of our meetings," Mr. Condon responded. Our analysis shows our water yields go down, which means that we're going to be drying up more often due to of our lack of ability to use that water, because we aren't getting as much water out of there. "Don't you have a recreation pool; a wildlife pool reservation in Joe Wright?" Mr. Condon asked. Mr. Carlson explained that the City maintains a permanent pool there, but it's filled in peak flows. "We don't ever draw against it, so that means, as a result of your proposal that we couldn't store as water becomes available. We've already established the permanent pool. We may need part of the bypass flows to sustain the permanent pool," he concluded. "Going back to a question that Mr. Frick raised, let's use another hypothetical situation," Mr. Carlson continued. "Let's say that the fishery up there, if it's a fishery that you are concerned about, was created by man's activities; namely the trans -mountain diversions and the existence of the Reservoir. Isn't it sort of odd to say then that there should be bypass flows because these structures that Fort Collins constructed are the ones that created the fishery? I don't think you're going to find anybody that will say to you that you could have a natural sustaining fishery at 11,000 feet in altitude. I'll tell you why I said that." One time this issue came up in western Colorado, and the people over there retained some fishery experts from the University of Idaho that spent their lives working for the forest service. Their conclusion was that you couldn't sustain a natural fishery at that altitude in Colorado. "I think that's pretty much accepted fact." Mr. Condon reminded Mr. Carlson that in the process of the City's appeal the Forest Service waived the wintertime bypass flows. Mr. Carlson said, but only for the time being. "Yes, for the time being," Mr. Condon acknowledged. Mr. Condon also pointed out that in the appeal there was the indication that sometime or other, the Forest Service would require the City to reconstruct the dam to provide for the wintertime flows. "That's not the case," he said. "What we had intended to say, and I thought our letter was clear on that, was at some point, when you find the need to re -construct or do major work on the Reservoir, and as a result could incorporate the winter time flows, that's the point at which we would require those flows." Tom Sanders pointed out that he didn't think that could 15 be done at 11,000 feet in the wintertime. If there is the capability to do that, would the federal government provide the extra money for it? he asked. "Oh no," Mr. Condon replied. "We feel that's your responsibility." Mr. Condon then went on to explain the fishery question. "We have to take the existing condition and assess the effects of your proposal on that condition," he began. Then we make a determination as to whether that is consistent or not consistent with the standards in the Forest Plan. We can take your application, which would basically be your letter asking for a new permit for the facility, and do the environmental assessment. Without accepting the current permit, that's what we would propose to do. You would have the opportunity to provide input, just as other members of the public would have, on what you see as the effects of Joe Wright Reservoir on the natural environment up there. "Then we would go through the analysis process, and it's quite possible that if, in your input, you provided us the information that said there was no existing fishery prior to your project, that it has been your project that has been maintaining artificially, a fishery up here, it's possible that we could come to a conclusion that it is a reasonable result of the analysis. Then we could offer you a permit that wouldn't have bypass flows." Mr. Condon is certain it would be appealed by members of the public. Neil Grigg asked who would be the decision -maker in that appeal process? "That would be the Forest Supervisor," he said. Dr. Grigg also asked where the appeal would go above that person. "The Regional Forester," Mr. Condon replied. "You're talking about an administrative process all along?" Dr. Grigg added. "Today that's the process," he replied. Mr. Condon pointed out further that the Forest Service is in the process of re -doing their appeals regulations to make it more difficult to file an appeal against a decision by the Forest Service. "We anticipate that change will probably increase the amount of court activity, but decrease the number of frivolous types of appeals," he stated. Tom Sanders pointed out that the City's action would not be frivolous. "We have spent a great deal of money to protect our rights up there, and I feel there is justification to fight the Forest Service conditions to renew our permit," he asserted. Tom Sanders asked if the Forest Service is going to look at the scenario of what happens if we don't do this bypass. Are they also going to look at what happens if we remove our dam? Mr. Condon said they could. "Generally that is one of the alternatives when we get into an environmental analysis." he said. Tom Sanders commented that if we did remove the dam, that would mean that up to 5,000 Ac-ft are not going to go down that river at all. "Do you think that there would be sustainable fish life in that case?" Mr. Condon said he has maintained all along that we have the ability to have a Wild and Scenic River in the Poudre because we have storage facilities at the top, and importation of water that provides a steadier flow of water down the Poudre all the time. "We're not talking about whether it's beneficial or not; you're not going to get me to say anything other than that the diversion projects and storage projects at the head of the Canyon have been beneficial to the Poudre," he emphasized. Mr. Condon went on to say that we're not talking about all the good things that have come as a result of all the activities in the past. What we're looking at is trying to find a reasonable way 16 to maintain those good things into the future. "You know the demands that have been made on your system over the past 10 years, and how the pressures on your water supply system have changed during that time. You're going to continue to have more demands on that system." What the Forest Service is trying to do, he said, is find a reasonable way to put into place a way to assure that, as those demands continue to increase, that the system up there, whether it was created by man, whether it was augmented by man, whether it has been allowed to exist by man, whatever, that it is not destroyed and eroded away because our communities continue to develop, and continue to make drains on them. "If we don't develop a course of action, we won't have a fishery on any of the streams. They'll put dams across every one of them, and we will continue to lose and have an erosion of our aquatic systems and our fisheries. I don't think you want that to happen. I also don't think you can remove man from the eco-system. I don't know whether you can say that a fishery that has existed for 86 years, isn't natural now. Man has always been a natural component of the system. What is natural? I think an ecologist would argue that you have created a fishery, and have allowed it to exist for 86 years, and now it has become a natural part of the eco-system. Those are the kinds of questions that we're going to have to deal with, and I'm asking you to help us find a reasonable way to deal with them," he concluded. "When you talk about the 95 cfs, are you saying that's bank full?" Dave Frick wanted to clarify. "Yes, that's bank full," Mr. Condon replied. Mr. Frick commented that generally, hydrologically speaking, bank full usually means an approximately 2-year discharge, which means that you have a 50-50 chance in a year of exceeding that. Now, if you're saying that this is the maximum we can release, when about every other year, we have to release more than that, it doesn't seem like that's a reasonable condition. Mr. Condon said, give us your best estimate of what you think would be a reasonable bank full discharge that is going to occur regularly each year. "Each year you're going to get close to that. What I'm saying is there's a 50-50 chance in a year that you're going to get more than that," Mr. Frick reiterated. Mr. Condon responded: "Give us something that we can add on to that so that we're not pushing that threshold. It wasn't our intention for it to be a limit. If you don't like the 95, and you think you've got a better number, give it to us, we'll put it in." John Carlson said he thinks the condition should be that we can give you the kind of release rate we would make when we are releasing for our own use, but if nature provides flows, or other priorities are calling for water, we just have to pass what they call for, or pass what nature calls for, "and that's what the condition should be." "That's what I communicated when I did my preamble," Mr. Condon pointed out. He said the Forest Service will put into the appropriate clause, that it was never their intention to limit the City because of emergencies or run of the creek. "If the run of the creek is more than that, and you need to release it, it was not our intention to detract from that." Tom Sanders asked what if we have to release 110 cfs for a call on the Reservoir? Mr. Condon asked how often that happens. "I don't think it happens once every two years, but to designate a bank full rule, as an upper limit is silly," he contends. Mr. Condon explained that what they are trying to do is to find the point at which regular releases from the Reservoir will cause damage to the channel. 17 John Carlson said he and his staff have done considerable research on what the Forest Service is asking us to do, and he has not found similar situations elsewhere. "Can you cite any other areas in the country where this is a practice?" he asked. Mr. Condon said it has been used in Region 2 since 1978-79; that is Wyoming, Colorado and South Dakota. "On new structures?" "No, on either re -permitting or re -issuance of existing permits," Mr. Condon replied. Mr. Carlson said the only one that the Forest Service has identified is Central City. "That's the only one I know of in this forest, but I will get you a list for other forests," Mr. Condon promised. He added that when they were briefing the Secretary's Office, they did a survey of the national forests in all the regions and ended up with quite a list. "We found quite a few already had both maximum and minimums flows, land permits and land use documents for the last 15 years. We also learned that they're working. They haven't caused the Cities to stop growing, haven't caused the systems to be removed, and haven't destroyed utility projects," he stressed. Tom Sanders commented that he doesn't doubt that it will work. "We'll just lose about a million dollars worth of our property!" When asked if the Board could see a copy of the Forest Plan, Mr. Condon said of course. "In fact you probably already have one in the City, perhaps in the Planning Dept." Dr. Sanders also asked for the Forest Service calculations for the 95 cfs, and the 5 cfs, and Mr. Condon said he would provide them. Dr. Sanders went on to say that "as far as being environmentally conscious, I don't know of any other City that is more so than Fort Collins, other than possibly Boulder. The last thing we would want to do is to make a resource worse. On the other hand, it looks to me like we are subsidizing the federal government, to maintain a fishery, when all you have to do is come up with a million dollars or so, buy the right, and you've got it in perpetuity. In Colorado, that's the way the system works." He added that it's the unfairness of the situation that bothers him more than anything else. Mr. Condon pointed out what happened at the Reserve Rights trial in Greeley in Division 1 adjudication for the last couple of years. "The objectors argued that we didn't need the adjudicated reserved rights because we already had the authority to do what we are doing here." John Carlson took issue with that statement and said, "you're not telling people what happened. They said on every existing permit, that the Forest Service shouldn't try to re -write history." They also said when you get a new structure, you have permitting authority. "It's very true whenever you have a new structure, that you have a whole series of opportunities to impose restrictions. No one ever said at the trial that you should go back and re -write existing uses and existing permits." Mr. Condon pointed out that that was said in the Forest Service responses to questioning. Mr. Carlson responded, "but that's from the Forest Service, not the objectors. I don't think it's fair to say that anybody there was contending that this is what the Forest Service should do other than the Forest Service." Mr. Carlson said the second thing he wanted to stress is that nobody in Fort Collins is proposing to locate a city up at Joe Wright Reservoir. "People in Fort Collins are using a high mountain reservoir to conserve water for needs, so as the City grows, and the demand increases, what tends to happen is when the need occurs, water is released. It seems to be the case that water tends to be released in low flow seasons. As a practical matter, the Forest Service has every 18 opportunity to conclude that "that's a marriage made in heaven. I think everybody that looks at it has decided that you want to make a stand that doesn't seem to have a biological or scientific basis. It is the United States' property but there is an obligation that I think you folks need to look at about practical consequences." All the Forest Service is asking for is, "to let us just continue that fishery that's there. We're not asking you to go back 50 yeas," Mr. Condon persisted. Mr. Carlson said, "but you are, because Joe Wright Reservoir's 800 Ac-ft dried up that stream and that's happened since about 1904, before the Forest Service was there. Now you want it eliminated." Mr. Condon said that the Forest Service thinks that it is unreasonable to have a system that dries up the stream. "We just don't think that's appropriate. I don't apologize to anyone for thinking that." Tom Sanders pointed out that before the dam, it was probably dried up many times during the year anyway. Mr. Condon said he wouldn't argue that. "Our position is not that it ought to be this way or it ought to be that way. What I'm saying is that when we do our environmental analysis, we're going to look at the current situation, and we're going to say there's a fishery there. If there's a fishery there, we're going to say it's a fishery. We're going to say does the elimination or preservation of that fishery match our Forest Plan? If it does, we're going to say it's a naturally occurring fishery that exists in Arapaho/Roosevelt National Forest, and it's deserving of protection for minimum bypass flows. If, in the analysis of that, and your ability to give us input, if you make the point, and develop the rationalization, that there shouldn't be a burden on the City of Fort Collins to maintain that, because it isn't natural, you'll have the option to do that. "We appreciate your spending the time with us," President Grigg began. "Obviously there are many aspects of this we can explore at great length and depth, and there are plenty of people around the table who have a lively interest in this, and a lot of expertise. There are many legal issues, many political issues, and technical issues. I think that probably we have carried our discussion as far as we productively can carry it this afternoon. We want you to understand our deep concern that we do the right thing here, and that Fort Collins doesn't lose an economic resource. We don't really want anything imposed on us politically to satisfy special interest groups to make a show, and to be used as an example. We recognize there are many issues to it, and we can certainly see where you're coming from. I would personally commend you for trying to figure out the best way to use a natural resource." Mr. Condon said he has appreciated working with the City of Fort Collins. "I'm an optimist, and I think we can work this out. If anyone has a desire to talk to me further about any of this, please contact me at my office." Mr. Condon then left the meeting. Tim Dow asked what the quantifiable amount of seepage is in the dam? Mr. Carlson said that they have taken the position elsewhere that seepage is not creditable. The Forest Service has uniformly said before that it's at the dam outlet works, and they want to be able to measure it at that discrete point. He went on to say that he appreciated greatly the questions from Board members. "They were very astute and to the point." After a short discussion, it was decided that the Water Board Secretary will provide a transcript of the meeting for John Carlson, and prepare a summary of the discussion for the minutes. 19 Tom Sanders wanted to make certain that Mr. Condon provides the information that the Board requested on the 5 cfs and the 95 cfs; also the list of other places in the country where minimum bypasses have been imposed. He asked President Grigg to follow up on that. Paul Clopper reiterated what he derived from the discussion. "I guess what I heard Mr. Condon acknowledge was that Fort Collins has built a structure, and operated it in a certain way for a certain number of years, and that's a good thing, in response to what Tom Sanders was questioning him about. But then, when we stated that we are simply going to maintain the status quo; maintain the structure and continue to operate in the same manner as we have, suddenly that's a bad thing. I guess there's a discrepancy, but at least you got them to acknowledge the first part of that issue, that there is a definite benefit to the precedent that Fort Collins has set, especially with regard to that habitat." Tom Sanders repeated that he doesn't think we have to acquiesce to these changes. Mr. Carlson asked Bennett Raley if he could find out if there have been any municipal utilities in California, Wyoming, Montana, any of the western states, that have encountered this before. So far the Forest Service hasn't been able to furnish anything to identify any water utility instances. Dave Frick asked if the Grand County case is one where they were applying for expanded use. "Yes, but then it turned into something worse for them," Mr. Carlson explained. "It's really a bizarre situation in Grand County because Denver kills the river up high, and as a condition of their permit, has to release water, 3 or 4 cfs, to Vasquez Creek. Grand County obtained a permit and built its facilities on the forest and essentially is taking some of that release flow. The Forest Service said that was fine, but then they had a change of heart and said you're going to have to move your facility below the forest. Grand County asked for an enlarged facility permit. In the meantime, their existing facility came up, "so they had both barrels going at the same time. I think they're running for cover on their expansion, but now they're just trying to hold on to what they have; essentially relying, in low flow seasons, on Denver's bypass." Neil Grigg concluded that all of us have learned a lot today, "and we won't give up on this issue." Mr. Carlson's briefing and all the questioning "has us up to speed now." He thanked Mr. Carlson for coming. "It was a privilege to come, and I appreciated being here," Mr. Carlson concluded. Staff Reoorts Future Water Treatment Issues Mike Smith announced that staff has suggested that Council perhaps establish an ad hoc steering committee on water treatment issues, and future water quality. If they do that, staff will be looking to the Board for volunteers to serve on that committee. We hope to get some direction from the Council before our next Water Board meeting. We will probably need three committee members from the Board. Neil Grigg asked Board members to consider if this is a committee they would like to serve on. He also suggested that some of the same people who served on other Council committees be exempt, unless they wish to participate. 20 Treated Water Production Summary Andy Pineda asked if there were any questions or comments about the report that was distributed at today's meeting. There is nothing new to report other than "we had a lot of rain!" "Pipelines" Article about Children's Water Festival Neil Grigg commented about the front page article in "Pipelines" on the very successful Children's Water Festival. Mike Smith praised Wendy Williams and Jim Clark for the great job they did planning, organizing and participating in the Festival. Other staff members also put a lot of time into the event. Tour of Meadow Springs Ranch Mr. Smith asked if Board members remain interested in touring the Meadow Springs Ranch. Tom Gallier was there to answer any questions about a tour. Mr. Gallier recalled that at the last meeting they talked about setting up a tour the day of the Board meeting. He stressed that it is preferable to tour in the morning, rather than the afternoon because of the possibility of lightning. "If we leave at 9:00, I can have everybody back here by noon," he said. The Board agreed to plan on going the morning of the August 21st, the day of the Board meeting. Six members indicated an interest in going. Mr. Gallier also related that he would be happy to take individual members on tours of the Ranch if they can't make it on the 21st. "Just call me or Molly Nortier and we'll make arrangements," he said. Ideas for Old Water Treatment Plant Due to the late hour, this item will be placed on a future agenda. Natural Resources is tentatively planning a meeting in September. Regional Water Supply Strategy Update No report Briefing on Regional Wastewater Service Issues Mike Smith distributed some service area maps as a reference for Board members when this item is discussed at the August meeting. Other Business Mike Smith announced that the bids for the wastewater expansion project were opened this afternoon at 2:00. The engineer's estimate was $23 million, and the low bid was $17.5 million. The lowest bidder was Western Summit, the contractor for the previous wastewater project. The bids were really compact, he remarked. Adjourn Since there was no further business, the meeting was adjourned at 5:22 p.m. Water Boatd Secretary 21