Bear Mountain homeowners win water case

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State’s top court affirms claim of insufficient water for development

By Vicky Gits

After a 15-year battle, a group of tenacious Bear Mountain homeowners has won a state Supreme Court appeal vindicating their claim of insufficient groundwater for future subdivision development using underground wells.

The case pitted the Bear Mountain Homeowners Association and Cragmont homeowners against local developer Ron Lewis of Buffalo Park Development Co.

The fight has been going on ever since formidable neighborhood activists Maggie Cross and Jim Peterson spotted the sign revealing the developer’s plans on Bear Mountain Meadow 15 years ago.

The campaign concluded Nov. 3 when the Colorado Supreme Court decided 5-2 in favor of the homeowners against the developer, who had appealed an earlier decision against him in water court in 2006.

The case originated in 1994 when Buffalo Park Development Co. filed an application for conditional water rights and an augmentation plan for 10 wells in Bear Mountain, Mountain Park Homes and 100 wells in Cragmont.

Mike Shimmin, Bear Mountain’s attorney, said homeowners can win cases like this if they have evidence — but that’s a big “if.”

“Most of the time, existing well owners do not have the data to prove their water levels have declined. … Often they make an argument, but they don’t have field data to back it up,” Shimmin said.

“Buffalo Park helped us by choosing to ignore our field data, but presented none of their own. So they pretty much completely failed to meet their burden of proof,” Shimmin said.

Water engineer Bruce Kroeker of TZA Water Engineers did a great job presenting the facts against future drilling, Shimmin said.

The case hinged on the homeowners’ ability to prove there was significant water-table detriment already in place and that future development would make matters worse. In other words, the data said the water was being “mined,” or depleted faster than it could be replenished naturally.

The court said the other side lacked evidence proving that new wells would be harmless and that efforts to present some data came too late in the proceedings.

‘No harm intended’

Longtime Evergreen developer Lewis said the homeowners’ data was wrong.

“We think the data currently show there has not been any mining of groundwater in those areas,” Lewis said. “We continue to test and monitor, and we have not found any general decline.”

Although Lewis may not be allowed to drill, he has another plan using surface-water rights he owns in the Bear Creek area. The idea is to pump water out of Cub Creek, treat it, put it in a reservoir at Sprucedale, and distribute to a central system in the Cragmont subdivision. The augmentation plan could be heard in water court in December.

“It was never our intention to harm anyone. It was our intention to strengthen the groundwater situation,” said Lewis, who maintains he wanted to build a central water system with several reliable wells rather than 100 individual, hit-or-miss-type wells.

The homeowners’ attorney was dubious.

“If they had some evidence, they never showed it to us,” Shimmin said. “I don’t think they are being honest. … Six or eight of the people around Bear Mountain Meadow have had to redrill their wells from 200 or 300 feet to 500 or 600 to 1,100 feet to recover the water they first had … We had hard evidence.”

Colorado Supreme Court Justice Gregory Hobbs wrote the Nov. 3 opinion, saying Buffalo Park did not prove there was “unappropriated water for the conditional groundwater rights it claimed.”

The judge observed that Buffalo Park submitted no evidence to back up its arguments, while Bear Mountain could show test results proving “significantly declining water levels demonstrating a groundwater-mining condition.”

The attorney for Buffalo Park “repeatedly made the case that precipitation was sufficient to supply both existing wells and the proposed new wells,” the judge said, noting the evidence did not support that conclusion.

The court referred to an early case, Shirola vs. Turkey Canyon Ranch, which held that “the lowering of groundwater levels was evidence of injury to existing small-capacity groundwater users …”

“It means the county just can’t get away with rubber-stamping the opinion of the water engineer for the developer. Now they have to do more,” Peterson said.

An elusive resource

The case highlights the increasing tension between the many homeowners who rely on wells, proposed new development and the difficulty of calculating the amount of water contained in underground rock formations.

Cross said the neighborhood is vigilant about water use because many area wells have had to be deepened, re-drilled or “hydro-fracked” in recent years as the population increases. Homeowners aren’t allowed to have sprinkler systems unless they have water hauled in from outside.

While Lewis never revealed exactly where he wanted to build the wells on Bear Mountain, Cross and Peterson figured he had his sights set on the 33-acre Bear Meadow, a beautiful south-facing plateau more than halfway up the peak where Lewis owns vacant land. (Last year Lewis won county approval subdivide the meadow into four lots using existing wells.)

Homeowners who lived near the meadow saw that as a threat.

“Mountain groundwater is a finite resource, and you have to be careful, especially at the higher elevation. It’s not just us,” Cross said.

“We were able to show that water was being mined, and there wasn’t enough to grant an additional application. … That can happen if people build swimming pools, run Jacuzzis and sprinklers. It means you are taking out more than recharge is putting back in over a period of time.”

Peterson and Cross were among the citizens who for argued in favor of tighter restrictions on groundwater use at the county level.

“They ignored the evidence,” Cross said. “The Turkey Creek study showed there was a problem.”

“I think the people in the county know perfectly well, and they’ve tried to do a better job of being responsive to water as a finite resource,” Cross said. “But there is tremendous pressure by developers to keep building. … It’s not a problem that’s just Evergreen. Water law is a little out of date. It’s nice we have protected our water, but it’s a much bigger problem.”

Time line:

Buffalo Park Development vs. Bear Mountain Homeowners et al

• Nov. 3. 2008: After hearing the appeal in late December 2007, state Supreme Court issues a ruling affirming the water court’s decision.

• Aug. l 4, 2006: Water court rules that overall water levels in the subject area have declined over time and sustainable yield no longer exists. Water court orders dismissal of Buffalo Park application in regard to Mountain Park Homes, Bear Mountain Vista and Cragmont subdivision, but approves application for the Buffalo Meadows and Homestead subdivisions.

• 1994: Buffalo Park Development Co. submits application for conditional water rights for 205 wells for five subdivisions and proposes an augmentation plan utilizing surface-water sources to provide replacement water into Turkey Creek and Bear Creek to protect against injurty to surface-water users but includes no provision for supplying groundwater aquifers.