Minturn: Will private resort have enough water?
May 1, 2008
MINTURN, Colorado ” Twenty-four groups, including federal, state and local government agencies, want some say on a private ski resort’s and Minturn’s claimed rights to water.
Minturn and the Ginn Development Co. filed for expanded water rights in 2005 and 2006, and Ginn filed in 2007 a plan to replace water that it plans to use. The “statements of opposition” from the groups weigh in how and whether Ginn and Minturn should use that water.
The Ginn Development Co. wants to build 1,700 homes and condominiums and a private ski resort and golf course on and around Battle mountain, south of Minturn. The Eagle River and some of its tributaries, which provide water to several towns downstream, run through Ginn’s land.
Minturn residents will vote in a referendum May 20 on whether or not to uphold their town councilors’ decision to bring 4,300 acres of Ginn’s land into the town.
Statements of opposition can be filed if a person or group believes that their water rights could be harmed. The statements were filed in Garfield County District Court in late February, days within councilors’ vote to annex Ginn’s land into the town Feb. 27.
Glenn Porzak, a Boulder water rights attorney who represents 11 of those groups, said the Ginn Development Co. and Minturn do not have enough water to serve a proposed ski resort because the water they have claimed rights to already is owned by other groups.
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The Colorado Supreme Court has ruled in 10 precedent-setting cases that no one can use more water than their historic use, Porzak said. Minturn has historically used no more than 15 acre-feet of water each year and Ginn’s resort needs more than 1,000 acre-feet of water, he said.
“It’s an outright water grab that’s illegal under Colorado law,” said Porzak, who has represented clients with interests on the Eagle River for 35 years.
An acre foot is measured as the amount of water it takes to cover an acre one foot deep. Nottingham Lake in Avon is around 165 acre-feet, so Ginn may need more than a half -dozen Nottingham Lakes in Avon to serve its resort, Porzak said.
Ann Castle, Minturn’s water attorney, called Porzak’s comments “inflammatory” and “false.” Besides, Porzak and his clients have tried to take away Minturn’s water rights for the past 10 years, Castle said.
“These inaccurate statements are a continuation of those efforts,” Castle said.
Just because people have filed statements on Ginn’s and Minturn’s water rights doesn’t mean that the town and developer lack adequate water, Castle said.
The Colorado Supreme Court has ruled that towns can increase their water rights with a “normal” increase in population during a “reasonable” period of time, Castle said.
To have enough water, Ginn must build places to store it, such as a a dry lake bed south of town called Bolts Lake. So far, that looks possible, Castle said.
The U.S. Environmental Protection Agency has yet to approve Ginn’s plans to fill Bolts Lake with water. Ginn still needs to show that it has explored alternatives for water storage besides Bolts Lake, where wetlands exist.
Ginn has said that it will give the U.S. Environmental Protection Agency its plans for Bolts Lake this month, said Mike Holmes, Eagle Mine project manager for the federal agency. Ginn cannot continue with its current plans until the agency approves its plan.
“There’s been almost no communication other than they’ve said they’re preparing a package for submittal,” Holmes said.
Vail Associates, which runs Vail Mountain, is one of the opponents to the water claims and a client of Porzak’s. Vail Associates owns water rights that may be “adversely impacted” if Minturn is granted its water rights, the statement says.
Minturn’s “proposed diversions and storage will severely diminish flows in the Eagle River and thus increase concentrations of metals,” Vail Associates’ statement of opposition says.
Mine waste already drains into the Eagle River from the abandoned Eagle Mine and Holmes has called the quality of the water “just on the edge.”
CBS Corp. is now in charge of cleaning up the Eagle Mine, which is considered a highly polluted Superfund site by the U.S. Environmental Protection Agency. Zinc, which kills fish, still leaches into the Eagle River.
The Eagle County Board of Commissioners are opponents because Ginn has not yet shown that it can replace water into the Eagle River that it takes out, County Attorney Bryan Treu said. Ginn’s use of water could lower the flows of the river, leading to problems with water quantity and quality for people downstream, he said.
Ginn and Minturn need to show that they can protect the river if they take water out ” so far, they have failed to do that, Treu said.
Porzak said his clients aren’t willing to sell water to Ginn.
“No matter which way you turn, it just doesn’t add up,” Porzak said. “There’s not a water supply for the Ginn development.”
Ginn would not have purchased the property for almost $33 million without an adequate water supply for the project, Cliff Thompson, director of communications for Ginn, said in a statement.
“We’re not the least bit surprised that water lawyers tend to disagree,” Thompson said. “That’s what they do.”
Ginn and Minturn are comfortable they can provide a water supply for the project “one way or the other,” he said.
“Minturn’s water attorneys are from one of the top law firms in the entire Rocky Mountain region, and they obviously believe that we will have a water supply or they would not have advised the town to proceed with the annexation,” he said.
Dick Wolfe, state engineer for the Colorado Division of Water Resources, which filed a statement, said the agency files more than 1,000 each year. The agency’s statement doesn’t mean the agency is “opposed” to Ginn and Minturn’s water rights claims; it gives the agency a legal right to negotiate.
“It gives us a seat at the table if you will, by filing a statement of opposition,” Wolfe said.
Other attorneys for those who oppose Minturn’s and Ginn’s claimed water rights either declined comment or did not return telephone messages requesting comment.
Staff Writer Steve Lynn can be reached at (970) 748-2931 or email@example.com.