The Perils of Puddle Ownership

Transcription

1 The Perils of Puddle Ownership Evan D. Ela Joe W. Norris

2 Initial Thoughts & Considerations 1. What is the purpose for your water storage structure? 2. Do you want to keep your puddle full? 3. What people (or wildlife) interact with the structure and how often? 4. What amount of monitoring/maintenance/inspection is needed?

3 Municipal Supply Reservoir Soda Lakes Bear Creek Maple Grove Reservoir Clear Creek

4 Golf Course Irrigation & Aesthetic Amenity Vail Park & Recreation District

5 Park Landscape Enhancement Which is more aesthetically pleasing?

6 Wildlife Habitat Winter Park Water District South Suburban Park & Recreation District

7 Recreational Uses Evergreen Lake

8 Multi-Purpose: 1. Irrigation 2. Aesthetic 3. Wildlife 4. Driving Range South Suburban Park & Recreation District

9 Recreational or Storm Water Detention? Detention Basin - Woodmen Hills Holly Reservoir/Holly Park

10 Water Storage Rights and Decree Obligations C.R.S (10.8) defines storage as the impoundment, possession, and control of water by means of a dam

11 72-hour Rule Storage of water is all about timing so, why is 72-hours important? The Colorado State Engineer imposes an unofficial rule that direct water rights may be temporarily detained for up to 72 hours in order to allow more efficient or effective beneficial use of the water Water detained for more than 72 hours must be augmented or accounted for by a water storage right (i.e. storm water/local inflows) Example: Wolcott Lake in Denver

12 Perfecting Conditional Storage Rights SB Codified in C.R.S (4), -301(4)-(5) Allows perfection of conditional storage rights by showing that the water has been captured, possessed, and controlled Unanswered Questions Today: Did storage have to occur prior to passage of this law in 2013? How to deal with multiple storage rights in the same reservoir? (i.e. senior rights first, level of accounting detail needed, proof of inpriority diversion)

13 Measurement, Recording, and General Accounting Principles State Engineer requires bathometric survey (contour profile of reservoir) to accurately tie storage elevation to a volume of water stored [see right] Measurement device(s) always required Typically, monthly accounting required (with daily measurements/readings) Depending upon complexity, this process can be expensive and time-consuming Lake Hatcher Pagosa Area Water & San District

14 Accounting is about moving from HERE HERE

15 Evaporative Loss Evaporation occurs at every reservoir or pond Carefully consider decree requirements, if applicable Accounting should be accurate & distribute losses pro-rata among accounts Different considerations for on-stream vs. off-stream reservoirs Blanca Wetlands Area San Luis Valley

16 Statutory and Regulatory Compliance Mere ownership of a water storage structure can subject the owner to a number of State and Federal regulatory requirements; it is important to know which ones apply.

17 State Engineer: Dam Safety and Permitting Two-Pronged Approach: 1. Design review for jurisdictional dams, and 2. Overseeing safety of all existing dams regardless of size (includes regular inspections and requirement for Emergency Action Plans) Jurisdictional = Height > 10 feet to the spillway crest Storage capacity > 100 acre-feet Surface area > 20 acres at high-waterline

18 EPA: MS4 Program MS4 = Municipal Separate Storm Sewer System Traditionally, county and municipal entities are responsible for storm water management Federal law is written broadly to apply to any type of local government (including special districts) however the EPA is uninterested in enforcing the MS4 program outside of larger county or municipal settings currently

19 Others Regulations to Consider: Clean Water Act permits Endangered Species Act (migratory birds) Floodplain authorizations/permits Local permits and/or land use planning requirements County/State watershed or water quality regulations

20 Operational & Water Quality Concerns Day-to-day operations and local characteristics of each storage structure will often dictate what uses of water are feasible and what liabilities exist.

21 Water Quality Local conditions and the type of storage use will dictate which water quality measures are appropriate Asbaugh Park Pond Aeration Controls In addition to in-lake water quality, consider participation in watershed planning and other efforts to control pollutants in the area that contribute to your pond or reservoir Ridgeview Park Pond Algae Growth

22 Infrastructure & Maintenance Costs can add up quickly plan ahead! Consider maintenance of any inflow ditches, outlet works, pumping devices, measurement devices, access facilities, pond aerators, and even the dam itself Asbaugh Park Pond Spillway Maintenance Needed

23 Sediment Build-up & Dredging All reservoirs silt-in or collect sediment over time, reducing the available storage capacity Dredging can be quite expensive but the added capacity is usually much cheaper than building another storage structure

24 Liability & Personal Injuries at Bodies of Water The CGIA provides a broad waiver of immunity for local governments, but should not be considered iron-clad without wellconstructed rules to govern and limit public use of these facilities.

25 Premises Liability vs. the CGIA Premises Liability Act (C.R.S ) creates the sole tort (negligence) claim for injuries caused by circumstances or conditions of a property Governmental Immunity Act (C.R.S ) grants immunity to special districts for all actions which lie in tort or could lie in tort [this includes premises liability!] However, governmental immunity can be waived if the injury was caused by a condition that: Exists in a public facility; and Constitutes an unreasonable risk to the health/safety of the public; and Is known to exist (or should have been known by exercise of reasonable case); and Is proximately caused by the negligent act of the public entity constructing or maintaining the facility. Bottom Line: do not be negligent in operating or constructing water storage facilities

26 Managing Recreational Activities and Other Public Use of Water Storage Structures Create a clear policy of what activities are allowed/prohibited Post notices on-site and publish policies on district webpage Conduct and document periodic inspections If general safety concerns are not ignored, there is very little liability associated with a special district merely owning a reservoir or pond (not necessarily true for a private entity)

27 Thank you for attending and learning more about the perils of puddle ownership! Evan D. Ela Joe W. Norris