One of the least understood elements of living in the rural mountains of Colorado, and more specifically our Foxtail Pines neighborhood, is our ability to operate our water wells. We all know that water law in Colorado is extremely complicated, and these laws, rules, and regulations impact every one of us that has a well.
This brief article hopes to provide some very basic understanding of how our wells are allowed, what our individual responsibilities are, and what our Owner’s Association’s involvement with this critical subject is. The author is not a water attorney or expert, and has compiled these comments from prior Owner’s Association meeting notes, written summary to the owners by Tienken & Hill LLP , and related water documents currently available on our web site.
First, we all need to understand that as individual lot owners, we do not own any water shares. (There are a few exceptions for horse owners that have purchased their own water for their animals). We do not own the water we take from our wells. What we do have are individual lot permits from the State Division of Water Resources that allow us the limited use of water we draw from our well. However, in concept, somebody else owns or controls this water by virtue of senior water rights.
Most subdivisions in the Colorado Mountains obtain their ability to allow their owners to drill wells by developing an “augmentation plan”. This is a court approved plan (our “water decree”) designed to protect existing water rights by replacing water used by the subdivision. As individual water users, we actually return about 90% of the water we draw from our wells back to the stream system by our septic system leach fields. The remaining 10% is considered lost. This is a critical percentage, as we, through our Owner’s Association are responsible for being able to replace it.
For us, per our augmentation plan approved in 1980, this amount of junior water shares is stored in the Lower Sacramento Creek Reservoir, operated by the Lower Sacramento Creek Reservoir Company. The reservoir is an engineered pond located off CR 14 on Platte Drive. This is not our recreation pond. The reservoir is fed from Lower Sacramento Creek, and released to the Middle Fork. The reservoir company is responsible for holding and releasing this stored water, representing the 10% lost volume, when directed by the State, to cover possible shortages in servicing senior water rights.
The Foxtail Pines Owner’s Association owns stock shares of this company, along with seven other subdivisions. These stock shares, which represent proportionate water shares held in this reservoir, are apportioned to each subdivision’s incorporated Owner’s Associations in general relation to the size of each development. These shares can only be owned by a development’s owner’s association as a corporation. (Exception: there are also stock shares owned by the Mountain Mutual Reservoir Company, who owns and manages water shares).
Foxtail Pines, through our Owner’s Association, is responsible for its pro rata share of the operation, maintenance, and repair of the reservoir. In fact, a primary reason and requirement for Foxtail Pines to have an active Owner’s Association is our obligations to this reservoir, and our augmentation plan and water decrees.
Several years ago the reservoir was determined to be in poor condition. To avoid possible claims by senior water rights holders and possible claims against our approved water decree, we, and the other subdivisions, undertook a major re-building of the reservoir. The initial payment of our portion of the repair cost was paid by a one-time assessment to our owners; the remaining construction debt is being paid by part of our owner’s dues. Had this repair not been undertaken, it was conceivable that we, as individuals, could have lost our well permits (an extreme outcome, but legally possible, with expensive litigation to fight a claim a very real possibility)
In addition to our responsibility to the reservoir, our augmentation plan decree places specific limitations on us as individual well permit holders. Our wells are for “in-house use” only. This is intended to mean household domestic use only, and precludes use of well water for other uses such as car washing, pools, livestock, ponds, hot tubs, irrigation, and the like. Maintaining and protecting our water rights is critically important for all of us, and adherence to the stipulations of our approved water decree is a responsibility of all of us.
The next time you hear your well pump turn on, think just a moment on how valuable a resource this is.
Foxtail Pines property owner since 1993
Please see our water documents for more information.