Groups file protest over Lucky Jack mine’s water rights

Town decides to step back on this one

The Crested Butte Land Trust, the High Country Citizens’ Alliance and local property owners in the Trapper’s Crossing subdivision have all filed statements of opposition in the Gunnison District Water  Court over the filing by U.S. Energy of its conditional water rights. The town of Crested Butte decided not to file such a protest.

“While we are not a political organization we are land owners and land stewards,” explained Crested Butte Land Trust Director Ann Johnston. “This is in no way a political statement. We just want to be kept in the loop and want to protect our water rights and wetlands.”
The Land Trust owns hundreds of acres of property that could be impacted by water being diverted for a mine. The Land Trust owns the wetland parcel just north of Crested Butte on Highway 135 that is fed by the Slate River and it owns a major parcel east of Kebler Pass near the Y-intersection with Kebler Pass Road and the turn to Irwin.
U.S. Energy is hoping to open a molybdenum mine on Mt. Emmons and every six years the company is required to file its conditional water rights and show they have done due diligence toward putting their conditional water rights to a beneficial use.
In a legal notice published August 15 in the Crested Butte News, U.S. Energy described water rights in the Slate River and Carbon Creek, along with dams resulting in an Elk Creek Reservoir and a Carbon Creek Reservoir. The dam for Carbon Creek would be 115 feet high and 990 feet long and hold 1,000-acre feet of water. The Elk Creek reservoir would be 220 feet high and 960 feet long with a total capacity of 1,600-acre feet. In order to fill those reservoirs, U.S. Energy would take water out of Carbon Creek, Elk Creek, and the Slate River.
High Country Citizens’ Alliance Water Program Director Steve Glazer said HCCA is acting in a bit of a watchdog role. “We want to be assured the applicant will provide strict proof that they are in compliance with Colorado water law,” he said.
Glazer explained that while it used to be pretty easy to go through this due diligence procedure, “the bar has been raised through court rulings in the last ten years. There is a so-called ‘can-and-will’ doctrine they have to live up to now. They have to show they can do the project and that they will do the project. They have to show real intent,” he said. “The bar used to be very low but that has changed. It’s not as easy as it used to be.”
Under the court procedure, Glazer said it is expected that a judge will refer the issues with U.S. Energy and those filing statements of opposition to a water referee. That referee will attempt to reconcile issues between opposers and the applicant.
“Because it is done in a court, it goes through the litigation process,” said Glazer. “There is discussion, discovery, evaluation, and negotiation in an attempt to have all the concerns addressed. If the issues aren’t resolved through the water referee, the court sets a trial date. A lot of information can come out of these proceedings.”
Speaking on behalf of the Trapper’s Crossing Property Owner’s Association, manager Angela Reeves said the homeowners want to protect their water. “We have hired a water attorney who filed the statement of opposition,” she said. “We want to make sure the wells in Trapper’s Crossing don’t get contaminated. We want to be kept informed about what is going on in terms of protecting the water.”
In a special meeting Monday evening, the Crested Butte Town Council followed the recommendation of its town attorney, John Belkin, and agreed not to file a statement of opposition, feeling it would likely be a fruitless exercise from the town’s point of view.
Glazer attended the meeting and told the council he felt they should make a protest. He said Crested Butte could explain to the court the town’s concern over losing groundwater rights as a result of mining activity. “This might be an opportunity to get certain protections for your water rights without lengthy litigation or procedures,” he said. “It is also a way to gauge U.S. Energy’s intent of working with the community.”
Mayor Alan Bernholtz said he had talked to the town’s water attorney and was told that it was clear the town had senior groundwater rights and there were probably better places to spend their money over the water issue.
Belkin said it simply wasn’t the right place to make a case for such matters. “It is important to realize this is a very narrow topic and not the place to bring up other issues,” he again emphasized. “There will be better opportunities in the future for the town.”
Bernholtz agreed saying, “This isn’t the proper venue. That doesn’t mean we won’t do everything we can to protect our water but this doesn’t appear to be the place.”
The rest of the council agreed and they passed a motion directing their attorney to not pursue the matter.
According to the legal notice, opposition statements could be filed until the last day of September with the District Court Water Clerk.