Dolores River Valley Plan to go to public hearing

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The Montezuma County commissioners appear poised to drastically change – or scrap – the decade-old plan that guides development in the Dolores River Valley above McPhee Dam.

After hearing on May 19 from three groups concerned about possible changes to the plan, the commissioners said they would set it for a public hearing.

A hearing later was set regarding the heart of the plan, its system of Transferable Development Rights (TDRs), for Monday, July 7, at 1:30 p.m. in the county annex. According to the notice, the hearing is not for the purpose of considering any specific proposal.

Instead, it is “for. . . reviewing and determining amendments to Chapter 8, Transferable Development Rights (TDR’s) of the Montezuma County Land Use Code. Proposed changes include, but are not limited to, eliminating the survey requirements for creating TDRs; dividing the difference between the originally projected and current TDR amounts evenly among qualifying DRVP parcels to raise overall density; variances to Chapter 8 TDR requirements within the town of Dolores’ Urban Influence Area if connected to centralized sewer; or eliminate the TDR system in its entirety.”

The hearing will likely be held without the presence of a county planning director, as Susan Carver, who had held that position since 2006, resigned abruptly in mid-May. Planning assistant LeeAnn Milligan and Community Services Coordinator James Dietrich were said to be taking over her duties while a new director is sought.

The river-valley plan, crafted by a citizens’ working group over a two-year period and adopted in 2003, includes a requirement that homes and other structures be set at least 100 feet from the river.

It also established the TDR system in which landowners receive one TDR for every 10 acres they own outside the floodplain. This allows them to sell their development rights, if they wish, without selling their land, and limits overall density along the river to one home per 10 acres, instead of one per three as it is in the remainder of the county.

The plan was designed to preserve the river’s water quality, but it has come under fire recently by several property owners who say it doesn’t allow them to develop as much as they want. The county commissioners have also voiced concern about the fact that no TDRs have yet been sold.

At their meeting May 19, the commissioners heard from representatives of the Dolores River Source Protection Group, Dolores Water Conservancy District, and county Planning and Zoning Commission, all of whom stressed the importance of proceeding cautiously.

Scott Clow, environmental director for the Ute Mountain Ute Tribe, spoke for the Dolores River Source Protection Group, which was created about five years ago as part of a Safe Drinking Water Act planning process.

The five drinking-water providers in the watershed – Montezuma Water Company and the towns of Rico, Dolores, Cortez, and Dove Creek – received grants to do the planning. (The Utes were not directly involved because they get their water through Cortez.)

Clow said the group is unique among source-water protection organizations because it involves five water providers working on one plan. That document, which examines potential sources of contamination in the watershed and discusses best management practices to protect the water, is close to being in final draft form.

Clow said the river-valley planning area comprises approximately 35.6 square miles, or about 6.5 percent of the county’s private lands, yet it provides drinking water for roughly 95 percent of the county population.

Among the potential sources of contamination studied in the plan are Highway 145 (because of potential spills), stormwater management, construction activities, and septic systems. In the Rico area there are mining impacts as well, Clow said.

In the past, he said, the river was more polluted than now, largely because of mining and human wastes from around Rico, which was then more populated. Part of what helped the river heal was the floodplain process, he said.

“The river needs to flood and to flow through wetlands,” he said. “The more it is channeled, the worse it becomes.”

Clow said it’s in everyone’s best interest to protect water quality. “We think it’s going to be much more cost-effective and savvy to protect the water before it goes to the reservoir than to treat it after.”

Commissioner Steve Chappell commented that it appeared a lot of contamination came from mining in Dolores County. He asked if the group had discussed its concerns with that county as well.

Clow said that Dolores County Commissioner Doug Stowe and Dove Creek Town Manager Sonny Frazier have been part of the group throughout the process.

Commissioner Keenan Ertel asked if Dolores County was considering establishing setbacks and land-use restrictions similar to Montezuma County’s. Clow said he didn’t know but that Dolores County does have an ordinance regarding septics in the valley.

The commissioners also heard from Walt Henes of the Dolores Water Conservancy District board and Ken Curtis, the district’s engineer. Curtis said the district, which serves 27,000 people in Montezuma and Dolores counties, has been following the discussions about rolling back the river-valley plan.

The district has always supported development, he said. However, it has also dealt with water-quality issues such as mercury in McPhee Reservoir “and none of them are pleasant,” he said.

Curtis said the river-valley plan protects water quality by limiting density and requiring engineered septic systems. “We ask you to keep some of these protective things in mind,” he said. “Development by its nature will bring increased risk. Having said that, it’s a hard thing to pin down where to strike the balance.”

Like Clow, Curtis emphasized that it is easier to keep the river from becoming polluted than to clean up contamination when it occurs.

Chappell suggested a joint meeting with planners in Dolores County to see what is being done upriver. “If it’s still being polluted up there, we need to talk to them as well,” Chappell said.

The water district also provided a letter to the commissioners dated May 16 that states, “Past experiences with water quality concerns below and above McPhee have kept DWCD following the current discussions about [the plan]. . . .Though the public has voiced specific complaints about certain aspects of the DRVP, all sides have expressed continued support to remain vigilant in protecting our existing high quality water supplies from the Dolores River.

“Though modifications or changes to the DRVP may be requested, we encourage you to keep these concerns in mind as you deliberate and not allow changes that would put the community water supply at risk.

“The DRVP has protected our local water supply for over a decade.”

The letter in its entirety can be viewed at fourcornersfreepress.com.

Also on May 19, Planning and Zoning Commission Chair Dennis Atwater presented that group’s latest findings, which weren’t much different from the findings it has been presenting all along.

He recounted that in June of last year, the commissioners asked P&Z to review the river- valley plan. After holding a public meeting and taking input online, they reported to the commissioners that, while there is a general lack of public understanding of the plan and its relationship to federal and state laws, the plan appeared to be working well.

They did not recommend any changes.

But the commissioners rejected the “no change” finding and sent the plan back to P&Z for more review.

After further discussions, the planning group – which now included two new members appointed by the commissioners and more sympathetic to their concerns – came up with an idea for creating a “bank” that could exchange unclaimed TDRs and help stimulate the market. The commissioners rejected that idea and instead urged the planners to lower the TDR size from 10 acres to five or six.

P&Z mulled it over some more but came up with the same answer. At a March 27 work session, the members considered four alternatives and commented individually on each one.

At that time, none said they favored Option D, eliminating the plan. However, they voted later via email and the two newest members, Mike Gaddy and Mike Rosso, then decided they did prefer D.

However, a 63 percent majority (by the group’s weighted voting) favored Option A, no change.

After reviewing that history, Atwater told the board on May 19 that some of the push for changing the plan appeared to be motivated by “personal gain without regard for public health, safety and welfare.”

He said the valley’s water is a “vital public resource that goes well beyond the valley” and that setbacks and density limitations are key to protecting against water degradation.

“No legitimate reasons have been revealed that warrant any significant changes to the plan,” Atwater said, adding, “There is no reason to fix something that isn’t broken.”

The scientific carrying capacity of the valley was found by engineers to be no more than 620 residential units, Atwater said, but the valley has not yet even reached that point, so it would be premature to increase the allowable density. “We are nowhere near a buildout, so we do not know the impact that reaching it will have on the water quality.”

Atwater continued, “If you heard some of the water providers, this is a very, very critical resource for not just our county but Dolores County and the Ute Mountain Ute nation. Anything we do has the potential of very long-term effects and impacts. It could have a very devastating effect on our economy if our water went bad. If that water becomes polluted, it takes a whole lot longer to correct it than to pollute it.”

He said, “Generally the first step in solving a problem is understanding the problem, and today we’re still having trouble understanding what the real problem is with the DRVP. It seems to be working as it was supposed to, without having a detrimental effect on the economy or property values, and so our recommendation is to leave the plan intact.”

But Ertel said if solving a problem requires understanding it, “I haven’t heard yet what the water-quality problems of the Dolores River were [that led to the plan’s being adopted]. Did someone say the water quality of the Dolores River is deteriorating?. . . What really started the DRVP?”

Atwater said the effort that led to the plan’s creation started on April 4, 2002, and the concern was protecting the watershed and water resources.

“So water quality was deteriorating?” Ertel asked.

“There was a concern that if we didn’t get in ahead of it, we would be behind it,” Atwater said.

Ertel kept pressing. “What made them say that there was a deterioration in the water quality of the Dolores River?” he asked.

“I don’t know as a fact that it had degraded,” Atwater said. “I think the concern was if you allow development to come on its own without any regulation that the potential is, that valley being what it is, that it would have a negative effect on water quality.”

Chappell then said the plan should have been implemented in Dolores County instead. “I’m like Keenan, I don’t see the effects we have in Montezuma County. We’re getting the flow” from upstream, he said.

The board declined to take comments from the audience, saying there would be time for that at the public hearing.

Tim Hunter, a member of P&Z and a vocal opponent of changing the plan, provided the Free Press a written copy of remarks he had hoped to make. In part, they said:

“To me the issue of the DRVP is as much about our economy as it is about private property rights. Our economy is grounded in clean water.”

He said that more than 19,000 communities around the country have floodplain management ordinances. “Floodplain and water quality protective standards have been challenged in court at all levels and the courts have broadly and repeatedly upheld the general validity of those regulations and rejected takings arguments.”

He added, “The Planning Commission is not a bunch of anti-growth environmentalists. The purpose of this group is to look out for the long term best interests of the county residents as a whole. . . Chapter 8 of the [land-use code] is a reasonable set of regulations for the preservation of our most valuable economic asset – clean water.”

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From June 2014.