by Gaily Binkly and David Grant Long | April 1, 2017 7:09 pm
A former Montezuma County commissioner is accusing the current board chairman, Larry Don Suckla, of inappropriate behavior and a conflict of interest in a dispute involving a water right on an irrigation ditch near Groundhog Reservoir.
On March 20, Gerald Koppenhafer – who represented the Mancos-area commission district from 2003 through 2012 – told Suckla he was “totally wrong” in actions he took in trying to keep water flowing through a man-made ditch in Dolores County some 30 miles north of the town of Dolores. The ditch links Little Fish Creek to Clear Creek and eventually to the reservoir. Part of the ditch runs through private land owned by Suckla.
Koppenhafer said Suckla’s actions have created problems for the Montezuma Valley Irrigation Company, the private water company that owns the ditch, and is costing it money.
In an extraordinary statement during the public-comment portion of the weekly commission meeting, Koppenhafer, now president of the MVI board of directors, said his board was “really interested in what Montezuma County’s interest is in our Little Fish feeder ditch that comes out of Little Fish Creek into Groundhog.”
He criticized Suckla for trying to get a state instream-flow water right appropriated on the ditch without MVI’s consent, and asking the U.S. Forest Service to investigate MVI’s plans to maintain the waterway.
“Every time this has come up, we had to spend money to have our lawyer defend our rights to clean our ditch,” Koppenhafer said.
“Your actions were inappropriate, I can tell you that right now, and these other commissioners can sit here and condone it, but I don’t. It’s wrong. What you did was totally wrong.”
But Suckla told the Free Press he doesn’t see how he could be harming MVI, a company in which he is also a shareholder.
“Gerald’s comment saying I was hurting MVI shareholders – I find that hard to believe, when I’m advocating to keep a ditch running that has been running for 69 years that goes into their lake,” Suckla said. “If I was hurting the shareholders, then I would be trying to stop the water from going into the lake.”
The dispute has its origins last fall, when what is known as a “call” was placed on the Dolores River by the Colorado Water Conservation Board. That board, based in Denver, administers water rights — including instream flows, which are rights owned by the state that are to be left in streams and lakes to help protect the natural environment.
There is an instream flow of 78 cubic feet per second on the lower Dolores from McPhee Dam to the San Miguel River that is intended to help native fish. However, that right, which was decreed in 1975, is junior to many other, older rights, meaning it takes a lower priority. The Dolores River is tightly allocated, and only occasionally is the full 78 cfs water right fulfilled.
In October, the CWCB issued a call for the water, the first call on the Dolores in a decade. This was an administrative action to ensure that water was being taken from the river according to priority, to establish a record to protect the right, and to make sure that as much of the 78 cfs was being fulfilled as possible, according to Linda Bassi, who oversees the CWCB’s instream-flow program. The CWCB also placed calls on other rivers around the state with instream flows.
“We rely on gauges to tell us if flows are below our decreed instream flow,” she said in a phone interview. “We have been placing calls more frequently to establish a record of when instream flows aren’t met, so our users will know.”
Groundhog Reservoir is one of two reservoirs owned by MVI for irrigation purposes. The company has the right to fill the lake once a year, using water that comes from three natural drainages connected by a series of natural stream segments and man-made ditches.
The waterway in question runs across about a mile and a half of national-forest land before crossing onto Suckla’s property.
When the call was made, the annual Groundhog storage right had already been filled for the water season, so MVI was required by law to shut off the ditches flowing into the lake and let the water run instead down the Dolores River into McPhee.
The effect of the call was to dry up the Little Fish Creek feeder ditch for several weeks, until the new water year began Nov. 1. This reportedly threatened some trout ponds on Suckla’s land.
“Those beaver ponds and whatever along that ditch that they’ve been using our water to fill had their water shut off for two weeks till the new irrigation season started and we turned it back on,” Koppenhafer told the Free Press.
However, Suckla told the Free Press that although the water quit running through his property during that period, it was fine with him. “I have two live streams and it doesn’t matter if that stream was quit for good because I have a live stream that feeds into that other stream.”
‘Junior to everything’
Still, in county-commission meetings, Suckla repeatedly voiced concern about the call and the stream’s drying up.
In the Oct. 17 meeting, during a discussion with area wildlife manager Matt Thorpe of Colorado Parks and Wildlife, he brought up its impact on brook trout the stream supported, asking why it was all right to kill trout to save native suckers downstream.
Thorpe responded that brook trout are not native to Colorado.
Suckla raised the same concern in a discussion with Ken Curtis of the Dolores Water Conservancy District at the Oct. 24 commission meeting, saying that trout were going to die as a result of the call. Curtis explained that water rights are administered in priority.
Suckla arranged to take some interested people up to see the area. In November, the county’s federal-lands coordinator, James Dietrich, reached out to local radio station KSJD to invite a representative along for a field trip. No one from the station attended, but Dietrich later sent photos from the outing. [Note: Gail Binkly does contract work for KSJD.]
When Suckla’s concerns were not allayed, the commissioners asked their attorney, John Baxter, to contact the CWCB to see whether they could ask for a new instream flow right to be placed on the MVI ditch in order to keep water flowing.
As the minutes of the Nov. 14, 2016, commission meeting state, “Commissioner Suckla instructed Attorney Baxter to request the CWCB to file on an Instream flow on the stream going into Ground Hog based on the interest of the fish and the wetlands. Said request would be a potential partnered effort with Trout Unlimited.”
But the county learned that obtaining an instream flow on the ditch would not be feasible.
The CWCB’s Bassi told the Free Press that Baxter did contact the agency about Little Fish Creek.
“My staff and I spoke with Montezuma County about that potential,” she said. “The sticking point is that it’s a ditch, and it goes into a stream, and then it’s a ditch again. We can only appropriate an instream-flow right on a natural stream.
“I think we said we could work with them on the natural reaches of the stream. We have not heard back, so nothing really resulted from that discussion.”
Even if an instream-flow right were appropriated on that waterway, she said, “It would be junior to any future call and junior to everything else on that river and to McPhee, so it might not provide a whole lot of protection.”
Having learned that the instream flow would not work, Suckla questioned Derek Padilla, Dolores District ranger with the U.S. Forest Service, about MVI’s plans to clean its ditch.
Irrigation ditches have to be cleaned periodically to remove obstructions such as willow brush so water can flow freely. MVI has a right to clean the ditch, but on the national-forest portion, it would have to work with the federal agency to make sure it followed its rules.
Koppenhafer said the Division 7 engineer with the Colorado Division of Water Resources had told MVI that part of the ditch was inadequate to carry the full 150 cfs of water the company had a right to and instead could carry only 80 cfs. After some discussion, it was agreed that MVI did not need to build new infrastructure but would have to clean the biggest part of that ditch, and this might entail removing some beaver dams in one section.
“We do have to clean the biggest part of that ditch because the division engineer wants us to,” Koppenhafer told the Free Press. “So it had all been resolved other than cleaning the ditch. Then Larry Don went to the Forest Service and started up all this other stuff about whether we had a permit to come across the forest and clean that ditch. It’s all about his personal property up there. He doesn’t want us to clean that ditch.
“They keep doing this stuff and it costs our company money. When you start paying a lawyer by the hour, it adds up pretty fast.”
He said MVI did not have the option of keeping the water running in the ditch during the call and that the law is clear.
“Those fish ponds are being fed by our water out of that ditch and we cannot allow that to happen. It’s illegal for us to use it for that purpose. It’s not supposed to be there.”
Turning to Trout Unlimited, the CWCB, and the Forest Service for help was an unusual step for Suckla and the Montezuma County commission to take. The county is deeply conservative, and many residents view environmental interests and federal public-lands agencies with suspicion. Suckla, although unaffiliated with a political party, generally voices conservative views, and this county commission – while on polite terms with local Forest Service officials – has frequently complained about Forest Service management practices. It has supported the transfer of public lands from the U.S. government to the states.
Padilla told the Free Press the ditch question was brought to his attention in November, but because of snow, neither he nor any of his staff had been to the site.
Padilla said Suckla described a series of beaver dams that MVI proposed removing and “he was concerned why the Forest Service was allowing MVI to do that because in the ’80s or ’90s there was some erosion occurring in the area. They put in erosion-control structures that weren’t effective. He was saying, now with the beaver activity in the area Mother Nature seemed to be taking care of itself and the beaver complex was accomplishing the erosion control.”
Padilla said he called MVI general manager Brandon Johnson. “He said for years they’ve had to go in and dismantle these obstructions to allow for safe and effective transfer of water from Little Fish Creek and Clear Creek into Groundhog Lake, and this was going to be the same thing.
“From a Forest Service perspective, we view beaver activity as a natural ecological process and unless it’s creating a situation where if there was a major breach of the complex it would jeopardize infrastructure below the complex, we normally allow it to play its natural role.
“I told him we would need to go out there and take a look at it. If there is infrastructure in jeopardy, we will work with MVI, but if these aren’t in jeopardy and water is still being allowed to flow into Groundhog Lake, maybe it’s not necessary to disturb those complexes there.”
He said the Forest Service had never had an issue in the past with MVI’s ditch-cleaning in that location, but maybe it was because the agency didn’t realize the extent of the beaver activity.
Padilla emphasized that he had not been to the site yet and planned to have a discussion with the parties involved.
“It’s not our intent at all to overstep our authority,” he said. “We want to make sure they’re getting water into Groundhog but keep the benefits of the beaver dams if possible.”
Suckla told the Free Press he believes tearing out the beaver dams is “a bad decision.”
“This is a very unique ditch. It’s probably seven miles long and probably three miles of it is actually a ditch and the other four is drainages – canyons, natural drainages – where the beaver ponds are.”
He said some 30 years ago MVI built metal structures to try to stop erosion through a valley, but they didn’t work. “There’s probably seven or eight beaver ponds right where they were trying to stop the erosion, and that worked. And there’s no way that it’s going to constrict their water. So when I heard they were going to go tear those beaver dams out, that did not sit well with me.
“The ditch should be cleaned, but four miles of this – it leaves a ditch and goes into natural drainages, it’s created willows, fish habitat, beaver ponds, and it is a wetland. What needs to be done is the three miles of ditch needs to be cleaned and the four miles of wetland needs to be left alone because it’s in a deep canyon.
The water has to go down the draw, no matter whether there’s a beaver dam or not, and if those draws were to flood you better look out down below, because through my property it’s a canyon with 100-foot walls on each side.
“My point is, MVI is making a mistake by cleaning that ditch and bowing to whoever it is that’s forcing them to do that.”
But at the March 20 meeting, Koppenhafer questioned the propriety of Suckla bringing the county’s authority to bear on a matter that affected his private property. He said Suckla had told Padilla he was acting on behalf of Montezuma County’s interests.
“I think it’s inappropriate for him to represent himself as a Montezuma County commissioner in another county when it has to do with his own private land,” Koppenhafer told the board.
Suckla responded that he didn’t believe he had made such a statement.
Koppenhafer also criticized Suckla for trying to obtain an instream flow on a ditch owned by MVI without the company’s consent. “You’re trying to put a water right in our ditch. That’s what an instream flow is. It’s a water right in our ditch. It’s inappropriate what you did. It’s unethical.”
Suckla then argued that MVI should somehow have fought to keep the water in the ditch despite the call. “They shut your water off for a month and you didn’t fight back,” he told Koppenhafer.
“They shut a lot of water off,” Koppenhafer said, adding, “When you put a call on the river it shuts everybody off [that is junior]. You just don’t understand water rights and the law.”
Koppenhafer told the Free Press Suckla was out of bounds. “He had the Montezuma County lawyer petition the CWCB. They have James Dietrich researching the situation. He [Suckla] is not supposed to be spending county resources outside this county for his personal benefit.”
But Suckla said he has not acted improperly and the county has not done a great deal in regards to the situation.
He said he did take people to the site, including Greg Black of the MVI board, a representative of Trout Unlimited, Dietrich, and fellow Commissioner James Lambert. “After that, it got snowed in.”
He said the commission asked their attorney to check into the instream-flow possibility, but never filed for anything, and the only other action the county has taken was talking to the Forest Service.
“Three months ago I asked Derek Padilla in our [commission] meeting if they had any say about taking out those beaver dams on the forest land. There has been no action taken by Montezuma County except for the things that I’ve just said.”
Suckla said the county has an interest because the water eventually winds up within its boundaries. “That water flows through Montezuma County, and the MVI shareholders are Montezuma County residents. My whole beef was that they shut it off for 23 days. If that’s their water, why didn’t they [MVI] go turn it back on?
“Where I got all twisted is when they said they were going to clean seven miles of that ditch.”
But Koppenhafer scoffed at Suckla’s explanation, asking why the county commission hasn’t expressed concern about any other canals. “Why only this one that involved his property?”
He said, even if the county does have a legitimate interest in a feeder ditch in Dolores County, Suckla should not have taken such an active role in trying to get things sorted out. “He should have recused himself if the county had any involvement, if he had any ethics. What he did was wrong, plain and simple.”
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