SUMMIT COUNTY – Reservoir levels and stream flows in Summit County are dropping, but tempers are rising as longtime Lower Blue neighbors struggle to allocate a dwindling resource.On the Blue River north of Silverthorne, Jim and Sandra Donlon, owners of the Pass Creek Ranch, took matters into their own hands. They built a dam in late April across the Blue River to divert water into the headgate of their irrigation ditch, located on a neighboring ranch. It also diverted water away from their neighbors. Howard and Jeanette Moser, owners of the nearby Slate Creek Ranch, as well as Gerry and Julie Hillyard, who own the property where most of the damage was done, are feeling aggrieved. At the least, the way the work was conducted reflects a lack of neighborly consideration and good judgment, they said. The issue centers on the flow of the river around either side of an island, partially on the Hillyard’s property and partially on the Mosers’ side. By all accounts, about 60 percent of the river flowed to the left of the island, 40 percent to the right. The work that was done shifted that balance significantly, and during a recent site visit, Frisco-based U.S. Army Corps of Engineers regulator Tony Curtis instructed the Donlons to adjust the size and height of the diversion structure to try and restore the flow to its earlier conditions.The Donlons recognize that some fence-mending may be in order, as all the active senior water rights of the historic Green Mountain Canal are owned by the town of Breckenridge and are not supposed to be diverted into the Donlon’s headgate. “The very first words out of my mouth were, ‘We want to come into compliance voluntarily,'” said Jim Donlon in a telephone interview from his Detroit home, explaining that he contacted the Corps immediately once he heard there was a problem.”I regret this has been troubling to the neighbors. I’m upset and disappointed that this caused a difficult time with our neighbors. Our hearts and minds are in the well-being of the Lower Blue.”

With the Blue River regulated by the Dillon Dam, flows in the valley below have remained low during the continuing drought. The Donlons own 1985 rights to 20 cubic feet a second to irrigate 78 acres of hay meadows. They said this is the first time in 10 years they’ve been able to take all the Blue River water they’re entitled to, and claim the work was within federal guidelines, which include agricultural exemptions that enable ranchers and farmers to build “reasonable” diversion structures outside a lengthy regulatory process. The work may also be permitted under the Corps’ “nationwide” permit, according to a letter from the Donlons’ attorney to the agency.But according to the Corps, the dam was built in violation of Clean Water Act rules. A report compiled by the Summit County Sheriff’s Office indicates U.S. Forest Service officials also investigated to determine whether there were impacts to National Forest lands. District Ranger Rick Newton said the Forest Service is deferring to the Corps as the lead regulatory agency in the matter.Criminal investigationThe Sheriff’s Office launched a criminal mischief investigation based on reports made by the Mosers. According to the report, the investigation was dropped, but Jeanette Moser said she asked law enforcement officials to reopen the case in early August.The Mosers reported the violation in early May. Mistrust and misunderstanding among the various landowners intensified as federal agencies – including the Environmental Protection Agency – and local law enforcement officials scrutinized the dam.Curtis said the dam, built of unconsolidated material from the river bottom and shoreline, was 240 feet long, 6 to 8 feet high and up to 18 feet wide.

Curtis issued a notification of a Corps “404” violation for illegal dredge and fill activities in waters of the United States, outlining potential impacts including downstream flooding and damage to aquatic habitat. The dam also impeded public navigation on the river, he said.Willful or negligent violations of Clean Water Act regulations can carry penalties between $3,000 to $50,000 per day, and up to three years in jail.The illegal dam has since been lowered significantly, and the Donlons are working with the Corps to restore the river. In fact, Curtis described it as an exemplary case of responsiveness by property owners.”They expressed remorse and said they would do whatever it takes to restore the damage,” Curtis said. Since then, Curtis has been in discussions with adjacent landowners, as well as consultants and attorneys, to determine whether the restoration work is in compliance with the agency’s order. “We’re in a tweaking mode at this point. I believe the violator wants to do the right thing. Communication is an issue in the Lower Blue,” Curtis said. “This will have created some hard feelings.”The damageDonlon pointed to the positive stewardship record of the Pass Creek Ranch, including cooperation with the Colorado Division of Wildlife to protect and improve habitat for deer, elk and pronghorn antelope, as well support for a fish habitat improvement project on a nearby property.Walking along the riverbank, Julie Hillyard pointed to what she said was once a productive fishing hole near the island. Wearing her emotions on her sleeve, Hillyard lamented the damage to the river and faulted the Donlons for choosing such a destructive course of action.

“This is not the way things are supposed to go,” said Hillyard. “Even if you have an easement, it doesn’t give you the right to trample on other people’s property rights,” she said. Hillyard said she would have preferred if the Donlons had approached her to discuss the planned work before sending the ranch manager into the river with heavy equipment.There is a perception among some neighbors that efforts were made to sweep the incident under the rug after the fact.”It’s the story of the West. It’s a clash of cultures and a clash of values,” Hillyard said. “The big ranches are getting cut up. We’re getting people in here that don’t know what they’re doing,” she added, decrying what she perceives as a lack of respect for and understanding of rural Western traditions.Aside from the damage to her property, Hillyard said she’s upset at the damage to the river’s natural resources. “I’ve been hearing it’s been happening a lot. It’s in private property, so it’s not always reported,” she said.She’s hopeful that making the issue public will serve an educational purpose, letting landowners know that it’s not OK to simply do whatever it takes to get water into irrigation ditches.Donlon said he was in a hurry to get the water needed to irrigate hay meadows at the Pass Creek Ranch, and points out that there has been a diversion structure at the intake – on the Hillyard’s property – since they bought the ranch in 1993. Colorado water law makes provisions for access to such structures. This spring, with irrigation season rapidly approaching, he asked his new ranch manager to do a “spruce-up” and “fix-up” of the diversion, so they would be prepared for the irrigation season.Curtis said the problem is repeated in different places along the river, and urged property owners to check with authorities before launching major projects in the river.