Introduction
It has been just over a year since the Baca Grande Property Owners Association (BGPOA or POA) first received complaints regarding two separate culvert/road crossings being installed on private property along the Cottonwood Creek diversion. From the beginning, the POA's approach to this matter has been to seek professional opinions to inform any Board decision. Despite the POA's diligence in consulting with numerous experts, holding public meetings to disseminate these findings, and responding to requests for information, a lawsuit was filed against the Association and the owners of Lot 535 and Lot 183 in November 2008 by fellow property owner, Terrell Tucker.
The POA Board has intentionally not responded to the allegations and letters to the editor over the past months in the hope that this matter could be resolved peaceably. On June 4, 2009, representatives of the POA and other defendants in this case participated in a mediation conference with Mr. Tucker. The mediation proved unsuccessful. The Board of Directors now wishes to make a formal response to the membership and larger community regarding Mr. Tucker's claims.
Background
In June 2008, under an approved building application through the Environmental and Architectural Committee (EAC), a property owner installed a culvert and constructed a driveway crossing the Cottonwood Creek diversion to access a house site on Lot 535 in the Grants. In August 2008 the owner of Lot 183 also installed a driveway crossing Cottonwood Creek, however their building permit application had not been approved. In subsequent POA meetings, neighboring property owners of both lots came before the POA Board to express their dismay at the culvert crossings.
It should be noted that the Cottonwood Creek diversion differs from other water ways in the Baca Subdivision such as South Crestone, Spanish, and Willow in that it is not protected by POA controlled greenbelts and flows through private lots. Claims were made that as a direct result of the culverts the creek had flooded and been polluted, endangered fish species killed, state and federal laws violated, and the threat of dangerous flooding downstream increased. In fact, the culvert on Lot 183 did flood shortly after being installed and had to be removed. It was later reinstalled after the building application was approved and following the recommendation of a private engineer.
Owner complaints relied in large part on an argument that the POA has an obligation to protect the environment based on its governing documents. The POA’s Amended and Restated Declaration, approved by the membership in May, 2001, makes reference to the original covenants, stating that they were established in part to preserve the natural environment and to encourage protection of environmentally sensitive areas such as wetlands, wildlife corridors and stream beds. In the Amended and Restated Declaration, the restated purpose of the Association is defined in Article III, Section 3.1 as “enhancing and protecting the value, desirability and attractiveness of the real property.” Although the language related to environmental protection has been removed from the covenants, the POA Board felt it was important to address the concerns of the property owners for the betterment of the whole community.
POA Research: Jurisdiction
Over the next several months, a letter was written from the POA to Saguache County and inquiries were made with the Army Corps of Engineers (ACE) and the Colorado Division of Water Resources in regard to governmental jurisdiction of Cottonwood Creek and to review the soundness of the creek crossing on Lot 535. Commissioner Sam Pace responded with a letter stating, "To the County's understanding, the culvert is installed on private property and does not affect any water source in which the County has a legal interest or jurisdiction." Craig Cotton from the Division of Water Resources submitted a field report stating that "[the] crossing is not presently causing water to divert to undecreed land nor is it causing water to be impounded. The water rights on this creek were not being injured by this structure. It appears that this crossing should adequately pass reasonably foreseeable flows on Cottonwood Creek." ACE representatives inspected the culvert on Lot 535. Their initial response was that they also did not have jurisdiction on the creek and could not get involved. Their reports were passed to the EPA for review. Following the EPA's review, in February 2009, ACE approved a jurisdictional determination for Cottonwood Creek. In a letter from the Corps Southern Colorado Regulatory Office dated June 1, 2009, Van Truan concluded that the crossing on Lot 535 is authorized by Nationwide Permit No. 14 for linear transportation crossings. The crossing requires further work to be in compliance with the permit, however as no violation has been committed, further enforcement action by ACE will not be necessary as long as the work is completed in a reasonable time frame.
Fish Health and Habitat
The aquatic biologist from the Colorado Division of Wildlife, John Alves, who started a three year seeding program of Rio Grande chubb and Rio Grande sucker in Cottonwood Creek in 2007, was requested by the POA to assess the impacts of the culvert installations on fish health. In an email to the POA office, Mr. Alves wrote "there are no permanent impacts to fish or wildlife from the road/culvert construction, although there was some evidence of sedimentation at the sites. The culvert in Lot 535 was set at grade [and] would not be a barrier to fish movement. The culvert in lot 183 looked to be about 4 - 6 inches high and with the addition of an elevated pool (small boulders placed a few feet below the culvert in a semi-circle) at the bottom would allow passage of fish. Therefore the Colorado Division of Wildlife believes that there was no significant impacts to native fish population from the installation of two culverts on Cottonwood Creek."
Culvert Construction
William Klauber, a professional engineer from Leadville, Colorado was hired by the POA to conduct a critical review of the culvert installation. In his communication with the POA he stated “A culvert is a structure that allows a stream or ditch or other drainage feature to cross a road or railroad track or other such feature. Lot 535 definitely has a culvert in its driveway. It uses a homemade or home-adapted pipe structure as opposed to a commercially sold CMP (corrugated metal pipe), but the structure in place across the road forms a culvert. A length of CMP by itself, not in place across a road, would not be a culvert - not until it is placed across a road to convey water. Similarly, the tank made into a pipe, once it is placed across the road to convey water, becomes a culvert - homemade perhaps, but definitely a culvert.” In his report Mr. Klauber concluded, "If the remainder of the construction on this channel crossing is done to a high standard with gabions, gravel, wing walls, and load protection for the culvert, then the crossing should be reasonably strong and safe." These comments are in line with the work that is currently being required by the ACE for compliance with the Nationwide Permit.
Water Quality
In response to concerns expressed by some residents that the tank used for the culvert was contaminating the creek, the POA engaged a State approved water testing company, Sangre De Cristo Laboratory, Inc., to test the water in Cottonwood Creek both above and below the culvert. The water study did not reveal any increased levels of contaminants as a result of the culvert.
Conclusion
Finally, legal counsel was consulted to review the governing documents of the Association. Based on the information provided to us, it appears that the EAC acted within the scope of its authority. Accordingly, the POA must not deprive members from use of their property especially when the property owner has reasonably relied on EAC approval and expended money in reliance of that approval.
Nevertheless, environmental protection is highly valued in the Baca Grande subdivision. In an effort to promote use of “best practices” to guide property owners desiring to undertake creek-side development, the POA will be working with the ACE to follow proper permitting practices and to develop recommendations that owners may follow.
Additionally, the POA intends to review the current Declarations, Articles, and Covenants to determine whether they should be changed, and if so recommend how they might be amended. Striking a balance between property rights and environmental protection is a task that requires involvement from both members and the larger Baca/Crestone community. | 
