ENFORCE23612 - Laserfiche WebLink

Home Browse Search

• MASSEY SEMEN~F SCHWARZ Bt BAILEY, P. C. Mr. Tom Schreiner December 7, 2001 Page 4 completed by the representatives of the Brantner Ditch Company. There is no evidence in the record to support a conclusion that MPC, or the DMG for that matter, was aware of a structure or repair that required special attention. Also attached for your review is a copy of the "Flood Control Easement" MPC granted UDFCD on April 28, 1994. By its terms, the easement provides UDFCD access through and over portions of the Howe property to areas on the South Platte River that include the area of the May 5 breach. The easement allows UDFCD to construct, maintain, and operate "improvements in the nature of major drainageway facilities and related appurtenances." The term "major drainageway facilities" refers to "facilities needed for the maintenance and improvement of conveyance of flood waters or for related stream bank and stream bed stability...." As such, it appears that UDFCD contemplated some maintenance assistance responsibility for the stability of the South Platte River in the area of the May 5 breach. The UDFCD request for the easement could be construed as evidence of some special knowledge on the part of UDFCD of specific issues on this discreet portion of the river. Also enclosed for your review is a copy of the conservation easement MPC granted Adams County on December 9, 1994. The UDFCD easement clarifies that it "is included in a Conservation Easement granted to Adams County for a habitat for American Bald Eagles and a segment of the South Platte River Trail ."' The conservation easement does not specifically address maintenance responsibilities. It does state, however, that "[b]y accepting this grant the County assumes the duty to exercise dominion and control over the Property to preserve the property substantially in its natural condition." This language arguably imparts a property maintenance obligation on the county in the area of concern that breached on May 5, 2001. Finally, Item 6 suggests that by virtue of the present location of the Bull Seep, MPC could have assumed a maintenance obligation for areas on the river bank that breached on May 5. MPC has maintained from the date of the May 5 event to the present, that the location of the Bull Seep had nothing to do with the breach that occurred on May 5. As such, the company denies that the location of the Bull Seep created, in any way, an affirmative obligation to maintain any portion of the South Platte River system. At the October 17 public hearing, there was some confusion as to whether MPC had volunteered the conservation easement, or whether Adams County had required it. In point of fact, Adams County had required that a possible roosting area for bald eagles be protected by MPC. The mechanism identified to accomplish this goal was the conservation easement, as proposed by MPC, which, the company understands, was then a first in Adams County.