Pueblo officials say failing Bessemer Ditch lining is damaging city property, recommend outside counsel review

On Jan. 6, 2025, Pueblo City staff told the Pueblo City Council that seepage and apparent failures in the lining of the Bessemer Ditch have damaged city property, the City Park golf course and at least one private basement, and staff recommended obtaining outside legal counsel to review remedies.

The report, delivered by Brian McCain of Parks and Recreation and summarized by a city staff attorney, said city crews documented sinkholes, saturated soil on the golf course and two inches of standing water in the Annex building basement at City Park. Council President Aleph called the situation “a debacle” and said the damage has made parts of the golf course unplayable and rendered some city facilities unsafe for staff.

City staff described a long history of federal funding and lining work on the ditch and quoted a federal enactment that, in staff’s reading, placed responsibility for “maintaining or replacing the gunite lining” with the ditch company. The presentation said Congress appropriated about $1.5 million in 1980 for lining the ditch and later funds in 1988, and that the ditch company told staff it lacks the financial ability to proceed with the corrective work. Staff reported the ditch company obtained a contractor bid of about $800,000 to address the lining near City Park.

The city’s legal summary noted state law duties and a contract the ditch company has cited from 1973; staff said the city’s position is that the older contract does not relieve the ditch company of the maintenance obligation created by the federal acts and state law. The staff attorney told council that outside counsel should review federal and state law, the 1973 contract, possible tort and contract remedies, limitation periods and litigation cost estimates.

Council members asked technical and legal questions about the scope of work needed, the life span of the lining and whether the city or private homeowners would be eligible to pursue claims. Several council members, including President Aleph and Councilor Niemann, pressed that the city must act to protect city assets and residents’ property. Council members also discussed whether the ditch company had notified an insurer; staff said they did not know.

City staff described next steps as soliciting engagement letters from outside law firms with irrigation-ditch experience, returning to council with a resolution to approve compensation if counsel recommends litigation or other remedies, and pursuing additional factual review of the contractor bid and technical scope. No formal vote or contract award occurred at the meeting; staff sought council direction to proceed with identifying counsel and preparing an engagement agreement for council consideration.

The council discussion included repeated references to the scope of potential city claims being limited to city-owned property, while private property owners would need to pursue separate claims for noncity damage. Staff warned litigation and remedies are uncertain, and that outside counsel would assess legal options including compelling the ditch company to repair, pursuing damages, and potential defenses such as limitation periods.

Council members asked staff to include engineering and environmental issues in the legal review (for example, whether seepage creates health or pest risks) and to provide cost estimates for litigation and remediation. The city manager’s office and legal staff will return with a recommended outside counsel engagement letter and a proposed resolution authorizing payment and scope, if council so directs at a future meeting.