Where’s the water?

by Bea Ferrigno
On October 24 State Engineer Dick Wolfe met not only with the San Luis Valley Advisory Committee (SLVAC),  known as the rules committee, in Alamosa, but also that evening with concerned surface water users in Saguache.  The Saguache meeting was prompted by a hearing before the legislative interim Water Resources Review Committee (WRRC) on September 26 in Denver where several local ranchers testified about violations of their priority rights by high-capacity wells.
For many years valley ranchers and farmers with senior surface rights have had decreasing supplies of water on their lands.  The effects of drought are obvious, but lack of water was a problem even before the most recent dry spell began in 2002.  Long-term over-appropriation, some 6,000 non-exempt wells pumping from the aquifers, together with drought and ongoing outflow through the Closed Basin Project (CBP) present a complex hydrological conundrum which is more striking in historical perspective:  the San Luis Valley (SLV) has periodically been a very wet place. During earlier droughts there was more resilience in the land because the water table remained high; as a result, streams ran well enough to sustain native hay for stock on the range.
Under the constitutional principle of prior appropriation and several subsequent Colorado laws,  surface water users with senior rights are not to be injured by junior rights, including those  exercised through pumped wells. Notwithstanding,  the law  as it stands now provides no recourse to  injured surface-rights holders, so they  must devote scarce time and funds to prove damages and press charges through the courts.
In 2004 Senate Bill 222 authorized the formation of water management subdistricts in the SLV as a local management alternative to measures that might otherwise have been taken by the State Engineer.  One such district, with some 3,000 pumped wells, about half the high-capacity wells in the entire SLV, has been operating for the past two years during which some acreage has been fallowed and augmentation plans have returned water to the Rio Grande.  In the midst of an extended drought, however, the aquifer showed little recovery until the September-October rains which were welcome but also did little to help surface rights holders who rely on naturally flowing wells (artesians) and creeks.
After years of efforts to bring attention to reduced artesian flows, falling water tables, dry creeks, and violations of their senior rights, a group  from the Saguache and San Luis creeks area was heard by the Water Resources Review Committee (WRRC) of the legislature on September 26.  In addition, some 30 pages of letters were submitted.  Then, on October 23 we learned that State Engineer Dick Wolfe, who was scheduled to conduct a meeting of the 55-member rules committee  in Alamosa on the 24th, would also meet with concerned surface rights holders in Saguache that evening.
Much of the testimony and many of the letters presented to the WRRC  on September 26 called  for the Closed Basin Project to be discontinued, for the repeal or modification of SB 04-222,  for groundwater rules and regulations which have been pending for several years, and for appointment of a special water master to regulate groundwater use.  For instance, Ed Nielsen noted that “Water division 3 is the only area in Colorado that has no Rules and Regulations for ground water pumping. Sub-district #1 in the San Luis Valley is operating under . . . a very new water model, yet the water levels continue to drop. The rest of the pumps in the valley can pump with very few restrictions. Yet, when the State Engineer determines that my surface water rights, decreed prior to 1870, are being diverted out of priority, I am immediately curtailed. There are in excess of 50 wells within 10 miles of me that are still allowed to pump while I am being curtailed. All of them were decreed at least 50 years after my surface rights.”
Martin Shellabarger stated he “thought the subdistrict idea might work and at that point any pumping management would have been better than no management by the State Engineer’s Office. The notion of . . . having a single group augmentation plan . . . had a lot of appeal. However, the subdistrict plan has not performed well . . . The Rio Grande Basin needs pumping administration now, not eventually in 20 years when all of the Subdistricts are formed and have learned how to restrain themselves.”
Peggy Godfrey added  “The Prior Appropriation Doctrine recognizes the value and importance of water supplies to productivity of the land, and provides for the allocation of water based on priority. I’ve heard comments about Colorado needing a ‘water plan.’ Colorado has a water plan and it is Prior Appropriation Doctrine. . . . Prior to the development of high-capacity wells . . . the [doctrine] provided a reliable, fair means of allocating scarce water supplies. . . . The State Engineer . . . has failed to take any action to protect the San Luis Valley and senior water rights, and has substantially contributed to its degradation.”
And Thomas McCracken wrote after the hearing: “When the legislature required the State Engineer to bring wells into the priority system, why were the directives completely ignored? The priority system by definition means that wells not in priority are to be shut down. It is unlikely that this action would devastate the SLV economy. Most of the wells belonging to the established farms in the valley . . . are augmented and would be the last to be shut down. No one has any qualms about shutting my water off when the creek level drops. Wells in the valley that are not augmented must be shut down until the aquifer returns to sustainable levels. . . . The State Engineer and many others admitted injury to surface water users. This injury is now historical and ongoing with no end in sight. Why then are the sub-districts not required to provide a method of compensation for these injuries?  . . . Mr. Wolf[e] admits the harm done yet complains about the lawsuits that have been triggered, while simultaneously suggesting injured senior surface water right holders must sue in civil court if they want compensation. . . . The sub-districts should have a mechanism and funds from the taxation of ground water to compensate injured surface users. This could serve to placate those injured and foster a sense of trust between the competing groups. Cooperation . . . could result from a fair approach to the problem.”
At the October 24 meeting in Saguache, another person  echoed McCracken’s remarks.  Wolfe responded at some length, but didn’t address the question of why the wells are not being regulated. After the meeting, I asked Division 3 Engineer Craig Cotten for an explanation and learned that the situation may have been related to a call on the stream from a prior right, also that until rules and regulations are in place, Wolfe has no authority to regulate wells.
The model and the rules
On September 25, one day ahead of the Denver WRRC hearing, Wolfe issued a letter to the Rio Grande Water Conservation District (RGWCD) providing estimates of stream depletions for several response areas in which subdistricts are to be formed, but  San Luis and Saguache creeks were not included: “We are still incorporating into the model the recent borehole drilling/geologic work the District funded last month in the northern part of the basin in the Saguache and San Luis creek areas. . . . the data provided by this recent work will help the model more accurately predict impacts in those areas.”
The model is the Rio Grande Decision Support System (RGDSS) and is to be the basis of the long-awaited rules and regulations.  At the rules committee meeting, maps of the response areas, which correspond roughly to the one existing and several proposed subdistricts, were distributed.  The response areas define regions with similar hydrological conditions in which most high-capacity wells are drilled to similar depths.  The estimated annual depletions for each area will determine how much water must be replaced to the respective rivers and aquifers to comply with rules that, when approved in water court, will require all high-capacity wells to participate in a subdistrict, or have augmentation plans, or shut down.  Those that continue pumping will be subject to a fine of $500/day. These provisions would go into effect one year after the rules are promulgated, i.e., submitted to water court.  Also set forth were benchmarks for the formation of additional subdistricts.
During the day-long meeting, it emerged that an entire section of the rules regarding wells in subdistricts as  drafted in 2011 had to be deleted because the State Engineer does not have legal authority to enforce them. Thus it appears that subdistricts may be allowed, or required, to develop their own means of replacing depletions.
Over the past year we have often heard  from local people that the State Engineer, or a succession of them, refused or failed to enforce the law; however it seems that the crux of the matter is that no State Engineer has authority to do so.  That has to come from the legislature and it has to be upheld in water court; and the court has rejected several prior attempts to establish ground water rules for the Rio Grande Basin.  Thus,  the SLV remains without regulations for high-capacity wells. As Wolfe remarked at the Alamosa meeting, the need to establish rules and regulations that would pass muster in water court is the main reason behind the time devoted to  refining the RGDSS.
If the model is completed and rules promulgated as now envisioned, it is just possible that the 2014 irrigation season would be governed by a new policy that establishes well pumping limits based on their 5-year rolling average.  Wolfe encouraged anyone concerned to review the policy and proposed rules and to participate, as supporters or otherwise, in the process of developing rules so that they have some chance of being approved in water court.  He noted that in the Arkansas basin, 22 objections to rules were settled without trials.  As he said in Saguache, “We need to do it right, otherwise there’s too much litigation.”
In an effort to sort out the historical, environmental, and legal roots of the SLV’s very own water gap, this report begins a series of articles that will examine the issues from all sides.  The gap here differs from those in urban parts of Colorado where water managers face both agricultural and municipal demands for the same water supplies.  Here, in the context of drought and declining aquifers, the gap is between prior and junior rights utilized overwhelmingly for agriculture, between surface and groundwater consumption, with supplies that have admittedly been over-appropriated for many years, and undersupplied by snowpack since 2002.
Proceedings of the Water Resources Review Committee can be found at www.colorado.gov/lcs/WRRC; printed documents can be downloaded.  Audio of the hearing is archived at www.leg.state.co.us/clics/clics2013A/cslFrontPages.nsf/Audio?OpenPage.  No transcripts are provided: notes taken during the webcast were used for this report. Thanks to Peggy Godfrey for background information.
Information from the Colorado Division of Water Resources, aka the State Engineer, is available at  www.water.state.co.us or from Craig Cotten, Division 3 Engineer: craig.cotten@state.co.us Comments, discussion, and suggestions for future reports are welcome at wrdwyz@gmail.com.