San Luis Valley: Groundwater sub-district #1 rules ruling issued

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Judge O. John Kuenhold issued his ruling on the management rules for the Valley’s groundwater Sub-district #1 on Wednesday, according to a report from Ruth Heide writing for the Valley Courier. From the article:

Although neither side may have been overjoyed with District/Water Judge O. John Kuenhold’s Wednesday ruling regarding the San Luis Valley’s first water management sub-district plan, the parties are ready to move forward with the judge’s guidance. The judge approved some portions of the sub-district’s management plan and sent other portions back to the board of managers for revisions…

[Rio Grande Water Conservation District] Attorney Ingrid Barrier on Thursday said Judge Kuenhold’s ruling this week provides clear direction not only to the water district and its sub-district but also at some level to the state and to future sub-districts waiting in the wings. She said the court’s directives provide a jumping off point for the sub-district’s board of managers to move forward in amending the water management plan. Barrier said the board of managers will probably meet the first part of March to begin reworking the management plan, and as in the past the process moving forward will be open to the public. She said the judge gave the board 120 days from the February 18 ruling to prepare and adopt an official plan and has scheduled a status conference on April 6. Barrier said Kuenhold’s ruling was “extremely thoughtful and very comprehensive,” and she was pleased that the judge called the water management plan the kind of document that would serve at water users’ disposal to appropriately manage the Valley’s valuable resources.

Barrier said the judge’s ruling did not scrap the management plan. “In fact the court specifically approved a number of actions the board of managers took,” she said. Those include: the administrative record; fee structure; data collection that engineer Allen Davey conducted in the unconfined aquifer storage; boundaries of the sub-district; and composition of the board of managers. The sub-district board still needs to clarify how injurious depletions to senior surface water rights will be calculated and repaired. “That’s the bottom line,” Barrier said.

[Kelly Sowards chairman of the San Antonio, Los Piños and Conejos River Acequia Preservation Association] said the legislation that permitted water management sub-districts required them to rectify injuries to senior surface water rights. “They have to be kept from having injury at any time.” Sowards said he believed the judge stood behind that intent by sending the water plan back to the sub-district board of managers for revisions. Sowards said the judge’s ruling on Wednesday gives the board members a chance to make sure their plan affords protection and reparation to senior surface rights. “I am looking forward to seeing what they will come up with,” Sowards said. He added that he and other senior water right holders could offer the board of managers some advice. He said senior water users provided comments to the board before the board finalized its management plan. “I haven’t seen any of the comments integrated into the water management plan so at least they heard us but as far as acting on anything we might have said I don’t think that it happened,” Sowards said. He added that was one of the reasons the judge could not let the management plan move forward as it was written.

More coverage from the Valley Courier (Ruth Heide):

The judge on Wednesday released his decision accepting some portions of the Valley’s first groundwater management sub-district plan and sending others back to the sub-district board of managers for revisions.

“The court specifically finds the current plan is conceptually compatible with SB 04-222 [the legislation permitting water sub-districts] and the constitutional principles governing Colorado water law, but the court also concludes that this plan should be referred back to the board of managers of the sub-district and the board of directors of the district for further consideration and amendment because it lacks detail, grants discretion with no guidance, fails to acknowledge the replacement of injurious depletions as a priority, and simply is not a ‘comprehensive and detailed plan’,” Kuenhold stated in his summary. He added, “the plan fails to give priority to the constitutional and statutory obligations that are a condition that must be met in order to qualify the plan for exemption from general regulation under forthcoming rules and regulations. This is a fundamental flaw …”

[More…]

A sub-district of the Rio Grande Water Conservation District, Special Improvement District No. 1 encompasses 174,000 acres of irrigated farmland and about 3,000 irrigation wells in the closed basin area of the Valley north of the Rio Grande. The sub-district’s goals are to curtail well pumping on a pay-to-play basis that will rebuild the Valley’s unconfined aquifer, protect senior surface water users and the Rio Grande Compact, keep the state from shutting down wells in the sub-district once state rules are in place, and allow farmers to continue pumping well water as long as they pay for it and someone else in the sub-district makes up for it by providing water or fallowing land. The plan anticipates pulling 40,000 irrigated acres out of production to meet the sub-district goals. Kuenhold stated that the 40,000-acre estimate may not be accurate and may need to be adjusted over time but added, “there can be no dispute that the proposal in the plan to reduce irrigated acreage is a reasonable step in the right direction.”

He later stated, “The plan submitted by Sub-district No. 1 is neither intended to be, nor could it be, a complete solution to the problems caused by mining the confined and unconfined aquifers of the basin. Rather, the plan is intended to be a management tool for the majority of the unconfined aquifer in the closed basin.” The judge said that although the plan “fails to adequately detail how it will act to protect the senior surface water rights,” and in doing so “fails on both statutory and constitutional grounds,” this kind of plan is still “exactly what the legislature intended to authorize” and the framework for such plans is consistent with the constitution and the Water Right Determination and Administration Act…

Kuenhold found that the plan’s goals are consistent with the state engineer’s discretion when adopting rules governing underground water.

The judge defended the plan on other fronts as well. For example, in response to objectors’ criticism that the plan only addressed the unconfined aquifer and did not adequately address the confined or deeper aquifer, Kuenhold replied that this plan “is aimed at the unconfined aquifer in the closed basin and the provisions of the plan are not inconsistent with the principle governing maintenance of the confined aquifer pressure.” He said increased water storage in the unconfined aquifer would benefit the artesian pressure in the confined aquifer. He added that testimony presented to the court indicated a separate sub-district addressing the confined aquifer would be forthcoming…

However, Kuenhold was not afraid to criticize the portions of the plan he believed required some work. For example, he said he could not approve a plan that did not take care of the senior water rights. “The requirement of complete replacement of injurious depletions to senior surface water rights is a prerequisite for court approval and continued viability of any plan of water management that seeks the benefits of exemption from regulation,” Kuenhold said, “and the plan fails to recognize this obligation in unambiguous terms. Any amended plan must be clear that whatever financial circumstances may ensue, unless there is replacement of injurious depletions … the plan fails and participants in the plan cannot expect to claim the benefit of exemption from curtailment by the State Engineer.” Kuenhold added that the plan lacked detail and although he understood the supporters’ argument that they could not provide details of how the sub-district would operate until the plan was approved and the sub-district had money to operate it, “the court also believes that either the plan or rules and regulations of the State Engineer must contain sufficient detail to allow the court to find that both procedurally and substantively the plan will operate as intended to prevent injury to senior water users, to prevent injury to Compact administration and to provide procedural protections for all affected parties.”

Kuenhold also questioned whether the sub-district board’s plan to use its resources to restore the hydraulic divide was feasible or wise. “This will become evident over time,” the judge said. He explained that several of the plan’s strategies to replace depletions to the Rio Grande and its tributaries due to well operations involved restoration of the hydraulic divide, a mound of groundwater north of the Rio Grande that would buffer pumping depletions on the other side of it. Experts from both proponents and objectors of the plan testified during last year’s trial that the divide does not currently exist, as far as they can tell. The sub-district plan proposes a restoration of that divide…

The details Kuenhold is seeking in an amended water management plan include: timeframe and methodology to determine depletions to the Rio Grande and tributaries from wells in the sub-district; timeframe and methodology for replacing those depletions; timeframe for annual review/calculations for the past irrigation season and how over- and under-deliveries will be addressed; template for the annual operating plan containing specific information about the operation of the plan in a coming year; and provisions for review of the plan’s operation at the end of the year.

Here’s the link to the ruling.

More Coyote Gulch coverage here and here.

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