San Luis Valley: Final arguments heard in trial over first groundwater sub-district

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From The Pueblo Chieftain (Matt Hildner):

Attorneys argued for four hours in a packed courtroom over which sources of water the subdistrict could use to replace injuries to senior surface users, how proposed computer modeling could accurately monitor them and to what extent past injury to seniors should be compensated. Attorney William Paddock, who represents the Rio Grande Water Users Association, argued that compensating for past depletions from the Rio Grande that project to cause injury into the future would be unfair to well users who were operating legally in the past. Judge O. John Kuenhold, who questioned each of the six attorneys who presented arguments, asked if not doing so would be fair to the senior surface water users, who’ve born the demands of delivering water downstream under the Rio Grande Compact since the 1960s while wells went unregulated. “Is it fair to wait 40 years for something?” he asked, while clarifying later in the proceedings that attorneys should not take his questioning as an indication of how he would rule.

The plan, which would take in roughly 174,000 acres of irrigated land and 3,000 irrigation wells, are an alternative to the rules and regulations currently being formulated by the Office of the State Engineer. Either of those two plans, should they go in effect, would represent the first regulation of the valley’s wells.

Tim Buchanan, an attorney representing 11 objectors, criticized the computer model that would be used to project depletions, noting that there were more than 200,000 acre-feet in groundwater depletions that resulted in only a 3-percent depletion to the Rio Grande. “Is it math or is it voodoo,” he asked. Buchanan and Erich Schwiesow, an attorney for one other objector, also questioned the subdistrict’s plans to attribute the recharge decrees of ditch companies in the subdistrict toward replacement water. Buchanan argued that the subdistrict didn’t have the authority to utilize the property rights of ditch shareholders in that manner. Paddock countered, noting that the decrees for two of the larger ditches in question, allowed water to be reallocated should they come under new regulation from the state.

Meanwhile, not content to wait for Judge Kuenhold’s ruling, the Rio Grande Water Conservation District board voted this week to move ahead with implementing assessments for the management of the groundwater sub-district. Here’s a report from Ruth Heide writing for the Valley Courier. From the article:

Well owners within the geographic area of the sub-district will pay fees to operate and manage the sub-district. The Rio Grande Water Conservation District (RGWCD) has been footing the bills for developing its sub-district to this point. The water management sub-district is designed to reduce well pumping in order to alleviate injuries to senior surface water rights, replenish the underground aquifer and ensure the basin complies with the Rio Grande Compact. The water court approved the sub-district, but the sub-district’s management plan is currently under dispute and judicial review…

RGWCD District Engineer Allen Davey asked the board on Tuesday if Sub-district #1 should prepare to submit the administrative fee documentation to the Rio Grande County treasurer. He said the process of preparing the documentation will cost some money, and the district would be risking the loss of those funds if the sub-district plan is denied by the courts. RGWCD Board President Ray Wright said the illness at the conclusion of the trial delayed closing arguments to the end of October, and the judge would undoubtedly take time to render a thorough decision after that time. He said it is a judgment call at this point whether the judge’s ruling will be made in time to begin assessments in 2010. Davey added that even if the judge makes a favorable ruling, an appeal could be filed that could last another year or more.

RGWCD Attorney Ingrid Barrier said, “I am fairly confident if we get such a ruling, we will have an appeal to the Colorado Supreme Court.” She said Kuenhold is well aware of the district’s time constraints regarding the fee collections, but there is also no question the judge will be determined to fashion a comprehensive decision taking into account the proposals of all the parties involved. “I think it is wise for us to move forward as if we are able to collect this fee … because if we do not do that, that’s another year off.” She said the administrative fees could be placed in an escrow account so in the event the Supreme Court denied the sub-district plan, the fees could be given back. Barrier said that completing the process to begin collecting fees would make it easier in the future to repeat the process. Several other sub-districts are in the works throughout the San Luis Valley…

Barrier also reviewed the major arguments from the principal attorney for the opponents, Tim Buchanan who represents a group of senior surface water owners. Barrier said the opposing arguments include: sub-district not entitled to use any water from the Closed Basin Project to replenish depletions; likewise with recharge water; the plan is not specific enough in how it will protect senior water rights; the plan is invalid because no rules/regulations are in place regarding contracts with well users outside the sub-district area; and the time period to begin replacing injurious depletions is in dispute. The sub-district board proposes to replace depletions in January of the year following the plan’s approval, while opponents believe the depletions should be retroactive.

More San Luis Valley groundwater coverage here and here.

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