From the Valley Courier (Ruth Heide):
Groundwater rules, endangered species and interstate lawsuits, public trust doctrine ballot initiatives on top of what could be the sixth belowaverage water year in a row add up to what Rio Grande Water Users Association Attorney Bill Paddock called a “horrifying list of what’s out in front of us.”
“That’s what we’re dealing with,” Paddock told water users at the association’s annual meeting in Monte Vista yesterday.
To make a bitter pill even harder to swallow, the assessments for association members increased by $2 per unit, from $25 to $27 per unit, at the recommendation of the board. Association members, who represent area canals and ditches on the Rio Grande, approved the increase. Association President Greg Higel said the assessment increase was not a unanimous recommendation from the board, especially since many of the ditch companies had already set their own assessments for the year. However, the board believed the assessments had to be increased to handle the pending challenges of the year, such as possible lawsuits that might affect water users along the river.
Higel said the board also voted to allocate 2,500 acre feet for Subdistrict #1 again this year. In addition, the board recommended an irrigation start date for water users association members of April 1, which is the standard start date for the irrigation season.
Water user Willie Hoffner voted against the assessment increase and suggested an earlier irrigation start date for folks on Saguache Creek who might not see water again for a while if they are not able to divert it now. Colorado Division of Water Resources Division Engineer for Division 3 Craig Cotten said he would be meeting with the Saguache Creek water users later this month to discuss their preferred irrigation start date.
Cotten said the storms during the last week brought the Rio Grande Basin’s snowpack up from 77 percent to 87 percent of average, but this basin is still the lowest in the state, with other basins way above 100 percent.
“If we can keep getting some storms coming through we have a good chance of reaching that 100 percent,” he said. “We will have to wait and see what the next couple of months bring.”
If things do not improve, this will be the sixth year in a row with below average stream flow on the Rio Grande, Cotten added. Since 2002, the river has registered only three years with above average stream flow , “which is very unusual, and even more unusual the last five years in a row have been below average.”
He said there has only been one other time since the gauges were put in at Del Norte in 1890 that there were five years in a row of below average stream flow , and never six years in a row.
The preliminary forecast for the Rio Grande this year, based on the Natural Resources Conservation Service’s February forecast, at least promises a bit higher numbers than last year. The February forecast for the Rio Grande is 520,000 acre feet, which is still below average but higher than the 459,900 acre feet that passed through the Del Norte gauge last year. Last year’s total was about 71 percent of the longterm average, Cotten said. If the 520,000 acre-feet forecast holds true, the Rio Grande’s obligation to downstream states this year will be about 133,800 acre feet, and the curtailment to meet that obligation could be about 13 percent. However, Cotten stressed that is a guess at this point, and there are many different factors to consider before implementing a curtailment .
Cotten also shared National Oceanic and Atmospheric Administration predictions for precipitation and temperatures for the next three-month period, which show this area as having equal chances for average precipitation and good chances for above average temperatures. Both Cotten and Paddock spoke to the water users yesterday about pending lawsuits that could have impacts on irrigators in the San Luis Valley.
The state of Texas petitioned the U.S. Supreme Court to file a lawsuit against New Mexico and Colorado concerning the Rio Grande Compact, and the U.S. government joined with Texas in the petition last week. The Supreme Court has accepted that lawsuit, so it will now begin moving forward. Colorado is a minor player in the suit at this point but was named because it is part of the compact. Texas’ main beef was with pumping below Caballo Reservoir in New Mexico.
“It didn’t have a lot to do with us but we got drug into that court case,” Cotten said. Paddock added that if New Mexico were to win such a suit, Colorado would definitely be affected because more water would have to be diverted from Elephant Butte Reservoir, one of the main storage facilities for Rio Grande Compact water, leaving less water that could be counted as usable water for compact purposes. If that total decreases below 400,000 acre feet, which was the case last year and will likely remain the case this year, reservoirs in Colorado built after the compact was ratified cannot store water. Platoro Reservoir Paddock added that no one has filed any specific claims against Colorado in the New Mexico/Texas suit, only including Colorado because it is a signatory on the Rio Grande Compact.
“Hopefully there won’t be any spillback on water users in the Valley,” he said. “There’s significant issues that could come up in that lawsuit that could be concerns to Colorado and that could be concerns to all of you.”
Other pending lawsuits, which would more directly affect the Valley, are suits by the WildEarth Guardians. The environmental group filed notice of intent to sue and has 60 days from the time of its notice before it can officially file suit, which would be March 22. That group is alleging violations of the Endangered Species Act protection of the silvery minnow and Southwestern Willow Flycatcher, and so far those who may be named in the suit include the State of Colorado, Corps of Engineers, Bureau of Reclamation and Fish and Wildlife Service.
“They are claiming that the use of water out of the Rio Grande in Colorado is causing some injury to the endangered species in New Mexico,” said Cotten. “Our position is we have the Rio Grande Compact and we meet our compact obligations each and every year. We have done what we are supposed to do legally to deliver water down there.”
Paddock said if the WildEarth Guardians do bring suit against Colorado it would be a precedent-setting form of litigation nationally, and “it will be an incredibly high stakes lawsuit. They are asserting that endangered species overrule the compact. They are saying you can’t exercise your water rights so water can flow unimpeded to the state of New Mexico to support the silvery minnow. That’s the bottom line.” Regardless of the outcome, such a lawsuit would take years to argue and decide “and will involve every water user from the headwaters of the Rio Grande down to Elephant Butte Reservoir because they would all have the same issues .” He said, the State of Colorado “will not go quietly” if such a lawsuit were to proceed. Paddock and Cotten also reminded attendees of the Rio Grande Water Users Association annual meeting yesterday that groundwater rules will likely be filed with the court this spring. Cotten said the next advisory committee meeting is at 10 a.m. March 12 at the Inn of the Rio Grande in Alamosa, and the state engineer’s goal is to promulgate the rules in April. Paddock added if there are objections to the rules, the court would have to schedule a trial, if those are not resolved beforehand, and that could very likely take place by this time next year. If/Once the rules are ultimately approved, there will be a limited time period for wells to either be under an augmentation plan of their own or through a sub-district , Paddock reminded the water users. Sub-districts would also have a limited time to finalize their formations and plans of management, he added.
“We’re looking at a major change in water management over the next two to three years,” he said.
Capping off “horrifying list of what’s out in front of us,” according to Paddock, is the potential for ballot issues to go before voters this fall regarding a constitutional change from the current priority water system to the Public Trust Doctrine. The Public Trust Doctrine would involve a permitting system, and whoever was in charge of the permitting could choose how water would be diverted and for what uses. For example, the most beneficial use of water could be determined to be instream flows in the Rio Grande rather than diversions for agricultural irrigation, Paddock explained.
“The Public Trust Doctrine is unpredictable,” he said. “It’s terrifying because it takes away people’s certainty of how they can use their water and when it is available.”
He said if those promoting the ballot initiatives collect enough signatures, the Public Trust Doctrine initiatives would probably appear on the ballots this fall.
“It is a significant threat to everyone’s established water rights.” is one of those.
Another even more substantial potential impact of Texas winning this suit and requiring more water to be delivered out of Elephant Butte would be less chance of the reservoir spilling. In a year when Elephant Butte spills, Colorado has no delivery obligation downstream.
“That makes a whole lot more water available in Colorado ,” Paddock said. “That’s pretty high stakes.”