Groundwater rules for the Rio Grande Basin are now in final draft form, next stop water court

San Luis Valley Groundwater
San Luis Valley Groundwater

From The Valley Courier (Ruth Heide):

Time’s almost up.

In the works for several years, the groundwater rules for the Rio Grande Basin are now in final draft form and should be filed with the water court within the next month. Last-chance comments on the final draft of the rules are due tomorrow, August 19, with the rules anticipated to be filed with the water court either by the end of this month or next, depending on how many comments come in.

The groundwater rules, which will apply to well owners in the Rio Grande Basin (San Luis Valley), are designed to protect senior surface water rights and Rio Grande Compact obligations in addition to promoting long-term sustainability of the basin’s aquifers.

The rules apply to hundreds of well owners in the Valley including towns and cities. A well solely permitted for in-house use would not need to be regulated under these rules. Primarily these rules will affect those who are using their wells for irrigation of crops, livestock or municipal water supplies, wells required to be metered. Although there’s been a moratorium on new wells for many years, the existing wells have continued to negatively affect senior surface water rights, a problem the well regulations are designed to rectify either en masse through collective water management sub-districts or individually through augmentation plans or substitute water supply plans.

“Essentially, the Confined Aquifer New Use Rules recognize that there is no unappropriated water in the confined aquifer, so that any new withdrawal requires one-for-one replacement,” the proposed rules state.

“The rules are designed to allow withdrawals of groundwater while providing for the identification and replacement of injurious stream depletions and the achievement and maintenance of a sustainable water supply in each aquifer system, while not unreasonably interfering with the state’s ability to fulfill its obligations under the Rio Grande Compact.”

Those themes are stressed throughout the regulatory document: no new withdrawals will be all o w e d w i t h – out the same amount being replaced; injuries to surface r i g h t s m u s t be replaced; and the state’s agreement with downstream states in the Rio Grande Compact must be upheld.

“Nothing in the rules is designed to allow an expanded or unauthorized use of water ,” the rules state.

Colorado Division of Water Resources Division 3 Engineer Craig Cotten told local water leaders last week that State Engineer Dick Wolfe advised legislators serving on the water resources review committee the rules would be completed within the next month.

“We do have the final draft of the rules out for public comment until the 19th,” Cotten said. “We think the rules are basically done, just giving everybody a last chance to make comments. After that we will take those comments and then file in court.”

Deputy State Engineer Mike Sullivan, who previously served as Division 3 engineer, said water court resume timelines start from the end of a month, and folks have 60 days after that to respond to the case in court.

“It doesn’t matter if we filed the rules August 10 or August 31, as the clock starts essentially August 31. Thus I think the earliest we could/ would file would be the end of August or September. It all depends on getting any comments considered and gathering all the pieces into a complete package for the court,” Sullivan stated.

“After all the work from the water user community in helping craft the rules I imagine folks would like to get the next phase rolling as soon as possible.”

The rules will be effective 60 days after publication unless protests are filed in the water court, which would delay the process until the protests were resolved.

An approximately 50-member advisory committee has been working with Wolfe since 2009 to develop groundwater rules for this basin. Advisory committee members included representatives from water conservancy and irrigation districts, water user associations, counties, state and federal agencies, municipalities and attorneys . As a group, the advisory committee concluded its work in May, after meeting 25 times over the last several years. The state sent its final draft out to the advisory committee members for one last look this month.

Once the groundwater rules are in place, well owners in the Valley will have two years to come into compliance with the rules by joining one of several water management sub-districts or filing an individual augmentation plan or substitute water supply plan. The other alternative is to be shut down.

One of the delays in getting the groundwater rules to this stage was the development and refinement of the Rio Grande Decision Support System groundwater model that simulates groundwater flows in this basin and helps determine how much water well users must pay back to make up for the injuries they have caused in the past and are currently causing. That model and subsequent simplified calculations called response functions have been under refinement for several years.

After the first water management sub-district (a subdistrict of the sponsoring Rio Grande Water Conservation District) was formed, subsequent sub-districts throughout the Valley waited for the model and its response functions to be refined to the point that well owners in those sub-districts would know what kind of water debts they were looking at before they formally formed their sub-districts . Many of them have been ready to collect signed petitions from those who will be included in the sub-districts , or have already collected petitions, pending those model runs that would tell them how much they would need to replace to senior surface rights.

Most of the sub-districts are organized by geographical areas of the basin such as Conejos River, San Luis Creek and Saguache Creek, while some are organized by the type of wells they encompass, such as confined aquifer wells.

Only the first sub-district is operating (encompassing wells north of the Rio Grande), but four or five others are in various stages of preparing to file their paperwork and petitions with the water court.

Well irrigators who are part of recognized sub-districts with state-approved water management and replacement plans essentially possess a “get out of jail free card,” but the rules state the sub-districts have to live by their management plans and show some progress over time, or the state will require additional action. Another reason it took longer to finalize the well rules was the lengthy discussions over how to meet the state legislature’s mandate to restore this basin’s confined, or deeper, aquifer to the healthy level it presumably experienced between the years 1978 and 2000, before the devastating drought of the early 2000’s . The draft of the rules, as proposed, allows for fluctuations in the aquifer in the same way the aquifer fluctuated during those years, as long as the average levels are similar to those occurring between 1978 and 2000. Fluctuations will also be permitted in the unconfined , or more shallow, aquifers, which the rules acknowledge are underground water storage reservoirs.

Because artesian pressure data is lacking for the confined aquifer during the period from 1978-2000 , the rules provide for a well network to collect data over the next decade to help estimate artesian pressures in the confined aquifer. Once that data is collected, the state tngineer will define the methods proposed to maintain a sustainable water supply in the confined aquifer system, and if that means a change in the rules, that could trigger another rule making process at that point.

The proposed rules also specify the irrigation season for this basin, presumed to begin April 1 and end on November 1, given some flexibility in climate and other conditions. See http:// water. state.co.us/

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