Click here to read the first article in Ruth Heide’s series about responses to the San Luis Valley groundwater rules.
Here’s the second article in Ruth Heide’s series about the responses to the San Luis Valley groundwater rules running in the Valley Courier:
Some well users in the San Luis Valley are asking the water court to reject a portion of the Rio Grande Basin groundwater rules regarding sustainability .
In its statement of opposition to the rules, SLV Confined Aquifer Sustainability, Inc. (CAS), a group founded in 2014 and representing water users with wells in the confined aquifer system in the Alamosa-La Jara and Conejos Response Areas, asked the court to reject the section of the rules regarding sustainability on the basis that section is “arbitrary, confiscatory, inconsistent with Colorado statutes and the Colorado Constitution, speculative, and unsupported by sound science and existing data.”
CAS members were part of the group assisting the state engineer in developing the rules and commended the state engineer for the process he followed in including many diverse interests and groups. CAS supported much of the rules but had concerns about some portions.
“These response areas face significant challenges in meeting the proposed rules,” the group’s response stated. “Not only must they replace injurious well depletions to multiple streams; they are presented with onerous sustainability requirements that may not be achievable.”
One of the objectives of the rules is to bring artesian pressures back (and maintain them) to the level they were between 1978 and 2000, and CAS argued that there is not enough data from that time period to know reliably what the pressure levels were then.
CAS argued the information regarding that time period was incomplete, limited or nonexistent.
The state plans to gather data from monitoring wells from the present forward in order to estimate pressure levels from 1978-2000 , and CAS supported the data collection as useful but stated, “attempting to determine the pressure levels that existed between 1978 and 2000 on the basis of data from 2015 forward cannot provide reliable results.”
Many of the monitoring wells did not exist before this year, “and the reliability of the data to be gathered is untested,” CAS argued. “It is and will be unknown how these monitoring wells can be used in determining and protecting sustainability until they have been in operation for a longer time.”
The state plans to conduct a 10-year study of these new monitoring wells, and CAS argued that any cutbacks on well usage before the 10 years were up would “result in the taking of vested property rights without compensation.”
The only pressure levels that could be relied on at this time, CAS argued, are the ones in existence before this year, so the state engineer should only focus on preserving and improving the pressure levels of 2015.
CAS argued that the state engineer does not have the information he needs to promulgate the sustainability rules at this time, so the court should reject that portion of the rules.
CAS also argued that the rules maintain the confined aquifer can be controlled by limiting withdrawals when there are other factors that can affect aquifer pressures such as climate, geologic conditions, inflows and outflows and the location of withdrawals.
CAS stated, “The pressure levels within the confined aquifer system during the period of 1978 through 2000, upon which the sustainability provisions of the proposed rules are based, may be impossible to restore through curtailment of withdrawals from confined aquifer wells without an improvement in climatic conditions and water supply.”
Other complaints the group had with the groundwater rules included:
- the method used to estimate groundwater withdrawals , which CAS argued was inaccurate and would deprive well owners of their legitimate property rights;
- requirements differing for confined aquifer wells depending on where they are located in the basin, which CAS argued was a violation of state statute (” aquifers of the same type in the same water division shall be governed by the same rules regardless of where situated);
- the confined aquifer system wells were inappropriately grouped and that wells outside a given response area could still affect aquifer pressures within that response area;
- the rules should have allowed for a sub-district for the confined aquifer wells in the basin, as a group, which CAS stated retired Chief District/Water Judge O. John Kuenhold had required when the sub-district process began
- under the rules, estimated reduction in water withdrawals for confined aquifer irrigators would be disproportionately high, for example approximately 35 percent in the Conejos Response Area, contrary to state statute standards that “any reduction in underground water usage required by such rules shall be the minimum necessary to meet the standards “” CAS stated in its protest to the rules that 35 percent reduction would not be the minimum required to meet the standards and senior water rights would be protected and sustainability standards met by a reduction of much less than 35 percent.
- time limits for complying with the 1978-2000 sustainability requirement are too short and too “onerous.” Rather than a 10-year time frame as set in the rules, CAS argued a 20-year time frame would be more appropriate.
Here’s the third article in Ruth Heide’s series about the responses to the San Luis Valley groundwater rules running in the Valley Courier:
While some well users objecting to the Rio Grande Basin groundwater rules argue they went too far, some surface water users objecting to the rules argue they do not go far enough.
Collaborating on one statement of opposition, several Conejos County farmers and ranchers asked the water court not to approve the state engineer’s rules until the groundwater model used to determine how much well users should “pay back” injured surface water rights was “correctly designed and calibrated.”
Specifically , the Conejos County landowners maintained the computer groundwater model did not accurately reflect the injurious depletions well users have caused residents with surface water rights on Arroya Springs and Arroya Creek. Namely, the groundwater model does not show any injuries on those streams because they were dried up as a result of well pumping before the model was developed, objectors stated.
That does not mean well users shouldn’t make up for those injuries, the Conejos County surface water right owners added.
“Groundwater withdrawals from the confined aquifer predominantly by wells junior in priority to the protestors’ water rights have caused the potentiometric head of the confined aquifer in the vicinity of Arroya Springs and Arroya Creek to decrease,” the objectors stated.
They estimated that the aquifer potentiometric head had declined in the vicinity of Arroya Springs 25 feet between 1970 and 2014, adding, “There is a strong inverse correlation between groundwater withdrawals in the vicinity of Arroya Springs and the flow of water from Arroya Springs.”
As more water was diverted by wells from the 1930s to the early 1970s, the Conejos County water users stated , the flow from Arroya Springs decreased. From 1916-1923 , the flows in Arroya Springs ranged from 22-58 .3 cubic feet per second (cfs), they stated, but by 1967, the flow had decreased to 7 cfs, by 1975 to 3 cfs, by 2009 to 1 cfs and by 2013 the Arroya was dry.
To put it another way, annual diversions from Arroya Creek and Arroya Springs declined from more than 9,000 acre feet in 1937 to 655 acre feet in 1964.
Objectors said Arroya Springs was recharged by precipitation, seepage from La Jara Creek and irrigation ditch seepage and return flows . Even though the development of irrigation ditches may have increased the amount of water that discharged at Arroya Springs, the springs existed and discharged water prior to that development, the objectors stated. The groundwater rules will not preserve the priority water system and replace injurious depletions caused by well usage, as they are set up to do, if they rely on a groundwater model that does not take into account depletions to the Arroya Creek and Springs, objectors stated. They added it would be unlikely groundwater users would voluntarily develop an alternative model showing depletions to Arroya because then they would have to replace water to those streams.
Objectors argued that the proposed rules violate state statute because the model the rules rely on “does not preserve the priority system of water rights.” The rules should not become effective until the model is correctly designed and calibrated , the objectors stated.
Those listed in this statement of opposition to the rules included: 2 J Ranches Inc.; Charles and Valerie Finnegan; Colin and Karen Henderson; Donald Larsen; Joseph A. Martinez; LeRoy and Rosalie Martinez; Querina Martinez; Edon Ruybal; Dick and Georgann Smith; and Armando and Jessica Valdez. Their surface water rights date back to appropriation dates of 1889 and 1902.
Colin and Karen Henderson , El Sagrado Farm, filed a separate protest urging the state to take into consideration well monitoring data already available in determining what will be required to replenish the aquifer and replace injuries to senior water users. They did not object to further data gathering but said where there is already data available, the state should use it.
“We demand the rules state the data available from monitoring wells collected between 1978 and 2000 be used immediately in subdistrict reparation plans and our water rights be returned to us,” the Hendersons said in their statement of opposition.
They also argued that the state should close down wells, starting with the most junior well rights, until the Arroya Springs flow again. Those closest to the springs should be curtailed first , they added.
The Hendersons attached a well readings graph as documentation for the injuries they and other Conejos County senior water users had sustained. The graph showed measurements between 1983 and 2013. When the water level in the well was above 7628 feet, the Arroya Springs flowed , the Hendersons pointed out, but when the drought of the early 2000’s began, there was less water replenishing the aquifer, but the wells continued to pump, the aquifer level dropped, and the springs stopped flowing.
“This is hard data that can- not be refuted and demands the state take immediate action to repair our water rights,” the Hendersons stated.
In a similar statement of opposition, a group of Conejos County senior water users on the El Codo Ditch, Llano Ditch, Las Sauces Ditch and Chavez Ditch also argued that the groundwater model relied upon by the state engineer’s rules was not correctly designed or calibrated and the rules should not become effective until the model is corrected.
This group also argued that the rules should include additional provisions to require the demonstration of aquifer sustainability progress on an annual basis. They stated that while the rules refer to a 10-year period when the engineer will gather data to determine what the aquifer sustainability requirements should be, during that 10 years well users would be continuing to injure senior water rights “without remedy to an already depleting water source.”
The objectors added, “The lack of a more concise governance to address immediate injury must be addressed to improve current aquifer sustainability levels.”
The protestors stated that groundwater withdrawals had already lowered aquifer levels over time, which negatively affected surface water rights, some of which dated back to 1855 and 1867.
The objectors also stated that they were curtailed in the amount of water they could use from their ditches in order for the state to meet its Rio Grande Compact obligation to downstream states, but well users had no similar curtailment. That essentially meant that the junior groundwater rights superseded the more senior surface rights, they added.
“Groundwater withdrawals have not been subject to curtailment for compact obligations . Meanwhile, groundwater withdrawals have been reducing the aquifer sustainability levels contributing to streams losses and depletions forcing surface water users to contribute increasing amounts of water from their respective decreed water rights to satisfy compact obligations, in lieu of its intended consumptive use,” objectors stated.
As well usage increased from the late 1930s to early 1970s, the objectors stated, the number of days they were curtailed for compact obligations increased.
“The manner in which groundwater withdrawals have been administered have allowed superseding rights to those groundwater withdrawals over the senior priority right of which prior appropriation allows ” Lack of comprehensive rules improperly reallocates to junior wells the water that was previously appropriated by senior surface water rights, including the protestors’ water rights.”
Here’s the fourth article in Ruth Heide’s series about the responses to the San Luis Valley groundwater rules running in the Valley Courier:
This is the fourth and final of a series focusing on the responses filed to the Rio Grande Basin groundwater rules.
Longwater warrior Kelly Sowards said a mouthful in a few handwritten lines in his statement of opposition to the Rio Grande Basin groundwater rules.
Sowards from Conejos County and Norman Slade from Rio Grande County filed individual statements with concerns about the rules.
Without an attorney or typewriter, Sowards told the water judge the rules should be granted “only in part.” He specifically objected to the 1978-2000 period that the rules and state legislature use as the goal for sustainability in the basin, which encompasses the San Luis Valley. Sowards objected to the “lack of history and facts” for that period and said this time period was “years after the Conejos system lost all of its return flows and artesian springs flows.”
Sowards also found the rules lacking in that they do not require irrigation wells to pay their fair share of Rio Grande Compact requirements ; “administration of water to comply with Colorado obligation under Rio Grande Compact; “the conjunctive use of surface and groundwater by state not enforcing groundwater usage” ; and the use of Closed Basin Project water for the water management sub-districts .
Slade, who retained attorney John Cyran, generally supported the rules and was present during the many meetings occurring over several years to develop the rules. However, Slade stated he believed the rules could be firmed up in a few areas:
- provisions to require the curtailment of wells that are not replacing injurious depletions or operating under augmentation or sub-district plans, which are the measures permitted under the rules. Groundwater irrigators who are not replacing injuries to surface water rights through sub-districts or individual augmentation plans are to be curtailed or even shut off. Slade argued that the rules do not include sufficient provisions to require wells to be curtailed if they do not follow the rules.
- provisions to provide additional flexibility by recognizing methods such as prepayment, banking or advance dedication of water to satisfy sustainability requirements.
- clarity in what the rules mean by allowing water users to replace injurious stream depletions by contractual remedy. “The proposed rules are unclear as to what types of contractual arrangements are acceptable ‘remedies,” Slade’s statement read, “and it is not clear that such ‘remedies’ are acceptable under Colorado law.”
- provisions to monitor the effectiveness of the rules and to modify them if they prove ineffective. Slade’s statement argued that the rules should require the state engineer to prepare a report concerning the rules’ effectiveness no later than five years after operation. Based on that report, the state engineer should propose modifications to the rules identifying sources of water for aquifer sustainability or demonstrating why no modification is necessary , Slade stated.
- reporting requirements for those operating under sub-districts or augmentation plans should include an annual report regarding sustainability, and the rules should require reporting regarding credit allowed under the groundwater model for phreatophytes (plants soaking up groundwater) “or for other depletions that are determined noninjurious.”
- better define/explain “proportional responsibility” for maintaining a sustainable water supply. Slade concluded by questioning whether the rules would be sufficient in achieving their goal of sustainability in this basin.
“The proposed rules generally may be insufficient to ensure sustainability of the Division 3 surface and ground water supply.”
The groundwater rules also incorporate the irrigation season, and the only objection to that portion came from the San Luis Valley Irrigation Well Owners, La Jara, who said the portion setting the beginning and ending of the irrigation season should not be approved the way it is written.
These irrigators operate at the southern end of the San Luis Valley and receive some of their water supply from Los Pinos, which travels through northern New Mexico, as well as the San Antonio River, which has divertible flows earlier than other rivers in the Valley. These irrigators also rely on water associated with the Taos Valley Canal No. 3, which historically diverts water in March.
If San Luis Valley Irrigation Well Owners are not allowed to begin irrigating until April 1, the start date designated in the rules, it might deprive them “of a significant and important portion of their vested water rights,” the group stated.
Diversions in March, they argued, are especially important to them in dry years “due both to the fact that the San Antonio will begin running earlier in the year, the need for augmentation water may be greater in driver years and the relative priority of the water right may result in it being called out earlier in the season.”
The water users stated the irrigation season portion of the rules should be revised to take into account situations like theirs.
They also objected to the compliance time in the rules, maintaining it was too short and should be extended because developing augmentation plans, negotiating agreements and building infrastructure is a lengthy process.
Needing more time may not be the strongest argument of any of the statements of opposition to the rules, since the state engineer has been working on these rules in full view of the public and with public participation since 2009.