Here’s a recap of the first week of the current trial, from Ruth Heide writing for the Valley Courier. From the article:

The district and the state water division, represented by the attorney general’s office, are defending their approval of the sub-district board’s management plan while attorneys representing senior water users are contesting the plan as it is currently written.

By reducing well pumping in the closed basin area of the Valley north of the Rio Grande, the sub-district intends to provide protection and mitigation of injurious depletions to senior water rights; balance the aquifer; and ensure compliance with the Rio Grande Compact, an interstate agreement with downstream states.

The water district is presenting its witnesses first. Robbins said at the conclusion of testimony on Friday that the proponents still have four witnesses to call before the opponents begin their slate of witnesses.

Kuenhold told the attorneys on Friday that he would like to hear closing arguments in the case on the Friday of the third week, October 16, if at all possible He added he would try to render a decision in about 30 days following the trial but would not promise he could meet that ambitious of a deadline. He said he has asked visiting judges to help fill in for him so he could concentrate on the water decision…

When senior water rights attorney Tim Buchanan asked [Dr. Willem Schreüder, an expert on the Rio Grande Decision Support System computer model] if the model still had limitations, Schreüder responded, “I believe that’s true of every model.”[…]

Previously on the stand was the water district’s engineer Allen Davey who remained on the stand two days. Other witnesses this week have been the water district’s general manager Steve Vandiver and sub-district board member Carla Worley.

From The Pueblo Chieftain (Matt Hildner):

In February, District Judge O. John Kuenhold sent the plan back to the board of managers for Subdistrict No. 1 of the Rio Grande Water Conservation District. Kuenhold called for the inclusion of a time frame and detailed methodology for determining the depletions well pumping caused to the Rio Grande. The subdistrict’s boundaries would include 174,000 acres of irrigated land and roughly 3,000 groundwater irrigation wells. The valley could see up to five other subdistricts move forward with management plans if the court approves this one.

Attorney Tim Buchanan, who represents 11 objectors, said the revised plan left too much discretion to the state engineer and did not clearly lay out the steps the subdistrict would take. “We need implementing language,” he said. Buchanan also argued that the revised plan had backed away from previous testimony that past groundwater depletions would be replaced. Both he and Stephane Atencio, an attorney for two other objectors, took note that 40,000 acre-feet from past pumping will deplete the river over the next 20 years…

The subdistrict’s attorney, David Robbins, said the subdistrict board had felt replacing past depletions would punish those well users who voluntarily took part in the subdistrict. He added that the valley’s well users were operating within the law when those depletions were made. “There’s no logical basis to punish those who’ve acted affirmatively to solve the problem,” he said. Robbins also reiterated the plan was an attempt by users to find a workable solution instead of being subject to the groundwater rules and regulations currently being worked on by the engineer’s office. “It’s an effort to claim a right of self-governance,” he said.

More San Luis Valley groundwater coverage here and here.

The state engineer has approved proposed changes to the management rules for the San Luis Valley’s groundwater sub-district #1. Here’s a report from Matt Hildner writing for the Pueblo Chieftain. From the article:

The revisions, posted (pdf) on the conservation district’s Web site Tuesday, include a revised plan of water management and appendices for an annual replacement plan, surface water credit calculation, an index of the subdistrict’s wells, budget plan and operational timelines. The replacement plan also includes provisions for the subdistrict to deliver water downstream when senior surface water users are curtailed under the Rio Grande Compact at a rate equal to or greater than the injurious depletions caused by pumping.

During a Tuesday hearing on the course of management for the September trial, Kuenhold ordered additional information be included on how the subdistrict plans to use the Rio Grande Decision Support System, a computer modeling program, to calculate depletions. He also agreed with the plan’s supporters to limit the issues that any new interveners in the case might raise, avoiding the risk of re-trying matters the court previously covered.

More Coyote Gulch coverage here and here.

From the Pueblo Chieftain (Matt Hildner):

District Judge O. John Kuenhold scrapped an Aug. 3 trial date Tuesday so that objectors in the case would have sufficient time to analyze forthcoming changes to the proposed management plan and the court could give sufficient public notice. Attorneys for 16 objectors in the case also had argued that more time was needed to evaluate the Rio Grande Decision Support System, a computer model which the court ordered should serve as the basis for calculating the depletions caused by groundwater pumping.

The new time frame puts the squeeze on the plan’s supporters. Should the court approve the plan, the plan’s backers would have to get the subdistrict’s tax information to Alamosa, Rio Grande and Saguache county assessors by Dec. 1. Failure to do so would mean the subdistrict would be without local tax revenue in 2010. The subdistrict, which would take in nearly 3,000 irrigation wells and 174,000 acres of irrigated farmland, hopes to use a combination of local assessments and federal conservation funding to pay farmers to fallow up to 40,000 acres and thereby reduce groundwater pumping.

More Coyote Gulch coverage here and here.

Judge O. John Kuenhold has given the people working on the rules for the Valley’s first groundwater management sub-district another week to come up with a solution for protecting senior rights holders and other items specified in his ruling earlier this year. Here’s a report from Ruth Heide writing for the Valley Courier. From the article:

The modified plan went out to objectors on Friday afternoon. The attorneys said they had not had time between Friday afternoon and Monday afternoon’s status conference to review the changes in the plan, so Judge Kuenhold gave them another week, until Monday, May 4. In the meantime he asked the parties to discuss among themselves whether they could agree or disagree on the changes to the plan. Kuenhold has scheduled an August trial in the event the parties do not agree. Attorney Ingrid Barrier who has been working with the sub-district board to modify its plan told the judge she sent out draft changes on Friday including copies of appendixes addressing annual replacements, the well data base and sub-district efforts to document how it will calculate credits. She encouraged other attorneys to contact her with any questions or concerns. She added that the sub-district board is on a short time schedule to get its plan adopted and finalized by the June deadline set by the court. “We are galloping toward that,” she said.

More Coyote Gulch coverage here and here.

Over 400 groundwater irrigators in the South Platte River Basin have been shutdown in recent years following shutdowns and curtailments in the Arkansas River Basin after Kansas sued Colorado. The state is trying to convince Nebraska that a proposed pipeline releasing into the Republican River at the border will meet Colorado’s requirements under the Republican River Compact. The nexus between groundwater and surface water is becoming well known if not entirely understood.

In an attempt to avoid heavy-handed top-down regulation of groundwater pumping in the San Luis Valley, State Engineer Dick Wolfe, has formed a committee to come up with inclusive rules for pumping that are acceptable to everyone in the valley. The new rules — it is hoped — will satisfy senior surface rights holders, compensate them for past injury, allow most groundwater irrigators to stay in business and keep Colorado on the positive side of the Rio Grande Compact ledger. The state engineer’s office unveiled the first draft of the new rules this week. Here’s a report from Matt Hildner writing for the Pueblo Chieftain. From the article:

“You’ll see throughout this document there’s a number of places where we’ve put question marks,” Wolfe said. “We thought we need to address those but we weren’t quite sure how we should actually articulate that in these rules.” Wolfe expects a final draft of the rules to be submitted for water court approval by the end of the year, which would most likely come after the court has completed its review of a voluntary plan to limit groundwater pumping in the north-central part of the valley. Should the court approve the plan for Subdistrict No. 1, the engineer’s rules will include a way to accommodate operation of the subdistrict. Subdistrict membership would allow for pumping under the rules as would a court-decreed plan for augmentation.

But the framework regarding the timing of compliance with the rules included a host of questions: How long after approval of the rules will curtailment take effect? What if the court were to remand a subdistrict plan? The framework also raised questions about whether some geographic areas should be phased in, citing, for example, how little information the state had on the aquifer beneath southern Costilla County. “I think we all recognize we don’t want to inadvertently take too much of an extreme one way or another of either not handling them or restricting them too much when we don’t know enough about them,” Wolfe said.

A key component of both the rules and the operation of subdistricts will be the state’s Rio Grande Decision Support System, a computer model planners will use to predict when and where future groundwater use might harm senior surface water users or compact obligations. Kelly Sowards, one of the objectors to the subdistrict plan now under review by the court, raised the question of how the computer model’s results would be released in relation to the start of irrigation season. “It’s important for us to know quickly,” he said. Tim Buchanan, an attorney who represents Sowards and other objectors in the subdistrict trial, urged the engineer to write a procedure into the rules on when modeling would occur and how the public would be notified.

“We know a lot today compared to what we knew 30 years ago,” he said. Wolfe’s office hopes to gather all of the committee’s comments on the framework by April 24. The advisory committee will meet again May 13.

More coverage from Ruth Heide writing for the Valley Courier:

Wolfe hopes to get to a final draft by the end of the year and told the advisory committee that by working through questions and objections upfront he hoped to avoid objections to the final rules when they are submitted to the water judge later this year. “I come today with not being biased by the past,” Wolfe said. He was not involved in attempts years ago to develop groundwater rules, he said, and believed the state and water users have more information now than was available then. He stressed it was important to him that these rules be developed with input from those who would be affected by them. “Progress is going to be slow,” he said. The complex issues involved in this basin will take several months to work through, he said. “I know this process will be successful,” he added…

He asked the numerous members of the advisory committee to begin sending comments to the state regarding the initial draft in the next couple of weeks so the next draft version may be sent out to the committee before its next meeting in Alamosa on Wednesday, May 13. The committee will meet from 10 a.m. to 3 p.m. with educational items presented in the morning and the afternoon focusing on the rules themselves…

Wolfe reminded those present that all well owners would have to comply with the state’s rules governing groundwater withdrawal in Division 3 (the Valley) unless they are exempt. Exempt wells might be domestic wells, for example, or wells already under an augmentation plan, Wolfe explained. Otherwise, well owners will have to obtain an augmentation plan or substitute water supply plan, be part of a water management sub-district or face curtailed pumping…

The San Luis Valley has about 3,000 wells that would potentially fall under these rules…

The rough draft Wolfe presented this week is somewhat of an outline of the various topics that must be addressed in the rules. The draft includes 14 sections from the title (“Rules Governing the Withdrawal of Ground Water in Water Division No. 3”) and authority (state statutes) to the effective date (60 days after publication, if there are no objections.) In between are sections regarding the purpose of the rules, definitions, requirements, standards for review of applications (namely the Rio Grande Decision Support System groundwater model), compliance plans and timing for compliance, geographic scope (nearly the entire Valley) and irrigation season. The determination on when the irrigation season will begin and end according to the rules is one of the items Wolfe said would require much discussion and probably the establishment of a sub-committee. In addition to the sections Wolfe included in his first draft, he questioned whether the rules should also include sections for variances and appeals. Wolfe said the section in the rules defining their scope and purpose was one of the most important. That was the portion most fleshed out in his initial draft. He said he incorporated comments from the advisory group’s first meeting.

Objectives he included in the initial draft included: optimally use water “consistent with preservation of the priority system of water rights and protection of Colorado’s ability to meet its interstate compact obligations;” regulate aquifers to maintain a sustainable water supply; recognize the aquifers as underground storage reservoirs; maintaining artesian water pressures consistent with those experienced in the years 1978-2000; and recognize the obligations to replace injurious stream depletions and fulfill obligations under the Rio Grande Compact.

Here’s a look at the technical challenges for modeling the hydrogeology of the valley, from Ruth Heide writing for the Valley Courier:

Before presenting the first draft of the proposed well regulations this week, the state engineer’s office provided background on subjects such as the Valley’s hydrogeology and the Rio Grande Decision Support System. All of these subjects play a part in the well regulations. Geologist Eric Harmon described the Valley’s hydrogeology as a 100×40-mile three-dimensional, multi-layered jigsaw puzzle with no picture on the puzzle box to guide those trying to put it together. The fact that changing one puzzle piece can affect many more or even the entire picture is one of the challenges of those trying to put together well regulations that are equitable. Folks have been studying the Valley’s hydrogeology since the 1890’s, and although the tools to study it are more advanced now than then, the experts still do not have it all figured out, Harmon explained. In the last decade the state spent about $8 million developing the Rio Grande Decision Support System (RGDSS), a model of the Valley’s hydrology…

Harmon said the Valley consists of very different and complex geological regions that make efforts to define it difficult. He said underneath the Valley’s seemingly uneventful surface lie faults, inter-bedded layers of clay and sand, gravel, basalt, rocks and water flowing among all of that. Harmon said the RGDSS computer model has five layers and 51,000 cells, but “even that model cannot show all the geological complexities of the Valley.” He said in certain areas the model still requires refinements to reflect the realities of the Valley’s hydrology. He added that in some areas the model works very well and other areas it does not accurately reflect what is happening in the real world.

More Coyote Gulch coverage here and here.

Here’s an update on the revision of the proposed rules for groundwater sub-district #1, from Ruth Heide writing for the Valley Courier. From the article:

The board of managers met on Tuesday to review some of the changes to its plan as directed by District/Water Judge O. John Kuenhold in his February decision to send the plan back to the board for revision.

The group also heard a presentation from Dr. Willem Schreüder who helped design and perfect the Rio Grande Decision Support System groundwater model that will assist the sub-district in determining how much water it must conserve and replace. Schreüder discussed data included in the model and described some of the ways the sub-district could use the model. “In the end what we have to do in the model is balance the budget,” he said…

In addition to Schreüder’s presentation during its Tuesday meeting the sub-district board received an offer from objectors’ legal counsel to help the board develop a plan that would be more acceptable to the objectors. Attorney Tim Buchanan, representing a group of senior water rights, told the sub-district board he and his clients were willing to work with the board to address the issues the judge raised in his direction to the sub-district to modify its plan. Buchanan said his clients were particularly willing to work with the sub-district board to develop methodology that would protect senior water rights. The sub-district board and legal counsel thanked Buchanan for his willingness to work with them and encouraged other objectors to do the same.

Kuenhold has scheduled another status conference for April 27 and a trial for August 3.

During the sub-district board’s meeting on Tuesday attorney Ingrid Barrier, who has been working closely with this sub-district board to develop its plan of management, reviewed some of the “red line” changes and additions she has made to the plan to comply with the judge’s February ruling. In fact, she said she incorporated some of the judge’s language into the plan itself. For example, the judge stated that if the sub-district plan conflicted with state rules/regulations, the state’s rules superseded the sub-district plan. The judge also emphasized in his February ruling that protection of senior water rights must be paramount, and Barrier included the judge’s language emphasizing that point. Another phrase lifted from the judge’s ruling, Barrier explained, was that if the plan did not replace injurious depletions, it failed…

Engineer Allen Davey also reviewed some of the details of the plan with the board of managers on Tuesday. He specifically reviewed the method for calculating surface water credits for those well owners who might also own shares on a ditch or canal for example. Many factors are weighed into the equation but ultimately if the surface credit does not entirely make up for the well usage, the property owner has to pay…

[David Robbins, attorney for the sub-district’s sponsoring district the Rio Grande Water Conservation District] said he did not expect every issue to be resolved short of the August 3 trial. He said he knew of at least one issue that the judge would have to decide, namely how far back the sub-district must go in replacing injurious depletions to senior surface water users. Robbins said he saw about three options: 1) all depletions from all wells have to be put into the model and calculated through 2009, and all of those depletions must be replaced; 2) injurious depletions must be calculated and replaced from this time forward because well users have been pumping their wells legally, were never told they had to shut off their water and were abiding by the “60/40” agreement in which groundwater depletions were supposed to be covered by the Closed Basin Project; or 3) take depletions back to 1988 because the years of 1985-1987 were so wet “there was no place for depletions to reside in the Valley aquifers.”

Buchanan told the board that while the argument had been made that the district should not have to replace all the depletions, “those depletions are significant and those depletions go on a long time … Our concern is that all of the depletions are replaced.” He added that instead of trying to find ways of getting out of replacing the depletions, the sub-district should be finding ways to replace those depletions and protect senior water rights as required by the statutes. “What we are interested in doing is finding methods and procedures to ensure that those depletions are replaced so that senior water rights are not shorted,” Buchanan said, “and senior water rights do not bear all the brunt of the [Rio Grande] Compact compliance. That’s really the driving concern that we have.”

More Coyote Gulch coverage here and here.