Alamosa attorney Steve Atencio represented Richard Ramstetter and Peter D. Atkins at the water trial.
ALAMOSA — An abbreviated water trial this week before Chief District Judge Pattie Swift ended Tuesday afternoon with direction from the court for opposing sides to submit their proposals on how they would like the judge to rule.
The proposed findings are due by December 7. The attorneys involved in the case will also provide their ideas to the judge about how they believe she should handle the court’s retained jurisdiction in the future regarding the San Luis Valley’s first water management sub-district.
A couple of points in the sub-district’s operating plan, which was implemented for the first time this year, were the focus of the two-day trial this week before Judge Swift. Most of the discussion revolved around the inclusion of augmentation plan wells in the sub-district’s 2012 operating plan and the use of Closed Basin Project water in the 2012 plan.
Only three witnesses testified this week: Steve Vandiver, general manager for the Rio Grande Water Conservation District (RGWCD), the sponsor of the Valley’s first groundwater management sub-district; Allen Davey, the engineer for the RGWCD; and State Engineer Dick Wolfe, whose approval of the sub-district’s annual plan was questioned by objectors in this case.
Before testimony and arguments on Tuesday, the judge raised two questions concerning the Closed Basin Project: one regarding whether the water from this project would actually protect senior surface water rights, since the project would be using well water to replace well water; and if the Closed Basin Project water was factored into the groundwater model, “and then we said this is what the injurious depletions are, then how is it I can use it again? How do we get to use it a second time?”
In his closing argument on Tuesday afternoon, RGWCD Attorney David Robbins said the district acknowledged it made two errors of omission in the 2012 Annual Operating Plan (ARP): 1) list of augmentation wells; and 2) map of those wells’ locations.
Robbins said the un-augmented well depletions from those wells within the sub-district were identified and replaced, however.
Robbins suggested the way to handle the compliance errors this year would be for the court to enjoin the sub-district in the future to ensure it complies with the required information.
Attorney Tim Buchanan, representing surface water users who filed objections in this case, said he believed the court should go a step further. He said a message must be sent that the court decrees must be complied with.
“The 2012 plan did not comply with the plan as decreed by this court and as approved by the Supreme Court,” Buchanan said. “Therefore in my view we need to fashion a remedy that does not approve the plan but directs the plan be amended to reflect the augmentation wells were not properly included, that they should have been separately identified and they should be separately accounted for.”
Steve Atencio, attorney also representing objectors in the case, argued the terms of the court-approved plan of management for the sub-district was clear: “augmented wells are out.” He said if the sub-district wanted to include them it would need to seek court approval to modify the plan.
About 28 such wells are included in the sub-district.
Atencio said the sub-district is attempting to avoid by means of sophistry the process it should be following.
“There is a process for amending the plan. They need to follow it,” he said.
Closed Basin — open controversy
The other contested topic in this trial was the use of Closed Basin Project water to replace well depletions to streams this year.
In his closing argument attorney Bill Paddock, representing sub-district supporters, reminded the court the judge’s October 4 order resolved the question of legal suitability of Closed Basin Project water for use in the plan of management. The question argued during the trial was a factual question regarding whether the water was an appropriate source of replacement water for injurious depletions, he said.
Paddock argued the project water was appropriate to replace depletions and said the state engineer agreed.
When Wolfe was on the stand on Tuesday, he said he and his staff, with advice from their legal counsel, determined the sources of replacement water in the sub-district’s 2012 ARP, including the Closed Basin Project water, were suitable.
Wolfe said the water court’s May 2010 decree stated this possible source of replacement water was not prohibited.
He testified the sub-district’s plan of water management approved by the water court and Supreme Court specifically referenced Closed Basin Project water as a replacement water source.
This year, 2,500 acre feet of Closed Basin Project water was used to offset sub-district depletions. RGWCD owns Closed Basin Project water rights, Wolfe added, so the water district had the authority to dedicate part of Closed Basin flows to its sub-district.
When asked to respond to objectors’ accusation that use of Closed Basin Project water was a shell game, Wolfe said he did not view it that way.
“This is a clearly identified source of replacement water … I don’t see it as a shell game. I think it is a suitable replacement source for this annual replacement plan.”
In compliance with the court’s decree, the Closed Basin Project makes water available in time, place and amount to prevent injury, Paddock argued.
“That is why you need to conclude it is an adequate source of supply and prevents injury,” he told the judge.
Objectors’ attorneys saw the use of Closed Basin Project water differently.
Buchanan questioned how Closed Basin Project wells could replace depletions when they themselves were junior wells operating without augmentation. He questioned that water going into the stream from the Closed Basin Project was preventing injury to senior water rights.
He argued the Closed Basin Project water was not an appropriate source of replacement water for sub-district depletions.
“It is only a shell game in that it’s moving water from the interior of the bathtub to the edges by putting it into the Rio Grande River. That doesn’t necessarily protect senior water rights.”
Buchanan argued the Closed Basin Project was set up to help Colorado meet its compact obligations to downstream states and has historically been used for that purpose. There was no reference in the Closed Basin decree to using this water for replacement of well depletions, he said.
If the Closed Basin Project water is used for sub-district depletions, it is shorting the river from what was historically delivered for compact purposes. It can’t be counted twice, he argued.
“Closed Basin Project water is not adequate or suitable to prevent injuries to senior surface water rights,” he said.
He agreed with Buchanan that the designated uses for the Closed Basin Project water were to meet compact obligations, mitigate impacts from the project to the wildlife refuges/wetlands and help Colorado pay the water debt it owed when the project was authorized.
Using the water to replace sub-district depletions was “complete fiction,” Atencio said.
“The court should not allow the sub-district to in effect change the use.”
Erich Schwiesow, who also represents surface water right objectors, argued the designation of 2,500 acre feet of Closed Basin Project water for sub-district depletions added nothing tangible to the river and provided no benefit to injured senior water rights.
“Does using Closed Basin Project make more water to senior surface water rights? … No it does not.”
Paddock responded that this was one of those “déjà vu all over again” situations in which the Closed Basin Project had already been argued through court proceedings in the past.
“There was no evidence before this court to support their allegations,” Paddock said. “If they had evidence, they would have presented it in this proceeding … No evidence was presented to sustain the claims they are arguing.”