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Water draws war of words

Posted: Friday, Sep 28th, 2012

Courier editor

ALAMOSA — A water trial scheduled to begin next month in Alamosa may be canceled.

Water attorneys whose objections to the San Luis Valley’s first water management sub-district plan precipitated the weeklong October 29 trial are asking the judge to cancel it.

“The objectors determined that in light of the ‘common interest agreement’ among the State Engineer, Subdistrict No. 1 and the other supporters, pursuing all of the remaining issues they have raised with respect to the Plan of Water Management and 2012 Annual Replacement Plan approved by the State Engineer would be futile and their efforts will be better spent pursuing resolution of the pending motions,” objectors stated in a news release on Thursday.

The common interest agreement creating the latest contention between objectors and supporters of the water sub-district plan is an agreement protecting legal communication as privileged information between the parties in this case that have a common interest, specifically the state engineer’s office, sponsoring water district and its sub-district, the Conejos Water Conservancy District, Farming Technology Corporation, Rio Grande Canal Water Users’ Association, Mountain Coast Enterprises, LLC, Wijaya Colorado, LLC, Ernest Myers and Virginia Myers, Skyview Cooling Company, Inc., and Sam Investment, Inc.

“As part of the ‘common interest agreement,’ the State Engineer, Subdistrict No. 1 and the supporters are claiming that several hundred documents exchanged among them regarding development and operation of the Plan of Water Management and the most recent version of the RGDSS Model are confidential and cannot be disclosed to the public,” objectors stated in their September 27 news release.

“This undermines the entire concept of a public process,” stated Ed Nielsen, president of Save Our Senior Water Rights, LLC. Nielsen added, “if the State Engineer is entering into secret agreements with the very parties that he is supposed to be regulating, the senior water right owners have no faith that he will act independently and impartially.”

Kelly Sowards, president of the San Antonio, Los Pinos and Conejos River Acequia

Preservation Association, said this was very disappointing.

“The water users of the San Luis Valley should be able to rely on water administration officials to act impartially and fairly,” he said.

On September 19, the San Antonio, Los Pinos and Conejos River Acequia Preservation Association, Save Our Senior Water Rights, LLC, Richard Ramstetter, and Peter Atkins filed several motions with the Division 3 Water Court regarding their objections to Subdistrict No. 1’s Plan of Water Management and 2012 Annual Replacement Plan pending before Chief District/Water Judge Pattie Swift.

In response to the “common interest agreement,” objectors have requested that the court appoint an independent Special Master to investigate the operation of the Subdistrict No. 1 Plan of Water Management, review the actions of the State Engineer in approving the Annual Replacement Plan, and report to the Water Court. Another motion requests that the court decide all pending motions, including a motion objecting to the sub-district’s use of Closed Basin Project water as a replacement source, and cancel the October 29 trial.

Spokesmen for the state engineer’s office and the sub-district responded on Thursday that literally thousands of emails leading up to the water plan’s approval had been made available to objectors, who as of Wednesday had not taken advantage of the information, and the communication covered by the common interest agreement was privileged attorney/client communication occurring after the objectors’ legal challenge this year. They said the communication not being made public or afforded to the objectors involved legal strategies related to the pending trial.

“That (common interest agreement) basically started on the day they filed their court action,” said Deputy State Engineer Michael Sullivan, who previously served as district engineer in the San Luis Valley. “It’s to protect the parties who have an interest together in bringing together their legal strategy … This is just to keep our legal strategy confidential.”

He said the majority of the communications that occurred previously, such as emails between the state engineer’s office and local water district concerning the sub-district’s water replacement plan, are available to the objectors. Those communications amount to 5,000 emails, he added.

Those emails go back and forth, sometimes arguing components of the annual replacement plan and asking the hard questions about what amounts the sub-district should replace, Sullivan explained. The sub-district’s annual plan lays out how the sub-district will replace injurious depletions to senior water rights in a given year.

The sub-district’s broader goals include replacing those depletions that have occurred over time and shoring up the basin’s diminished aquifer levels.

Sullivan said the state engineer’s office has spent many hours going through emails and other communication requested by objectors.

Attorney David Robbins, who represents the sub-district’s sponsoring water district, the Rio Grande Water Conservation District, said proponents spent weeks getting those thousands of emails together. As of Wednesday, objectors had not looked at them, he said.

Robbins explained that once objectors challenged the replacement plan and state engineer’s approval of it, the state engineer’s office and district/sub-district who were subject to the legal action then had a common interest “to both show that the replacement plan worked and was being followed and that the state engineer’s approval was correct, and that’s what we are intending to do.”

Robbins added, “It seems to me to be a disservice to the people in the San Luis Valley to put off receiving a decision from the court whether or not the annual replacement plan is adequate.”

He said, “I am somewhat surprised by this tactic since it does not appear to be an effort to actually deal with the replacement plan but is rather an effort to say that somehow the state engineer’s not doing his job.”

A status conference in this case is scheduled for Monday before presiding Judge Swift.

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