ALAMOSA — With a trial in less than two weeks, a Habitat Conservation Plan nearing the finish line and water management sub-districts providing ongoing challenges, the Rio Grande Water Conservation District board had many topics to discuss with their attorney David Robbins during their quarterly meeting on Tuesday.
Robbins reminded the water district board that its first sub-district’s water plan would be the subject of a trial beginning October 29 before Chief District Judge Pattie Swift.
He said now that some issues have already been resolved or dismissed, the trial will likely not to take the full week allotted to it. One of the matters to be addressed during the trial is the basis for using Closed Basin Project water to help replace the sub-district’s injurious depletions.
Robbins said he believes the district needs to have some decisions made by the court so that some of these issues will not come up all over again when the 2013 annual replacement plan is filed for the sub-district.
A half- or full-day hearing on outstanding motions is scheduled for October 24. Outstanding motions include the striking of expert witnesses and disclosure of documents objectors believe have not been afforded to them, Robbins explained.
Although USDA has approved a new Conservation Reserve Enhancement Program (CREP) that will assist the sub-district in its goal to reduce irrigated acres, the new CREP cannot be implemented until a new farm bill is passed, Robbins explained. Since that has not yet happened and will not likely happen before the end of the year, the new CREP will not be available to sub-district irrigators in 2013.
“We had hoped we could issue contracts for the 2013 season,” Robbins said. “Unless something happens during ‘lame duck,’ that’s not probably going to be realistic.”
Now that the culmination is in sight for the Habitat Conservation Plan (HCP) the water district has spearheaded for about eight years, it looks like some of the San Luis Valley counties may not sign off on it, Robbins told the board on Tuesday. If they do not, the residents in their counties will not be covered by it.
The first of its kind in the U.S., the HCP was designed to permit the routine maintenance by farmers, ranchers, city and county crews in areas that might otherwise be up for critical habitat designation for endangered species such as the Southwestern Willow Flycatcher. Under the plan, farmers could still clear ditches and ranchers could still graze their cattle.
Without an HCP to provide mitigating habitat to allow the counties incidental take permits for those routine activities, individuals, cities and counties would have to apply for individual permits or stay out of the willows.
Robbins said this plan has been the subject of dozens of public meetings, but now some of the county officials or their legal counsel are raising questions that might mean some deal breakers with them signing off on the plan.
“It’s entirely possible one or more counties may decide they don’t want to take advantage of the benefits afforded by the habitat plan, which is unfortunate,” Robbins said.
He added, “We can’t make cities and counties participate if they do not want to. We will tell the Fish and Wildlife Service they are not covered by the HCP and Fish and Wildlife can determine critical habitat and take whatever actions it wishes.”
One of the issues being raised now, he said, was concern over federal jurisdiction, which is what the plan is attempting to avoid.
“It is absolutely beyond my comprehension why anyone would not want to take a very low cost way to avoid interactions with the Fish and Wildlife Service and why governments within the Valley would not want to avoid having to deal with that,” Robbins said.
Another issue is the multi-year clause in the HCP, Robbins explained. Some counties argue they cannot enter a contract encumbering county funds for more than one year at a time. The HCP is a 30-year agreement.
Robbins said all of the counties and their attorneys have had questions about the HCP. The county attorney for Conejos County wants to reserve the right to litigation. Robbins said governmental entities regularly enter into agreements in which they state they will not sue each other.
Robbins said the water district staff, board and legal counsel will do everything they can to get the HCP approved and implemented, especially given the time, effort and money involved in developing it, “but if it doesn’t work, there’s not much we can do about it.”
The HCP should be final in November or December.