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Sub-district trial charts new waters

Posted: Thursday, Oct 25th, 2012

Courier editor

ALAMOSA — Water attorneys pared a weeklong trial down to a couple of days yesterday during a motions hearing with Chief District Judge Pattie Swift.

Judge Swift scheduled a trial to begin Monday and last all week if necessary regarding challenges to the San Luis Valley’s first water management sub-district plan. However, attorneys were able to work out some of their disagreements and reduce witness lists and testimony so the October 29th trial will move more quickly.

David Robbins, attorney for the Rio Grande Water Conservation District that is sponsoring the sub-district, said he expected this trial would avoid the specter of lasting through Halloween, a day previous water trials have landed on before.

Robbins and many other attorneys representing proponents of the sub-district were present at the Wednesday hearing to argue and negotiate pretrial issues with attorneys for the objectors, Steve Atencio, Tim Buchanan and Erich Schwiesow.

When the afternoon was concluded, objectors and supporters had agreed in concept to the 2012 annual replacement plan (ARP) for the sub-district and the underlying methodologies and technologies used to develop that plan. That made one of the remaining motions to strike expert witnesses and their reports a moot point because there is now no longer the need for a number of witnesses to present extensive testimony.

Proponents now plan to call only three witnesses, Rio Grande Water Conservation District Manager (RGWCD) Steve Vandiver, RGWCD engineer Allen Davey and Colorado Division of Water Resources State Engineer Dick Wolfe.

This first sub-district, which was designed to repair injurious depletions from well pumping to surface water rights and reduce the draw on the aquifer, operates under a management plan that is effectuated each year through an annual replacement plan. The annual plan spells out how depletions will be replaced.

This is the first year for that plan and the sub-district to be fully operational. The first sub-district encompasses about 175,000 irrigated acres and 500 or more individual property owners in Alamosa, Rio Grande and Saguache Counties north of the Rio Grande.

The sponsoring water district approved the annual plan, as did the state engineer. Objectors challenged it and asked the judge to prohibit wells from pumping in the sub-district boundaries until those challenges were resolved this year. She denied that motion.

Objectors subsequently asked for their claims to be withdrawn and the October trial to be vacated. Judge Swift told objectors they could either withdraw their challenges to the 2012 replacement plan on the condition they could not bring those challenges back again or withdraw them with the opportunity to re-file them only if they paid the supporters’ costs for preparing for trial. They chose the first option, except for Schwiesow whose client the Costilla Ditch Company chose not to withdraw its claims.

One issue still remaining for trial is the use of Closed Basin Project water as one of the sources to replace depletions. Davey in particular will testify to that issue next week. He will also testify about augmentation wells, another issue still pending before the judge.

Judge Swift said it was difficult to tell the attorneys how much evidence she needed to hear next week because they were more familiar with this case than she was. Swift inherited the water sub-district case when District Judge O. John Kuenhold retired.

Swift said she would like to hear evidence on the outstanding issues still remaining.

She said if the parties agreed the 2012 sub-district annual replacement plan met the requirements it needed to meet this year, she did not see the need to go into great depths during the trial about the 2012 plan.

Other outstanding matters, compelling documents and seeking a special master, based on alleged collusion between the state engineer and the local water district, are still pending. Buchanan said objectors need to confer with their clients to see if they still want to pursue a special master. He said arguments on that topic could be given during the trial if it is still an issue at that time.

With respect to compelling documents, Buchanan will communicate with attorneys from the Colorado Attorney General’s office who are representing the state engineer as to what documents Buchanan would still like to see, and the AG’s will either give them to him or maintain they are privileged, in which case the judge will have to rule on them.

Objectors will be able to question Vandiver and Wolfe next week about their interactions to determine if they were appropriate.

One of the controversial topics before the judge on Wednesday revolved around the possibility of challenging sub-district water plans in the future. Proponents said they would like some definitive rulings from the judge regarding the foundation of the water plan so they would not have to go through all the time and effort they did this year every year to defend the sub-district’s plan.

“We want the court to be in a position to be able to make factual determinations about the adequacy of the replacement plan because it was so broadly challenged,” Robbins said.

Buchanan said the objectors raised broad issues “because we didn’t want to be foreclosed in the future from raising those issues.”

“The supporters and the state have spent a tremendous amount of money working on this,” Robbins said. “We want to understand whether or not that effort was properly expended.”

Objectors argued they had already dismissed their claims regarding the specific 2012 water plan so it would be unnecessary to present testimony and evidence regarding how the plan was compiled.

“The sub-district and supporters are arguing, and we are agreeing, that the 2012 ARP met the requirements of the decree,” Atencio said.

Therefore, he argued, it would be irrelevant for supporters to put on evidence next week that was already conceded.

Schwiesow said he did not want to be precluded from raising issues in the future that had not yet been raised.

Robbins said he understood Schwiesow’s point but he did not want somebody new challenging the plan every year so the water district and court would have to go through this over and over.

“I am not going to resolve that right now,” Swift said. “That could have significance in the long run. I don’t want to decide that quickly.”

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