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State engineer to testify today in water trial

Posted: Tuesday, Oct 30th, 2012

Courier editor

ALAMOSA — An abbreviated water trial should conclude today in front of Chief District Judge Pattie Swift who is hearing arguments on the first-ever groundwater management sub-district operating plan for the San Luis Valley.

In what Attorney Preston Hartman from the Attorney General’s Office called “this kind of new world,” lawyers for proponents and objectors on Monday questioned witnesses who helped develop the Valley’s first water management sub-district annual operating plan.

The plan spells out how the sub-district would replace injurious depletions from well users to surface water rights this year, the first full year of operation for the sub-district, which covers about 3,000 wells in portions of Alamosa, Rio Grande and Saguache Counties.

Two of three anticipated witnesses took the stand on Monday: Steve Vandiver, general manager for the sub-district’s sponsoring district, the Rio Grande Water Conservation District (RGWCD); and Allen Davey, district engineer for the water district. Expected to testify today is State Engineer Dick Wolfe who approved the sub-district’s annual operating plan for 2012.

Hartman said in his opening statement the evidence would show the state engineer, represented by the AG’s office, complied with this court’s and the Colorado Supreme Court’s orders regarding the sub-district.

Tim Buchanan, attorney for San Antonio, Los Pinos and Conejos River Acequia Preservation Association and Save Our Senior Water Rights, LLC, objectors to the sub-district plan, explained that since this was the first year for the operating plan he and other attorneys representing senior water users initially brought up every possible issue they thought might need to be addressed because they were concerned about being foreclosed from addressing them in the future if they did not.

He added the counsel for objectors and supporters have come to an agreement on general stipulations regarding most of those issues, but two remained as the subject of the abbreviated trial before Judge Swift this week:

1) Whether the sub-district’s amended plan approved by the water court in 2010 authorized the inclusion of augmentation plan wells.

Buchanan argued, “The annual plan must comply with the terms of the amended plan. The inclusion of the augmented wells in the amended plan is not an issue within the amended plan. The amended plan does not address that.”

2) Whether Closed Basin Project water is a logical source of supply to replace depletions caused by wells in the sub-district.

Closed Basin Project water was used this year to replace sub-district depletions.

Buchanan said since the series of wells that comprise the project supplies were appropriated in 1963, they are extremely junior water rights to his clients’ senior water rights and were not an appropriate source of water to replace depletions.

Questioned by RGWCD Attorney Peter Ampe, formerly with the AG’s office, Vandiver described his long history in the water business in the Valley, first with the Colorado Division of Water Resources as long-time division engineer and for the past seven years as general manager for the RGWCD. He also described a bit of the complexity of the Valley’s water system and the area the sub-district encompasses, beginning near Del Norte, going north to the La Garita area, across County Road G, east of Hwy 17 by Hooper and Mosca and nearly to Alamosa where it parallels the river back to Del Norte.

Vandiver reminded the court of the sub-district’s goal to replace injurious depletions from the wells in the sub-district to surface senior water rights and stabilize the Valley’s aquifers. He outlined the sub-district’s historical timelines from the trial court’s decree in 2010 to the Supreme Court’s affirmation of the lower court in December 2011; the court order to begin assessing fees of irrigators in the sub-district; the acquisition of water supplies to cover depletions; and the development of first the sub-district plan and more recently the annual operating plan or ARP.

When asked from whom he acquired replacement water, Vandiver replied “anybody who would listen to me.”

He said he was able to acquire transmountain water and negotiated one-year agreements from private individuals and entities, with future plans for permanent sources. He said this year he needed to obtain water that was readily available in a short time to meet the sub-district water replacement requirements.

“The court had made it absolutely clear our main priority was to replace depletions, keep the river whole … eliminate injuries to senior water rights,” Vandiver said.

Vandiver said the sub-district had to rely on and receive data such as diversion records from the state so it could give the information back to the state in the operating plan. The state engineer sent the sub-district an expectations letter of what he would require in the plan, Vandiver explained. Davey was the main author of the annual plan, Vandiver said.

Everything was up against an April 15 deadline this year, Vandiver added, but ultimately the sub-district made its deadline in getting the annual plan to the state, and the state engineer approved it with about 15 conditions. All of this was accomplished with public meetings that generally were sparsely attended, Vandiver said.

Vandiver also testified about the Closed Basin Project, a federal water salvage project operated by the RGWCD and Bureau of Reclamation. The project includes 170 shallow wells designed to capture water that would otherwise be lost through evaporation. Vandiver testified that the project was constructed to help Colorado meet its Rio Grande Compact obligations to downstream states, mitigate impacts of the project on wetlands, repay Colorado’s indebtedness and sell water to entities in the Valley if there was water available.

The project is expected to deliver 11,500 acre feet of water this year. The sub-district is using 2,500 acre feet as a replacement water source this year.

The sub-district had to provide 4,706 acre feet to the river this year to make up depletions. Buchanan pointed out in his questioning of Davey that the 4,706 acre feet of calculated depletions this year was less than 1 percent of the approximately 308,700 acre feet pumped in the sub-district this year.

Vandiver described the reaches along the river where the bulk of the depletions were identified in the groundwater computer model. He said the bulk of the depletions were identified in a reach between the Del Norte gauge, about four miles west of Del Norte, to the Excelsior head gate.

Vandiver said the Closed Basin Project was perfectly positioned to efficiently deliver water to the river to make up depletions.

Vandiver described other measures the sub-district took this year to meet its goals ranging from paying the Rio Grande Canal cash instead of water it would otherwise have received for injurious depletions to offering a fallowing program to irrigators to take land out of production in entirety or partially to reduce pumping in the sub-district area. Vandiver said 84 parcels covering over 9,000 acres were fallowed under the sub-district fallowing programs.

In addition, about 20,000 acres were fallowed under separate preventive planting programs in the sub-district area, Vandiver said. He said while the sub-district did not take credit for the additional fallowed acreage, it assisted the sub-district in meeting its goals of reduced pumping.

“Obviously we had some kinks we had to work out, being the first time we have ever done this,” Vandiver said of the sub-district’s first annual operating plan.

He said everything revolved around the goal of replacing depletions, and when the amount of depletions to be mitigated changed during the irrigation season, adjustments were immediately made to meet the new requirement.

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