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Sub-district wins ruling

Posted: Friday, Apr 12th, 2013

Friendly opponents outside the Alamosa courthouse, attorneys Peter Ampe, left, and Erich Schwiesow are former classmates who sat on opposite sides of the courtroom for the short water trial in October 2012 in front of Chief District Judge Pattie Swift, with Ampe representing the Rio Grande Water Conservation District and Schwiesow the Costilla Ditch Company. The water attorneys argued the merits and flaws of the San Luis Valley’s first groundwater management sub-district plan for 2012. Courier file photo by Ruth Heide

Courier editor

ALAMOSA — Closed Basin Project water can be used to replace sub-district depletions, Chief District/Water Judge Pattie Swift ruled on Wednesday.

“The 2012 ARP’s [Annual Replacement Plan] inclusion of Closed Basin Project water as a source of replacement water for injurious depletions caused by Subdistrict well-pumping is adequate and suitable to prevent injury to senior water rights,” the judge wrote in her April 10 conclusion released on Thursday to opponents and proponents of the San Luis Valley’s first water management sub-district.

The decision came just in time to give direction for the 2013 ARP, which will go to the state and district court on Monday.

Closed Basin Project water was one of the remaining contentious points Judge Swift reviewed during a late-October 2012 trial in Alamosa. Objectors argued the federal water salvage project’s water should not be used to replace sub-district wells’ injurious depletions to surface water rights.

The sub-district board, its sponsoring district, the Rio Grande Water Conservation District, and the state engineer signed off on the 2012 plan, which incorporated Closed Basin Project water. Other sources to replace depletions included trans-basin water and a forbearance agreement with the Rio Grande Canal Water Users Association. The 2013 ARP also plans to use Closed Basin Project water to help replace groundwater depletions to surface water rights.

One of the primary purposes of the congressionally authorized Closed Basin Project was to help Colorado meet its Rio Grande Compact obligations to downstream states.

Judge Swift stated that while meeting the compact obligations is one of the purposes for the project, the legislation and decree for the Closed Basin Project do not specify the method for allocating its benefits, and it is up to the project owner (U.S. government through the U.S. Bureau of Reclamation) and the holder of the project decree (the Rio Grande Water Conservation District) “to determine whether and how to allocate the Project’s production among the lawful beneficial uses, and whether to seek changes to existing allocation agreements.”

She noted that Closed Basin water delivered to the Rio Grande for the benefit of the Rio Grande and Conejos Rivers could be substituted for compact deliveries that would otherwise be required from upstream diversions.

“Thus, if the goal is to provide replacement water for injurious depletions in time, place and amount, a mechanism to reduce Compact delivery curtailments and thus permit additional diversion from the river is a useful and flexible tool …

“Including Closed Basin Project production as part of the Subdistrict’s Annual Replacement Plan is clearly within the scope of the beneficial uses set forth in the Closed Basin Project decree, and the Subdistrict’s inclusion of the Project water as a possible replacement source is not prohibited.”

Objectors argued that counting the Closed Basin Project water for both compact deliveries and sub-district deliveries was double dipping. Judge Swift disagreed.

“In fact, however, the use of Closed Basin Project water as a source of replacement water for injurious depletions caused by the pumping of Subdistrict wells and the use of Closed Basin Project water to meet Rio Grande Compact obligations are not separate and distinct purposes,” she stated in her ruling this week. “This Court has already determined that the operation of the Subdistrict’s Amended Plan should be integrated with Rio Grande Compact administration …

“Introduction of the Closed Basin Project water into the Rio Grande serves to reduce curtailments of senior surface water rights caused by the Compact and, therefore, it serves both purposes: it reduces injurious depletions to senior surface rights while, and because, it meets Rio Grande Compact obligations.”

The judge added, “it is acceptable, if not preferred, for the production of the Closed Basin Project to be integrated into subdistrict plans.”

In her April 10 ruling, Judge Swift ruled that the 2012 ARP and the methodologies used to develop it were reasonable and supported by data. She supported the state’s approval of the plan.

“The State Engineer determined that … the replacement sources identified in the ARP were legally available for use by the Subdistrict, were sufficient in amount, and could be administered to replace injurious depletions caused by Subdistrict well pumping,” the judge wrote.

The state engineer was a party in the legal action, and supporters included the sponsoring water district, the Rio Grande Water Users Association, the Conejos Water Conservancy District, Farming Technology Corporation and Skyview Parties.

Objectors included the San Antonio, Los Pinos and Conejos River Acequia Preservation Association, an association consisting of more than 150 members, many of whom have senior surface water rights on the Rio Grande and its tributaries; Save Our Senior Water Rights, LLC; Richard Ramstetter; Peter Atkins; and the Costilla Ditch Company.

The sub-district has to prepare an annual replacement plan outlining how it will make up for depletions caused by well users within the boundaries of the Valley’s first sub-district. Objectors argued that the 2012 plan should be nullified and wells within the sub-district curtailed. More than 3,000 irrigation wells are located in the Sub-district #1 area north of the Rio Grande. The judge denied that motion prior to the October trial last year.

Some of the objectors’ other motions were withdrawn short of trial, and Judge Swift held an abbreviated trial in October primarily to hear arguments concerning the Closed Basin Project as part of the Annual Replacement Plan.

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