To Cleave Simpson

Manager

Rio Grande Water Conservation District

8805 Independence Way

Alamosa

Dear Cleave,

I want to acknowledge certain steps you have taken in the past and, especially steps you have recently taken in an effort to manage the water use in Special Improvement District No. 1 (“Subdistrict”). Specifically, I refer to steps to attain the sustainability goals articulated in the Amended Plan of Water Management (“POWM”) for Subdistrict No. 1, amended June 6, 2017. Your continued efforts are critical, given the sustainability goals set out in the POWM and they indicate that the Subdistrict’s Board of Managers is focused on ensuring sustainability goals for the Unconfined Aquifer are met.

Section 37-92-502(4)(a)(l), C.R.S., gives the state and division engineer authority to administer withdrawals of water from the unconfined aquifer: “Use of the confined and unconfined aquifers shall be regulated so as to maintain a sustainable water supply in each aquifer system, with due regard for the daily, seasonal, and long-term demand for underground water.” Based on this legislative directive, the POWM states clear direction on meeting sustainability goals. The POWM recognizes that the current situation of declining water levels in the Unconfined Aquifer is a result of both increased groundwater consumption and reduced water supply caused by sustained drought. However, regardless of the cause, the POWM states that “if the Subdistrict is unable to achieve its goals (regarding the unconfined aquifer), then groundwater users face the likelihood that the State of Colorado will impose limitations on the use of their wells through administrative rules and regulations.” As the state engineer, based on my own review of the POWM and in keeping with the direction of the previous state engineer, I give this regulatory responsibility a great deal of importance. The POWM clearly states that loss of well productivity and the associated impact on irrigated agriculture will continue unless total consumption of groundwater in the Subdistrict is reduced.

In addition to the regulatory direction given in 37-92-501 as identified above, the POWM gives further direction in section 5.1 .5 that a benefit of implementing the POWM is to “ … avoid state imposed groundwater regulation and the attendant need to have costly plans for augmentation approved by the Water Court as a condition for the continued operation of wells; ... “. Looking back further to the original Proposed Plan of Water Management, that plan states that “If the Subdistrict is unable to achieve its goals, then groundwater users face the likelihood that the State of Colorado will impose limitations on the use of their wells through administrative rules and regulations.” While this statement clearly states the potential for wells’ pumping to be limited, I should be clear that the State Engineer’s Office would need to consider the very real possibility that to “impose limitations” would actually result in curtailing wells’ pumping.

Finally, the Groundwater and Irrigation Season Rules for Water Division No. 3 (Rules) that are currently before the Water Court in Division 3 clearly state in Rule 5.1.4 that  “The state and division engineers shall also curtail diversions of groundwater so as to maintain a sustainable water supply for each aquifer system, with due regard for the daily, seasonal, and long-term demand for underground water.”

It is my objective that the division engineer and I are not put in the position of invoking these legal provisions that require curtailing groundwater withdrawals from Subdistrict No. 1 wells. For that reason, I would like to compare the goals with the current status of the unconfined aquifer, as I’m sure you have, and state my concern with the trend. Section 3.4 of the POWM states that the “program objective” is to achieve a sustainable level in the unconfined aquifer that is between 200,000 and 400,000 acre-feet below the storage level that was predicted to exist on January 1, 1976. The deadline for achieving that objective is December 19, 2031. That deadline reflects a 20-year period after the original acceptance of the POWM, December 19, 2011.

As I review the data you provide on your website showing the change in storage for the Unconfined Aquifer through the fall of 2018, the long-term downward trend is clear.

While there had been an encouraging increase in storage during the last five years, 2018 showed a significant drop back to 1,200,000 acre-feet below the January 1, 1976 baseline (‘’baseline”). While this is clearly a direct result of the difficult water year in the Rio Grande Basin, it is, nonetheless a drastic change in the wrong direction. In terms of progress since the POWM was originally signed in 2011, the data shows that the five-year rolling average for the storage in the unconfined aquifer has actually gone down by nearly 400,000 acre-feet instead of upward, as was the goal of the POWM.

Looking at the timeline, we are approximately one-third of the way through the 20-year period for attaining the storage objective. The objective called for an increase in storage for the unconfined aquifer of 400,000 - 600,000 acre-feet from the 2011 five-year running average storage level of approximately 800,000 acre-feet below the baseline to the range of 200,000 to 400,000 acre-feet below the baseline. I believe that was an ambitious, yet attainable goal, requiring an average increase of storage between 20,000 and 30,000 acrefeet per year. With the passage of seven years and the current storage levels, the necessary increase in storage is now about 60,000 - 75,000 acre-feet per year to attain the goal by the 2031 deadline. I do acknowledge that a good water year can create significant gains, allowing the aquifer to make up a lot of ground in storage. However, the data shows that even with those large gains that can be attributed to a one or two-year period, the trend is still downward.

Again, the intent of this letter is to acknowledge the continuous efforts by you and the Board of Managers for Subdistrict No. 1 to reduce withdrawals from the unconfined aquifer for irrigation using the steps you’ve identified in the POWM, but also to strongly encourage you and the board to make every effort to meet the sustainability goals in the POWM. The situation is critical, given the trend and the fact that we need to consider that current climatic trends could continue. As I stated, my objective is to allow Subdistrict No. 1 to manage the POWM and attain the sustainability goals and I want to work with you in every way possible to help you achieve that objective. However, I also want to be very clear that if the sustainability objectives of Subdistrict No. 1 are not met as specified in the POWM, the division engineer and the state engineer will be put in the unenviable but required position of curtailing groundwater diversions from Subdistrict No. 1 wells. This curtailment of well diversions could potentially occur even before the end of the 20-year period set out in the POWM if, prior to that time, it is undeniable that the sustainability goals will not be able to be met by the end of the period. The potential mechanism by which this curtailment would occur is the state engineer’s assessment in some year that the goals will not be met and the ARP is, therefore, inadequate. Without an approved ARP, the wells would not have a legal basis under the rules for pumping.

Curtailment would follow.

Please contact me if you would like to discuss this further.

Sincerely,

Kevin G. Rein

State Engineer/ Director