ALAMOSA — With the lead attorney not able to be in two places at once, the state engineer asked the water court to delay the start of a multi-week trial scheduled in January regarding proposed groundwater rules for the San Luis Valley.
Chief District Judge/Water Judge Pattie Swift agreed to postpone the rules trial until Monday, January 29. She had originally scheduled the trial to begin in Alamosa on January 2 and last for up to eight weeks if necessary. With some of the objections to the proposed rules resolved, the trial will not need to be as lengthy but is still scheduled until March 2.
Also as part of her order moving the trial date, the judge moved pre-trial deadlines back by four weeks.
The state engineer, who is promulgating the groundwater rules for the Rio Grande Basin (the Valley), requested the postponement of January’s trial because the state’s lead attorney, Senior Assistant Attorney General Chad Wallace, will have to be in Washington, D.C. at the same time to present oral arguments to the United States Supreme Court on another water case, Texas v. New Mexico and Colorado. Although primarily revolving around a dispute between Texas and New Mexico, that case involves the Rio Grande Compact, which necessarily includes Colorado as one of the compact states. Oral arguments are to be made before the United States Supreme Court in that case on January 8.
The main attorney in the rules case is also the main attorney for the compact case, so he will be tied up the first part of January and would not be able to participate or prepare for the rules trial as originally scheduled, Colorado Division of Water Resources Division 3 Engineer Craig Cotten explained.
Cotten added that the January oral arguments in the compact case are pretty limited in scope. “They are arguments on whether the United States can be an active party in the case even though they are not a signatory to the compact,” he said.
The groundwater rules case, on the other hand, is not limited in scope. It will involve substantial documentation and testimony for the court’s consideration.
The groundwater rules are geared towards protecting senior water rights, promoting sustainability and upholding the state’s Rio Grande Compact with downstream states. The rules require wells in the basin to make up for the injuries they have caused surface water rights or face the possibility of being shut down. The rules also specify the basin’s irrigation season.
The rules affect hundreds of irrigators throughout the Valley.
The rules are clear about no expanded use of water in the basin: “nothing in the rules is designed to allow an expanded or unauthorized use of water.”
The rules are also clear that they “are designed to allow withdrawals of groundwater while providing for the identification and replacement of injurious stream depletions and the achievement and maintenance of a sustainable water supply in each aquifer system, while not unreasonably interfering with the state’s ability to fulfill its obligations under the Rio Grande Compact. The rules apply to all withdrawals of groundwater within Water Division No. 3, unless the withdrawal is specifically exempted by the rules, and the rules pertaining to the Irrigation Season apply to all irrigation water rights.”
The presumptive irrigation season runs from April 1 to November 1 for all irrigators surface and well irrigators.
As part of the rules, the state is requiring water users to bring the confined, or deeper, aquifer back to the level it was during the period of 1978-2000, a goal that many irrigators in the Valley are already trying to reach under their water management sub-districts through the sponsoring district the Rio Grande Water Conservation District. To avoid the harsher tool of regulation, irrigators throughout the Valley/basin have joined in about six sub-districts whose intentions are the same as the state’s rules: offset injuries to surface water users; bring the aquifers to a more sustainable level; and meet Rio Grande Compact requirements.
Once the rules go into effect, following the trial and Judge Swift’s decision, well irrigators will have a limited time to either join a water management sub-district or submit their own augmentation plans. Those who do neither might have to stop pumping altogether.
After the state engineer (who was Dick Wolfe at that time) filed the rules with the court in the fall of 2015, 30 parties filed statements of opposition, about half of which were actually in support of the rules.
The way the case is set up, anyone wishing to have a voice in the case — for or against — had to file a “statement of opposition,” even if the group was in favor of the rules. For example, the Rio Grande Water Conservation District has filed a “statement of opposition” in support of the rules.
Before he retired this summer Wolfe and others in the water division office worked with objectors to try to resolve their concerns over the proposed rules. Before filing the rules and in hopes of preventing as many objections as possible, Wolfe had also worked for several years with a large group that included local residents to develop the rules.
The objections that were not in favor of the rules revolved around concerns ranging from the rules not being harsh enough to those who objected to the irrigation season specified in conjunction with the rules.
“In the rules case, we still have a number of objectors left,” Cotten said on Tuesday. “Of the original 30 objectors, we have reached stipulated settlements with approximately 13 parties, several objectors have told us that they will not participate in the trial, and some of the 'objectors' are actually in support of the rules and will most probably participate as supporters in the trial.”
He added, “We are actively working with several other parties right now to hopefully come up with stipulated settlements prior to trial. As it appears now, we may have a handful of objectors that may actively participate in the trial to some extent.”