Appearing on your November ballot: a water war

Article by Ed Quillen

San Luis Valley Water – October 1998 – Colorado Central Magazine

IN THE NOVEMBER ELECTION, Colorado voters will determine the fate of several ballot initiatives. Most reflect current social and political contentions that extend beyond the state’s borders: partial-birth abortion, parental notification for abortions, term limits, medical marijuana, and tax credits for private schooling.

But inside that list of proposals which concern issues that you often read about in Newsweek or National Review, there are two ballot proposals that seem out of place because they appear so limited and technical. Ballot Item 5 would require water meters on wells in the San Luis Valley, and Item 6 would require the Rio Grande Water Conservation District to pay the state school fund for water pumped from state land.

Those two initiatives are just two tips of the proverbial iceberg. They represent a struggle that is being waged on many fronts: political, legal, financial, and journalistic. The outcome will affect not only the San Luis Valley, but all of Colorado, as well as New Mexico and Texas, and perhaps even Mexico.

Bob Ewegen, deputy editorial page editor at The Denver Post, often observes that “journalism is the art of relentless oversimplification.” With that caveat in mind, the struggle is between Gary Boyce and his Stockmen’s Water Company on one side. On the other side, you can find just about everybody else, especially in the San Luis Valley, lined up against Boyce and Stockmen’s.

Boyce has proposed to drill wells in the northern San Luis Valley (the Closed Basin) and to export 100,000 to 150,000 acre-feet a year to distant markets — perhaps along the Front Range, especially in the growing area between Denver and Colorado Springs, or maybe down the Rio Grande to Albuquerque.

In certain respects, his plan is similar to that proposed a decade ago by American Water Development, Inc. (AWDI). The AWDI proposal went to water court in Alamosa, where Judge Robert Ogburn denied it, and his decision was upheld on appeal clear to the U.S. Supreme Court.

The winners in that case were a diverse group, ranging from environmental activists in Crestone to potato farmers along the Rio Grande, but the core of the courtroom opposition revolved around the Rio Grande Water Conservation District.

The two ballot initiatives, resulting from petitions passed around last summer by paid circulators, came from the Boyce camp. If they pass, irrigation will get more difficult and expensive for some of Boyce’s opponents: farmers in the lower San Luis Valley, whose water interests are advocated by the Rio Grande Water Conservation District.

Our November ballot is only a small part of this conflict over who will control the contents of what could be the biggest water hole in the West — the Closed Basin. On the surface, it’s a desert that gets only 7 inches of precipitation in an average year. Underneath, it’s a reservoir that holds at least 50 times more water than Lake Powell and Lake Mead, combined.

Divided Valley

One of the greatest make-you-gasp views in a territory teeming with such panoramas comes when you’re southbound on U.S. 285 and drive across 9,011-foot Poncha Pass.

After all those twisting roads and jumbled canyons, the route ahead looks straight and simple as it leads into the 8,000 square miles of the San Luis Valley. The Valley is defined on the east by the sheer and jagged wall of the Sangre de Cristo Range, with the Great Sand Dunes a pale smudge in the south. The west border starts with the rolling La Garita Hills that trend southwest to the supernal volcanic peaks of the San Juan Range. Dead ahead, pale and vague and a long way off in the distance, somewhere near the border with New Mexico, are a few humps and mesas.

The Valley has no apparent southern border, and so when you ponder where the water goes, it’s easy to make the same geographic mistake as the early Spanish explorers.

They thought that the entire valley was the headwaters of the Rio Grande. That the water in Saguache Creek on the west side, Crestone Creek from the east, San Luis Creek down the middle — all these streams combined to flow into the Rio Grande, which flows south out of the Valley to New Mexico, Texas, Mexico, and the Gulf of Mexico.

But it doesn’t work that way. The San Luis Valley is not a hydrologic entity. It is divided, just as the Continental Divide at Monarch Pass separates westbound Gunnison River drainage from eastbound Arkansas River flow.

The Valley’s divide, though, is not some range of blatant 14,000-foot peaks. It’s an almost imperceptible rise in the sagebrush and greasewood, a barrier that transects the Valley near Hooper. Beneath the surface, it’s a long and high wall of impermeable rock.

On the south side of this subterranean barrier, water flows into the Rio Grande and on downstream. The north side of this divide is the Closed Basin — water flows down to the low point at San Luis Lake near the Great Sand Dunes National Monument. It saturates the soil, and it evaporates, but it doesn’t flow out of the Closed Basin.

Think of it as a big bathtub with no drain, and you’ve got the general idea. Put some water, gravel, rock, clay and muck in the tub, and then arrange matters so that the water flows in just about as fast as it evaporates out, and you’ve got the basic concept.

Now let’s do some rough figuring about the size of the tub and how much water it gets.

The Big Tub

The Closed Basin in the northern San Luis Valley covers about 2,940 square miles, but it is the third dimension, depth, that is astonishing. Geologically, the Closed Basin is part of the Rio Grande Rift that extends from Leadville to El Paso, Texas. Mountain ranges rose on the east and west sides in the past 70 million years; the bedrock floor stayed put or even sank.

The surface of the Closed Basin is about 8,000 feet above sea level. Bedrock might be as much as 30,000 feet — six miles — below. Filling the space between desert surface and foundation bedrock are the rocks, sand, clay, and gravel — alluvial fill — carried off the mountains during those millions of years, and there’s water in the spaces between the solid particles and clumps.

Deep down, where the pressure is intense and the mineral matter has consolidated, only 10% of the volume would be water, according to Gene Rush of Salida, a retired U.S. Geological Survey hydrologist I talked to. Higher up, perhaps 20%, and near the surface, as much as 30%.

Yet even so, considering the size of the basin, conservative estimates suggest that there are several billion acre-feet of water there — billion as in astronomy and federal budgets. Since the average annual flow of the Colorado River is 13.5 million acre-feet, even by exceptionally conservative estimates there’s at least as much water in the Closed Basin as the Colorado River carries in more than 200 years.

Considering the past century and more of struggles over Colorado water, it’s little wonder that there’s a continuing fight over the Closed Basin. By even the most conservative estimates, it is one huge water hole in the vast American desert that stretches across all or part of a dozen states from the 100th Meridian to the Sierra Nevada.

Beneath the Surface

Just as the San Luis Valley is not a hydrologic unit, but instead is divided into the Rio Grande drainage and the Closed Basin, the Closed Basin is also divided into two parts.

The upper 150 feet or so is known as the Unconfined Aquifer, and it contributes to the flow of streams in the Closed Basin as they sink and emerge on their way to the sump at San Luis Lake.

Beneath that is a thick layer of clay, relatively impermeable to water. Below the clay is the Confined Aquifer — water amid the alluvial fill that extends down thousands of feet to the basin’s bedrock floor.

Just how much connection there is between the Confined and Unconfined aquifers is a matter of much contention, but before we get to that, we need to figure out where the water comes from and where it goes. The Closed Basin is not a sealed and static reservoir — water flows into it and water leaves it.

Water Coming and Going

Estimates (see the box on the left) indicate the Closed Basin may be receiving nearly a million acre-feet of water each year through precipitation and run-off. So where does the water go? Shouldn’t the basin just fill up, so there’s a big lake from Saguache and Crestone down to the sand dunes?

If the water comes to the surface, it can evaporate. If it’s near the surface, plants reach it with their roots, pull it up, and evaporate what they don’t consume. The water that stays in the plants might be exported inside potato skins, or as a substantial portion of a ton of even dried hay.

But that’s only the water near the surface. In the valley, streams like Saguache and Crestone creeks just seem to sink into the sand, no matter how lively they appeared as they cascaded down their mountain gulches.

Recall that the Unconfined Aquifer sits above a layer of clay. Below that is the very deep Confined Aquifer. The connection between these two aquifers is a point of contention.

It seems logical that some Unconfined water must seep, however slowly, through the clay down into the Confined Aquifer. But the clay is a sufficient barrier to hold the Confined water under some pressure. Tap the Confined with a deep well, and in days of yore, the water would race up the pipe to the surface and maybe even gush into the air — an artesian well.

This indicates that the Confined is getting water from somewhere other than slow percolation down from the Unconfined. The nearby mountains are laced with deep faults. Faults are cracks, and water coming off the mountains, rather than flowing down a streambed, instead falls into these cracks, which in turn convey the water to the Confined Aquifer.

With new water pouring in from the mountains through the faults, and that clay lid on top, the Confined Aquifer thus holds water under pressure. Above the clay lid, there’s the Unconfined Aquifer — a desert, but one with a relatively high water table, often less then a dozen feet below the surface.

Where it goes

It appears, then, that the Closed Basin receives about a million acre feet of water each year. It goes somewhere, but where?

Agriculture consumes some with irrigation from creeks and wells.

How much? Surface water rights are quite quantified and relatively easy to calculate in Colorado. But nobody seems to know how much comes out of wells, especially the deep wells in the south of the Closed Basin that tap the Confined Aquifer and irrigate fields (potatoes, carrots, etc.) through center-pivot systems.

And even though the Closed Basin is a desert, not all its surface is bare sand like the dunes — thousands of acres are covered by greasewood, rabbit brush, chico, and other plants of little economic value whose roots tap the Unconfined Aquifer and whose leaves evaporate water into the air.

One easy number is the amount of water exported to the Rio Grande by the Closed Basin Project — about 40,000 acre feet last year. Which leaves only 882,400 acre-feet to account for.

“We’re working on a water budget for the Closed Basin, so that we know how much comes in and how much leaves” explained Ralph Curtis, general manager for the Rio Grande Water Conservancy District, “but we’re still a long ways from getting it done. It’s so complex.”

But a reasonable person might look at such numbers as are available, and conclude that not only is the Closed Basin one of the world’s biggest reservoirs, but also that a considerable annual inflow of valley water goes mostly to woody weeds like chico bush, which nobody has found much use for.

Moreover, current water development plans propose tapping only into the confined aquifer, thereby presumably leaving surface vegetation and wells into the unconfined aquifer unaffected. (Although that claim is certainly under contention, since the connection between the two aquifers is not fully understood.)

In addition, developing some of that water — water that now gets evaporated away by various scrub plants if it isn’t just adding to the pressure in the Confined Basin — might be a paying proposition. After all, Colorado law provides that if you can put water to “beneficial use,” then you can get a water right, and you can sell it.

SO LET’S LOOK AT MONEY. Suppose you could get your hands on some of the Closed Basin’s apparently unaccounted-for inflow — say 150,000 acre-feet a year.

It’s not worth much where it is, being as Saguache County has a small population to consume domestic water, hardly any factories in need of new industrial water supplies, and marginal agriculture with a short growing season. In other words, no local demand to speak of, and that means the water isn’t worth developing unless you find a buyer somewhere else.

Now observe that Colorado has gained nearly a million people since the last census. Most of them are along the Front Range in the South Platte and Arkansas drainages. They’re willing to pay up to $10,000 an acre-foot for water, and you can figure that every seven new people means another acre-foot.

That is, Front Range Colorado needs 10 to 15,000 more acre-feet of water every year. They could buy up area farmland — agriculture uses about 75% of Colorado’s water — but there are political problems with that.

They could develop more of their nearby supplies, as they tried with Two Forks more than a decade ago. It was quashed by the Environmental Protection Agency.

Such projects typically require diversions from flowing streams and the drowning of some valley with a reservoir, with consequent evaporation losses. Another consequence is attack by powerful environmental groups.

The Closed Basin is distant from those Front Range markets, but not inaccessible. Just run a pipe over Poncha Pass, and you’re on the Arkansas. Continue that pipe up past Buena Vista, and you’re at the Otero Pump Station, where facilities are already in place to hoist the water over the Mosquito Range and onto South Platte drainage in South Park.

Perhaps the cheapest market to serve: Pump the water south out of the Closed Basin, into the Rio Grande, more or less expanding what the U.S. Department of the Interior already does. New Mexico’s growing cities like Santa Fé and Albuquerque might pay well for water, and environmental groups and recreational interests along the Rio Grande are already looking at court battles to get more water into the river.

Price the water under the current market, say at $5,000 per acre foot. Sell 150,000 acre-feet, and that’s $750 million, which will pay for a lot of lawyers, petition circulators, advertising, wells, pumps, and pipes — and still leave a handsome profit.

That’s the economic reasoning behind Gary Boyce and his Stockmen’s Water Company.

On the other side, everything except that potential profit is a question. Would taking that much water from the Confined Aquifer lower the Unconfined Aquifer? How would that affect other people’s water supplies and rights? What about wildlife, especially at the Valley’s refuges for migrating waterfowl?

Those are questions that would normally go before a Colorado Water Court after Boyce filed a formal application to develop the groundwater under the extensive land he controls.

But he hasn’t filed yet, so any court hearing is in the distant future. In the meantime, Boyce and his opponents are fighting in other arenas, and the two November ballot issues are only one facet of their struggle.

Contentious History

The first European power of any consequence in the San Luis Valley was Spain, with the Valley representing part of a vague frontera del Norte. In 1800, Santa Fé was a poor and isolated outpost of an imperial frontier that was under constant threat.

One way to hold the territory was to treat with the Utes and Comanches, to make them Spanish allies who would protect against incursions from the French and Americans. Another method was to persuade Spanish colonists to settle in the frontier by offering them land grants.

Mexico gained its independence in 1821, and continued to offer land grants. In 1823, one huge grant around the current Las Vegas, New Mexico, went to Luis Maria de Baca. In 1846, the United States invaded and conquered Mexico. In the 1848 Treaty of Guadalupe Hidalgo, Mexico ceded nearly half its territory to the United States, but among other things, the United States agreed to honor Mexican land grants.

By then there were squatters and disputes about the land around Las Vegas, so Congress in 1863 agreed to a land swap — in exchange for the disputed Las Vegas estate, Baca’s heirs could select five sites, each 100,000 acres, elsewhere in what had been Mexico.

The northernmost of these — Luis Maria Baca Grant No. 4 just outside Crestone — is known to this day as “the Baca.” It has been through many owners since then, ranging from William Gilpin, who served as the first governor of Colorado Territory, to Albert Collins, who actually made it pay as a cattle ranch in the 1950s. But it has stayed fairly intact as a real-estate parcel.

About 20 years ago, the Baca came into the hands of Canadian oilman Maurice Strong, who joined with other investors to form American Water Development, Inc.

Their plan, as revealed in a 1986 application to the state engineer for well permits, was simple: Pump up to 200,000 acre-feet a year out from under the Baca, and pipe it to where people would pay for it.

AWDI put some people with good environmental credentials on its board — former Colorado Gov. Dick Lamm, for instance, and William Ruckleshouse, former director of the U.S. Environmental Protection Agency.

But environmental activists opposed AWDI. So did the Valley’s farmers and ranchers. The battle raged in Alamosa’s water court, and the legal fees rose into the millions.

TO QUOTE FROM A FINE BOOK (The Last Ranch: A Colorado Community and the Coming Desert, by Sam Bingham, recently issued in paperback, and something you must read if you have any interest in the Valley’s water, and you must if you’ve read this far):

“The Rio Grande Water Conservation District itself led the legal opposition to AWDI, but the cost to the various objectors, well over $3 million, would have forced them to the wall and overwhelmed any question of justice had not an extraordinary coalition of valley people organized to fight for it. Private and public money flowed into the war chest. The state legislature created a special tax district comprising the whole valley, and what amounted to the six poorest counties in the state 45% of the voters turned out for a special election (more than ever voted in general elections) and voted twenty to one for a property tax that raised another half a million dollars. By the time the trial began the following October in Alamosa, the principal town in the southern end of the valley, virtually every registered vehicle bore a STOP AWDI bumper sticker.”

In short, AWDI was about as popular as anthrax or the potato beetle in the Valley. Its final legal claims hinged on what Colorado law calls “nontributary groundwater.”

The League of Women Voters Colorado Water pamphlet explains it this way: “Permits to use such water are restricted to the water underlying the land owned by the applicant or with the consent of its owners. In 1985, SB5 defined nontributary groundwater as groundwater, outside of any designated groundwater basins, the withdrawal of which will not in 100 years deplete the flow at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal.

“SB 5, instead of regarding this water as the property of the state, vested rights to nontributary groundwater to the overlying landowner. Thus, it will not be administered according to the doctrine of prior appropriation as are surface and tributary groundwaters. The annual amount of withdrawal will be determined by a water court decree based on the amount of water underlying the landowner’s property. Neither reduction of hydrostatic pressure or water level in an aquifer will constitute material injury.

“Applications for a water well permit must give exact data as to the amount used and the place of use. When the well is completed, a report must be made and certified as to the pumping rate….

“The legislature reserved to itself the right to impose limitations on the exercise of the vested water rights created by SB 5 for preventing waste, promoting beneficial use, and requiring conservation, if at some future date they find it necessary to take such action.”

(In other words, if I read this correctly, then non-tributary groundwater belongs to the owner of the land above, unless the legislature says otherwise.)

The court found that AWDI’s computer models were in error, and it could deplete streams by more than the amount allowed for non-tributary groundwater.

So AWDI lost. And it lost its appeals. And in late 1992, just before he left office, Colorado Sen. Tim Wirth stuck a few phrases onto a water bill in Congress. Henceforth, the Secretary of the Interior has to approve any Valley water project that might adversely affect the national wildlife refuges, the Great Sand Dunes National Monument, or other federal facilities — like the Closed Basin Project.

As long as the Secretary of the Interior was even remotely concerned about the environment, not only was AWDI dead, but so was any future project that might tap the Closed Basin.

AWDI had to pay part of the winners’ legal bills. It did, and it sold the 100,000-acre Baca. The buyer was Gary Boyce, who already owned the nearby 5,500-acre Rancho Rosada.

Soon Boyce had a new diversionary plan.

Ed Quillen, who helps publish this magazine, wanted somebody else to write this story, because there’s so much to it that some of it will have to run next month. However, Ray James went to prison.

Second Installment in Nov. 98 edition.