Article by Ed Quillen
San Luis Valley Water – October 1998 – Colorado Central Magazine
WITH ONLY TRIVIAL EXCEPTIONS, no rivers flow into Colorado. But despite the best efforts of generations of developers, attorneys, and engineers, water does flow out of Colorado — by national and international law. It has to, under various “river compacts.”
In general, each state is responsible for its own water policy in the American federal system. But Colorado is in a position to use up all the water in the Arkansas River before it reaches Kansas.
That would greatly perturb farmers in the Sunflower State, whose fields might have relied on that water before Colorado was even a state. The doctrine of “first in time, first in right” functions within a state.
But what water court or engineer is in charge when the senior water right is in a downstream state, and a junior right is using the water in an upstream state?
To solve such problems, Colorado and Kansas made an agreement — a “river compact” — concerning how much water Colorado can keep, and how much it must deliver to Kansas. These compacts must be approved by Congress, since the U.S. Constitution provides that “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State….”
Similar agreements — although these are international treaties rather than interstate compacts — also apply to rivers that flow into other countries, and under such treaties, the United States is obligated to deliver water to Mexico.
Within that framework of compacts and treaties, let’s look at the Rio Grande (Rio Bravo on the other side of the border, and historically the Rio Grande del Norte). It originates above Creede in the San Juan Mountains of Colorado, then flows east into the San Luis Valley where it turns south into New Mexico and Texas, where it forms the border with Mexico.
Under a 1906 treaty with the Republic of Mexico, the United States must deliver 60,000 acre-feet of Rio Grande water, which is taken out of the river near El Paso. About a hundred miles upstream is Elephant Butte Reservoir, built in 1916 to help the United States meet its commitment to Mexico.
The amount that states along the river owe each other, based on the 1938 Rio Grande Compact, is determined by complex formulas based on snowpack and the like, but in an average year, Colorado owes New Mexico 60,000 acre-feet.
But what happens when Colorado doesn’t deliver the water it promised to send down the river?
Pretty much the same thing that happens when you can’t meet your current financial obligations — you go into debt, and eventually somebody gets impatient and sues you for repayment. In this case, Colorado started going into hydrologic debt in 1949, and by 1966 it owed Texas and New Mexico 944,000 acre-feet.
Texas and New Mexico sued in federal court.
No single entity using Rio Grande water in Colorado was big enough to handle a court case of that magnitude, and so the Rio Grande Water Conservation District was formed in 1967.
It comprised five of the six counties in the San Luis Valley — Costilla County did not join. A “Conservation District” is different from a “Conservancy District” in several important particulars, although both can levy property taxes.
Conservancy districts (Colorado has dozens of them) buy, sell, and develop water. Conservation districts attempt to protect water rights in a basin, and Colorado has only three.
Conservancy district boards are appointed by judges; conservation district directors are appointed by county commissioners.
According to Ralph Curtis, Rio Grande’s general manager, “it would have killed agriculture and everything else here if we’d had to deliver on all that water debt, but no single irrigation district or ditch company was big enough to take on the case. So we formed the conservation district, hoping we could reach some kind of settlement with Texas and New Mexico. The alternative would have been a court case that would have resulted in having an administrative judge take over all our water management.”
In 1968, Texas and New Mexico came to an agreement with Colorado — they’d drop their lawsuit if Colorado would meet its obligations in the future.
Rio Grande irrigators in Colorado, under strict supervision of the state engineer, made do with less water after 1968, and Colorado met its obligations. But it wasn’t easy, and they started looking for more water.
How to get more water into the Rio Grande?
Well, there was the Closed Basin, just north of the river. The Closed Basin — the northern San Luis Valley — has a high water table, and in theory, useless plants like salt grass and greasewood that tap into it with their roots, suck up the water, and evaporate it from their leaves.
Thus, in 1972, Congress approved a water diversion project, and the Rio Grande Water Conservation District signed a contract with the U.S. Bureau of Reclamation. About $100 million and 13 years later, the Closed Basin Project was operating.
Pump some of the basin’s water away and the water table drops, but no more than two feet, according to the laws that govern the Closed Basin Project. A few million plants of no known economic value might suffer, but this “salvaged” water is run down canals to the low point in the Closed Basin — the “sump” at San Luis Lakes. From there, it’s pumped over the low “Hooper Divide” and into the Rio Grande, thus helping Colorado meet its obligations to New Mexico, Texas, and Mexico. This diversion also makes water available for the Alamosa National Wildlife Refuge and the Blanca Wildlife Habitat Area.
In essence, that’s how the Closed Basin Project works. In 1997, the project provided 40,000 acre-feet to the Rio Grande, replacing water that Colorado irrigators took out of the river, although it is designed to convey up to 100,000 acre feet.
“It’s a great deal for farmers along the Rio Grande,” according to Gary Boyce, who ranches thousands of acres in Saguache County. “They take water out of the river in Rio Grande and Alamosa counties, and Saguache County gets to put the water back into the river. I’d like to have a deal like that with the bank — I get to borrow the money, and you get to pay it back.”
George Whitten, Jr., a life-long Saguache County rancher, Conservation District board member, and independent candidate for county commissioner this fall, said of the project that “Saguache County opposed it all along” during its formative years, and that it still attracts a fair amount of criticism from ranchers in the Closed Basin.
“But we do get some water benefits, too,” he pointed out. In the negotiations for the project, he said, Saguache County got an agreement that there would be no regulation of the artesian wells that tap the Confined Aquifer, “which gives us quite a bit of water to use.”