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Water Update

Column by John Orr

Water – February 2008 – Colorado Central Magazine

San Luis Valley groundwater

Water watchers in the San Luis Valley have had a lot to keep them busy lately. The State Supreme Court heard arguments about the state engineer’s confined aquifer rules and now everyone is waiting for a ruling. The rules mandate that those pumping from the confined aquifer are required to replace withdrawals with an equal amount of water.

Attorney Allan Hale, argued against the rules, saying that the overappropriation problem in the Valley should be solved holistically and include the unconfined aquifer. He also noted that the one-for-one replacement requirement effectively eliminates any new water withdrawals from the aquifer. He questioned the effects of pumping from the confined aquifer since the water court has found that it contains a billion acre feet of water. He maintains that even in combination the production from all the wells in the aquifer is a fraction of the water stored there.

Colorado Assistant Attorney General Peter Ampe and the Rio Grande Water Users Association Attorney Bill Paddock supported the rules. Ampe argued that the rules reflected the intent of the State Legislature, and contends there is no reason not to approach the problem in a stepwise fashion. Paddock maintains that the rules are designed to bring the system back into a sustainable state. He said that the focus should be on the effects of pumping on surface streams, wetlands, water rights and the Rio Grande Compact.

Meanwhile acequia preservation associations are objecting to the San Luis Valley’s first water management sub-district plan. They met in Antonito recently and complained because groundwater irrigators are being allowed to pump while surface irrigators are curtailed. In their view the groundwater pumpers are depleting the streams and the water should be replaced one-for-one. The attorney for the associations cited enhanced stream flow in the South Platte River resulting from several years of augmentation and the shut down and curtailment of wells there. He’s confident that the Valley would see the same results.

The court cases for the first groundwater management sub-district have been consolidated by Judge O. John Kuenhold. The cases deal with objections over the state engineer’s approval of the plan, and objections to the Rio Grande Water Conservation District’s approval.

Aurora long-term contract with Reclamation

The dispute over using Fryingpan-Arkansas facilities to transfer water out of the Arkansas Basin continues. The Lower Arkansas Valley Water Conservation District filed a lawsuit in the fall. Then, in early January, the city of Aurora was allowed to intervene on the side of Reclamation, to defend their 40-year contract. The lawsuit alleges that Reclamation does not have the authority to issue contracts to entities outside of the Arkansas Basin. The contention is that the Fry-Ark project was built to benefit the Arkansas Basin only.

Aurora claims that if the Lower Ark prevails it will have a profound effect on its residents.

The attorney for Aurora says that the city and Reclamation will likely offer up differing defenses. While Reclamation will defend its authority to contract excess capacity in the Fry-Ark project, Aurora will talk about a direct and material threat to an important source of water for the city.

Aurora moves their water using exchanges between water stored in Pueblo Reservoir with upstream Fry-Ark water, stored in Turquoise or Twin Lakes, using the Otero pipeline and pumping station.

Adding to the contention, Arkansas Native LLC, a group headed by Pueblo Chieftain Publisher Bob Rawlings, filed a motion to intervene in the lawsuit. Their complaint centers around Reclamation’s authority to enter into the contract and the validity of the environmental assessment. They’re also citing a 1996 Colorado Supreme Court decision, City of Thornton v. Bijou Irrigation Co.: The Thornton Northern Project Decision. In that case, the court ruled that water imported into the basin could not be exchanged for water native to the South Platte Basin.

The Lower Ark hopes to head off similar contracts that would encourage out-of-basin entities to buy more ag water from the valley. The effect on the agricultural economy is profound, a sort of death spiral, as businesses that depend on farmers lose revenue, and then local government tax revenues dry up thereby endangering the land and schools and services.

The first blow was struck in January when the U.S. Department of Justice, charged with defending Reclamation, asked Chief U.S. District Judge Edward Nottingham to throw out the lawsuit.

Short Takes

The 2008 legislative session kicked off on January 10th. During this session State Representative Kathleen Curry plans to introduce legislation that would require a sustainable water supply for development prior to construction approval. According to Curry, “You can’t separate the growth and land use issues from water demand.”

The final numbers are not in yet but it looks as though Colorado met its obligations under the Rio Grande River Compact this year.

“If the seven states of the Colorado River basin can get together and work out a deal, then surely anyone can,” said Secretary of Interior Dirk Kempthorne in Las Vegas late last year. He was preparing to sign off on the agreement, worked out between Interior and the seven Colorado River Compact states, to manage the Colorado River in times of drought.

Reclamation said adios to Tom Musgrove, longtime manager for the Fryingpan-Arkansas project, who retired in January.

Round Mountain Water and Sanitation District has a new District Manager, the board of directors hired Joshua Cichocki of Fort Garland.

Colorado Chief Justice Mary Mullarkey has formed a task force charged with looking for ways to streamline the state water courts. She is asking the panel to, “Identify the issues most critical to the fairness and efficiency of the water court process.” The streamlining was one of the recommendations from the Denver University Water Futures Panel held last summer.

Late last year the Colorado Department of Health and Environment refused approval for a newly constructed water supply well in Fairplay. The department cited the well’s proximity to a surface pond.

Anglers are welcome again at Clear Creek Reservoir, which is currently filling after being drained for maintenance work conducted last summer.

Last November residents of Eastern Fremont County approved a measure for joining the Upper Arkansas Water Conservancy District. A legal challenge over the ballot method has been filed in District Court.

The Upper Gunnison River Water Conservancy District has earmarked $10,000 for the 2008 Gunnison Whitewater Festival in an attempt to inject more life into the event.

Colorado and the IRS have launched an investigation into the abuse of conservation easements by investment funds. Appraisers in cahoots with the funds have been over-valuing some properties leading to larger tax breaks.

Citizens for San Luis Valley Water has re-formed to protect the valley’s water resources from oil and gas development. Old-timers will remember their leadership in the fight to keep water in the valley in the 1980s.

John Orr follows water issues at Please send story ideas and links to jworr [AT] operamail [DOT] com