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Rulemaking process underway to regulate water in the San Luis Valley

by Lora Abcarian | August 31, 2010
The Colorado state engineer's office of the Department of Natural Resources is moving forward with its rulemaking procedure to establish rules to regulate water consumption in the San Luis Valley.

"We're getting toward the end of the process," said Craig Cotten, division engineer for Water Division 3. "The state engineer hopes to be finished by the end of the year and have the rules submitted to Division 3 Water Court."

The proposed rules are being developed by a 55-member advisory committee representing water users in the valley. Because the committee represents such a broad cross section of users, Mr. Cotton said that it is hoped that concerns which may arise as the rules are finalized will be minimized.

"The basic form of the rules is very simple," Mr. Cotton told The Produce News Aug. 28. "If you have a non-exempt well, you will have to replace the depletions or shut the well down." He went on to say that well depletions can be addressed in one of two ways: water users can replace water through augmentation plans or they can join groundwater management subdistricts.

Senate bill No. 222, passed in 2005, gave the state engineer authority to regulate groundwater in the valley. One of the more significant provisions of the legislation allows for the formation of groundwater management subdistricts. The subdistricts essentially serve as self-governing bodies which can ultimately implement water management plans following court approval. "There are about seven subdistricts in the valley that are in various stages of development," Mr. Cotten said.

The first groundwater management subdistrict was formed in the Rio Grande Water Conservation District, which covers five of the six counties in the San Luis Valley. When plans for the subdistrict's formation were first submitted to Water Court, it was hoped that issues of water use and aquifer recharge would be substantially resolved by reducing the amount of agricultural acreage being irrigated. Several years ago, the state engineer mandated well metering in the valley and gave time to the conservation district and water users to come up with solutions in the absence of formal regulations.

Last fall, Water Court Judge John Kuenhold issued a ruling upholding the creation of the subdistrict, thereby allowing the subdistrict to move forward with its groundwater management plan. According to Mr. Cotten, objectors appealed the decision, and the case is now before the Colorado Supreme Court. According to Mr. Cotton, the court is expected to make a ruling in the summer of 2011.

"The other six [subdistricts] are waiting in the wings to see what the outcome of this case is," he said. "This case won't affect our rulemaking process." He added that it is important to have subdistricts in place to deal with issues of water depletion and sustainable usage.

Submission of the state engineer's proposed rules will initiate a 60-day comment period after a notice of rulemaking is published by Water Court. "If there are objections, it could go to a hearing or trial," Mr. Cotten said of the process. "If we don't get any objections to these rules, [implementation] could go really fast."

In his decision, Judge Kuenhold ruled that the water subdistrict would have to begin water augmentation in May 2012. Mr. Cotten said that the state engineer's office sees this as a realistic time frame in which to implement the new rules being promulgated at this time. "The subdistrict will be a taxing entity, so they need to get rolling a year ahead of his," he added.

It is possible that the appeal to the Colorado Supreme Court could push this time table out by a year, he went on to say.

Water metering in the San Luis Valley affects all large-capacity wells pumping more than 50 gallons per minute. According to Mr. Cotten, there are 6,000 large-capacity wells in the valley, 4,500 of which are still active.

(For more on San Luis Valley potatoes, see the Sept. 6, 2010, issue of The Produce News.)