Imminent well rules for the San Luis Valley are now being refined for clarity, consistency and defensibility against potential court challenges.
State Engineer Dick Wolfe reviewed the latest draft of the groundwater rules Tuesday in Alamosa with the group of local residents and water attorneys serving on the groundwater advisory committee. He said although he had hoped the April 7th meeting would be the last one, he expected there would be at least one more next month to review changes related to comments received on Tuesday and within the next couple of weeks.
Other actions that must be completed before the rules can be submitted to the court include: complete statement of basis and purpose; finish the response functions peer review; and complete/gather supporting documents that must be submitted to the court along with the rules. These documents will comprise the evidence that would be presented in court proceedings , should the rules be challenged, Wolfe explained.
The Attorney General’s office is reviewing the rules to make sure they will be defensible in court, Wolfe said. The modelers who would have to testify in court have also been working with the state engineer’s office to make sure the language in the rules is accurate and properly defined.
Wolfe has tried to minimize, if not eliminate, potential objections to the proposed rules by involving a wide variety of folks in the rulemaking process. Each of the advisory committee meetings throughout the multi-year process of formulating the well rules has been public, with crowds generally running from 50-100 people.
The audience was a little smaller Tuesday than the month before, and the questions fewer, with one of the concerns revolving around what happens if efforts to replenish the aquifers do not work, even with everybody giving it their best shot.
The state legislature has mandated that the artesian pressure in the Rio Grande Basin (the Valley) must get back to the level experienced between 1978-2000 , and the well rules are designed, in part, to meet that requirement . Because it is difficult to pinpoint what those pressure levels were, and should be, the state engineer’s office is incorporating data collection in the well rules to better understand the 1978-2000 pressure levels. The state engineer’s office will work with water conservation and conservancy districts, sub-districts and water users to collect data about the confined aquifer system and will release a report within 10 years from the time the well rules become effective.
Based on that investigation and report, the state engineer will determine what’s the best method to achieve and maintain the sustainable water supply in the confined aquifer system that the legislature is requiring.
The new draft on Tuesday included a paragraph giving the state engineer latitude to allow greater pumping in areas of the Valley that might exceed that 1978-2000 level at some point in the future.
“No one knows for sure if that will in fact happen ” if they can demonstrate they are replacing injurious stream depletions, they are in a sustainable condition ” and not interfering with the compact,” Wolfe said.
However, if the opposite is true and efforts to reach that 1978-2000 goal are not successful it might mean going back to the drawing board.
“If pumping levels don’t get them there, then we have to evaluate what else do we need to do,” Wolfe said.
Division 3 Engineer Craig Cotten said the information that will come out of the data collection within the next 10 years, if not sooner, will determine if additional restrictions might be necessary to get the aquifer to the mandated sustainable level. If additional restrictions become necessary, he said, “that will be a new rule making process.”
Division 3 Assistant Engineer James Heath added, “That’s where we would have to come back and do another rule making and redefine additional parameters to reduce pumping more, recharge more “”
Well Rules Advisory Committee Member David Frees suggested that rather than going through the lengthy rule-making process again in 10 years or so, if it turned out that was the necessary course, it might be better to include some provisions in the current rules to allow the state engineer to enact stricter curtailments if necessary to meet the water sustainability goal mandated by the state legislature.
“We want to be careful we don’t specify one solution to that problem if that’s what happens after 10 years,” Wolfe said.
Frees said he was not recommending that only one provision be included, “but I think there ought to be a provision in these rules if we don’t meet that sustainability the state will take some action or require further provisions.”
Wolfe said the rules do provide for that: “Not later than 10 years from the Effective Date of these Rules, the State Engineer must prepare a report concerning the results of the investigations.” Based upon the results of the investigations, the State Engineer must determine the preferred methodology to maintain a Sustainable Water Supply in the Confined Aquifer System and recover Artesian Pressures and thereafter propose any reasonable amendments to these rules.
Wolfe said, “We created these rules. We can amend them.” Another advisory committee member suggested that the rules include a default provision if the sustainability goal is not met so the state and folks in the basin don’t have to go through another 6-8-year process to develop more rules.
Attorney Bill Paddock disagreed that a default provision should be included in the rules. He said the default provision might not work either , which would just create more problems in the future. He recommended collecting the data that will provide a better understanding of how the system operates before setting up a default provision. Advisory Committee Member Norm Slade said, “Some of these sustainability plans might be impossible ” I would like to see you put something in there so you could regulate these wells if it’s impossible to reach sustainability . If a state engineer deems a sub-district can’t or won’t meet sustainability standards, those wells may be regulated.”
Wolfe said that is in the rules, and any well owner who does not comply will ultimately be curtailed.
Slade asked if the state had to wait 10 years if it looked like it would be impossible for a particular plan to meet the requirements. Wolfe said the rules state that the engineer’s office will prepare a report and proposed amendments no later than 10 years but do not specify a time period.
“I agree we shouldn’t be waiting until the 10th year,” Wolfe said.
He said the state would continue monitoring and evaluating the various plans set up to comply with the rules to make sure they are working.
“These things are set up to allow people to adjust as they go along,” Wolfe said.
Wolfe explained that the rules’ assumption is that hydrological conditions in this basin will return to what they were in 1978-2000 , the period of time the aquifers are mandated to recover to. However, the new normal may be drier conditions, as they have been in more recent history, Wolfe explained, and people cannot just wait and hope things get better on their own.
He pointed to the first subdistrict , which is going into its fourth year of operation, and said in his opinion it has proven that water plans can be successful.
He and other Division of Water Resources staff explained that the well rules and the models the rules rely on provide flexibility and ranges to account for variables such as wet years and dry years. That helps water planners like sub-districts decide what they might need to do, for example providing enough water storage to make up for drier years.
Advisory Committee Member LeRoy Salazar said not all of the tools are in place yet, but he liked the direction things were moving and believed the work being undertaken with the rule implementation process would provide more tools for the future.
Wolfe agreed. “Even though there’s been a lot of hard work to get to this point, in some ways this is the beginning ” The state’s going to be working closely with the users as we go forward ” There’s going to be better and better tools to predict the future.”