Confluence of law and water in Douglas County

graphic courtesy of

Meeting #2: Douglas Cty commissioners consider exporting water from SLV

DOUGLAS COUNTY - As part of their “due diligence process” in evaluating the RWR proposal to receive $20 million from the Douglas County Commissioners to assist in the annual export of 22,000 acre feet of water from the San Luis Valley, a second meeting was held on Monday addressing water law issues in relation to RWR’s proposal.

Three individuals with expertise in water law were invited to speak with the commissioners. Two of the attorneys – Glenn Borzak and John Lupitz – were referred to the board by RWR. Both claimed to have no current affiliation with RWR, although Borzak said, “in full disclosure”, that he would be billing RWR for his time.

Nonetheless, the background of the two attorneys might play into the mix. When asked if he had any knowledge of either Borzak or Lupitz, Cleave Simpson, General Manager of the Rio Grande Water Conservation District and state senator representing the San Luis Valley, said, “I recognize that they have prior experience with folks working to export water out of the San Luis Valley through association with Gary Boyce and unsuccessful legal challenges to the Confined Aquifer New Use Rules.”

Gary Boyce, who passed away in 2016, was a Crestone rancher who proposed in two different ventures to drill wells deep in the aquifer beneath the historic land-grant Baca Ranch and export the water to urban markets along the Front Range.  

The third attorney, James Eklund, stood out from the others in both perspective and expertise. Eklund, who stated he had “not been retained on the project, for or against,” was the state’s “water chief” under then-Governor John Hickenlooper from 2013 to 2017, serving as the director of the Colorado Water Conservation Board and then the architect of the state’s first Water Plan, which had the largest stakeholder participation in state history.

At Commissioner Abe Laydon’s request, Eklund was the first to address the RWR proposal, and what he had to say was far from encouraging for the group’s efforts.

Eklund started by saying he had reviewed the RWR proposal and there were seven practical factors to be considered. Failure on any one of those seven factors would be “fatal”, in his opinion.

The first factor involved location of the project. “The San Luis Valley is very much over-appropriated and sits under daily compact administration. There is no surplus of water.” He went on to say that the RWR proposal is “unequivocally contrary” to the Colorado State Water Plan. “Water is important to the residents of San Luis Valley, and the imbalance from exportation of water will exacerbate on an interstate basis.” There are compact issues, he said.

The second factor related to supply chain demand, especially “in an era where all have felt the impact of supply chain problems” and the need to tap local sources to meet needs. “Water powers our economy and is critical to economic growth and stability,” Eklund said, advising Douglas County against putting themselves at risk of a water supply chain that involves exporting water from 200 miles away.

The third factor Eklund listed was the cost of the water. Estimating the cost of the project on a cost per acre foot basis. Citing the $20 million to buy water at $18,000 per acre foot for 22,000 acre feet plus costs of infrastructure, construction, transporting the water, water treatment and other requirements, Eklund estimated the cost of the project to be around $100,000 per acre foot.

Sustainability was the fourth factor. Even if the water was available, the Bureau of Land Reclamation had reported to Congress ten years ago that temperatures are expected to increase by five to six degrees, “which is bearing out”, while annual precipitation – which is variable -  will decrease by 2.3 percent to 2.5 percent, resulting in a river’s annual average runoff decreasing by 7.3 percent to 14 percent. Rising temperatures are also impacting snowpack, and that snowpack, as it runs off and provides the recharge to the confined aquifer which RWR frequently cites, will be lessened.

Eklund did not see the project as feasible, given that it involves moving water through four counties to a destination 200 miles away. “The confidence in the modelling for the water just isn’t there,” Ecklund said. Even if the water rights were obtained, to “retain jurisdiction in water court would continue in perpetuity because it doesn’t account for changes in the model.” The division engineer has to constantly look at the model because the hyrdrology fluctuates, he said. “It’s not set in stone.” Eklund warned against relying on the model and the subsequent challenges in water court that those changes could require. And, again, he brought up the compact as a major consideration.

He further challenged the idea that the water in the confined aquifer in that area does not impact the river, citing testing that has proven a clear connection between the river and wells fifty miles away on that side of the valley..

Finally, Eklund brought up the one-to-one rule of withdrawl and replacement that would legally govern RWR’s exportation plan, saying it would “dry up tens of thousands of acres” to achieve.

He finally advised Douglas County to seek for other sources of water that “are much closer to home.”

Commissioner Thomas asked, “So, are you saying that RWR would be taking water from farmers and ranchers in the San Luis Valley?”

“It would require that,” Eklund said.

When John Lubitz spoke, he said he had a historical perspective from 30 years spent in water acquisition, emphasizing that those who compare RWR’s proposal to AWDI were wrong. “Nothing could be further from the truth.” Lubitz said that, through his association with Gary Boce, they had learned “what shouldn’t be done.”  Lubitz said that they spent $3 million proving that no harm was done by extraction, adding their data was included in the RGDSS model. Lubitz quoted the head of the Colorado Water Conservation Board as saying, at that time, that the problem was not harm but the optics of “a pipe taking water over Poncha Pass.”

Lubitz spoke of the time before groundwater rules being implemented as something akin to “the Wild West.” However, once groundwater rules were enacted things changed. He spoke - somewhat disparagingly - of the subdistricts in the valley now  “telling each other what to do” with the Division Engineer very involved in water administration in the valley.

Prior to 2006, any water project was filled with uncertainty, but now the certainty is much greater. He then quoted Judge Kuenhold saying that, “once the rules are passed, if someone meets those rules, there will be very little anyone can do to stop it.”

That quote was later clarified during public comment by Heather Dutton, General Manager of the San Luis Valley Water Conservation District, when she said the judge’s remarks were limited to a very specific situation and not to be applied at a general level

Lubitz’s primary message came down to several points. RWR is distinctly different from AWDI’s efforts and should not be equated. The implementation of groundwater rules clarified the process and brought certainty related to outcomes of a water project. And the data, derived from a $3 million study, proved there was no harm done in withdrawing water from the confined aquifer and much of the opposition was “politics.”

The final attorney to speak was Glenn Borzak, who also had a history of attempting to export water from the San Luis Valley, although it was in 2006.

Refuting Ecklund’s definitive statement, Borzak stated that the water in the confined aquifer was not appropriated and is annually recharged by precipitation. It was a point he mentioned twice; however, neither time did he address the Bureau of Land Reclamation’s predictions to Congress, that are now being backed up by data, related to rising temperatures impacting snowpack.

Borzak also addressed the RWR purchase of water rights, saying it was not “buy and dry” that most people fear.  RWR will be essentially buying land that “will be dried up anyway,” he said. Mr. Borzak also presented a scenario that “the state will be telling farmers to dry up their land without compensating them,” unlike RWR who would plan to compensate farmers.

Echoing something implied by Mr. Lubitz, Mr. Borzak’s reduced the opposition to exporting the water as “politics”, seeming to imply that opposition was not based on science, economics or anything other than a philosophical opposition to water export.

As the meeting progressed, it was a point – and a term – picked up by Commissioner Laydon and Commissioner Teal, who is in clear support of the proposal, although Laydon did not attribute it directly to those who opposed RWR.

There was another point of clarification, again provided by Heather Dutton during public comment. Dutton addressed the idea that RWR would be purchasing land “that would be dried up anyway.” According to Dutton, one action did not equate the other. As Dutton described it, if RWR buys water rights to offset the water they are exporting, this would result in dried up land, but that will be new use – not existing use, as Mr. Borzak suggests. Put another way, that dried up land cannot be counted twice – once to meet existing use and once to meet RWR’s requirements in being compliant. It will be “new use”, which clearly has an impact.

At the end of the meeting, Commissioner Laydon made sure to allow time for those calling in or watching online to participate, an allowance that paved the way for others to ask pertinent questions about land use and the logistics of dealing with four different counties.

There are four more meetings scheduled in the coming few weeks. Commissioner Laydon emphasized the board’s desire to find a win-win solution, going on to announce a proposed “Water Summit” to be held at ASU sometime in March.