Almost everyone who has grown up on a farm or ranch under the doctrine of prior appropriation in the Western United States has a set of basic beliefs about their ownership of water. It is a belief that is taught to us before we are really able to understand such things. That makes it, like many beliefs, an ideal handed down to us from our parents and neighbors who were taught by their parents and so on. Sometimes we don’t quite have a complete grasp of the way these laws actually work, often because almost everyone sees these things through a very personal lens.
During my many years on the Rio Grande Water Conservation District (RGWCD) I was fortunate to be tutored by many people who have a true understanding of these rights, which are granted to us by our constitutional government. Over time I began to realize this is a living process, which has had to change to accommodate the realities of an ever-changing world.
Therefore, it is less a doctrine and more of a process. There is a basic tenant of law that guides us as we make decisions but within that structure there is latitude to work out solutions in a dynamic world.
I am proud to announce that on December 18th, 2017 wee owner petitions were accepted and Subdistrict #5 was recognized by the Water Court in Saguache. As a result, the RGWCD called for volunteers to participate in the process of working out a plan of water management for this part of the basin. There will be many meetings of this board and a huge amount of work needed to educate ourselves and our neighbors and enable this district to do the job it was intended to do. The subdistrict Board of Managers will be made up of well owners who will be appointed by the RGWCD Board. As vested owners, they are charged with the task of creating a plan of water management for the Saguache Creek drainage, which will be a template for the future. They will be assisted by the staff, engineers and attorneys of the RGWCD using rules and guidelines set forth by the Colorado Division of Water Resources.
This is a shining example of self-governance unparalleled perhaps anywhere in the United States. Many may not recall what was about to happen before this process was started, but it would have been a very different San Luis Valley if we, the entire community, had not acted. After the terrible dry years of 2000 and 2003 the aquifer under the Valley was drawn down over 1.5 million acre feet by well pumping, which exceeded the inflows from the surrounding mountains.
Trouble was in the mix. Big time. Senior surface water rights were unable to get a supply and wells with a junior right pumped with no consequence. For a landowner who believes that the senior water belongs to them seeing a well pump and fill a center pivot sprinkler while their own lands get drier every day is a hard thing to take. So they did the only thing they could do and that was to sue. They sued the State Engineer who was supposed to administer the priority system and was, they argued, not doing it. His hands were tied by several layers of statutes and it appeared he had no latitude to do anything but shut off all the wells which would have destroyed the economy of the Valley. Up to this point the wells were not administered according to the same rules as surface water. The real problem here was the inequity of the situation. This was a problem everyone knew had existed for years but no one wanted to deal with. Those senior water rights owners had every right to ask that the law to be administered according to its decrees.
Also, the future of the Valley aquifer was in question. Many wells were going dry and the end was in sight for many well owners. It looked like we were in a race to the bottom.
Well, here in this Valley we have always prided ourselves as forward thinkers when it comes to conservation of all our resources — especially water — and this as the supreme test. How could we preserve our aquifer and our communities and honor the strict priority system?
The nucleus of the idea came from Ray Wright, a potato farmer and senior water right owner and at the time president of the RGWCD. He and several others, including RGWCD attorney David Robbins, envisioned a way to pay farmers to dry up land and use the money to pay surface right holders for their losses, and over time save the aquifer and the community. The final result is probably somewhat different than the original idea but taking a big breath and starting the process was the most important part. The RGWCD went at this in a way that would solve the problem for both well and surface water users for the long term, and not simply let it be a matter of one side suing the other until they were either out of money or water or both.
Basically, the concept of the first subdistrict works like this: if you have land with both a well and surface rights you get credit for those surface rights and don’t have to pay for water pumped from the aquifer until the pumping exceeds the surface water credit. If you have excess surface water credit you can also lease it to your neighbor who needs it and get paid for water that was pumped for nothing prior to the formation of the subdistrict. A unique and difficult requirement for most all subdistricts is the expectation around sustainability of the aquifer. Confined aquifer systems require that we not only maintain but replenish the aquifer to the levels that existed from 1978 to 2000, prior to the drought. That, to me, is where we have made a real step towards saving this aquifer for future generations.
The whole thing depends on the administration of the wells, through metering data from each well collected by both the subdistrict and the Colorado Division of Water Resources. Annual surface inflows are measured, calculated and allocated according to ownership and a water budget is created. Past depletions going back 20 years are a big part of the budget and diminish over time as they are paid back. The Valley was divided up into six hydrologic areas which were somewhat geologically different, (different watersheds) as well as surface use. These became the various subdistricts.
While I was on the RGWCD Board many hundreds of hours were spent thinking this through, asking engineers and attorneys how to make it work. There were many meetings filled with very angry people who were sure they were being cheated, surface water owners and well owners alike. Sometimes we weren’t sure we would get out alive. Remember, we are all Americans with water rights and. gun rights and strong beliefs about both. I must admit that in the beginning l wasn’t sure of the process myself. There were so many details to work out to make it as fair as we could and still honor the law and the concept. Hardest of all, I had to deal with my own beliefs about how the Valley hydrology functioned. Those beliefs were directly tied to my personal place in all this as a land and water right owner and my commitment to a land ethic that had been handed down to me through generations. These were deeply held, complicated beliefs.
The board of managers for the first Subdistrict #1 is made up of stakeholders who suffered through unbelievable workloads to set fees and educate their neighbors. The staff of the RGWCD has worked harder than anyone, taking each community through their individual process making sure every well owner was contacted while helping answer the same questions over and over again. They have exhibited patience that few people could endure. This, in my mind, is how government is supposed to work.
The RGWCD belongs to all of us and it is a place where due to common interest we have been able to solve problems faced by every community in the Western US, but for the most part no one else is able or willing to even try. Most states are still granting well permits and many don’t, politically at least, recognize the connection between groundwater and surface water, leaving their residents open to lawsuits and ultimately failure. History is full of civilizations that have disappeared due to the lack of being able to deal with water sustainability. That seems illogical but that is the reality of politics and natural resources. We can feel very proud of who we are as an agricultural community and how we have dealt with this seemingly insurmountable problem.
So, at the start of 2018, perhaps facing another drought equal to if not worse than 2003, here we are, imperfect but functioning, and willing to adapt as we go. We have tools now that we did not have before.
This is an example of a community exercising its rights to self-governance, around a shared resource taxing itself to solve a common problem. This is why I’m proud to be an American and a citizen of this Valley and this state. It is not about partisan politics but about our survival as a community and perhaps as a species.