Water rules case in judge's hands

ALAMOSA — Although courtroom testimony concluded two months ago, the groundwater rules trial did not officially end until this week.

Colorado Division of Water Resources Division 3 Engineer Craig Cotten updated Rio Grande Roundtable members on Tuesday that the trial was formally completed the day before.

He said responses to proposed written rulings were due on April 9. Attorneys had submitted their proposed rulings a few weeks previously, and Chief District Judge/Water Judge Pattie Swift had given both sides time to respond to each other’s rulings. That deadline was Monday.

“As of yesterday the judge has everything she needs to go forward,” Cotten told the water group on Tuesday. He expected a ruling from the judge in the next four to six months.

The state engineer had promulgated rules for the Rio Grande Basin (San Luis Valley) governing groundwater, and the majority of the objections to those rules were settled short of trial. However, the judge heard testimony regarding outstanding issues during a trial that lasted about two and a half weeks the end of January and beginning of February.

Judge Swift will now review testimony, documentation, exhibits, arguments and proposed rulings to determine whether to approve the groundwater rules as presented by the state, approve them in some modified form or send them back to the drawing board.

Some of the stated purposes of the groundwater rules are to protect senior water rights, promote sustainability and uphold the state’s Rio Grande Compact with downstream states. The rules require wells in the basin to make up for the injuries they have caused surface water rights. The rules also designate the basin’s irrigation season.

The rules affect hundreds of well users throughout the Valley including farmers, ranchers and municipalities.

Then State Engineer Dick Wolfe filed the rules with the court in the fall of 2015, with 30 parties subsequently filing statements of opposition, about half of which were actually in support of the rules. Judge Swift had scheduled an eight-week trial to deal with issues raised in the objections, but she shortened the trial period considerably after most of the protests were resolved before the trial began on January 29 of this year. Witnesses included water and engineering experts as well as farmers who will be affected by the rules. The trial concluded on February 14, with the judge allowing closing arguments to subsequently be submitted in writing.

Cotten also updated water users on Tuesday on ongoing litigation between the states of Texas, New Mexico and Colorado, who are all parties to the Rio Grande Compact. The litigation made the annual compact meeting in Austin, Texas on March 29 a bit strained, but Cotten said things went fairly well, “as well as could be expected with three states involved in a Supreme Court lawsuit.”

He added, “I think we were able to reach an agreement with the big issues we have every year.”

The lawsuit between the states (Texas versus New Mexico and Colorado primarily regarding water deliveries below Elephant Butte Reservoir in New Mexico) has been going on for about five years with little progress, Cotten explained. The special master racked up about $700,000 in fees and got one ruling out during that time. The Supreme Court has replaced him with a new special master now handling the case. The new special master is a senior judge from Iowa who has served on the federal court of appeals. Cotten said although the new special master does not have a lot of experience in water law, at least he has been a judge before.

“He knows how to move things along,” Cotten said. “He’s moving things along fairly quickly in setting up some deadlines and meetings, so I think we are going to see some movement on this case pretty soon.”

The new special master also receives a regular salary, not $500 an hour like the former special master.