From the Colorado Sun: 6 southern Colorado counties, facing drought and thirsty neighbors, move to block water exports

Originally published in the Colorado Sun on July 3, 2023 by Shannon Mullane.

ALAMOSA — County officials in the San Luis Valley are adamant: They want their water to stay in the valley so much they’re actively building new roadblocks to shut down, or at least delay, attempts to sell it to the Front Range.

The San Luis Valley, home to about 46,000 people in southern Colorado, is at the center of a decades-old story in the West: a water-based tug of war between growing urban areas and rural, primarily agricultural regions. This month, six counties in the valley held public hearings, debated and, for some, approved an agreement to create a new regional oversight board that adds an extra layer of vetting for projects that propose taking water out of the valley.

Locals say they don’t have water to spare. Once water leaves a basin, it doesn’t come back, and the idea of exporting water threatens their economies and way of life.

“We’ve seen attempts in the past to export the water from the valley out of the valley,” said Vern Heersink, an Alamosa County commissioner. “We’re all joined together, not only by the mountains, but the aquifer underneath us. So we should join together and try to protect that really vital asset.”

The San Luis Valley is a flat expanse with long, straight roads stretching between the San Juan Mountains and the Sangre de Cristo mountains, which rise like teeth to the west and the east. It’s bordered by New Mexico to the south, and to the north, Salida and the Arkansas River.

It’s a high-elevation desert where agriculture is the primary economic force, one capable of providing better-paying jobs in the local economy, according to the 2023 Colorado Water Plan. It’s even one of the top regions nationwide for growing potatoes, which need 14 to 17 inches of water per irrigation season, or about twice the annual rainfall there of 8 inches.

But its water supply has been threatened by overuse and a long-term drought, just like the water supply in the Colorado River Basin, which lies across the Continental Divide to the west.

Crops are fed by rivers and streams in the Rio Grande Basin or by underground aquifers. In dry years, the runoff from the winter snowpack can be eight times less than average, according to the state water plan, and the valley must comply with legal obligations to share water with New Mexico, according to the 1938 Rio Grande Compact.

Since 1977, water users have pumped so much groundwater that the Closed Basin aquifer dropped by 1.2 million acre-feet, according to the water plan. In 2002, one of the driest years on record for the Rio Grande Basin, engineers recorded a 400,000 acre-foot drop in the valley’s aquifers. Water users in the region now face a 2031 deadline to repay the water debt, according to reporting by the Alamosa Citizen.

“It’s just a bad situation all around, and we just can’t afford to lose more water. We need to police ourselves more than we have been,” said Tom McCracken, a Saguache County commissioner.

Since the 1980s, some enterprising landowners — which some might call water barons — have come up with a few proposals to sell their water to Front Range counties in need. Locals are familiar with names like American Water Development Inc., Gary Boyce of Stockman’s Water, and Sean Tonner of Renewable Water Resources.

The AWDI bought land in the San Luis Valley in the 1980s and unsuccessfully tried to export its water. It sold the land to Stockmans, whose efforts to export water were also stymied.

Valley residents quickly united against those efforts, McCracken said.

“Everyone’s against the water exports,” he said.

In 2002, The Nature Conservancy bought a portion of the company’s land, and it is now part of the Baca National Wildlife Refuge and Great Sand Dunes National Park. The remainder of Boyce’s land, Rancho Rosado, was sold to Tonner, former deputy chief of staff for Colorado Gov. Bill Owens, who is an RWR principal.

In 2021, RWR unsuccessfully proposed selling its water to Douglas County, and this year, the company has contributed thousands of dollars to candidates for the Parker Water & Sanitation District Board, one of the largest water providers in Douglas County.

The proposal wasn’t viable from the get-go, said Cleave Simpson, general manager of the Rio Grande Water Conservation District, a San Luis Valley resident and a state legislator.

“I listened to them for two years. I watched them attack my character even though I didn’t reciprocate,” he said. “Without batting an eye, (I) could demonstrate to the Douglas County commissioners, or anyone who wanted to listen, that the proposal was without merit and could not be done.”

How the agreement works

Enter the joint planning agreement.

It’s not yet finalized, but the intent is clear: Residents want to increase local control over projects that would take water out of the valley. And since what happens in one county impacts others, the officials want an avenue for local governments to weigh in when water export projects are proposed to their neighbors.

If approved as written currently, the intergovernmental agreement would create the San Luis Valley Planning Board, which would include representatives from counties and local towns and cities.

These governments would also agree to create a joint planning area, which includes the six counties in the valley: Alamosa, Costilla, Conejo, Mineral, Saguache and Rio Grande.

If a member of the agreement, say Saguache County, gets a project proposal that aims to export water out of the valley, that triggers a joint planning board review. The extra layer of review does not apply to projects that occur entirely within the valley.

The planning board’s job is to scrutinize whether the project meets all the appropriate permitting regulations, some of which are still being updated. After its analysis, the board will make a recommendation for approval or denial of the project and send it to the local government with permitting authority, like Saguache.

The local government makes the ultimate decision, but it must take the board’s recommendation into consideration. This involves some tricky legal footwork because the board can’t step on a local government’s powers, but local officials wanted to give the board some teeth, said Heersink of Alamosa.

The idea is to make the approval process even more cumbersome to stall or delay water export projects.

“We hope it presents a roadblock to an applicant that they’re like, ‘This is too much to overcome. We don’t even want to do it,’” Heersink said. “That’s a hope.”

The joint agreement becomes active as soon as all six counties in the valley sign on, but some counties are pointing out portions of the agreement that still need fine-tuning from legal teams.

County commissioners from Alamosa and Saguache signed the joint agreement after holding public hearings in early June. Conejos and Mineral counties plan to hold their public hearings in late June.

The county commissioners in Costilla and Rio Grande counties held public hearings on June 6 and June 14, respectively. Rio Grande commissioners decided to table their vote on the agreement after Dusty Hicks, a Rio Grande County landowner and local project manager for a controversial resort proposal on Wolf Creek Pass in Mineral County, pointed out a few provisions that either lacked clarity, specificity or could leave the planning board vulnerable to third-party lawsuits.

Costilla officials tabled their discussion over concerns about how difficult it would be to leave the agreement. Under the current agreement, if a local government decided to split, they’re bound by the terms of the agreement for five years after their withdrawal.

The finalization of the agreement could be delayed by a month or more while commissioners consider these local concerns. Once final, it could trigger a moratorium on new water projects in some counties while local officials update related regulations.

“This is a brand-new concept for counties to join together, form a joint planning area and a joint planning board,” McCracken said. “We gotta do everything we can do, so innovative strategies are appropriate.”

A new spin on water management

This level of regional collaboration is unique, said KC McFerson, a senior planner in the Community Development Office at the Colorado Department of Local Affairs.

Intergovernmental planning boards are not commonly used around the state, but governments do use them to set up joint review processes for development proposals and to formalize coordination among jurisdictions.

As far as McFerson knows, Colorado does not have any active joint planning boards that deal with water issues at the scale of the San Luis Valley agreement, which could include up to 23 local governments.

“Water is an issue statewide. In different ways, but it is an issue. Thinking regionally and planning regionally … has been on the top of people’s minds more and more in my opinion,” McFerson said based on her work at the Community Development Office. “Finding more regional frameworks to deal with shared problems is a huge need given the growing pressures from things like drought.”

The San Luis Valley plan also relies on an act passed in the 1970s, House Bill 1041, commonly known as 1041s. The statutes allow local governments to designate areas and activities as matters of state interest and to create corresponding local rules and regulations to manage them.

Each county in the San Luis Valley is creating or updating its 1041 regulations as part of this process. For example, they’re adding provisions to say that site selection and construction of new water systems, or extending existing water systems, are matters of state interest.

Other counties have used the 1041 statutes to co-regulate planning issues that go beyond one jurisdiction’s borders, often related to oil and gas regulations, historical preservation efforts or natural hazards areas. Some counties have used the statutes on water-related issues, typically dealing with wastewater treatment, McFerson said.

“Using 1041 powers isn’t new. Using IGAs isn’t new. Doing regional thinking isn’t new. But putting all that together to face this emerging and growing issue around how do we effectively meet needs with this limited and increasingly strained resource? That is a new spin,” she said. “I’m going to be watching this on the edge of my seat. Because I want to know, what are the lessons learned? What pitfalls do they run into? How do they overcome them?”

An additional layer of regional control will help the San Luis Valley with its water export pressure, but it’s not an end-all solution.

In Saguache County, McCracken has been advocating for other ideas, like investing in research into alternative crops, soil health programs that could help improve the water-retention of the soils, and even agro-tourism and dark-sky tourism along Highway 17. There, drivers see signs for the “cosmic highway” and “UFO, UFO, UFO” flash by as they drive north or south across the valley.

Securing the San Luis Valley’s future is a joint effort and this intergovernmental planning board has reinvigorated that collaboration, he said.

“I think we can carry that unity onto other activities and areas of concern for the valley,” McCracken said. “I think it’s a real positive thing that way.”