2013 COLORADO WATER CONGRESS ANNUAL CONVENTION
Denver, Colorado February 1, 2013
Steve Vandiver of the Rio Grande Water Conservation District moderated the Sixth General Session of the 2013 Colorado Water Congress Annual Convention, titled “Rio Grande!” Vandiver introduced the four panelists: Bill Paddock of Carlson, Hammond & Paddock, L.L.C.; Craig Cotton, the Colorado Division Engineer from the Rio Grande Division; David Robbins of Hill and Robbins, P.C.; and a special appearance by the early 1900s Rio Grande Reservoir Chief Engineer, J.C. Ulrich (performed with a mustache and turn-of-the-century attire by Colorado Supreme Court Justice Gregory J. Hobbs, Jr.).
“Ulrich” took the stage strongly, despite surpassing 100 years of age many years ago, and recited a letter he wrote October 27, 1905, to the Farmers Union Irrigation Company, who enlisted Ulrich to construct the Rio Grande Reservoir Dam. In the letter, Ulrich discounted his prior reservations regarding dam construction and laid out a proposal for a composite structure, comprised of dry rubble, clay, and earth. His subsequent letters illuminated his strict attention for detail to every activity related to the dam construction. These letters dictated the proper number of tents for labor crews, the required number of axes and axe handles, and the appropriate dimensions and wood type for an engineer’s drafting table. No detail was too minor for his attention. Ulrich concluded by expressing great concern over the quality of the contract laborers in a 1910 letter, but seemingly, he eventually turned the troublesome contractors into a productive crew as shown by the successful creation of the Rio Grande Reservoir.
Bill Paddock spoke next, thoroughly discussing the history preceding the development of the Rio Grande Reservoir. Starting in the 1880s and ‘90s, the United States placed embargos on reservoir development on federal lands due to an international conflict between the United States and Mexico over use of the Rio Grande. In 1906, Mexico and the United States signed a treaty that solved the dilemma and lifted the embargos. However, subsequent water use issues among Colorado, New Mexico, and Texas emerged. The federal government revived the earlier embargos, pressuring the three states to enter into an agreement to assure adequate water supply along the Rio Grande. Paddock noted that the consequences of these past embargos still affect the region today as shown by the current limited storage capacity along the Rio Grande. By 1939, Congress approved the Rio Grande Compact (“Compact”) that created a water credit and debt system for the three states, effectively placing a cap on water use. Nevertheless, throughout the 1950s and ‘60s Colorado failed to meet its statutory obligations by running up a large debt under Compact provisions. In 1966, Texas and New Mexico sued Colorado to enforce the Compact. Under pressure to comply, Colorado began severely curtailing surface water rights in 1968, and by the 1980s Elephant Butte Reservoir spilled, wiping clean the water debt.
Craig Cotton followed and explained administration of the Compact. The Compact requires delivery of water from two streams in Colorado: the Rio Grande itself, and the Conejos River, the main Rio Grande tributary. Generally, Colorado must deliver 27%-28% of the Rio Grande’s 650,000 acre-feet average flow and 38% of Canejos’s 300,000 acre-feet average flow. One important and challenging Compact condition requires projecting Colorado water needs each year before the need actually arises. During periods of low flow, the Compact prioritizes Colorado’s projections and reduces Colorado’s delivery obligations. During periods of high flow, the Compact caps Colorado’s water use near the projected use, and the state’s delivery obligation increases. Cotton stated that at periods of extremely high flow, the Compact requires Colorado to send 100% of the excess water down to New Mexico and Texas. This often aggravates Colorado farmers because the State prohibits them from diverting substantial flow amounts passing right by their lands. Cotton mentioned another challenge to Compact administration includes meeting endangered species guidelines. Congress designated certain stretches of the Rio Grande as critical habitats, posing the challenging task to retain specific flows in difficult to reach regions.
David Robbins spoke last on the “Rio Grande!” panel and discussed two current legal issues surrounding groundwater. First, Robbins detailed new governmental sub-districts of the Rio Grande Water Conservation District. The sub-districts are statutorily formed entities created to analyze and replace regions of low flow along the Rio Grande due to groundwater pumping. They manage water levels in the San Louis Valley aquifers and address the pressing issue of groundwater overdraft. Second, Robbins discussed Texas’s pending lawsuit seeking petition for certiorari by the United States Supreme Court. Although the legal issue directly involves Texas and New Mexico’s well pumping adjacent to the Rio Grande, the lawsuit indirectly implicates Colorado because of its participation in the Rio Grande Compact. Robbins explained that the fundamental issue of this conflict arises from differing legal characterizations of groundwater use. Although Colorado law treats surface water and groundwater as part of the same hydrological system, the Compact and other states treat these two water sources separately. Texas, in particular, allows for unfettered groundwater pumping, and Robbins suggested that such unrestricted water use instigated the present litigation. Robbins concluded by again stressing the case is still pending with no guarantee the Court will hear it, but if the Court does grant cert, then Colorado will be ready to defend its water interests.