Subdistrict No. 1 considering increasing over-pumping fees

Contributed photo The formation of the San Luis Valley’s Subdistrict No. 1 stemmed from a core value among locals and most rural Westerners: that growers, not state bureaucrats, should be the ones to restore and manage the water beneath their feet.

EDITOR’S NOTE: This is the second of a two-part look at Subdistrict No. 1 — past, present and future.

ALAMOSA — People far beyond the San Luis Valley and even Colorado state lines are watching what happens in Subdistrict No. 1 closely.

The formation of Subdistrict No. 1 stemmed from a core value among locals and most rural Westerners: that growers, not state bureaucrats, should be the ones to restore and manage the water beneath their feet.

The farmers leading the effort to create the subdistrict knew it wouldn’t be easy. Water agreements never are. The Rio Grande River — the primary source of the water that feeds the aquifers by seeping into the ground — was already over-appropriated more than a century ago with more water rights decreed than the river could support. Hydrologists at that time miscalculated the river’s normal flows, and to this day water experts are still learning about the complexity of the aquifers here.

The law of that river, called the Rio Grande Compact, further complicates things by requiring that Colorado deliver a certain amount of water flow to New Mexico every year. That agreement was signed in 1938 when the population and number of growing operations here were just a fraction of what they are now.

A drilling spree during the 1950s and 1960s led to the creation of thousands of wells and granting of individual water rights by the State Engineer, the same state agency that would start shutting some of those wells down 40 years later.

For some farmers, short-term, high-commodity prices overrode the long-term necessity to use less water as climate change was affecting water supply in unforeseeable ways. 

Creating a subdistrict was local farmers’ only way of buying themselves more time. The state agreed to let them continue drawing from the aquifer on the condition that they replenish the water to a certain level by 2031. Should the subdistrict fail to reach that target, the State Engineer’s Office — whose staff closely monitors water levels and tracks the subdistrict’s plans for restoring them — will shut down their 3,000 wells until the aquifer reaches that level on its own.

The subdistrict’s plan is crafted unlike any other in the state. “Subdistrict number one is the first experiment in sustainability where we don’t just mine the resource,” says Mike Sullivan, deputy director of the Division of Water Resources. Mining the resource — another way of saying mining to extinction — is solely focused on extraction and managing water to last for a longer period of time with no focus on putting water back into the aquifer. “Subdistrict one’s plan is the only one I know of anywhere that’s focused on sustainability and achieving the long-term goal of living within our means, which is the only way agriculture will last into the future.” 

That leaves local farmers, at least those actively paying attention, regularly checking a graph https://rgwcd.org/images/Wells/Change_in_Unconfined_Aquifer_Graph_1.pdf on the Rio Grande Water Conservation District’s website that tracks the subdistrict’s progress toward that target. When the line shows the aquifer’s water level going up, they feel hopeful. When the line goes down, hearts sink with fears of state regulators showing up to shut off their wells.

This is new territory in terms of state regulation. State Engineer Kevin Rein has not tipped his hand on whether his office will wait until 2031 to take action, or do so sooner if the line on the water graph isn’t heading in the right direction quickly enough.

John Kretsinger, a farmer and rancher who bought land in Alamosa in 1989, recalls a conversation years ago when he asked an official in the State Engineer’s Office whether it might give farmers some leeway if they’re not making fast enough progress. The official pointed to the water pump where they were standing by. “Do you see a mitigation switch on there? No, you don’t because there are only two switches. One for on and one for off. That’s how we mitigate.”

As Marisa Fricke, who manages the subdistrict, tells it, local farmers knew “better than anyone what was happening to the water levels.” Most, she says, “knew something had to be done, and they knew the state would do something if they didn’t.”

Most, but not all. 

Some reluctant subdistrict members still believe their 50- and 60-year-old drilling permits guarantee them the right to a certain amount of water, regardless of what direction the line on the graph is heading. It hasn’t been easy for growers who are still farming the way their dads and granddads did — and for those lured by temporarily high commodity prices — to reduce their water use by changing their ways.

Lawsuits have been filed. Conflicts have erupted between those who farm by flooding their fields and those who irrigate with center pivots. Owners of smaller, less profitable farms have complained they’re more at risk than owners of bigger farms with deeper pockets.

“There weren’t many kumbaya conversations,” Kretsinger says. “Things got pretty tense. Nobody ever swung a punch, but voices were raised — quite loudly, at times.”

It took until 2011 for Subdistrict No. 1 to become fully operational. The group is governed by farmers elected to a board by other farmers and has committed to a plan that relies on the law of economics to govern individual behavior.

At first, farmers who drew more water for irrigation than what they put back were assessed an over-pumping fee of $45 per acre foot, (An acre foot is equal to a sheet of water one acre in size that is also one foot deep, and is about the amount that would support three to four families for a year.) 

Some farmers were paying the fee for just one- or two-acre feet, Fricke says, but others who kept up their old habits of drawing more than they put in were paying from $50,000 to $300,000 each growing season.

Despite persistent drought, water levels began to recover during the first few years. But, because many of the members continued to draw more than they were putting back, the subdistrict raised fees to $75 an acre foot in 2012. The line on the graph, with some bumps along the way, slowly continued to head upward, causing Simpson and others to be hopeful.

But then came 2018. Severe drought conditions plus low snowpack wiped out three years of progress in that single year. The line on the graph plummeted, showing the aquifer was almost a million acre-feet below target. That prompted a warning from the state engineer stating he recognized all the work the farmers had done, but that his office may not wait until 2031 to shut down the wells if the line in the graph didn’t head upward quickly. 

“I may have to do something that will make your lives very hard,” Rein told the group who had gathered for an in-person meeting that year.

The subdistrict’s board voted to raise over-pumping fees to $90 per acre foot.

The following year, 2019, was, according to Fricke, a “fabulous year for moisture” and everyone expected that some of the water that had been lost would be partially recovered. But farmers and hydrologists alike were shocked when measurements in the aquifer showed little improvement. 

That prompted a threatening letter from the state engineer in 2020. The subdistrict’s board raised over-pumping fees to the current level of $150. 

In 10 years, the subdistrict has collected more than $70 million in fees, which it has used to financially reward members who are doing the most to conserve. Money has also been used to buy private water rights, pay for farmers to temporarily let their land go fallow, and to take acreage permanently out of production.

But, at least so far, the $150 over-pumping fee has not been high enough to force the level of conservation that’s needed. The subdistrict now has a decade to replenish the aquifer with 900,000-acre feet of water — the amount of water that serves all of the residences in Denver for six years. 

“It’s hard to wrap your head around how much water that is,” says Travis Thompson, communications manager with the Denver Water Board. 

That challenge brings the subdistrict to a crossroads. 

The subdistrict’s board is poised in mid-2022 to vote on raising the over-pumping fee from $150 to $500 per acre foot. The 233% increase, if approved, would up the ante so much that most farmers would not be able to afford over-pumping. Raw economics would either force them to cut their water use or go out of business.

As drought deepens, climate change intensifies and the aquifer’s water level continues to drop, San Luis Valley’s grand, one-of-a-kind experiment of collective self-governance is shaping up like an extremely high-stakes game of sustainable-farming “Survivor.”

If the state does not intervene and shut down wells before 2031 — a very big if — Nissen Farms and other early adopters of hard-core conservation will be far more likely to stay in business long term.

Others, temporarily buoyed by commodity prices that enable them to pay much higher fees for excessive water usage, will not if those prices fall. 

But if the state, not seeing enough progress, shuts off wells before 2031, the game could be over for everyone. 

“The subdistrict is just doing what it was created to do,” says Don Shawcroft, a 64-year-old rancher who runs cattle in Conejos County, in defense of the proposed $500 over-pumping fee. “This Valley relies on agriculture, and agriculture relies on water. If that water is shut off — or worse, used up — none of these towns will survive.”

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