Alamosa News

By: By John Waters, Courier News Editor

Updated: 2 weeks ago / Posted May 19, 2023

SAN LUIS VALLEY — County governments across the San Luis Valley are pursuing an agreement under a state law known as "1041" to protect the region's water from export schemes.

In an interview with the Valley Courier, Alamosa County Commissioner Vern Heersink said this of the proposed agreement "The main idea behind this whole effort is to protect Valley water against an outside source redirecting it to another jurisdiction as we saw with the RWR [Renewable Water Resources] proposal last year."

RWR has proposed to drill into the aquifer in Saguache County and export that water to the Front Range. The efforts of RWR tapped into the inevitable confluence of water and politics in the American West, with former Colorado Governor Bill Owens opining on the virtues of RWR in an editorial published last year in the Valley Courier and elsewhere. The RWR proposal was similar to a plan to export Saguache County water hatched by Maurice Strong and his American Water Resources Incorporated plans in the 1980s. That proposal recruited former Colorado Gov. Richard Lamm to serve on AWDI's board of directors. At the time, Lamm told the Christian Science Monitor he considered the plan "the most environmentally benign and efficient way for Denver to get additional water."

In a 1994 ruling, the Colorado Supreme Court upheld the Division 3 Water Court decision in the San Luis Valley. The court ruled that AWDI's pumping proposal would diminish natural stream flow to the extent that it would interfere with pre-existing water rights and downstream interstate compacts.

In 1996, rancher Gary Boyce and Stockman's Water Company resurrected the scheme, and that too failed.

Colorado state law allows for this regulatory approach, referred to as "1041 Regulations," that can protect resources such as groundwater, watersheds, and other resources from development.

House Bill 1041, known as the Areas and Activities of State Interest Act, was enacted in 1974 and allows local governments to regulate various development with guidance from the state. Under this law, governments may designate areas and activities, such as groundwater extraction and exportation, as areas of state interest.

According to the Colorado Riparian Association, the extensive permitting process to seek to permit under a 1041 "Includes the submission of detailed specifications concerning the affected environment and impacts of the proposed development...After an area or activity has been designated as an area of state interest, anyone seeking to engage in that activity, such as water exportation, must file an application for a permit to proceed."

In the context of municipal and industrial water projects, the initial use of 1041 regulatory powers centered on limiting the effects of trans-mountain diversion proposals. In 1994, the Colorado Court of Appeals upheld the use of 1041 regulatory powers when the cities of Aurora and Colorado Springs wanted to divert water from the Eagle River basin for the Homestake II Reservoir near Minturn.

In an analysis prepared for The Rocky Mountain Land Use Institute's Western Places 2022 by consulting firm Innovative Solutions, 25 of Colorado's 64 counties use 1041 powers to regulate water.

Under the terms of the nine-page proposed Intergovernmental Agreement drafted by the San Luis Valley Council of Governments for the six Valley County Board of County Commissioners to consider, is the stipulation that all six counties in the Valley must agree to it for it to become effective. The accord also states, "Member jurisdictions recognize that efforts currently and will foreseeably exist to transfer water from within the San Luis Valley to outside of the San Luis Valley and that such transfers will be significantly detrimental to the Valley's human and natural resources, environment, and abilities to continue to thrive as a community."

The proposed agreement, if adopted, will establish the San Luis Valley Joint Planning Area to Protect Surface Water and Groundwater Resources and the San Luis Valley Planning Board.

On May 16, at the regular meeting of the Costilla County Board of County Commissioners, the IGA proposal was tabled after county attorney Nicolas Sarmiento, expressed concern over the agreement and the five-year plan stipulation.

"I would like to adopt the IGA at the same time we amend our 1041 because otherwise, we are stuck with a five-year agreement," said Sarmiento.

What Sarmiento was referring to is part of the agreement that stipulates that any party to the agreement may withdraw from it provided they provide the Council of Governments a 30-day notice of withdrawal and that they "shall be bound by the terms of this Agreement for five (5) years from the date of the withdrawal."

The commissioners tabled consideration of the agreement pending a workshop at a yet-to-be-determined date. Costilla County Commissioners did not return requests for comment.

The Valley Courier has reached out to many local and county officials regarding the proposed agreement; here are the responses as of press time.

Crestone Mayor Kairina Danforth described the proposed agreement as "Significant; these attempts to take our water have continued for decades; we are always on the cusp of losing our water. This is my first time seeing something that can change that."

Danforth has been in office since 2012. Crestone is in Saguache County, where Renewable Water Resources proposed extracting and exporting water.

Saguache County Commissioner Tom McCracken told the Valley Courier he is a strong proponent of the proposed water agreement adding, "Forming an Intergovernmental Agreement we can protect Valley water and make it more difficult for exporters to come for the water, they would have to go through all of us [all of the counties in the Valley] instead of just one of us."

McCracken said the water issue has reinvigorated the council of governments and that signing a resolution at a June 6 meeting of county commissioners will place a moratorium on any water development in the county "until the rules and regs can be promulgated, added McCracken."

Liza Marron, Saguache County Commissioner, offered, "Saguache County is 100% behind it.. this is an incredible collaboration to protect our precious water resources. I'm so proud of how folks have come together against a common enemy, which is water export."

Alamosa County Commissioner Lori Laske said, "Alamosa County had a 1041, but the power of the six counties in the San Luis Valley that have similar language really provides protection for our water and gives us a regional management tool. This cohesiveness will make us stronger and provides a layer of protection against outside entities that want to export. We need to continually fight for SLV water."

Alamosa County will consider a resolution about surface water and groundwater and establish an area of state interest according to 1041 regulations on June 7.

City of Alamosa Mayor Ty Coleman said, "We are supportive of this effort of collaboratively working together as a valley to maintain local control over matters that might impact water rights, which, as we all know, is the lifeblood of our communities."

The schedule for counties to discuss the agreement is Saguache County on June 6, Alamosa County on June 7, Rio Grande County on June 14, and Mineral and Conejos on June 21.