Farmers, ranchers and water managers in the San Luis Valley are gearing up for the fourth legal fight in as many decades to keep their water in its aquifer, and, this time, away from thirsty Douglas County, one of El Paso County’s neighbors to the north and the southern anchor of metro Denver.

In recent weeks, they’ve gained a powerful ally: Attorney General Phil Weiser, who is threatening to go to court, if that becomes necessary.

The project by Renewable Water Resources, a water developer, proposes to tap 25 groundwater wells in a “confined” aquifer in the valley. That would bring 22,000 acre feet of water to the South Platte River and eventually to a yet-to-be identified water provider in Douglas County.

The Renewable Water Resources proposal, which has been underway since 2017, claims a billion acre-feet of water exists in the larger of two San Luis Valley aquifers, a figure disputed by San Luis Valley water experts. One acre-foot is equivalent to 326,000 gallons, or enough water to cover an acre of land, about the size of a football field 1 foot deep.

A confined aquifer is an aquifer that is saturated with water. When drilled, water rises to the top. An unconfined aquifer is what is more commonly referred to as a water table — it rises and falls based on barometric pressure.

Renewable Water Resources’ project wants to tap the confined aquifer, which it maintains is larger by geographic footprint and by water volume. The company argued the project is needed to ensure water reliability for population growing Douglas County, and maintained that the plan is sustainable — for residents of the county and the valley.  

Under the proposal, the wells would be situated on land either owned or controlled by Renewable Water Resources, which owns about 9,800 acres and has options to acquire about 8,000 additional acres.

The 22,000 acre-feet of water represents 2.5% of the aquifer’s annual recharge, defined as water pumped back into the aquifer through precipitation, and a volume that Renewable Water Resources claims would not affect diminish the base, also disputed by valley water experts.

The proposal noted that Colorado’s water law mandates that, to develop water, it must be “retired at the same rate,” a doctrine informally known as the “one-for-one” law in the water community. That means every drop of water removed must be replaced by the same amount.

As it turns out, Division 3 Water Court in in Alamosa, where Renewable Water Resources plans to submit its proposal, is the only water court that uses that law.

“Recognizing there is a shallow section of the aquifer, the RWR project aims to accomplish ‘one-for-one plus’,” the proposal says, adding the Colorado Water Court also requires the provision known as “no harm, no injury” to the environment, people and property.

Renewable Water Resources claims its proposal will meet Water Court criteria and that it is prepared to enter it in Division 3.

Under the plan, Douglas County would kick in $20 million from American Rescue Plan federal money, which is raising questions about whether that’s a legitimate use of the federal relief funds, and whether years of legal battles would run out the clock for using those dollars, which, under federal guidelines, must be spent by December 2024.

On Jan. 18, Douglas County commissioners heard very different perspectives on whether the water is there.

Bruce Lytle of Lytle Water Resources, who is working with Renewable Water Resources, told commissioners the aquifer has the water needed for the project. That’s in stark contrast to what they heard from State Deputy Engineer Mike Sullivan, who told the commissioners the aquifer’s water is overappropriated, meaning there’s nothing left for Douglas County.

On top of that, according to the Alamosa Citizen, the Rio Grande Water Conservation District was told recently the aquifer reached its lowest point since 2013 and is not sufficiently recharging. That recharge is key to to Renewable Water Resources’ proposal.

The Rio Grande River Basin, and the San Luis Valley, have for years been fighting the battle against drought, largely caused by declining rainfall and higher temperatures, which makes the snowpack melt sooner. Water Education Colorado reported in 2020 that growers of the valley’s signature crop — potatoes — are trying to wean themselves off groundwater to restore stream flows in the Rio Grande, which is tied to a compact between Colorado, New Mexico and Texas.

It’s a fight replicated across many communities in the American Southwest, which is grappling with drying rivers and dwindling water supplies amidst a decades-long drought that has forced states to aggressively adopt conservation measures.  

The commissioners 

Whether the proposal goes forward with Douglas County money hinges on the county’s commissioners, and they’re not all on the same page. 

Douglas County Commissioner George Teal wrote in a Douglas County News-Press op-ed on Jan. 4 that he finds the Renewable Water Resources proposal “intriguing,” and he appeared willing to listen to Renewable Water Resources’ pitch. 

“I am interested in a robust, fact-based conversation about our water future, to include innovation, conservation and out-of-the-box thinking,” he wrote. “I will listen to any idea that offers a path forward while protecting our Western way of life and fulfilling our commitment to our families and community, while also supporting our job-creating economy.”

In 2020 and 2021, Teal took in thousands of dollars in campaign contributions from five of the eight Renewable Water Resources principals. Notably, on Aug. 13, his TRACER account showed nine new contributions totaling $16,000, and five came from Renewable Water Resources principals: Hugh Bernardi, the manager of Renewable Water Resources, gave the maximum $2,500. So did John Kim and Sean Tonner. Tonner’s wife, Laura, donated $1,000, James Yates gave $500 and Bryan Wright contributed $1,000. 

Teal said he and Tonner have been been friends since 2004, and he called Tonner on Aug. 13, the same day he received contributions from the Renewable Water Resources principals.

He was trying to retire campaign debt, and Renewable Water Resources’ principals came through, as did several other big-dollar donors, he said. Those contributions will also help him as he plans to run for reelection in 2024, when he faces a rematch with a Democratic opponent who, he said, receives a lot of out-of-state contributions. 

Sean Duffy, a spokesman for Renewable Water Resources, confirmed the contributions but downplayed their significance.  

“There was no significance to the date — just when the donations were received,” he said. “For what it’s worth, many of the RWR team, including the principals particularly, are Douglas County residents and most have been actively involved in county politics for 15 years or more, including Tonner hosting a 2020 event for (Commissioner) Lora Thomas at his home. So, political involvement isn’t a new endeavor.”

Thomas, however, is  opposed to the San Luis water export plan, citing a host of reasons, including her ethical objections. 

In a Jan. 11 op-ed in the Douglas County News-Press, Thomas wrote that the $68 million in federal money awarded to Douglas County, if spent appropriately, can improve lives and change the face of the county.

“If misspent, we will squander a once-in-a-lifetime opportunity,” she said, adding the proposal fails to identify how the water will get to the county.  

She also noted the county has received requests for water projects totaling $300 million.

“There is no available water to export to Douglas County or anywhere else,” Thomas said, citing conditions in the valley. “All valley water is earmarked. Any new uses must shortchange irrigated agriculture to make that water available. The claim in RWR’s proposal that there is unused water in the valley (is) flatly contradicted by numerous court rulings and the very need for the state engineer to issue rules strictly governing water use.”

Taking water from the valley would dry up tens of thousands of acres of productive agriculture, she said.

She also claimed ARPA guidelines “preclude buying water rights and obtaining water for future population needs. Moreover, I believe it is morally and ethically wrong to take water from the valley under the circumstances.”

Thomas is now being targeted by robocalls, emails and a survey that asks Douglas County residents if they support her position. Renewable Water Resources denied it is responsible for those communications.

So, the project’s fate might come down to Commissioner Abe Laydon, who said in a Jan. 3 commissioner work session that he has an open mind about the project. But Laydon, a Latino whose family goes back five generations in the valley, reportedly expressed hesitation about doing anything that would hurt the San Luis Valley.

The county is expected to make its final decision on the project by the end of March.

Where is the water going?

Duffy said last month that Renewable Water Resources has not yet determined a water provider who would buy the San Luis Valley-sourced water for customers. He said this month it’s “premature” to identify an end user.

Colorado Politics asked most of the 47 water districts, including the dozen largest ones, whether they intend to participate in the project, either as the end user, or, in the case of Denver, allow the reservoirs the county manages to hold that water.

The answer was a flat “no” from all but one potential end-user. Denver Water, which manages the reservoirs, also shot down the idea.

Jim Lochhead, manager of Denver Water, said vai email that “Denver Water has not been contacted by Renewable Water Resources concerning any purchase of water or use of our facilities for the delivery of water. Moreover, Denver Water has no interest in purchasing or using water imported to the South Platte River Basin as proposed by RWR, nor any interest in any arrangement to use our reservoirs to facilitate the storage or delivery of this water to anyone else.”

Denver Water manages three of the four reservoirs identified in the proposal as potential storage sites: Antero and Elevenmile, both in Park County, and Strontia Springs in Douglas and Jefferson counties. The fourth reservoir identified in the proposal, Chatfield, is managed by the U.S. Army Corps of Engineers, but it isn’t likely a storage destination, either, as it is solely used for the purpose of storing water belonging to Denver Water.

Greg Baker, a spokesman for Aurora water, answered similarly: Renewable Water Resources has not engaged in discussions with Aurora Water regarding storage or conveyance and does not plan to participate in the  acquisition. Aurora provides water to some of the northern Douglas County water districts.

That Dominion Water and Sanitation District in northwest Douglas County could be an end user is bolstered by Renewable Water Resources’ proposal, which says the project “will maximize use of existing infrastructures, ultimately supporting the county’s goals of enhancing solutions along the I-85 corridor.”

That’s a reference to Colorado 85, which comes into the county from the north and then merges with I-25 at Castle Rock. But Dominion denies interest in San Luis Valley water and maintains its supply is sufficient to meet needs.

Dominion, in an unsigned Jan. 3 email, said it “had not been formally approached by RWR as a partner” on the San Luis Valley Water project.

In a Jan. 25 letter to Colorado Politics, Dominion said the projects it is advancing “do not include purchasing water from the San Luis Valley nor participating in the RWR proposal.”

The water provider added: “We will continue to champion collaborative solutions for northwest Douglas County by continuing to provide our customers with a locally controlled, resilient water supply that is environmentally responsible and economically feasible.”

Castle Rock Water spokeswoman Mary Jo Woodrick said via email that “at this time, we do not intend to acquire water from RWR’s San Luis Valley project.”

Woodrick added: “Our financial resources are already committed to a number of big projects that are part of our long term renewable water plan, a plan that has been in progress since at least 2013.”

She said that includes completing the construction of a new reservoir; tapping into the Aurora WISE project, which supplies water to a number of Douglas County water districts; and constructing a pipeline to the county’s Rueter-Hess reservoir, which is on the county’s east side.

The town’s strategic plan, which was updated in 2019, however, also calls for the purchase of 700 acre-feet of water through “renewable water rights.”

Teal said he found it “amusing” that Castle Rock said it had no plans to participate.

“I’m sure that’s the answer right now,” he said. “Is Douglas County secure in its water today? Yes. I don’t know if anybody is laying awake today, wondering if the taps will turn on … Our water is secure, today. (But) it’s like filling up your car with gas and driving around, thinking you’ll never have to fill it up again.”

The American Rescue Plan Act 

The American Rescue Plan allocated tens of millions of dollars to county and state governments, and Douglas County’s share is $68 million. Interim guidelines from the Treasury Department allow for investments in water, sewer, and broadband infrastructure.

But does that include paying a private company to build a pipeline? Douglas Commissioner Thomas says no. 

The National League of Cities published guidance on the types of water projects that would fit under ARPA. Citing an interim final rule from the Treasury, eligible uses include “a broad range of projects that improve access to clean drinking water, improve wastewater and stormwater infrastructure systems.”

The interim final rule, the national group said, is intended to align “types of eligible projects with the wide range of projects that can be supported by the U.S. Environmental Protection Agency’s Clean Water State Revolving Fund and Drinking Water State Revolving Fund.” The latter can be used for building or upgrading facilities and transmission, distribution, and storage systems; supporting the consolidation or establishment of drinking water systems; and replacing lead service lines. 

A review of the Drinking Water State Revolving Fund guidebook, however, declares ineligible for funding “for-profit noncommunity water systems.”

Much is to be decided.

Teal said the county is seeking an opinion on the legality of using ARPA funds. He noted the guidance does not appear to allow for the acquisition of new water rights, which is at the heart of the Renewable Water Resources project. But there could be some wiggle room for consideration of well infrastructure, for example, he said.

Another issue is ownership, he explained. That question pertains to just how much Douglas County would have to invest in the project, and whether $20 million would be a large enough stake to allow for using ARPA dollars.

Should it be determined that the county cannot use ARPA money, and the county is unwilling or unable to use its own funds, another one option is to forego the county’s share of the cost, Teal said. That’s assuming Renewable Water Resources agrees to it, ponies up all of the money, but is willing to share ownership rights to Douglas County, which Teal called something akin to profit-sharing.

The attorney general 

Renewable Water Resources has promised valley residents $50 million for economic development, which the company claims is far more than farmers and ranchers would ever get from agriculture. That “community fund” would assist local communities with schools, broadband or food banks, senior services or job training, the company said, adding a separate pool of money, about $68 million, would pay farmers and ranchers who agree to sell their water rights, known in agriculture circles as “buy and dry.”

In the valley, the project is opposed by water conservation districts, city and county leaders, as well as various nonprofit organizations.

However, Renewable Water Resources claims in its proposal that it is acquiring water rights through willing buyers, and that once someone learns about the project’s benefits for the valley, support grows to 42%. The proposal didn’t say where the floor for that support started.

This month, Attorney General Phil Weiser joined in the chorus of opposition to the project, and, along, with state Sen. Cleave Simpson, R-Alamosa, who manages the Rio Grande Water Conservation District, penned an op-ed for the Alamosa Valley Courier. 

“There is a right way, and a wrong way, to manage our water,” the two wrote in the op-ed, which was published Jan. 7. “Piping water from the San Luis Valley to the Front Range is the wrong way.”

Simpson, in that same article, said the basin is over-appropriated.

“There are way more decrees for water rights than can be delivered in any one year. We have water rights that haven’t been able to draw from the river in 20 years. Likewise the groundwater system is also over-appropriated,” said the fourth-generation San Luis Valley rancher and farmer.  

Weiser, in a recent interview, is prepared to put his money, or rather the state’s, where his mouth is, and that includes going to court, if necessary.

Weiser explained his office is statutorily mandated to represent a number of agencies relevant to the water issue, including the state engineer. But he has a second hat, as the people’s lawyer, which means he is in a position to be an advocate, adding that, from that perspective, “we need to protect the water of the San Luis Valley.”