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I>" 16l. t'lio'" ....*1 C~~ Roc, "q=}-1~~~~;-coi:oRADo&.iHEWiii:' '. .- >..- ".. Steve c~mPbell, State~eglOn Editor .892-5381' -- ,.... " '-' Firm withdraws part of water claim A WDI's surprise move to drop tributary issue seen as legal maneuver to refile entire case By Dick Foster and Berny Morson Rotky Mo..tai. News Stal/Writers In a surprise move Thursday, American Water Development Inc. withdrew a portion of its claim to pump billions of gallons of water from the San Luis Valley to supply Front Range cities, but A WDI offi- cials and opponents of the project see the withdrawal as a legal .ma- neuver. A WDI made the move in a pre- trial hearing in state water court in A1amosa as lawyers for both sides prepared for the Oct. 15 trial. "Extreme bias by the local court prevents us from proving that wa- ter can be developed in a manner that will not injure existing agricul- tural uses. For this reason, we have decided to withdraw the trib- utary claim and will very likely appeal the issue to the Colorado Supreme Court," said Dale Shaffer, A WD!'s president. Judge Robert Ogburn postponed a ruling on the latest A WDI motion until Oct. 9. If he approves it, the trial will proceed on a limited num- ber of issues. If he denies it, A WDI will be forced to prove its claims to the water it wants to pump. A WDI' s plan is widely opposed in the San Luis Valley, where groundwater is the chief source of irrigation for farming. A WDllawyers asked to dismiss all of the firm's claims to tributary waters in the basin. The state engineer's office had denied per- mits to A WDI's project, saying all waters the company sought to pump from the valley's vast aqui- fer were tributary because, as de- fined by state law, pumping from them for 100 years would affect streamflows. But A WDI still maintains the water it seeks to pump - up to 200,000 acre-feet or 65 billion gallons annually - is non-tribu- tary, and it still wants Ogburn to decide that issue. Non-tributary water can be pumped by a landowner without affecting the water table under neighboring land or the water lev- els of streams. Dave Robbins, an attorney for the Rio Grande Water Conservan- cy District, saw A WDI's withdraw- al of the tributary issue as a fall- back position that would aDilw it to refile the entire case in a second tria1 if the judge denies their claim to the water as non-tributary. "What they are trying to do is avoid a dismissal with prejudice so they can come back at some time in a year or two and file it agBin, r and put the people thiough this whole thing aD over again," said Robbins. Robbins and other opponents suspected a second motive for A WDI's dropping its tributary claim. Under state water law, to be granted rights to any available tributary water, A WDI would have . to demonstrate a use for it. "They have not shown us any . contrict with anybody to use the water," said Robbins. "On tribu- tary water, you have to deal with that issue." AWD!'s Shaffer said the compa- ny has enough non-tributary water -, to proceed with .projects in the Sar Luis VaDey and to ship water te the Denver area. The company plans to use 30,000 acre-feet !r. the valley and ship another 30,OOC acre-feet to Denver, probably ir "a couple of years," Shaffer said, But Ralph Curtis, the genera manager of the Rio Grande Water Conservation District in Alamosa said he doubts the water could be pumped without lowering the wa. ter table for the valley. Curtis said AWDI's action camE as a surprise. ,I Attorneys for all the objectors left this afternoon . scratchingtheir heads," he said,