Monday, May 7, 2018

BROKEN WATER LAW


S. Platte River 
Following is my note to Tyler Silvy with the Greeley Tribune.
Yes. We have water problems in CO. The solution? Honor our "Prior Appropriation" law: First in time, first in right. 

Dear Tyler,

Appreciated your article on high groundwater...
Herein highlighted, I offer my input. 
Thank you, 

 Roni 
_______________________________

www.greeleytribune.com
Gilcrest — Officials in Gilcrest once contemplated suing the Central Colorado Water Conservancy District to recoup the money the town spent repairing damage from high groundwater many here blame

Gilcrest officials once considered lawsuit over high groundwater damage May 1, 2018 Gilcrest — 

Officials in Gilcrest once contemplated suing the Central Colorado Water Conservancy District to recoup the money the town spent repairing damage from high groundwater many here blame on Central's water management. 
The revelation came Tuesday night during a Gilcrest Town Board meeting at which retired water engineering consultant Bob Longenbaugh presented his recommendations on the high water levels that have plagued Gilcrest and LaSalle for more than a decade. 
The water has seeped into dozens of basements and ruined thousands of acres of farmland. It has caused millions of dollars in damage, and Gilcrest has taken out a loan worth $818,000 to help deal with problems. 
The town also sought, and received, a $595,000 Department of Local Affairs grant. For reference, Gilcrest's annual budget is about $1.5 million. 
The initial cause, most agree, was restricted well pumping for agriculture in 2006, the result of water court decrees Central signed. 

HB 1278 study, led by Dr. Reagan Waskom, bears out the connection between non-historic water surfacing and 2006 well restrictions.  Dr. Waskom's study recommended well pumping to lower the water table.

Throughout the WAS case, Judge Roger Klein reminded us of "preexisting" water rights. His decision was meant only for wells post 1969. Whoever interpreted Judge Klein's decision, did so incorrectly. Subsequently, the State Engineers implemented Klein's decision incorrectly.

But Longenbaugh also has long pointed the finger at artificial recharge, in which Central pours water into shallow ponds and allows that water to seep into the ground, recharging the aquifer below. 
Central and the farmers it represents get credit for artificial recharge, allowing farmers here to use their wells more often. 

Farmers whose water rights pre-date 1969 have the legal right to use their wells. They've been denied that right, and therefore have been subjected to "takings without just compensation." 

Longenbaugh provided visuals, showing the water level increases and how those related to recharge projects. He brought allies, too, with eight residents, including Fritzler Corn Maze owner Glenn Fritzler, who spoke before the board, as well. "(Longenbaugh) doesn't have a dog in the fight, so there's no bias," Fritzler said. "I've got some bias. I've got high groundwater affecting my house, damaging my crops. … If they fixed our problem, your problem would go away." 

And the way the problem will be fixed, is by order of the State Engineer to "administer water in prior appropriation."
I repeat: Water in Colorado is NOT being administered in prior appropriation. 

Since 2005 -2006, Colorado's water has NOT been administered in prior appropriation. The changed management in water administration is the causation of the non-historic rising of the water table, resulting in the severity of damages to property. 

When water is correctly managed in prior-appropriation, the water table will reverse back to its historic levels. 

Shutting down wells that pre-dated 1969 wholly contradicted Judge Klein's decision, changed water management, and broke Colorado Water Law "first in time, first in right." 
Whoever shut down the wells obviously had in their development plans a foreseeable future of a perennial in-stream flow that was dependent on these steps: 1) Shut down the wells. 2) Upper end begins to over-hydrate. 3) Underground reservoir grows, ensuring... 4) ...a non-historic perennial in-stream flow.  

 This changed management of the South Platte River is giving entities east - of where the S. Platte surface stream historically diminishes -  water they never had. This "new" water is giving them opportunities to pop new wells, install new pivots, divert re-time and sell this "new" water - that they refer to as "free" water.  

 Trustee Karla Castro asked Longenbaugh how to fix it. 
The solution, for Longenbaugh and Fritzler and others, is to stop treating the symptom, something they say the Groundwater Technical Committee — an offshoot of the South Platte River Roundtable — focused on in its various recommendations, which included installing de-watering wells and pumping that water back to the South Platte. Longenbaugh's presentation came from his "minority report" to those recommendations. 
That's correct. Well pumping will correct the water table to its historic levels. 
Part of the fix, Longenbaugh said, was to put pressure on the state engineer. "The state engineer is required to prevent waste and to put water to beneficial use," said Longenbaugh, a longtime Colorado State University professor and assistant state engineer. "The water in your basement is neither of those." 

Longenbaugh is absolutely correct! And it's Governor Hickenlooper who has the duty to order State Water Engineer to "administer water in prior appropriation." Why not today?

Longenbaugh continued. "I'm not a lawyer, but you people have the opportunity to bring a lawsuit against who is causing the rising groundwater. … Or you could seek an injunction to the state engineer to change how he administers water." 

Town Administrator Trudy Peterson said they've already looked into it, and that the Central Colorado Water Conservancy District has governmental immunity. "The town consulted the municipal attorney, and it hired a water specialist attorney; the town board isn't sitting on its laurels," Peterson said. 
Peterson said there also are issues with giving notice. Gilcrest would be required to give Central notice within six months of the injury happening. 
Central Colorado Water Conservancy District Executive Director Randy Ray said he was aware the town had looked into suing his organization. But he said Central is not the cause of high groundwater or the resulting water damage. Ray stressed his organization's attempts at being good neighbors, saying he has talked with Peterson about shared solutions, including sharing the infrastructure costs to build a pipeline. 
Correction to Randy Ray's comments: Central may not be the cause of high groundwater in the specific area of Gilcrest, but Central's illegal dumping of augmentation water in Chuck Sylvester's privately owned seep ditch is contributing to water surfacing, high alkaline and unfarmable acreage on the Sylvester Farm.
Ray said he was disappointed those discussions didn't come up in the meeting. 
Platteville resident Larry Ray said he spent years going to water meetings. He spent $30,000 fixing his basement after the water began pouring in. He still battles it daily. For Ray, the people with the ability to fix it won't fix it because it doesn't affect them. "They didn't do a damn thing," Ray said. "It was frustrating, so I left. It was either that or go to jail." 
Gilcrest has done its share of fixing the symptoms, re-doing its wastewater treatment pond linings and installing a de-watering well, among many other fixes that have totaled more than $800,000 — likely with more to come. 
Castro put it bluntly. "It's ruining our streets, sidewalks, driveways — it's cracking the hell out of our town," Castro said.

Colorado Water law is being broken. Private entities are suffering takings without just compensation, severe property damage and more. 
How to stop the law breakers?  I don't know. For it's a known that the scope of government employees, elected officials, MUD's and private parties that may be complicit is deep and wide. 

These are crimes not only against innocent parties in the State of Colorado, but through the economic erosion of Colorado's most solid economic base - agriculture - the crimes are also against the State.
I don't know who should address these crimes: Colorado's A.G., County's D.A.s? The innocent parties - including the Town of Gilcrest, Glen Fritzler, Chuck Sylvester and Larry Ray shouldn't have to be further burdened with litigation costs. 

The Colorado General Assembly 2018 had an opportunity to stop water crimes - state wide - by simply reaffirming "preexisting water law." They declined. 
___________________________________________________
COLORADO WATER LAW RESOLUTION

Whereas, the State of Colorado Constitution guarantees the protection of life and property, and
Whereas water rights are property rights, and
Whereas water is essential to sustain life, and
Whereas the Colorado State legislature has enacted laws to protect property owners in water rights, and
Whereas to prevent breaches of the peace by preventing theft of property through unlawful diversion and conversion of water rights, and
Whereas the Governor and State Engineer are charged to administer water rights, and
Whereas failure to do so violates the State Constitution and is a clear threat to the lives and property of Coloradans,
Therefore, be it resolved that the Governor and State Engineer -
Shall: Enforce State water-law as strictly guaranteed by the Constitution in prior appropriation allowing supplementation of senior surface water rights by use of pre-1969 supplemental wells up to their full appropriation amounts prior to allowing junior owners to pump and divert their water rights. 

C.R.S. 37-92-102 Legislative declaration basic tenets of Colorado Water Law


(2) Recognizing that previous and existing laws have given inadequate attention to the development and use of underground waters of the state, that the use of underground waters as an independent source or in conjunction with surface waters is necessary to the present and future welfare of the people of this state, and that the future welfare of the state depends upon a sound and flexible integrated use of all waters of the state, it is hereby declared to be the further policy of the state of Colorado that, in the determination of water rights, uses, and administration of water, the following principles shall apply:
· (a) Water rights and uses vested prior to June 7, 1969, in any person by virtue of previous or existing laws, including an appropriation from a well, shall be protected subject to the provisions of this article.
· (b) The existing use of groundwater, either independently or in conjunction with surface rights, shall be recognized to the fullest extent possible, subject to the preservation of other existing vested rights, but, at his own point of diversion on a natural watercourse, each diverter must establish some reasonable means of effectuating his diversion. He is not entitled to command the whole flow of the stream merely to facilitate his taking the fraction of the whole flow to which he is entitled.
· (c) The use of groundwater may be considered as an alternate or *supplemental source of supply for surface decrees entered prior to June 7, 1969, taking into consideration both previous usage and the necessity to protect the vested rights of others.
· (d) No reduction of any lawful diversion because of the operation of the priority system shall be permitted unless such reduction would increase the amount of water available to and required by water rights having senior priorities.”
*Supplemental -well drilled prior to 1969 will have the same priority date as the original surface appropriation and can be used to supplement the surface allotment quantity only up to the adjudicated amount of the original surface appropriation. Any water pumped above the total original surface appropriation amount will only have a priority of the date upon which the well was drilled and put to beneficial use. This was the intent of the State legislature as expressed in this Statute.
*First in time, first in right. An appropriation is made when an individual physically takes water from a stream (or underground aquifer) and places that water to some type of beneficial use. The first person to appropriate water and apply that water to use has the first right to use that water within a particular stream system. This person (after receiving a court decree verifying their priority status) then becomes the senior water right holder on the stream, and that water right must be satisfied before any other water rights can be fulfilled.
*Priority date: “previous, existing, pre-existing, valid, vested and senior water rights.” and amount of surface and groundwater connected, not separate.
The appropriation date of a water right is the earliest date on which the applicant can demonstrate the initiation of the appropriation and applies to surface and groundwater (conjunctive use) tributary to a surface stream. Surface water and groundwater are connected.
*Allotment Quantity: Assume three water-users exist on a stream system with adjudicated water rights totaling 5 cfs (cubic feet per second). The user with the earliest priority date has a decree for 2 cfs, the second priority has a decree for 2 cfs, and the third priority right has a decree for 1 cfs of water. When the stream is carrying 5 cfs of water or more, all of the rights on this stream can be fulfilled. However, if the stream is carrying only 3 cfs of water, its priority number 3 will not receive any water, with priority number 2 receiving only half of its 2 cfs right. Priority number 1 will receive its full amount of 2 cfs under this scenario.
This process of allocating water to various water users is traditionally referred to as "Water Rights Administration," and is the responsibility of the Division of Water Resources.

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