This was a bill that little more than a month ago passed quietly and uneventfully through the Senate with no drama and no strong debate. The bill’s sponsor, Sen. Greg Brophy, R-Wray, joked during its final Senate vote that there were very few water lawyers in the room when the bill was reviewed by the Senate Agriculture and Natural Resources Committee. That prompted Sen. Shawn Mitchell, R-Broomfield, a lawyer, to joke he couldn’t vote for it because not enough lawyers were involved. But even at that time, at the end of January, storm clouds were gathering.
[SB 10-052] (pdf) would make it clear that a final permit for ground water wells in a designated basin is final. Ground water permit holders need to have certainty, said Rep. Jerry Sonnenberg, R-Sterling, who told House members during second reading debate on March 9 that the certainty was lost in 2006. That’s when the Colorado Supreme Court ruled in Gallegos v. Colorado Ground Water Commission that a surface water rights holder who has senior water rights can challenge the permit of a ground water well in a designated ground water basin if the senior water rights holder can prove their surface water rights are being affected. Under SB 52, the Ground Water Commission, which manages the eight designated basins along the Eastern Plains and the Front Range, could revise a basin’s boundaries to remove previously-included areas only if the area does not include wells that have had final permits issued. The bill includes an exception for current legal cases winding through the courts, so the Gallegos case, which is still not resolved, would not be affected.
The only person to testify against it in the Senate committee, Mark Lengel of Burlington, said he planned to marshal forces to oppose SB52 when it got to the House. Lengel was true to his word, and in the past two weeks, the bill has had a rocky ride…
Leading off [opposition in the house ag committee] was water lawyer Ray Petros, who represents three ranchers who have senior surface water rights on the south fork of the Republican River that date back to the late 1800s. He told the Ag Committee that “this will take away one of the most important water rights, the ability to curtail junior users who affect the [stream].” Petros also pointed out that the state constitution establishes the “first in time, first in line” doctrine of prior appropriation, and while ground water users have relied on permits since 1965, he said, the surface users have relied on their surface decrees for more than 100 years. The legislation insulates designated wells from surface water rights calls, he said; and it also removes the remedy for surface users, because it would say that the wells don’t impact surface water flow.
Petros’ clients also testified on the bill: Lengel, Dan Patten of the Hutton Trust of Hale, and Mike Bohnen of Bethune. Bohnen said new wells being drilled near the Republican River are affecting stream flow. “My private property rights are being legislated away from me,” he said. “A senior surface right is a vested property right.”[…]
Robin Wiley of Idalia, chair of the Yuma County Water Authority and a fourth-generation farmer on the south fork of the Republican River, recounted how the water authority was created to purchase surface water rights. Several years ago, surface water owners petitioned the Ground Water Commission to redraw the boundaries of the basin, which would have stopped pumping from more than 1,300 wells that serve farmers and municipalities such as Yuma and Wray. Voters approved that purchase, halting pending litigation. SB 52 is needed to ensure that the threat of litigation doesn’t come back, he said.
Mark Kokes of Fort Morgan, general manager of Fort Morgan Quality Water, said that in 1970, farmers started seeking a higher quality source of water. They found it in the Lost Creek Basin and formed the water district, buying the wells and infrastructure. “It changed the economy of Morgan County,” Kokes said, bringing in businesses, new residents and housing. Today, 60 percent of the county water comes from Lost Creek. If the wells were redesignated, it would cost $15 million just to purchase augmentation water and that would create an economic crisis in Morgan County.
The bill even got competing petitions: one supporting SB 52 with more than 300 signatures from Washington and Yuma County residents, and one opposed to SB 52 with about 30 signatures from people in the Burlington area. SB 52 had an even tougher time when it reached the floor of the House for debate on March 9.
Opposition to the bill was led by Rep. Marsha Looper, R-Calhan, who raised concerns during the committee hearing and in the House debate that surface water users with senior water rights would have no remedy if the bill passed. There have been impacts to surface users, she said, pointing to the 2002 and 2003 drought. Rep. Sal Pace, D-Pueblo, submitted an amendment to ensure the bill wouldn’t injure senior water rights owners and take apart the doctrine of prior appropriations. Curry objected, stating such an amendment would gut the bill and the amendment failed. Sonnenberg also said that ground water basins have very little surface water, pointing to the Republican River, which he said has seven tributaries. Only three run water above ground part of the time, he said, and none run water above ground all of the time. There have been thousands of wells drilled in the basins since 1965, he said — and not one has been challenged.