2011 Colorado legislation: HB 11-1068 — State Engineer Approve Ag Water Transfer

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From The Pueblo Chieftain (Chris Woodka):

The bill, HB 1068, is sponsored by Rep. Randy Fischer, D-Fort Collins, and would create a 40-year program in the Arkansas Valley that would allow the state engineer to approve sales of agricultural water to cities through leases. The term could be renewed for another 40 years. The bill, as introduced, would allow farmers to lease one-third of their water or lease water for one-third of the years in the term with only the state engineer’s approval.

During a meeting Thursday at the CWC’s annual convention, the bill was questioned by numerous water attorneys for being an end-run around Water Court that appears to benefit only the Arkansas Valley Super Ditch.

Others, including Fischer, said such alternative measures are needed to reduce the cost of litigation and make water leasing programs pay off for farmers. “I have real concerns if we continue to go by the book and the only alternative is dry-up of agricultural lands,” Fischer said. “What I’m trying to do is keep the water in the hands of the producers.”[…]

…critics say the bill does nothing more than transfer the cost of court challenges and the burden of proof to those whose water rights could be injured. “You’re shifting the transaction costs from the cities,” said Alan Curtis, whose clients include Sterling and Tri-State Generation and Transmission Association. “There are also the issues of revegetation and transit losses that are usually addressed in front of Water Court.” While HB1068 sets up an administrative program only in the Arkansas River basin, Curtis said he fears the precedent could be used to set up a similar program in the South Platte, as well. That would create an additional layer of costs for communities such as Sterling because they would be forced to file suits in Water Court to protect their rights, he said…

Steven Janssen, attorney for the Henrylyn Irrigation District in the South Platte basin, said the legislation opens the door for more authority for the state engineer, and could lead to reversals of state engineer’s assumed authority that have been struck down in several recent state Supreme Court decisions…

Andy Jones, an attorney whose clients are primarily in the South Platte basin, supported the concept of the legislation, saying it is an example of the type of creative thinking that is needed to avoid further dry-up of ag lands. “If you want to be leaders, find a way to make this happen,” Jones said. “Transaction costs are huge. Markets need the flexibility to make transfers a reality.”[…]

“I appreciate the input,” Fischer said. “But how do we get around just saying no to everything? I want to do something proactive.”

More HB 11-1068 coverage here. More 2011 Colorado legislation coverage here.

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