From The Fort Morgan Times (Jeff Rice):
It’s going to be difficult for legislators to strengthen Colorado’s already strong water anti-speculation laws, but that’s what a study group is looking at.
Joe Frank, manager of the Lower South Platte Water Conservancy District, told his board’s executive committee Tuesday it will be tough for the study group to come up with viable recommendations to the legislature.
The study group was authorized by Senate Bill 20-048 during the 2020 legislative session. The bill “requires the executive director of the department of natural resources to convene a work group to explore ways to strengthen current anti-speculation law and to report to the water resources review committee by August 15, 2021, regarding any recommended changes.”
Frank said the 18-member working group, which has been meeting since November 2020, is “a pretty diverse group,” and that has caused some concerns about the viability of recommendations that it may propose.
“The hard part, in my mind, is how you distinguish between traditional speculation and investment speculation, and how you protect people’s property rights,” Frank said. “How do you tell a landowner who he can and can’t sell his property to? (Some states have) laws about selling (farmland) to people outside the state, but I’ve talked to some (Colorado) tenants whose out-of-state landowners are really good landlords.”
Water speculation is generally thought of as buying water rights without having an immediate beneficial use for the water, hoping to later sell the water for a profit. The concern is that agricultural water would be taken off the land and sold out-of-state. Current water law requires that anyone buying water shares or buying ag land with a water right must have an immediate beneficial use for the water.
That has led to the practice “buy and dry,” in which cities and utilities buy agricultural land and use the water for their own purposes. One example is when Sterling purchased the Scalva Bros. farm in the early 2000s so it could use the farm’s strong water right to augment pumping for municipal use. Although the water is still being used to irrigate crops on the farm, eventually it will have to be taken off the cropland and the land returned to a natural state.
Board member Gene Manuello said anti-speculation legislation can be a double-edged sword. He referred to a 2009 Colorado Supreme Court decision in which the Pagosa Area Water and Sanitation District and San Juan Water Conservancy District were denied permission to build Dry Gulch Reservoir. Trout Unlimited sued the districts claiming their projections of water needs over the coming 50 years were excessive and amounted to water speculation.
The high court ruled that the Pagosa area water districts, which supply water to nearly all of Archuleta County, had not sufficiently demonstrated a need for the amount of water they claimed, based on projected population growth and water availability over a 50-year planning period…
A report on recommendations from the study group is due in mid-August, Frank said.
In other business Tuesday the executive committee when into executive session to discuss legal and negotiation issues concerning the proposed Fremont Butte project. That project would store excess South Platte River runoff in Prewitt Reservoir and a new reservoir south of there, to later be pumped upstream for use by the Parker Water and Sanitation District.