2017 #coleg: SB17-036 — Appellate Process Concerning Groundwater Decisions clears State House

Colorado Capitol building

From The Grand Junction Daily Sentinel (Charles Ashby):

House Bill 1151, introduced by Reps. Yeulin Willett, R-Grand Junction, and Chris Hansen, D-Denver, removes electric bicycles from the motor vehicle definition as long as they don’t go too fast.

Under the bill, the bicycles are considered electrical only when the rider is pedaling and its motor ceases when the bike reaches speeds of 20 to 28 mph depending on which of three classes the bicycles fall under.

The measure cleared the House 52-13 in late February. When the Senate took up the bill earlier this month, it made one change, which Hansen and Willett made fun of when the House gave its final approval on Monday…

The measure bars anyone under the age of 16 from riding a class 3 electric bike except as a passenger, and then they must wear a helmet…

The House gave final approval to a bill Monday that would prevent parties that appeal to district court water rights decisions made by the Colorado Ground Water Commission from introducing new evidence in the court.

The measure, SB36, tries to address an issue that its sponsors — Sens. Ray Scott, R-Grand Junction, and Don Coram, R-Montrose — said was an unfair one. Currently, parties that appeal such water decisions by the commission could present new evidence not heard by the commission.

The two lawmakers said that was unfair to ranchers and farmers who couldn’t afford to retry whole cases.

Scott and Coram tried to get the bill through last year’s Legislature, but failed because of heavy lobbying, much of which came from former Gov. Bill Owens, who at the time was working with a land and water development company.

Cotter Mill spill

Lincoln/Cotter Mill Park superfund site

From The Pueblo Chieftain:

Colorado Department of Public Health officials on Friday received a report of a spill that occurred at the Cotter Crop. Uranium Mill south of here.

Steve Cohen, Cotter manager, reported the spill occurred just before 8:30 a.m. as Cotter workers were trying to drain a section of pipes that connect the new and the old pipeline. A new pipeline is being installed to prevent contaminated water escaping the site.

About 5,200 gallons of water was spilled, all of which was contained within the trench and Cotter workers were able to recover most of the spilled water using a water truck, said Warren Smith, health department spokesman.

From Canon City Daily Record (Kara Mason):

It’s unclear how much “slightly contaminated” water seeped into the ground or will evaporate, but Steve Cohen, Cotter’s plant manager estimates around 3,000 to 4,000 gallons were picked up with the truck.

The spill happened when Cotter workers were attempting to drain a section of pipe where the old pipe and the new replaced pipe connect. A brittle or cracked valve is to blame, Cohen said. “Basically when the workers touched the valve it blew.”

The valve will be replaced, Cohen added.

The water was contained in the trench where pipeline construction has been ongoing for the last couple of weeks. Now, the water will return to the impoundment pond on Cotter property.

Cotter is replacing the pipeline after several leaks the last couple of years. Last August, Cotter reported a 7,000-gallon leak, which occurred over the course of 48 hours. That leak was the result of a hairline fracture in the pipleline — which is now being replaced on site.

Despite the most recent spill, Cohen said the pipeline replacement is still on track to finish the final week of March.

Cotter is required by Colorado law to report spills to the Colorado Department of Public Health and Environment, which posts the information on its website. CDPHE is expecting a report on the spill next week.

2017 #coleg: SB17-036 stalls in House Committee

George Washington addresses the Continental Congress via Son of the South

From The Grand Junction Daily Sentinel (Charles Ashby):

SB36, that cleared the Colorado Senate unanimously, got a bit bogged down in the House Judiciary Committee because of lengthy discussions about what it would do.

Under the bill, introduced by GOP Sens. Ray Scott of Grand Junction and Don Coram of Montrose, appeals of groundwater rights decisions by the Colorado Ground Water Commission shouldn’t include new evidence, just like in any normal court appeal.

Scott, and the House sponsors of his bill, Reps. Jenni Arndt, D-Fort Collins, and Jon Becker, R-Fort Morgan, say the current practice that does allow that isn’t fair.

The lawmakers say most disputes pit farmers and ranchers against water developers who are trying to sell water rights for municipal use, something that can be highly profitable.

Those developers often will drag farmers into court, retrying the case at the appellate level using evidence not considered before the commission the first time, supporters of the bill said.

“It is a matter of being out monied,” said Dan Farmer, a member of the commission and a Colorado Springs rancher. “When we win, we don’t win because we’re short $60,000 (in attorneys’ fees). It’s just not possible to continue to operate a farming operation and try to protect your water rights.”

Opponents of the bill say there is nothing wrong with how cases are tried, saying only a few end up being appealed.

Denver water attorney Sheela Stack, who routinely represents municipalities in water disputes, said it isn’t just the farmers and ranchers who see high litigation costs.

“It goes both ways,” she said. “It’s not just a municipality coming into a groundwater district. We are not trying to bleed the farmers dry. All we are doing, what anybody is trying to do is do the maximum utilization of water.”

The commission is the only state agency that has quasi-judicial powers that current law, established about 40 years ago, allows appeals to include new evidence. Disputes are first reviewed by administrative law judges in the State Engineer’s office, an agency under the Colorado Division of Water Resources, and then decided by the commission.

2017 #coleg: SB17-036, “Appellate Process Concerning Groundwater Decisions” to die in the House?

Groundwater movement via the USGS

Here’s a guest column from Don Coram that’s running in The Durango Herald:

In my last column, I mentioned that Senate Bill 36, “Appellate Process Concerning Groundwater Decisions,” had recently passed the Senate 35-0. This exact bill passed the House last year with 60 votes, only to die in the Senate. Powerful men and big money did not offer any opposition in the House last year, but put a full-court press on Senate leadership to kill the bill.

This year is exactly the opposite. Water investors and municipalities have once again rallied their expensive lobby corps to pressure legislators. What amazes me is that people who voted for the bill last year, at least twice and some cases three times, are now suddenly opposed. Unconfirmed reports have told me that Northern Water in Weld County is the driving force behind the opposition.

As someone from rural Colorado, who understands the issues of rural Colorado, I am amazed that legislators who portrays themselves to be pro agriculture — as men standing up for the little guy, the second or third generation farmer or rancher who is just trying to survive and hopes that the next generation can pay off the mortgage — can be in opposition to this bill.

What has happened is investors buy ground water and then go to the Ground Water Commission and file for a change of use in hopes of exporting the water from the ground water basin and sell it to the municipalities. If the investors lose in the appeal process they claim new evidence. The farmer must hire a lawyer and water engineer to defend his water once again at thousands of dollars. One family has spent around $900,000 on attorneys fees. The fastest way to break a farmer is through litigation.

It is disappointing to me that a legislator can turn 180 degrees from one year to the next. The exact same bill should be treated the same. If you liked the bill last year, you should like it this year. Likewise, if you opposed it last year, I would expect the same this year.

Ogallala Aquifer — different water law by state

Map sources:
Houston, Natalie. 2011. Hydrogeologist, Texas Water Science Center, U.S. Geological Survey. Personal communication, October 2011.
Houston, Natalie, Amanda Garcia, and Eric Strom. 2003. Selected Hydrogeologic Datasets for the Ogallala Aquifer, Texas. Open File Report 2003-296. August 2003.

From High Plains Public Radio (Susan Stover):

Texas manages groundwater with the Rule of Capture. The groundwater belongs to the landowner without a defined limit. It’s sometimes known as the Law of the Biggest Pump.

Colorado and Kansas water law is based on prior appropriation, known as First in Time, First in Right. A water right owner can pump their permitted amount if it doesn’t impair a more senior right – a water right that was established earlier in time. When there isn’t enough water to meet all needs, the owners of senior water rights have priority. The priority system works well for streams. When stream flow is low, it is generally clear which upstream, junior users must be cut off to protect the more senior water rights.

For groundwater, it is more complex to identify which water wells are impairing a more senior water well. Groundwater often provides a baseflow to streams; when heavy groundwater pumping lowers the water table so there is no longer a connection to the stream and stream flow declines, is that impairment?

Colorado state law dealt with such concerns by defining “designated groundwater basins,” those in which groundwater contributes little to stream flow. The Ogallala aquifer lies in designated groundwater basins. This allows more groundwater to be pumped, which lowers the water table, but with less risk of impairing surface water rights.

In Kansas, action is taken when a junior water right well’s pumping directly impairs a senior water right well, whether it uses groundwater or surface water. However, no action is taken if problems are due to regional groundwater declines. Like Colorado, Kansas allows the decline of the Ogallala aquifer to get the economic benefit from the water.

Management of the Ogallala aquifer is a balance between protecting existing water right holders and conserving water for the future. Attitudes change over time on what is a proper balance. Much water law encouraged development of the aquifer and protects current users. Is that balance shifting more toward conserving and extending this resource further into the future?

Across party lines, Western governors see a partner in Pruitt — @COindependent

Colorado abandoned mines

From The High Country News (Elizabeth Shogren) via The Colorado Independent:

Just a few days in office, the new administrator of the Environmental Protection Agency hosted an early Sunday morning breakfast for 11 Western governors. Scott Pruitt told them face-to-face what he’s said repeatedly since he was nominated: Under his leadership, the EPA will defer to states much more than it has in the recent past.

Pruitt made a similar vow to profoundly transform the agency the day before at the Conservative Political Action Conference (CPAC). “We’re going to once again pay attention to the states across this country,” Pruitt told a gathering of Republicans. “The future ain’t what it used to be at the EPA.”

This message resonated with the Western governors, regardless of their political affiliations, according to several members of the governors’ staffs. Alaska Gov. Bill Walker, a Republican-turned-Independent whose state is 66 percent federal land, was “encouraged by (Pruitt’s) emphasis on state’s rights,” Grace Jang, Walker’s communications director, says.

The Western governors’ unanimity is striking in an era of intense partisanship and reflects the commitment they have to work together through the Western Governors’ Association. The breakfast was an annual event of that group, a rare hub of bipartisanship and consensus building in a polarized nation. The governors are in the midst of a major effort to transform the relationship between the federal and state governments to give them more input into federal regulations.

“The Republican governors were on the same page with their Democratic colleagues in telling Pruitt, we want it to be a partnership,” says John Swartout, senior policy advisor to Colorado Governor John Hickenlooper, a Democrat. “We haven’t been happy that the EPA hasn’t always treated us as a full partner. We can make progress together.”

As they ate scrambled eggs, bacon, fried potatoes and donuts at a square table in EPA’s Washington, DC, headquarters, the governors one-by-one told Pruitt their priorities. Over the course of two hours, many mentioned their desire to have more sway over federal environmental regulations.

Western governors have collaborated for about 100 years. Their desire to present a unified voice to Washington is driven in part because of the vast amount of federal land in the West, which means decisions made in Washington have acute impacts on their states’ economies. “It’s largely a function of being so distant from Washington and needing to amplify their distant voices,” said Jim Ogsbury, executive director of the group.

In the Western Governors’ Association, the governors focus on shared objectives and pass joint resolutions. In December, for instance, they passed a resolution calling for a greater role in crafting federal regulations and in other decisions by the federal government. Other resolutions present their consensus positions on a wide range of issues, including endangered species, wildfire fire management, invasive species and abandoned mine cleanups.

Western governors from both parties felt the Obama administration’s EPA failed to adequately consult the states as it crafted some important environmental regulations, such as the 2015 Clean Water Rule. (That rule was temporarily blocked in 2015, pending resolution of a court challenge brought by industry groups and 31 states.) “Had the EPA worked with us on the rule upfront it could have been a better rule,” Swartout says. EPA did address some comments the governors made about how the proposed rule impinged on state authority over water management, but not all of them.

Just this week, President Donald Trump signed an executive order to launch a rollback of that rule and, until it’s rewritten, limit federal oversight to waterways that are navigable, leaving the rest to the states. Pruitt announced that he would rescind the Obama rule and write a new one that “restores the states’ important role in the regulation of water.”

“We believe (Pruitt’s EPA) will partner with states in a way that’s meaningful; in a way that quite frankly the previous administration did not,” says Nephi Cole, Wyoming Gov. Matt Mead’s policy advisor policy.

Many scholars caution that undoing that rule will be particularly detrimental in the arid West, where so many small streams and those that run only intermittently are crucially important for wildlife and water quality and quantity. States tend to be more responsive to local industries, because of the benefits they bring to the economy like jobs and tax revenue.

But Cole argues that it’s a “false narrative” to suggest that giving states more control equates to allowing more pollution and less environmental protection. In another resolution adopted in December, Western governors assert that they want to be the ones to decide how to balance the needs of industry in their states and the requirements of the Clean Water Act.

During the two-hour breakfast, Pruitt spent most of the time listening to governors. (Most years, the secretaries of Interior, Agriculture, Energy and other cabinet members important to Western states attend the breakfast, but as of Sunday, Pruitt was the only one of those who had been confirmed by the Senate.) Colorado Gov. John Hickenlooper urged Pruitt to personally engage in the Gold King Mine controversy. A 2015 blowout at the mine unleashed a surge of acid mine drainage down the Animas River. Pruitt committed to visiting Colorado and meeting with local and state officials, Swartout says.
A big priority for some governors is that the EPA continues to negotiate settlements with companies responsible for creating toxic waste sites covered under Superfund.

Oregon Gov. Kate Brown, a Democrat, urged Pruitt to move forward with the plan to clean up the Portland Harbor, a Superfund site, so the city can revitalize the waterfront and create jobs. She also stressed her state’s continued commitment to fighting climate change, according to her press secretary, Bryan Hockaday.

Montana Gov. Steve Bullock, who heads the Western Governors’ Association, wants Pruitt to keep the pressure on to finally reach a settlement on the Superfund sites in and around Butte, Montana, where historic copper mining and smelting left behind the nation’s largest toxic waste site, according to his press secretary, Marissa Perry. After many years, negotiations between the EPA and Atlantic Richfield Corporation, owned by BP, have picked up steam. Bullock wants to make sure the momentum isn’t lost.

While the Western governors break out of the hyper-partisanship that’s plagued other branches of government and see some opportunity to work with Pruitt, potential major budget cuts to the EPA may give Pruitt a lot less leeway to respond to state needs.

This week, the White House sent agencies an outline of the president’s draft budget that reportedly would gut the EPA’s $8 billion budget, cutting by 30 percent the grants it sends to the states to implement air, water and toxic waste regulations. Pruitt told E&E News that he’s asking the White House to retain more funding for the states to improve air quality, clean up Superfund sites and improve aging water and wastewater infrastructure. Programs slated for zero funding include grants to clean up abandoned industrial sites and funding to bring safe drinking water and sewer systems to Native villages in Alaska, according to the Washington Post. More details on the budget are expected later this month. It’s not clear if the White House can win approval for its vision of a much smaller EPA.

The proof of whether the governors and Pruitt will be able to work together will emerge in coming months, as the Trump administration pursues its agenda and rolls back existing rules. “We’re trying to work with him. We need to work with the federal government,” Swartout says. “It’s too early to know. We have to see how it all plays out. It’s just speculation at this point.”

Correspondent Elizabeth Shogren writes HCN’s DC Dispatches from Washington. This story originally appeared in High Country News on March 3, 2017.

#Colorado Springs councillors OK @CSUtilities water sales to Security

Widefield aquifer via the Colorado Water Institute.
Widefield aquifer via the Colorado Water Institute.

From KKTV.com:

On Tuesday afternoon, Colorado Springs City Council voted to help their neighbors deal with [pollution of the Widefield Aquifer]. They voted unanimously on the agenda item that will allow Colorado Springs Utilities to sell their water to Security Water District. The resolution goes into effect immediately.

It’s a short term deal – just up to three years as of now, but Springs Utilities says the have more than enough resources to help.