WATER LAW 101 - Colorado Water Law, "first in time, first in right," is extremely easy to understand: Water dates of appropriation "go with the flow." Sure. Hydrology is...
Monday, July 2, 2012
SOLUTIONS TO NON-HISTORIC FLOODING AND DRYING
Solutions to Non-Historic Flooding and Drying.......Along Colorado’s South Platte River Basin Provided by Land and Water USA (LAW USA) July 2, 2012 We propose two solutions to the non-historic flooding and drying along Colorado’s South Platte River Basin. First, our solution to non-historic drying acreage is to re-capture and apply approximate 40,000 acre feet water. Secondly, our solution to non-historic floods is to pump senior wells. To provide a perspective to these solutions, we offer a brief on Colorado water. Use of water in Colorado (The Colorado Doctrine) is governed by the “Prior Appropriation System”, i.e. first in time, first in right. “Prior Appropriation” is established when a person is the first to physically divert (also known as take) water from a stream (Surface Water) or underground aquifer (Ground Water), puts that water to beneficial use, then receives a court decree which verifies them as having priority (prior) status. As Decree Owner, they become the senior water right property holder with the right to use water within a defined "watershed". That water right, which consists of Surface and Ground, must be satisfied before any other water right established after that date in time - known as the "adjudication date". Surface and Ground Waters are decreed inseparable. Decree owners may (must) use both Surface and Ground water in combo, in balance, and for beneficial purpose. Decree owners may be a company (such as a Ditch Company) or an individual. An individual may be a stock holder to a company through ownership of Shares. The South Platte River is a “gaining stream” because of developed irrigation upstream. The first developments of South Platte Valley irrigation began south and west of Greeley, through the Larimer & Weld, Greeley # 2, Greeley # 3, Platte Valley, Farmers High Line, O’Brian, and High Line canals. Around 1879, this area became fully appropriated and “Senior.” Senior development of irrigation, through the inseparable Surface/Ground water combo, developed the river’s flow making it a “gaining” river. Without irrigation, the river’s seasonal snow melt would naturally runoff or flow intermittently, not unnaturally continuous. It would dry up past Greeley. Having the river go dry past Greeley is, however, normal. This is why Canals east of Greeley, beginning with the Bijou and Riverside, are “Junior” appropriations. Solution to alleviate non-historic drying: Colorado committed approximately 40,000 acre feet water to the South Platte River Implementation Recovery Program. Colorado’s withdrawal from this Nebraska, Colorado, and Wyoming agreement would return, again, approximately 40,000 acre feet to Colorado. We recommend that Colorado withdraw from this agreement, since it violates our Colorado Constitution. Initiated by Governor Romer and signed by Governor Owens in June 2006, both governors committed state assets (water) and indebted (financial commitment) Colorado without a vote of its citizenry. Federal government does not own water. States own water. The only way our federal government can obtain water is by purchase from Decree Owners. Thus, we must ask the questions. Whose water, also considered owner property, did the State appropriate to sell to the federal government? What water rights do “Junior” appropriations have when there’s no water in the river? Is our state denying “Senior” access to property to fulfill agreement commitments? If yes, does the state of Colorado intend to compensate “Senior’s” losses in investment, property, business, taxes and income accrued from 2006 forward? Without “Senior” irrigation development, the river would not cross Colorado’s border. The transporting of water takes river from historic intrastate into non-historic interstate status. This puts the agreement into a peculiar interpretation of the commerce clause. Where are the diversion points and transfers from one basin to another? Where is the volume of water measured? Is it measured as it crosses the state line? Is it measured from a point of diversion? And, finally, are catch drain return volumes included in the acre feet measurement? What does the “Memorandum of Understanding” say about Colorado giving water for allegedly Endangered Species? Solution to alleviate non-historic drying of acreage: The Sylvester farm, for example, has a seep ditch that has not quit flowing in over 140 years. The seep ditch was dug by a team of oxen to drain and to make swamp land productive before irrigation wells. This ever flowing seep ditch demonstrates, therefore, that the underground aquifer is as full as it was in the early 1800's. We recommend the pumping of all wells in the described “fully appropriated” part of the South Platte Valley. The water level in a well can be lowered when nearby wells withdraw too much water. The opposite occurs, i.e. water level rises when wells are shut off. In 2006, well pumping was curtailed, some wells were shut off and augmentation was set at 100%. This combination caused an over-saturation of the soil to the extent the aquifer water table raised to non-historic levels. Ground and Surface Water rights are inseparable and must be managed in balance. By ordering wells to stop pumping, judgment was made to separate Ground Water from Surface Water, and threw the South Platte Valley into the present non-historic imbalance. There’s a significant delayed response between pumping and stream flow down river. Therefore, pumping wells will not cause harm to lower end users during this or the following growing season. After implementing the withdrawal from the South Platte River Implementation Recovery and the pumping of the wells, we recommend Colorado revisit the South Platte River Compact Statute. Mutual consent of the signatory states of Colorado and Nebraska requires Colorado to “meet deliveries that would have been available at the time of Nebraska’s claim, June 14, 1897.” The compact recognizes that “variable climatic conditions, the regulation and administration of the stream in Colorado, and other causes, will produce diurnal and other unavoidable variations and fluctuations in the flow of the river at the Interstate Station, and it is agreed that, in the performance of the provisions of said paragraph two (2), minor or compensating irregularities and fluctuations in the flow at the Interstate Station shall be permitted.” Nowhere does the compact demand an exact predetermined acre feet delivery of Colorado’s water that could be construed as basis for a lawsuit by Nebraska. Finally, we feel confident that when activated, these solutions can resolve the non-historic flooding and drying along Colorado’s South Platte River Basin. www.LandAndWaterUSA.com Contact: (970) 284-6874 Chuck Sylvester C# (970) 430-0110 Roni Bell Sylvester C# (970) 430-0222
Posted by Editor at 7:43 AM
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