HOW TO SOLVE COSTLY WATER LAW INTERRUPTIONS

You can solve COSTLY water law interruptions, by reaffirming State Water Engineers to administer, distribute and regulate the water of the state...


A Resolution

A Resolution to reaffirm the process by which Colorado Water Rights are to be administered under the statutory laws of the State of Colorado.

Be it hereby resolved by this legislative body, the State of Colorado directs and requires State Water Engineers to administer, distribute and regulate the water of the state in a manner consistent with the rules of the Prior Appropriation system: *“First in time, first in right" or "Prior Appropriation” doctrine is based on *Priority Date and amount, aka *Allotment Quantity,” of both surface water and groundwater tributary to a surface stream.

"Be it hereby resolved by this legislative body, the State of Colorado directs and requires State Water Engineers to administer, distribute and regulate the water of the state..."

There has been no law made that extinguished, “first in time, first in right.” Therefore, we wholly defer to C.R.S. 37-92-102 and hereby declare C.R.S. 37-92-102 stand as the policy of the state of Colorado that, in the determination of water rights, uses, and administration of water, the following principles shall apply:

The Legislator finds the language of this Statute to be clear and unambiguous.

This Resolution hereby orders the State Engineer shall apply the law as it is written.

From: C.R.S. 37-92-102 Legislative declaration basic tenets of                    

Colorado Water Law

The Resolution

(2) Recognizing that previous and existing laws have given inadequate attention to the development and use of underground waters of the state, that the use of underground waters as an independent source or in conjunction with surface waters is necessary to the present and future welfare of the people of this state, and that the future welfare of the state depends upon a sound and flexible integrated use of all waters of the state, it is hereby declared to be the further policy of the state of Colorado that, in the determination of water rights, uses, and administration of water, the following principles shall apply:

· (a) Water rights and uses vested prior to June 7, 1969, in any person by virtue of previous or existing laws, including an appropriation from a well, shall be protected subject to the provisions of this article.

· (b) The existing use of groundwater, either independently or in conjunction with surface rights, shall be recognized to the fullest extent possible, subject to the preservation of other existing vested rights, but, at his own point of diversion on a natural watercourse, each diverter must establish some reasonable means of effectuating his diversion. He is not entitled to command the whole flow of the stream merely to facilitate his taking the fraction of the whole flow to which he is entitled.

· (c) The use of groundwater may be considered as an alternate or *supplemental source of supply for surface decrees entered prior to June 7, 1969, taking into consideration both previous usage and the necessity to protect the vested rights of others.

· (d) No reduction of any lawful diversion because of the operation of the priority system shall be permitted unless such reduction would increase the amount of water available to and required by water rights having senior priorities.”

*Supplemental  -well drilled prior to 1969 will have the same priority date as the original surface appropriation and can be used to supplement the surface allotment quantity only up to the adjudicated amount of the original surface appropriation. Any water pumped above the total original surface appropriation amount will only have a priority of the date upon which the well was drilled and put to beneficial use. This was the intent of the State legislature as expressed in this Statute.

*First in time, first in right. An appropriation is made when an individual physically takes water from a stream (or underground aquifer) and places that water to some type of beneficial use. The first person to appropriate water and apply that water to use has the first right to use that water within a particular stream system. This person (after receiving a court decree verifying their priority status) then becomes the senior water right holder on the stream, and that water right must be satisfied before any other water rights can be fulfilled.

*Priority date: “previous, existing, pre-existing, valid, vested and senior water rights.” and amount of surface and groundwater connected, not separate.

The appropriation date of a water right is the earliest date on which the applicant can demonstrate the initiation of the appropriation, and applies to surface and groundwater (conjunctive use) tributary to a surface stream. Surface water and groundwater are connected.

*Allotment Quantity: Assume three water-users exist on a stream system with adjudicated water rights totaling 5 cfs (cubic feet per second). The user with the earliest priority date has a decree for 2 cfs, the second priority has a decree for 2 cfs, and the third priority right has a decree for 1 cfs of water. When the stream is carrying 5 cfs of water or more, all of the rights on this stream can be fulfilled. However, if the stream is carrying only 3 cfs of water, its priority number 3 will not receive any water, with priority number 2 receiving only half of its 2 cfs right. Priority number 1 will receive its full amount of 2 cfs under this scenario.

This process of allocating water to various water users is traditionally referred to as "Water Rights Administration," and is the responsibility of the Division of Water 
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In respect to The Resolution and articles on Water, here’s how Dr. Angus McIntosh sums up everything succinctly!

“All of this junk they are spouting is irrelevant to the point of The Resolution. That is: Implement and enforce the prior appropriation doctrine. First in time first in right. Senior appropriators must receive their amount of water (from either surface or ground water) before junior appropriators.
Rising groundwater tables in the up-stream areas are the result of NOT allowing upstream seniors to withdraw their senior water amounts from the system. 
Allowing seniors to supplement surface water with hydrologically connected groundwater from the same system does not deprive juniors of their rights. 
Using supplemental wells to fulfill seniority rights may naturally restore historical groundwater tables without the need for implementing elaborate, complicated, theory-based augmentation/dewatering bureaucratic schemes.”
Dr. Angus McIntosh

_____________________________________________

Dear Tyler,

Please consider my comments highlighted in gray.

Thank you,

Roni Bell Sylvester

Greeley Tribune Wednesday February 14, 2018

South Platte study yields costly fixes for runaway water storage.

By Tyler Silvey

UP NEXT

The South Platte Basin Roundtable will hear a presentation from its ad hoc groundwater technical committee regarding groundwater issues around Gilcrest at its next meeting. That meeting is 4-6 p.m. March 13 at the Southwest Weld County Service Center, 4209 Weld County Road 24.5.

READ THE STUDY

To read the entire South Platte Storage Study, click here.

Longmont — A yearlong study centered on a decades-long trend of Colorado sending too much water to Nebraska via the South Platte River yielded dozens of potential storage projects. Yet John Stulp claims, “When we can’t meet the water commitment for the Platte River Recovery Implementation Program (PRRIP) we have to meet the financial commitment.”

We demand full disclosure and audit of the PRRIP!  

But high costs, potential environmental impacts, and bureaucratic and regulatory hurdles could doom the road ahead for any of those possibilities, according to a study presented Tuesday night at the South Platte Basin Roundtable meeting in Longmont.

Further, even if several of the identified projects happen, they would barely put a dent in what's expected to be a Front Range water needs gap of 500,000 acre feet per year.

The $200,000 study, ordered by the Colorado State Legislature and paid for by the Colorado Water Conservation Board, looked at the South Platte from Greeley to the state line and identified potential storage solutions along the way.

What are the accrued “study” costs since HB 1278?

Putting any of those solutions — with costs estimates ranging from $190 million to $1 billion — to work most likely will take more time, money and study.

The honest, real time “solution” of the Resolution, whereas “pre-existing” water rights would be reaffirmed and implemented, would come in at approximately 10.5% of their figures. Here’s a general breakout: Approximately 4,000 wells were shut down. Let’s say to install new or restoration of old wells + power would cost about $50,000 each.  $50,000 X’s 4,000 =’s $20,000,000. $20,000,000 is about 10.5% of $190 million. Because the State caused the problem, the State needs to fix it. $20 million is less than $190 million with the result of actually fixing the problem today.

"I think the consultants did an excellent job with the limited resources that they had," Frank said. Frank who?

Consultants from Stantec Consulting Services and Leonard Rice Engineers completed the study in December and have toured the state making presentations. The Legislature has yet to get a presentation, but here are the key points legislators will hear:

A large amount of water is physically and legally available but only during wet years and during short periods. At zero cost to taxpayers, all they had to do is ask any farmer about “historic flows.” Or, just go to the library.

Mainstream options have the most benefit but likely are not permittable and have significant social impacts. Have no idea what this even means. In what context do they include “permittalble?”

Many off-channel options appear to be feasible and could be combined in different concepts. A good “combo” would be surface and ground. That’s already in “pre-existing” water rights.

Even multiple projects won't make a big dent in the supply gap.

One reason for the lack of impact is how the South Platte works. When farmers divert water from the South Platte to irrigate crops, some of that water soaks underground and slowly moves back to the river. That's called a return flow, and return flows feed the South Platte to allow it to flow long after snowmelt water is gone for the season.

That's why the Sterling No. 1 ditch can completely dry out the river with a diversion and then a mile downriver it's flowing again. Because the Sterling 1 has a Junior water right, there’s no obligation to “fill it out of priority.”

That's why the best possible place for a reservoir would be near the Colorado-Nebraska border, and the best solution for keeping as much water as possible — a mainstream reservoir — is the solution that likely never will happen. Why so they need another “reservoir?” They already built one in the upper end right under our feet! That, is what’s causing the high water!

A mainstream reservoir along the South Platte essentially would be a lake on the South Platte, with the western portion feeding into the lake and the eastern portion running when the lake releases water.

Water experts agree that would be nearly impossible to get approved. Wonder how they managed to “get approved” the Reuter Hess in such record time?

But the consultants did identify storage options away from the river, including old gravel pits.

Still, building ditches or pipes to fill those gravel pits would prove costly. But not near as costly as simply returning the property rights of pumping water conjunctively and in prior appropriation!

The consultants also talked about the 2013 flood and high flows in 2015, which ended up sending 1.9 million acre feet of water to Nebraska — exponentially more water than Nebraska is entitled to via the 1923 compact with Colorado.

But managing or diverting water during a flood event like that would take technology water experts said just doesn't exist. Instead, ditch companies did everything they could to keep the flood water out of their ditches, lest they get damaged by the torrent.

Groundwater storage also was touched on, but concerns were raised about water losses and the co-mingling of other water rights. What “property rights?” Who, where, what dates etc.? Once the water flows under another landowner's property, for example, they would have the right to pump that water to irrigate crops. If State honored the authority/statute/law of State Water Engineers to “administer in prior appropriation,” none of this discussion would take place.

The conversation circled back to the reason for the study. Essentially, lawmakers on the Western Slope long have pointed to the excess water the Front Range sends to Nebraska. Rather than divert more water from the Western Slope, the argument goes, Front Range farmers and municipalities need to figure out how to keep what they have. The “Resolution” would resolve all of this!

Mike Schimmin, a water rights attorney on the roundtable, said his fear is the study will reinforce those feelings and that people will ignore the high cost to capture the extra water.

"Developing even 10 percent of that, at $30,000-$40,000 per acre foot, is really difficult," Schimmin said. Mike Schimmin represents junior water rights owners on the lower end who figured out how to shut down senior water rights, and “capture the ‘new’ extra water” in their newly formed underground reservoir.

Tyler, all their talk about “costs and hydrology,” is a stall tactic they’re using in order to insure their “revenue stream” never ends. It’s called “stealing.” We know they’re stealing, they know they’re stealing. Some have even said to our sources, “I think we’ve been found out.” Well, they’re right. Although they were “found out” about in 2013, when many told me, “if any pumping of senior wells are allowed, people will be sued!”

Notice how none of the legislators will acknowledge our solution, via the Resolution? That in itself is very telling. It’s also telling – and extremely disturbing - when legislators who don’t know anything at all about water law, keep creating bills.

Please think about that, then come visit with us (us being all the Senior Water Rights Owners whose wells have been shut down).”

Thank you,

Roni

— Tyler Silvy covers government and politics for The Greeley Tribune. Reach him at tsilvy@greeleytribune.com. Connect with him at Facebook.com/TylerSilvy or @TylerSilvy on Twitter.