Farmers filled the Capitol today wearing their cowboy hats, shirts, and boots. They were armed not with guns and rifles, but with lawyers from Denver's 17th Street.

Well water users took on surface water users for who has the right to the diminishing resource. Well water users are winning the battles so far, with their bill, SB10-052, clearing the Senate easily and squeaking by in the House Agriculture, Livestock, and Natural Resources Committee today on a 7-6 vote.

Simmering war boils to surface
The war has been simmering for years, given the drought in eastern Colorado. Rain water has gone down from 17" per year to 6" per year, dust bowl levels. Surface water farmers are finding it harder and harder to irrigate their crops.

Farmers struggle over who has the water right
Some well water users have water rights that were cut off by the state to satisfy the interstate water compact with Nebraska and Kansas. The claim is that shallow well water usage reduces the amount of water that would otherwise get to streams and rivers, thus affecting the water rights of surface water users down stream.

Water sources unclear in nature
According to bill proponents, this assertion is dubious. The science of the relationship of surface water to well water is full of variables, much like climate change, according to Steve Simms, lawyer for the well water users. "In the Republican River case, the science was a guesstimate on how much water used in the compact was affected by wells and how much wasn't. There were thousands of variables on the ground water."

Drought fires the crisis
Opponents of the bill rue the devastation to the Republican River that the drought, and, they say, well water usage, has caused. "I've lived near the river for 30 years, and it's down to a trickle or dry," said a business owner next to the Bonny Reservoir. The Bonny, which is supposed to have recreational as well as irrigation uses, and was paid for with federal tax dollars, is severely depleted by all the agricultural irrigation.

Wet water rights v. paper water rights
The war is over a concept that was uncontroversial for 40 years until 2006 when Colorado courts ruled that wells could be "de-designated." De-designation took away well water rights given to well users from 1965 forward.

Ray Petros, lawyer for bill opponents, stated, "Surface water rights are not a paper water right. If you have a valid water right there has to be a remedy if someone injures that right. A surface user has a right to curtail a designated water well user."

The curtailment occurs through de-designation. The bill takes that remedy away, stating that the Colorado Groundwater Commission cannot remove well water rights for users with conditional or final permits if the Commission changes groundwater basin boundaries.

Farmers need clarity, if not resolution
Livelihoods, rivers, and streams are at stake. Surface water users can't irrigate without the water. Well water users can't irrigate without the water. Well water users want certainty as to their water rights, and surface water users want to make sure there's enough water for their needs. Rivers and streams just want any water at all.

What is clear is that there's not enough water to irrigate all the crops, keep rivers and streams full, maintain Bonny Reservoir, and satisfy interstate water claims.

Representative Wes McKinley (D) captured the crux of the problem. "I think there is certainty. It's certain there's not enough water to satisfy the wants of everyone." PEN, CCW

This post was published on March 3, 2010. Permalink »