Eastern Plains farmers, ranchers and homeowners will go to the mat to protect their water rights. Last week at the state Capitol, some of the ground water management districts that defend those rights lost a dogfight with former Gov. Bill Owens and the water-hungry developers and municipalities his companies represent.
Owens and the developers victoriously opposed a bill that would have slashed legal costs when farmers and ranchers tussle with developers in the courts over who holds water rights.
The water wars between ag and development go like this: When towns and developers need water, they turn to cash-strapped farmers and ranchers and buy their water rights. Without irrigation, fields dry up and crops die. The ag community considers these “buy and dry” deals to be predatory, a death sentence for Colorado agriculture.
Some developers and municipalities are trying to dodge the expenses of buy and dry deals and are using the courts to try and snatch up water from rural communities without paying for it. Farmers are spending tens-of-thousands of dollars defending their rights.
Take Dan Farmer, a third-generation farmer who formerly was on the Upper Black Squirrel Creek ground water management board in El Paso County. In recent years, the ground water district has had to fight a local municipality over rights to water managed by the district. The legal fees from having to repeatedly defend the district’s water rights have devastated his community.
Upper Black Squirrel Creek is one of eight ground water basin districts along Colorado’s Front Range and Eastern Plains. Those districts, each managed by local farmers and ranchers, draw water from underground. Generally, farmers and ranchers own those rights to irrigate crops.
“Your family notices when you spend $100,000 to defend your water rights,” Farmer told a Senate committee considering a proposal to limit the kinds of evidence that would be allowed upon appeal of decisions made by the state water court or Ground Water Commission. “This is no more than an effort by municipal districts to find any loophole they can to get water, and they’ll go to ridiculous lengths to get that water without having to pay for it.”
Under a proposal recently by the Senate Judiciary Committee, those who want to go to district court to appeal the Ground Water Commission or water court decisions would not be allowed to use evidence that wasn’t presented in the original case.
The case cited by Farmer, involving the Meridian Service Metropolitan District, is the most recent example of the problem. The district, which oversees water, parks, a recreation center and sewer issues, serves a housing development, Meridian Ranch, that started to run out of water.
Meridian asked the state water court to allow it to collect “surface water runoff,” basically, rainwater, put it into a reservoir and use it to irrigate the development. The development would then file for a junior water right, although that water technically belongs to the Upper Black Squirrel Creek ground water management district because rainwater drains into the local aquifer.
The Ground Water Commission, which protects aquifers from being overtapped, denied Meridian’s claim. The water court also ruled against Meridian and ordered the municipality to pay legal costs, calling the case “frivolous.”
So Meridian took their claims to El Paso County District Court and then to the Colorado Supreme Court, where justices once again ruled in favor of the Upper Black Squirrel Creek district.
But at the District Court level, Meridian changed its arguments and brought forward new evidence on why it should obtain those water rights. Bringing a new case is not allowed in any other kind of court appeal in Colorado. But for the past 40 years, Ground Water Commission cases have been the exception. Only twice in those 40 years have such cases resulted in a decision against a ground water management district.
The rarity of cases is the argument for keeping the process as is, according to Owens’ lobbyist Kathy Oatis. Not allowing new evidence at the District Court level would eliminate the only check and balance that could ensure a fair process for everyone involved, according to a position paper on the issue from Oatis and as reported by The Grand Junction Daily Sentinel.
But allowing a whole new set of facts jacks up legal costs for the ground water districts, which are forced to hire attorneys and engineers to start all over with new defenses. Those costs can soar above $100,000 in cases that reach the Supreme Court.
Don Booker, president of the Upper Black Squirrel Creek district, said that in such cases, 80 percent of the district’s money pays for legal costs and no money is left for much needed water conservation projects, including refilling aquifers.
Former Gov. Owens runs several firms helping developers and municipalities buy up agricultural land and water rights. Legacy Water, Inc. which lists Owens as its CEO, lobbied against the bill heard this week, House Bill 16-1337. Owens also serves as managing director of Renew Strategies, a “water and land resources development“ company that shares an address with SW Resources, which also lobbied against the measure. Owens is listed as SW Resources’ CEO in filings with the Secretary of State.
Owens used his influence with Senate Republicans to kill the bill, which the House greenlighted earlier this month on a 60-5 vote, the proposal’s sponsors, Republicans Rep. Don Coram of Montrose and Sen. Ray Scott of Grand Junction, told The Grand Junction Daily Sentinel.
Last year, Owens lobbied against a similar bill that also was defeated.
Last week’s hearing in the judiciary committee featured testimony from a long line of farmers, ranchers and other supporters including the Colorado Farm Bureau, the Colorado Cattlemen’s Association and the Colorado Wheat Growers.
The proposal’s opponents complained the Ground Water Commission, where the cases begin, is stacked with agricultural representatives, not lawyers, and that creates a conflict of interest.
Lisa Thompson of the Upper Black Squirrel Creek District argued water rights largely belong to farmers and ranchers, who should rightly comprise the majority on the commission, being that they have the most to lose.
The proposal would maintain the authority of the Ground Water Commission, she said, as well as the authority of the local ground water management districts.
The committee killed the proposal on a 5-0 vote, infuriating its sponsor, Scott, who dubbed Owens a “water speculator,” a choice term for a predatory outlaw aiming to snatch up water rights without showing how they will be used.
Correction: 5/4/16 Owens lobbying firm corrected to Legacy Water, Inc.
Photo credit: Luke Peterson, Creative Commons, Flickr.