2016 #coleg: HB16-1337 (Appellate Process For Decisions About Groundwater) dies in State Senate

Map of the South Platte River alluvial aquifer subregions -- Colorado Water Conservation Board via the Colorado Water Institute
Map of the South Platte River alluvial aquifer subregions — Colorado Water Conservation Board via the Colorado Water Institute

From The Greeley Tribune (Nikki Work):

[Scott Tietmeyer], who has been involved in a water dispute since the early 2000s, said the future of farming in northern and eastern Colorado is water, but with farmers going bankrupt to defend it, that future is getting drier. For more than a decade, Tietmeyer and other farmers in his area have fought to protect their water rights. But protecting groundwater can be a pricey endeavor.

This year, Colorado Reps. Edward Vigil, D-Fort Garland, and Don Coram, R-Montrose, introduced House Bill 1337 to address this issue. The bill would make it so no new evidence could be introduced at appeals.

The way the system is set up, at each level of appeals in a water hearing, new evidence can be presented. This makes it so farmers, ranchers and other water rights holders have to pay for new engineering, research and legal defense of new evidence at every step of the process, because either party in the lawsuit can withhold key pieces of their argument to improve the likelihood of a win after an appeal.

Sen. John Cooke, R-Greeley, planned to vote for the bill on the Senate floor because in every other kind of trial, the same evidence has to be used at an appeal that is used at an initial hearing.

The bill passed the Colorado House of Representatives 60-5, but it was killed in the Senate Judiciary Committee last week. A similar bill was killed last year as well.

The bill would have helped farmers and ranchers in situations similar to Tietmeyer’s.

Fourteen years ago, Tietmeyer and several other famers in the Upper Crow Creek River Basin were told their groundwater pumps caused or could cause surface water loss for a senior water rights holder. This complaint started a legal process that’s still going today.

Despite the first hearing ruling going in favor of Tietmeyer and the other farmers, the senior water rights holder appealed the case all the way to the Colorado Supreme Court, which ruled that Tietmeyer and the others would have to yield to the senior water rights holders if they could prove their use of the water would suffer.

That ruling was in 2006. The decade since has been filled with research and legal battles between the surface and groundwater users. Tietmeyer said the newest round of trials have escalated to the Supreme Court again.

Not every case is as draining on time or funds as Tietmeyer’s. Some take place between two farmers, or between a municipal water user and a rancher or in the most worrisome cases, a big water buyer and a farmer.

Rep. Jon Becker, R-Fort Morgan, said HB 1337 would have blocked a lot of the illegal water speculation that takes the water off of ag lands. Becker, who supported the bill in the House, said the bill was really “common sense,” and he guaranteed he is willing to carry the bill next year.

In the years since the lawsuit in the Upper Crow Creek Basin started, Tietmeyer said his family has spent close to $100,000 on the litigation. Others in the area who own more wells than he does have spent even more, he said. Tietmeyer has seen some farmers forced to choose between their water rights and bankruptcy. At least seven wells in the area have been sitting out of use for more than a decade because their owners couldn’t afford to go to trial.

Tietmeyer said defending his wells was never a question, despite the financial burden, because he needs the water to irrigate his wheat, corn and alfalfa, and to guarantee his farm has a future.

“As a farmer, we’re putting everything upfront, because we can’t afford to lose these rights,” Tietmeyer said. “When you’ve gone 11 years and no one will ever benefit from that court case, there’s something wrong.”

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