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Water Education Colorado

South Platte Well Owners in Crisis

By Lori Ozzello

Since Colorado was first settled, water has been a contentious issue. The May shutdown of more than 400 South Platte irrigation wells exemplifies the ongoing battle between Colorado's historic agricultural base and the drive for growth and development along the Front Range. When drought hit in 2002, it revealed a complex crisis that had been building at least since 1969, when the legislature attempted to incorporate groundwater management into the prior appropriation system governing surface water rights.

After the 1969 Water Rights and Administration Act became law, the state enjoyed decades of some of the wettest weather in a century. This precipitation coincided with the beginnings of unconstrained Front Range growth and the multiplication of irrigation wells along the South Platte River.

The difficult balance between growth and drought was made more complicated in 2001, when the state supreme court ruled in Empire Lodge Homeowners Association vs. Moyer, limiting the ability of the state engineer to approve short-term substitute water supply plans. In response to Empire, the legislature allowed until 2006 for all well users to file for long-term augmentation plans which must be approved in water court.

Augmentation plans are detailed, engineered plans that allow junior water rights holders, such as well users, to pump water out of priority. The plans define how, when and in what quantity they will replace to the river the water they consume, so that other water rights holders will not be injured.

Under pressure to comply with this new state law and in the midst of a serious drought, well owners faced scrutiny from dozens of junior and senior South Platte River water rights holders. If any objections from these rights holders held up in court, their plans couldn't be approved, and their wells would not be allowed to pump. The well users felt cornered, and agreed to most of the required conditions. They also formed groundwater subdistricts to address the substantial costs, bureaucracy and complexity of getting these plans through water court.

Earlier this year, members of Central Colorado Water Conservancy District's Well Augmentation Subdistrict, concerned about the recent failure of a water lease critical to their augmentation plan, withdrew their application and postponed until February 2007 a water court review to certify the plan.

Then on May 5, State Engineer Hal Simpson, in a painful but straightforward decision, was forced to shut down their wells. Most were used for farm irrigation from Brighton to Fort Morgan.

‘In April, (well users) thought they'd be OK,’ explains Simpson. ‘They were waiting for leases from Longmont and Fort Collins. Then, the first of May, we got the runoff information. Snow pack was down to 84 percent of average. Fort Collins pulled 5,000 acre feet out of the mix.’

Simpson had no choice. Without water to substitute depletions from the South Platte River caused by their wells, legally the well users could not be allowed to pump. If they did, it could injure other water rights entitled to that water.

Central's manager, Tom Cech, was on the phone day and night to water lawyers, water engineers and water managers. He met with objectors, answered questions, and hoped for a compromise.

The farmers already had an estimated $1 million worth of crops planted and no way to prevent them from baking to a crisp in the late spring heat. They had planted, believing they'd be allowed to pump a 15 percent quota during the 2006 growing season.

Almost immediately, government officials, some Front Range cities and the Northern Colorado Water Conservancy District rushed to aid farmers. For $1 million, NCWCD agreed to lease 10,000 acre-feet of temporary augmentation water, including water from the Colorado-Big Thompson and Windy Gap projects.

This water, says Simpson, would have allowed many of the well owners to continue operating. It roughly equaled their 15 percent ration to which Central and three dozen objectors initially had agreed.

But the objectors balked at the new plan. They submitted questions and several took substantial time to consider the arrangement, while dry, sunny weather continued and well users estimated they had a week or 10 days before their crops were beyond saving. Finally, on June 2, nearly a month after Simpson shut off the wells, the objectors sent a letter saying the plan didn't meet their approval.

The objectors said they would not accept the new plan unless the Well Augmentation Subdistrict could meet a call on the river, 365 days a year, for three consecutive years. This refusal effectively killed any hopes for reactivating the wells this year.

‘(Well users) wanted the criteria for what they'd have to pay back to be less,’ City of Boulder Water Resources Director Carol Ellinghouse says, referring to what Boulder claims is a debt of 14,000 acre-feet of water.
But those on the side of the well pumpers don't think these objections tell the full story.

Says Central's Cech: ‘It's a sad state of affairs when Colorado water law is used to put good people out of business, in the guise of protecting senior water rights.’

Because the objectors would not accept the emergency terms, according to Cech, NCWCD's 10,000 acre feet of water was delivered into a water account, ‘but never to farmers.’

Ironically, several of the entities on the list of objectors are also NCWCD members, prominently, Boulder and Sterling. Other signators on the objection to the emergency plan included attorneys for Henrylyn Irrigation District, Harmony Ditch Company, Centennial Water and Sanitation, South Adams County, and Ducommum Business Trust. Even some architects of the emergency plan, including Aurora and Greeley, joined the initial objectors after it became apparent that the wells would remain shut down.

Boulder's official Web site states that the city considers itself harmed, and its water rights illegally infringed upon by the wells. Its Web site states that ‘Boulder has already had to release water to the South Platte on at least six days in April, resulting in a reduction to Boulder water supply.’

The requirement for junior well users to be able to meet a call on the river for 365 consecutive days, three years in a row, is not something new. The well owners agreed to the condition some three years ago, in response to demands from surface right holders.

Simpson says this agreement, the crux of objections, is a ‘pretty high standard,’ and having a three-year-long call is a scenario that has only occurred twice since 1950. The first in the early 1950s, before the Colorado-Big Thompson Project was fully online, and the second between 2002-04, during years of intense drought.

‘To acquire water for year-round use means farmers have to compete with cities,’ Simpson says, something that independent farmers are generally unable to do economically.
But that shouldn't change the playing field, say objectors.

‘The amount of water within their proposed plan wasn't enough,’ says Ellinghouse. The well users ‘need to have sufficient water to meet the call. They didn't have leases or water in storage. They just needed to show they could get it. The plans couldn't show how they could for more than one year.’

A Perfect Storm
This summer's conflict has been building for years, but it has hardly been unforeseen. In the early 1990s, a University of Arizona professor predicted the current situation.

The situation with well users on the South Platte this year actually began with the state 1969 Water Rights andAdministration Act, says Central's Cech. Its purpose was to integrate the management of surface and groundwater rights. Under the act, tributary wells—those hydrologically connected to surface streams—must be managed according to the prior appropriation system. If wells take water away from or injure another water user, they must be curtailed or shut down, which is what gives the objectors, whether they have senior or junior rights, the basis to file their claims.

The 1969 law gave the state engineer authority to allow wells to bypass the priority system as long as well users rented or leased surface water to offset pumping. The intent was to ensure surface rights holders with higher priorities weren't harmed. Substitute supply plans for renting, storing or buying replacement water could be approved by the state engineer for defined periods. In contrast, augmentation plans are long-term and must be approved by a water court.

If an extended drought had occurred sooner, the substitute supply plans' shortcomings might have been exposed earlier. Simpson warned well users in the 1990s that they needed long-term plans.

But the storm clouds had already begun to gather. ‘The mismatch between the water laws and regulations and the goal of incorporating groundwater into the prior appropriation system became relatively clear very early on,’ wrote Edella Schlager in an e-mail interview in May. She's an associate professor in the University of Arizona's School of Public Administration and Policy. ‘Strictly enforcing the prior appropriation doctrine against wells by requiring decreed plans of augmentation will not work.’

Although some groups of wells users, such as the now-defunct Groundwater Appropriators of the South Platte, tried to find stop-gap solutions, they failed according to Schlager's research, because the ‘well problem is beyond the authority and ability of well associations or the state engineer.’

The storm began in December 2001, when the Colorado Supreme Court ruled in Empire Lodge Homeowners Association vs. Moyer, limiting the ability of the state engineer to approve short-term substitute water supply plans involving augmentation or changes of water rights. This meant well users, if they had not done so already, would have to apply for full-fledged augmentation plans.

Then came the drought. By May 2002, it was beyond anyone's expectations. Water lease prices skyrocketed to $600 per acre foot from $30, says Cech. Meanwhile, the cities kept growing and searching for new water supplies at a rapacious pace.

In 2003, the Colorado Supreme Court decided the state engineer lacked legislative permission to authorize annual substitute supply plans allowing junior groundwater wells to pump out-of priority, if the well owners had not filed for court-decreed augmentation plans.

This decision applied specifically to tributary groundwater wells in the South Platte Basin, and not to groundwater depletions in the Arkansas Basin. This is because the General Assembly had already approved a set of rules governing groundwater depletions in that area.

In the same week as the Supreme Court's decision, Governor Bill Owens signed legislation authorizing the state engineer to approve temporary substitute supply plans for junior wells, if adequate replacement water could be found and supplied to the stream. This legislation gave South Platte well owners three years to file their augmentation plan applications in water court.

‘It was a perfect storm,’ says Cech. ‘Everything just lined up. If any one thing hadn't, we would have just gone on the way we had been.’

Some think it's been more of a slow downward spiral into water bankruptcy. The well users, Boulder's Ellinghouse says, ‘have taken water, knowing they were incurring an obligation, racking up the equivalent of credit card debt, knowingly’ accumulating a debt of water they owed the surface rights holders.

‘I've been working on this issue for more than a decade,’ she says. ‘It had been simmering for years. The 2003 (law) gave them amnesty. The well owners got three years to get their act together.’

Getting their act together for the majority of well users has been like ‘starting from scratch’ says Skyler Loeffler, a Central board member and Weld County property owner. Groundwater subdistrict members had to purchase more water at escalating prices to keep their wells active.

Cech concedes the turn of events wasn't unexpected. He says only some of the farmers will survive. ‘For a lot of (Central's) members it's like a death,’ he says. ‘There's shock, anger, frustration, grief. At some point, you have to move on and that's what's really hard. It is a death. It hurts.’

‘It took a drought to show us what was going on, how important augmentation plans are,’ says John Rusch, a former Central board member who now serves on NCWCD's board. A Morgan County farmer and resident, Rusch has wells and senior surface water rights, as well as friends on both sides of the issue. ‘We're building these plans now, during a drought.’

Schlager believes that diverting the current chain of events from its ongoing path would require revisions to the state constitution, and major legislation.

‘That means many people will have to be involved and a general consensus among citizens and public officials will have to develop,’ she writes. ‘That is not an easy effort to undertake and usually is not done unless a major crisis strikes.’

But Schlager is hopeful.

‘There are reasons to be optimistic 10 and 20 years out,’ she writes. ‘Colorado citizens, water users and elected officials have proven to be innovative problem solvers in the past and they will continue to be so. Colorado's constitution, water laws and water administration encourage and allow for considerable local governance and the development of local solutions to local problems.

‘Long term solutions to the well crisis will require crafting different arrangements for different local water settings.’

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