Colorado's anti-speculative water laws are considered the toughest in the west. Still, state lawmakers fear that these laws may not go far enough to prevent people from benefiting from water.
Now an 18-person working group tasked with researching ways to strengthen the rules is getting down to business.
The working group stems from the passage of Senate Law 20-048, a bipartisan effort signed by Governor Jared Polis in March, which directed the Colorado Department of Natural Resources to convene the group to study anti-speculative law. The Group's recommendations for proposed changes are due in August.
"I think there is speculation," said Colorado Senator Don Coram, a Republican who represents several counties in western Colorado and who helped promote legislation to form the task force. “There are situations in which the odor test just doesn't pass for me. We have to look under the tent and see what's going on. "
The group is led by Kevin Rein, a civil engineer, and Scott Steinbrecher, an assistant deputy attorney general in Colorado. Other members include water engineers, members of the Colorado Water Conservation Board, a retired Colorado Supreme Court Justice, farmers and ranchers, local and regional water managers, and several attorneys.
Water law has a long history here. The roots go back to the 1860s when Colorado was still a territory. Today, the Colorado Water Act prohibits speculation and requires all water to be used beneficially, a roof that includes applications such as irrigation, commercial, domestic, industrial, municipal, environmental, recreation, fire protection, snowmaking, and power generation, among others.
The water laws are built on a legal framework known as prior appropriation. This means those with the earliest judicial water rights – known as senior rights – receive first dibs on Colorado water, a concept often referred to as "first in time," right first. "
Water rights can be leased, sold, transferred and changed; New water rights can even be issued as long as water is available. All water law cases must go through a complex water judicial process that includes demonstrating how the water is being used to advantage.
These requirements are intended to protect against speculation. However, with soaring water demand and prices, lawmakers worry about loopholes in this process, citing recent purchases of farmland by investment groups and their priority water rights on the west coast and the San Luis Valley. So far, investors have continued to use the water for irrigation, a beneficial use, but legislators fear that they will turn around and sell the rights for a profit in the future. Irrigation can only be a temporary placeholder that is part of a broader investment strategy.
How will the members of the working group unravel 160 years of complex water rules and make recommendations on how to improve them? You'll likely begin with a thorough history lesson and an in-depth look at the existing anti-speculation law, said Rein, the group's co-chair, adding that he believes the group is well placed to help to tackle the upcoming challenge.
"You see a very different group of knowledge – lawyers, municipal water providers, agricultural users," said Rein.
Joe Bernal, a fourth generation farmer in the Grand Valley and a member of the new work group, said he was glad to be part of a conversation that affects his family's livelihood.
"I sort of run my own business so that things aren't decided for us by outside groups that have no legitimate interest in what we do," he said. "You have to have skin in the game and have a good understanding of problems if you want to try to influence decision-making."
Another member of the group is Joe Frank, general manager of the Lower South Platte Water Conservancy District in northeast Colorado. He plans to participate openly, but is already thinking about how proposed changes to Colorado's Water Act could harm landowners: How will the changes affect an irrigator's ability to sell their water and land? Will the value of your land or water suffer as a result of these changes?
"There is this tension here, especially in our basin, but also across the country, a high demand for water, which increases the value of the water. It is difficult to blame farmers for the fact that they want to sell their water because of the various circumstances "said he said. “We'd prefer they keep their water and keep farming because that's the economic base for our region. But you can't just say,“ We're going to put an end to this. ”Now you are compromising someone's property rights . "
Frank said he also had some questions about the constitutionality of any changes the group might propose.
"I have some concerns as to whether this will actually solve one problem without causing another," he said. "You don't want any unintended consequences here."
Sarah Kuta can be reached at email@example.com.
Fresh Water News is an independent, impartial news initiative run by Water Education Colorado. WEco is financed by several donors. Our editorial guidelines and donor lists can be viewed at wateredco.org