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South Platte River water conflict

Monday, March 26 at 12:01 AM

This Speakout has not been edited

By Arnold Good, Fort Morgan

To all who honorably serve in the executive and legislative branches of Colorado government:

I have farmed in Morgan County for thirty years with a variety of land/water assets. I am a stockholder in a senior direct flow ditch and reservoir system under which the wells are subject to a decreed augmentation plan. I have junior wells that are not associated with direct flow rights and are presently seeking court approval of a proposed augmentation plan. Non-irrigated farmland is also a significant part of my operation. I have served on subsidiary Boards of Directors within the senior system and can speak from both sides of the South Platte River conflict.

I respectfully submit to you as our elected leaders, there cannot and will not be peace and recovery on the South Platte system in NE Colorado under the current standards of river administration. In 2001 when the Colorado Supreme Court stripped away most of the State Engineer's discretionary powers, the influence passed from the engineering to the legal community. Water Court proceedings have become driven by objection and the subsequent rulings by stipulation, and all with very little statutory precedent.

Important questions that Colorado officials who make and interpret our laws must address are as follows:

1.Is 'presumed injury' a sufficient standard by which to require/demand a remedy? The burden is presently on well owners to provide a remedy for 'presumed injury'. Should it not be the burden of the 'presumed injured' party to first quantifiably prove the injury both in place and time? Under the current system, 'presumed injury' is a spreadsheet calculation almost void of any real, actual, and measured historic river behavior.

2.Is the Water Court presently interpreting and applying 'injury' and 'remedy' in full compliance with the 1969 water statute? Was the augmentation legislation that was passed in 1969 intended to have 'retrospective application' in regard to injury, or was the intent 'prospective' in nature; and to what extent has that intent been applied correctly and consistent with river behavior? I have a senior augmentation decree that makes 'prospective application' of injury, and I also have a proposed augmentation decree that makes 'retrospective application' of injury. The statute has not changed, but it is continually being conformed to the needs of those who are 'presumed' to be injured.

3.Does the Water Court, at the insistence of the objectors, have the jurisdiction to require that applicant well owners must prove to have water resources in place now to remedy projected future 'unproven' injury? This system is neither equitable, consistent, nor workable. There is a growing and metamorphosing monster designed and fed by objection that is based on a gross misapplication of science which is destined to crush the South Platte River economy.

On February 28th several applicant well owners filed a 'Writ of Prohibition' with the Colorado Supreme Court questioning the interpretation and application of the Water Court on some of these critical issues. We were summarily rejected within twenty four hours without reason. Upon announcement to the Water Court of our petition, an objecting attorney smugly commented to his colleagues in the room: "This is just a handful of desperate farmers who have thrown enough money at some disinterested appeals lawyer to stop their inevitable execution!"

I have hired an attorney to monitor the court proceedings and to intervene if necessary to defend my vested property rights. As a Colorado taxpayer I contribute to the salaries of the Attorney General's staff to insure that the State Engineer's office is properly represented. I have hired a law firm to litigate my augmentation plan before the Water Court. Lastly, I have indirectly retained an attorney to defend my senior direct flow/reservoir rights and to convict my applicant wells of attempted murder (inflicting permanent debilitating injury) and to demand the death penalty (permanent curtailment). The system has set me up to take myself down!

Mr. Governor, I appeal to you as our state's chief executive, to use all the power at your disposal to lead and influence the legislative and judicial branches of our government to reform this broken system. Respectfully sir, will you please ask the questions posed above? The Supreme Court has rejected our questions and denied us a reason for their rejection, only you sir and your influence with the legislature can stop the bleeding and institute change. There can be peace and their can be health and vitality in the South Platte River basin, but first there must be change that is consistent, equitable, and workable for all water users.

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