Yesterday in Part Thirteen, I expounded briefly on a frightfully idealistic view of Colorado’s water, based on the fact that the state constitution seems to define water resources as belonging to the people — the public — and not as something that can be converted into private property and sold for personal profit.
More about that, in a bit.
Also yesterday, 17 members of Colorado’s newly formed Anti-Speculation Law Work Group met via ZOOM — the group’s initial meeting — to share perspectives on the question of water “speculation” in the state, and to settle on the design of a future report on a central question:
Does Colorado need to change or clarify its water laws, in the face of investment groups buying up senior water rights with the apparent intent of making a profit at some point in the future, selling those rights or selling the water protected by whose rights?
The Work Group arose out of passage of Senate Bill 20-048 sponsored by Colorado Senators Kerry Donovan (D-Vail) and Don Coram (R-Montrose) and Colorado Representatives Marc Catlin (R-Montrose) and Dylan Roberts (D-Avon) and signed by Governor Polis on March 11, 2020.
From a recent press release from the Colorado Department of Natural Resources:
Senate Bill 20-048 requires the Executive Director of the Colorado Department of Natural Resources to convene a work group to explore ways to strengthen current anti-speculation law and to report to the water resources review committee by August 15, 2021, regarding any recommended changes. Colorado water law prohibits speculation by requiring water to be used for a beneficial purpose.
The Work Group will be co-chaired by Kevin Rein, State Engineer, and Scott Steinbrecher, Assistant Deputy Attorney General. Meetings will be noticed to the public via the Colorado Water Conservation Board website and will be open to the public. Meeting summaries will be posted publicly, and opportunities will be available for the public to review and comment on the recommendations of the Work Group before the written report is finalized.
Yes, you and I will have a chance to review and comment on the Work Group recommendations before the written report is finalized.
We also raised questions, thus far in this editorial series, about the DNR press release claim that “Colorado water law prohibits speculation”. The fact that Colorado water might be ineffective, here in 2020, in preventing investors from speculating in Colorado’s publicly-owned resource, is the very reason that Senate Bill 20-048 was passed and signed into law, and the very reason that 18 key individuals have been assembled into a work group.
Looking at the list of participants, it appears that various types of experts are represented, in a curious mix.
Seven (7) are State of Colorado appointed officials.
Two (2) are agricultural water rights holders.
Six (6) are members of the legal profession.
Two (2) represent water conservancy districts.
One (1) represents a municipal water district.
Which is to say, the work group includes ten (10) government officials, and two (2) traditional water users. Whether that’s the type of mix envisioned when SB 20-048 was passed, I cannot say.
The only member of the 18-member Work Group who failed to attend yesterday’s initial meeting was Gregory Hobbs, former Chief Justice for the Colorado Supreme Court and the lead author of some of the most important recent Supreme Court opinions concerning alleged water speculation. Justice Hobbs also wrote a two-page summary of relevant Colorado law and recent anti-speculation decisions back in 2014, which was mentioned during yesterday’s discussion. You can download that 900-word summary here.
The 2007 lawsuit involving Pagosa Area Water and Sanitation District (PAWSD), and its plan to build a rather large reservoir in the Dry Gulch valley northeast of downtown Pagosa Springs, was one of the seven key cases cited by Justice Hobbs.
The ultimate factual and legal issue in a governmental agency conditional appropriation case involves how much water should be conditionally decreed to the applicant. The experts who testified at the water court trial in this case were called upon to address such pertinent factors as: (1) implementation of reasonable water conservation measures for the planning period; (2) reasonably expected land use mixes during that period; (3) reasonably attainable per capita usage projections for indoor and outdoor use based on the land use mixes for that period; and (4) the amount of consumptive use reasonably necessary for use through the conditional appropriation to serve the increased population.” Pagosa Area Water and Sanitation District v. Trout Unlimited, 170 P.2d 307, 317-18 (Colo. 2007).
I suppose it’s a something of an honor to have our local water district mentioned in a two-page summary of key anti-speculation cases.
Disclosure: I currently serve on the San Juan Water Conservancy District board, but this essay does not necessarily reflect the opinions of the SJWCD board as a whole or of any other SJWCD board members.
When I read the section of the 1876 Colorado Constitution cited by Justice Hobbs in his summary…
“The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”
…it sounds like the water of every natural stream is being declared to be the property of the public.
But by 1891, the Colorado courts had already declared a water right to be “private property” — something that could be sold at a profit, and relocated to a totally new location and applied to a totally new use, while retaining its original adjudication date. (See the case of Strickler v. Colorado Springs, 1891.)
For more than 125 years, our Colorado courts have been granting water rights holders the privilege of making a profit selling the “right to use” publicly-owned water. How, exactly, that is different from “selling the water itself”, I cannot fathom.
But apparently, the problem is now getting really serious.