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The Farmer and Colorados Water Cops: Violating Senior Water Rights is Theft of Property


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December 23, 2009

Opinion Editorial

By J. Craig Green

Recently, Denver's Channel 9 aired a story about a farmer near Fort Morgan being sent to jail for not paying fines for his unauthorized water use. According to the Associated Press, the farmer pumped his wells for 100 days after "cease and desist" orders were issued.

On the media websites, many comments were made about the tragedy of the farmer's situation, but only a few recognized the case for what it is: the theft of property belonging to others. The fact that the property involves a moving resource (water) complicates an otherwise simple case.

The Colorado Constitution says the waters of the state belong to the people, subject to appropriation (claim) for water unused at the time. For two decades before Colorado became a state in 1876, farmers and miners made and defended such claims, creating property rights still recognized by courts today. Such water rights were created by recognizing the prior right of those who came before. This legal system was essential for the allocation of a scarce resource.

Colorado's water law system is mostly based on the principle of "first in time, first in right." The rule was necessary for early farmers and miners, because Colorado's dry climate causes streams to dry up at times. The system works because it harnesses the incentives and production of private property. When water is scarce, the older, "senior" rights have priority over the newer, "junior" rights. Colorado's water law does a good job of allocating scarce resources among competing users.

Although the Fort Morgan farmer blamed 2003 changes in the law enacted by the state legislature, those changes simply clarified a more important change from forty years ago. In 1969, the law finally recognized what many farmers, well owners and engineers had known for decades: that pumping shallow wells near rivers takes water from those rivers. Before then, well permits were issued by the State without regard to their impact on senior river rights with superior legal claims. The problems with the Fort Morgan farmer did not begin in 2003, though that may have been when he became aware of them.

Many of the senior rights on the South Platte River near Fort Morgan have priority dates from the 1870's through the early 1900's. River-connected wells in the area are usually junior rights, dating from 50 to 130 years later than the seniors. So if a junior well is affecting the South Platte's flow when senior rights are short of water, the well has to stop operating.

After 1969, many farmers with junior wells joined to develop water plans required by the new law: the farmers bought senior water rights and transferred them to the wells. Some farmers, however, either had no plans or joined groups without adequate resources to compensate the river water rights-holders for their injury to senior rights. During litigation involving one of the largest water plans developed in recent years, it was discovered that about 60,000 acre feet per year were being taken by junior wells from the South Platte while senior rights were short of water. An acre-foot is about 326,000 gallons, or a football field one foot deep.

While I can sympathize with the farmer who may have been misinformed by neighbors, advisors or officials, his theft of other people's property cannot be ignored, especially since the legal mechanism has been in place for forty years to recognize and resolve the problem.


Craig Green is an engineer and a Senior Fellow at the Independence Institute. His paper explaining water law, "Use it or Lose it: Colorado's Oldest and Best Recycling Program," is available at www.i2i.org.
 
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