September 8, 2014

Update on vested water

by Roni Bell Sylveste
P.O. Box 155 LaSalle, CO 80645 (970) 284-6874

Since I wrote “Solutions” (following) in July of 2012, Dr. Reagan Waskom completed the HB 1278 Study, we offered a draft to Reaffirm South Platte River Vested Water Property (following) and our farm and home were flooded out.

In April, Governor Hickenlooper was informed about the Hwy 85 bridge’s operating at only 30% capacity. To date, it hasn’t been dredged. Property owners would be happy to maintain their property along the Platte, but hesitate due to EPA’s history of unchecked overreach burying property owners with unconstitutional penalties, fines etc. Governor should at least intervene.

Had the Governor and any member of the South Platte Basin Roundtable and General Assembly heeded Dr. Reagan Waskom’s recommendations and our solutions, it’s likely the Platte would not have reached the first floor of our home and devastated our farm.

Yes, of course we’re thankful we did not incur loss of animal or human life. But – when decision makers have doable solutions available they choose not to implement, it does give pause.

Warning: Should we get another dose of non-historic precipitation, we can state with certainty: a) Unless the South Platte is dredged under the Hwy 85 bridge, it will back up and flood out Fred Stencil (again) and everyone else up to ¾ of a mile West. Please know that such flooding is preventable! b) If Senior Water Owners are continued denied use of their property (denied pumping) non-historic precipitation will not have anywhere to spread out and soak in, and we could unnecessarily be subjected to another catastrophic flood. c) If Chatfield Dam continues to be high jacked by recreationists instead of used for the purpose it was built (flood control), we can expect to be flooded out…again.

In review of the past many years of meetings, we’ve found a question in want of an answer; and that is the identification of “Whose property is being discussed?” We believe it should be a requirement to have a map with an overlay that shows those chronological dates of Prior Appropriations. Surely each of you will agree how vital it is to know whose Vested Senior to Junior Water Properties is being discussed.

Thank you,

Roni Bell Sylvester
Volunteer Editor Publisher

By Roni Bell Sylvester Monday, July 2, 2012

Solutions to Non-Historic Flooding and Drying... Along Colorado’s South Platte River Basin
Provided by Land and Water USA (LAW USA) July 2, 2012

We propose two solutions to the non-historic flooding and drying along Colorado’s South Platte River Basin. First, our solution to non-historic drying acreage is to re-capture and apply approximate 40,000 acre feet water. Secondly, our solution to non-historic floods is to pump senior wells. To provide a perspective to these solutions, we offer a brief on Colorado water. Use of water in Colorado (The Colorado Doctrine) is governed by the “Prior Appropriation System”, i.e. first in time, first in right. “Prior Appropriation” is established when a person is the first to physically divert (also known as take) water from a stream (Surface Water) or underground aquifer (Ground Water), puts that water to beneficial use, then receives a court decree which verifies them as having priority (prior) status. As Decree Owner, they become the senior water right property holder with the right to use water within a defined "watershed". That water right, which consists of Surface and Ground, must be satisfied before any other water right established after that date in time - known as the "adjudication date". Surface and Ground Waters are decreed inseparable. Decree owners may (must) use both Surface and Ground water in combo, in balance, and for beneficial purpose. Decree owners may be a company (such as a Ditch Company) or an individual. An individual may be a stock holder to a company through ownership of Shares. The South Platte River is a “gaining stream” because of developed irrigation upstream. The first developments of South Platte Valley irrigation began south and west of Greeley, through the Larimer & Weld, Greeley # 2, Greeley # 3, Platte Valley, Farmers High Line, O’Brian, and High Line canals. Around 1879, this area became fully appropriated and “Senior.” Senior development of irrigation, through the inseparable Surface/Ground water combo, developed the river’s flow making it a “gaining” river. Without irrigation, the river’s seasonal snow melt would naturally runoff or flow intermittently, not unnaturally continuous. It would dry up past Greeley.

Having the river go dry past Greeley is, however, normal. This is why Canals east of Greeley, beginning with the Bijou and Riverside, are “Junior” appropriations.

Solution to alleviate non-historic drying:

Colorado committed approximately 40,000 acre feet water to the South Platte River Implementation Recovery Program. Colorado’s withdrawal from this Nebraska, Colorado, and Wyoming agreement would return, again, approximately 40,000 acre feet to Colorado. We recommend that Colorado withdraw from this agreement, since it violates our Colorado Constitution. Initiated by Governor Romer and signed by Governor Owens in June 2006, both governors committed state assets (water) and indebted (financial commitment) Colorado without a vote of its citizenry. Federal government does not own water. States own water. The only way our federal government can obtain water is by purchase from Decree Owners. Thus, we must ask the questions. Whose water, also considered owner property, did the State appropriate to sell to the federal government? What water rights do “Junior” appropriations have when there’s no water in the river? Is our state denying “Senior” access to property to fulfill agreement commitments? If yes, does the state of Colorado intend to compensate “Senior’s” losses in investment, property, business, taxes and income accrued from 2006 forward? Without “Senior” irrigation development, the river would not cross Colorado’s border. The transporting of water takes river from historic intrastate into non-historic interstate status. This puts the agreement into a peculiar interpretation of the commerce clause. Where are the diversion points and transfers from one basin to another? Where is the volume of water measured? Is it measured as it crosses the state line? Is it measured from a point of diversion? And, finally, are catch drain return volumes included in the acre feet measurement? What does the “Memorandum of Understanding” say about Colorado giving water for allegedly Endangered Species?

Solution to alleviate non-historic drying of acreage:

The Sylvester farm, for example, has a seep ditch that has not quit flowing in over 140 years. The seep ditch was dug by a team of oxen to drain and to make swamp land productive before irrigation wells. This ever flowing seep ditch demonstrates, therefore, that the underground aquifer is as full as it was in the early 1800's. We recommend the pumping of all wells in the described “fully appropriated” part of the South Platte Valley. The water level in a well can be lowered when nearby wells withdraw too much water. The opposite occurs, i.e. water level rises when wells are shut off. In 2006, well pumping was curtailed, some wells were shut off and augmentation was set at 100%. This combination caused an over-saturation of the soil to the extent the aquifer water table raised to non-historic levels.

Ground and Surface Water rights are inseparable and must be managed in balance. By ordering wells to stop pumping, judgment was made to separate Ground Water from Surface Water, and threw the South Platte Valley into the present non-historic imbalance.

There’s a significant delayed response between pumping and stream flow down river. Therefore, pumping wells will not cause harm to lower end users during this or the following growing season. After implementing the withdrawal from the South Platte River Implementation Recovery and the pumping of the wells, we recommend Colorado revisit the South Platte River Compact Statute. Mutual consent of the signatory states of Colorado and Nebraska requires Colorado to “meet deliveries that would have been available at the time of Nebraska’s claim, June 14, 1897.” The compact recognizes that “variable climatic conditions, the regulation and administration of the stream in Colorado, and other causes, will produce diurnal and other unavoidable variations and fluctuations in the flow of the river at the Interstate Station, and it is agreed that, in the performance of the provisions of said paragraph two (2), minor or compensating irregularities and fluctuations in the flow at the Interstate Station shall be permitted.”

Nowhere does the compact demand an exact predetermined acre feet delivery of Colorado’s water that could be construed as basis for a lawsuit by Nebraska. Finally, we feel confident that when activated, these solutions can resolve the non-historic flooding and drying along Colorado’s South Platte River Basin.

Reaffirm South Platte River Vested Water Property

HB 1278 study of the South Platte Alluvial Aquifer.

Dr. Reagan Waskom recommendations:
Mitigate Localized High Water Table Conditions; Increase augmentation plan efficiency; Implement basin-wide management;

HB ________Reaffirms 1278 and applies its recommendations as follows:
1. Reaffirm Colorado Statutes as pertaining to South Platte River Vested Water Property.
2. There shall be no agreement, decree, diversion or court decision made, that violates the Constitution of the 
3. State of Colorado or established Colorado statutes as pertaining to South Platte River Vested Water Property.
4. Reaffirmation of Colorado Statutes will "Mitigate localized high water table conditions."
Reference: This document reflects changes current through all laws passed at the First Regular Session of the Sixty-Ninth General Assembly of the State of Colorado (2013) *** 

Vested Water Property
C.R.S. 37-82-104 (2013)
37-82-104. Not to impair vested rights
Nothing in sections 37-82-103 to 37-82-105 shall be construed to amend or repeal section 37-82-102; or impair, diminish, or destroy any valid appropriation of water for any beneficial use which has been made or decreed in accordance with law; or modify, amend, or affect any decree of court or the statutes limiting the time wherein appropriators must appear for determination of priorities of right for diversions from natural streams or the decisions of the courts construing the statutes.
C.R.S. 38-30-102 (2013)

38-30-102. Water rights conveyed as real estate - well permit transfers - legislative declaration - definitions
5. Colorado Statutes affirms the conditions under which diversions are allowed or disallowed. Adherence to these conditions will
6. "Increase augmentation plan efficiency."
No diversions allowed
C.R.S. 37-81-101 (2013)
37-81-101. Diversion of water outside state - application required - special conditions – penalty
 “…it is unlawful for any person, including a corporation, association, or other entity, to divert, carry, or transport by ditches, canals, pipes, conduits, natural streams, watercourses, or any other means any of the water resources found in this state into any other state for use therein…”
7.  by its course of reaffirmation of Vested Water Property, date of

8. Adjudication and yearly quantity will prevail, and the South Platte River 9. will correct itself, and, Implementation of basin-wide management will 10. be achieved.

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