Whose Water Is It? Liberal Attorney Claims
‘The State’ Owns All South Platte River Water.
Colorado Governor's Office Points Out That’s Not The Law.

By Gene Koprowski

A leading liberal Colorado water rights attorney is claiming that “the state” government owns all of the South Platte River’s water. But the water czar for the state’s Democratic Gov. John Hickenlooper is pointing out that that opinion is not the law, and is citing references to statutes, and case law, that inform his stance in correspondence with Land And Water USA.

During a meeting of the South Platte Basin Round Table meeting last week, noted left-leaning attorney, Michael D. Shimmin, a partner in the Boulder-based firm Vranesh and Raisch, LLP, was responding to a question by rancher Chuck Sylvester. Sylvester asked the open forum exactly who was the beneficial owner of the water, when the river level was high, or when it was low. In response, Shimmin excitedly exclaimed, “the state.”

The counselor did not elaborate, but observers said there was a stunned silence in the room after the on-the-record comment, made during the public forum. Shimmin lists the South Platte Basin Round Table and the Colorado Interbasin Compact Committee among his “professional affiliations” on his official biography. The South Platte Basin Roundtable lists Shimmin as an “at large” member.

Shimmin did not respond to an e-mail asking him to elaborate on the opinion by a Land and Water USA reporter.

Last September, flooding ravaged ranch and farm property along the South Platte River Basin, causing much misery for local property owners. So the question of who owns the water there is not merely an academic one, for if the state government “owns” the water, as Shimmin claims, it raises the question of whether the state should pay for private property damage when the river overflows. Observers note the water level in the river has changed dramatically during the last 60 years.

The South Platte River is one of the two principal arteries of the Platte River and is itself a major river of the Midwest and the Southwest/Mountain West, located in the state of Colorado The river stretches through Denver north through Greeley then veers east where it historically dried up around Kersey, CO.

Water expert and attorney Shimmin has been with the firm Vranesh and Raisch since 1978, when he started as an associate. He is a partner in the firm today, and his web bio states that his practice focuses “almost exclusively” on water law and related issues. “In particular, his experience includes direct and primary responsibility for:

• Adjudication of conditional and absolute water rights, both surface and underground.
• Development, adjudication, and administration of plans for augmentation, changes of water rights and exchange cases.
• Resolving well permit problems.
• Evaluation, including title examination, of water right purchase and sale transactions.
• Evaluating and drafting proposed legislation before the Colorado Legislature.
• Resolving drainage, seepage, and flooding issues.
• Representing applicants for water project funding.
• Special counsel to municipalities, special districts, ditch companies, and water users associations,” according to the law firm’s web site.

Public Resource, Prior Appropriation Doctrine

Shimmin earned his law degree at University of Colorado at Boulder in 1978, and was a magna cum laude graduate in political science of Colorado State University in 1975. “In the course of his client representation, Mr. Shimmin has directly handled significant litigation involving both trial and appellate matters before the State Engineer, Ground Water Commission, District Courts, Water Courts, Court of Appeals, and the Supreme Court in Colorado. His clients include both applicants and objectors in water matters,” says his law firm bio.

In response to inquiries from Land and Water USA, John Stulp, water advisor to the governor and the state government, pointed out that “water is a public resource subject to being appropriated for a beneficial use in our system of water administration.” Stulp also pointed out that the “doctrine of prior appropriation also referred to as the Colorado doctrine” applies here; thus if a landowner has used, or appropriated water, in the past, he has rights to that water.

Stulp did not, like Shimmin, say that the “state” owns the water in his remarks. Furthermore, he referred Land and Water USA to the Citizen’s Guide to Colorado Water Law (Revised 2004 Edition, produced by the Colorado Foundation for Water Education), which supports his on-the-record comments.

Broadest Approach Sought

The guide provides historical perspective on the policy on water use in Colorado. “In 1861, when Congress created the Colorado Territory, Colorado’s settlement and growth depended upon the ability of its citizens to obtain property rights to federal, territory land,” the guide states. “Accordingly, the first territorial legislature enacted land and water laws taking the broadest possible approach to settlers rights.”

The Colorado Territorial Supreme Court’s landmark case of Yunker v. Nichols put this policy into practical terms. “The court held that water could be diverted from the stream, and ditches, built across public and private land to convey water to its place of beneficial use.”

Furthermore, Chief Justice Moses Hallett opined, “In a dry and thirsty land it is necessary to divert waters of the streams from their natural channels.”
A colleague on the bench, Justice Wells added that Colorado “water law is based on the force of necessity arising from local peculiarities of climate.”

Over time, and through legislative action by the General Assembly, the Colorado Doctrine of Prior Appropriation on water emerged, which differs considerably from riparian water rights in states east of the hundredth meridian.

There are four points to this doctrine of law:

• All surface and groundwater is a resource for the beneficial use of private persons and public agencies.
• A water right is a right to use a portion of the water resources.
• Water rights owners may build facilities to divert the use of their water.
• Water rights owners may uses streams, and aquifers, for the transportation and storage of water.
  
  

What is more, the guide states, the federal government made public land, and water, available for use by private citizens, back in the 19th century. Settlers were allowed to build ditches and divert water based on the passage of the Homestead Act (1862) and the Mining Act (1866).

First in Time, First in Water

The legal framework, as viewed conventionally by legal experts today, is that water users with earlier claims, or senior rights, have stronger claims in times of short supply and can utilize their rights before those who hold junior rights to water. The shorthand phrase, “first in time, first in water” is a simple way of remembering the law.

Water pioneers say, “It’s easy to remember, for the rights go with the flow. Senior are from the water’s beginning – because there’s water to put to beneficial use, and as the flow dwindles the rights become more and more junior – because there isn’t any water to put to beneficial use.”

Appropriation of water occurs when a private person, or public agency, or business, puts the water to use. Conflicts over water rights are settled through a series of water courts in the state. However, the Constitution of the State of Colorado indicates that in times of shortage, domestic water use has preference over other use, and agricultural users have preference over all users. So the courts’ powers to determine water rights are limited by that constitutional provision.

According to the Office of the Engineer of the State of Colorado, as of 2002, the year for which the most recent data is available, agricultural users in the state consumer 86.5 % of the state’s water. Municipal government used just about 7% of the state’s water.

Well-informed observers, putting the remarks of Shimmin in context, note that there have been many controversies in recent years locally over water rights, and that Shimmin has worked with other activists on these issues. Among his cohort of associates is an individual at a state university who teaches a course whose ideology advocates “one world, one water.” Viewing the world through this “one world, one water” prism, one would have a statist perspective, indicating that the “state” owns the water and doles it usage by its own rules. Much of the controversy has intensified of late, with allegations of water court judges being pressured by interest groups and of interest groups trying to get water without having actual rights to the water.

The projected population in 2050 is estimated to almost double in size to between 1.9 and 2.6 million people in the South Platte Area from Boulder to Longmont and Greeley.

Growing Municipal Demand

This is putting an increasing strain on water resources traditionally used by agriculture. Nearly two-thirds of the increase in the state gross municipal and industrial (M&I) demand by 2030 – or approximately 324,000 acre feet (AF) to 467,000 AF with passive conservation included – will be in the overall South Platte Basin, according to the South Platte Basin Roundtable.

Discussion over using the waters from the aquifer under this area – rather than simply the river water – for these new users has been heated and it is noted that the underground aquifer is seven times the size in water volume as the largest lake nearby in Nebraska.

Minutes from the latest South Platte Basin Roundtable were not made available to Land And Water USA, despite repeated requests. The latest minutes from the roundtable online are from April 2014, see, http://cwcbweblink.state.co.us/weblink/0/doc/189888/Electronic.aspx?searchid=0bf3114d-372c-485c-8c49-b2a5b922a66b

The next roundtable meeting is scheduled for September 9, 2014, at the Southwest Weld County Building at 4 p.m. in Longmont.

In 2006, Governor Owens signed a three state agreement with Wyoming Governor Freudenthal and Nebraska governor Heineman, called the Platte River Recovery Implementation Program (PRRIP). Many have advocated that Gov. Hickenlooper terminate the state’s participation in the water agreement, observers tell Land And Water USA.

Gene Koprowski

Legal Definitions

The State: Noun. 1) the federal or state government and any of its departments, according to the Legal Dictionary/Law.com.

Statist: Noun. 1) An advocate of statism.


Important Links for LandAndWater.com Readers:

http://www.vrlaw.com/mds.htm

http://www.crh.noaa.gov/bou/?n=flood_wildfire_awareness_2014

http://www.yourwatercolorado.org/flip/catalog.php?catalog=waterlaw

Colorado Foundation for Water Education

http://ssl.csg.org/compactlaws/southplatteriver.html

http://cwcb.state.co.us/water-management/basin-roundtables/pages/southplattebasinroundtable.aspx

http://cwcbweblink.state.co.us/weblink/0/doc/174221/Electronic.aspx?searchid=3dd38c52-6d3d-4018-a76f-c8471891c930