HB 1278 – Study of the South Platte River Alluvial Aquifer

Compiled by Roni Bell Sylvester (970) 284-6874 RoniBell@msn.com

See Letter to Governor Hickenlooper, click here.

Platte River Recovery Implementation Program (PRRIP) Agreement

---

Dear Representative Lori Saine and Representative Randy Fischer,

For your consideration: Those opposed to HB 1332 will deliberately use razzle dazzle confusion of hydrology, junior/senior/surface/ground, water court etc. - in order to stall; for as long as they can stall HB 1332, they will continue to make money off their illegal tactic of using their friend, The Water Court, to deny Seniors use of Water i.e. their Vested Property!

Following is a simple overview of Colorado's Prior Appropriation, and questions. I strongly urge you to ask these questions without prejudice.

I would be happy to come back to the capitol today, should you need me.

Thank you,
Roni

Background:

State of Colorado Constitution: Prior Appropriation – “First in time, first in right” – aka Colorado Doctrine. Interpretation: Whosoever places “Water” to beneficial use acquires a right (vested property), quantity and appropriation date.

Notations:

a) Colorado Constitution does not make a distinction between ground or surface water. It states “Water” – for ground and surface are “inseparable”- to be used in combo and in balance.
b) Dates of appropriation follow the Water. In other words, the first in time rights holders are closer to the source of the Water.
c) Senior water rights holder(s) have priority to the water that is available before the junior water rights holder(s) do.
d) In the event of a shortage, the junior rights holder(s) are never guaranteed that they will actually be entitled to the Water they have been allotted in their right.
e) If you do not use all of the Water you are allocated, you lose use of that Water to the next person in the chronological Water right date; you do not lose your Water as vested property.
f) * Keep at the fore the major distinction between Spanish (Colorado Prior Appropriation) Water right, and Riparian (English) Water law.

Questions to be asked without prejudice:

1) Provide your appropriation date of Water to beneficial use.
2) Provide your * Quantity Allotment.
3) Please tell us where your physical location lays in respect to Water Source.
4) Please explain in full: Where do you get your Water?
5) Provide the date and law which extinguished “prior appropriation of Water” by separating ground from surface (or surface from ground).
6) Provide the date and law which mandated the first in priority (Senior) be denied beneficial use of their water in order to deliver Water to later in priority (Junior).
7) Provide the date and law which extinguished – or denied Senior Water Rights beneficial use of Water.
8) If Water closest to its source was fully appropriated by approximately 1879, describe the rights to Water in years following 1879.

Recommendation:

*Under Colorado Statutes, Reaffirm Water as Vested Water Property.
Reaffirming Water as Vested Water Property, would honor Colorado’s Prior Appropriation and give Water opportunity to correct itself hydrologically.

Footnotes:

*Colorado State Constitution states: The appropriation doctrine originated in Colorado in 1872 when the territorial court ruled in Yunker v. Nichols, 1 Colo. 552 (1872), that a non-riparian user who had previously applied part of the water from a stream to beneficial use had superior rights to the water with respect to a riparian owner who claimed a right to use of all the water at a later time. The question was not squarely presented again to the Colorado Court until 1882 when in the landmark case, Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882), the court explicitly adopted the appropriation doctrine and rejected the riparian doctrine, citing Colorado irrigation and mining practices and the nature of the climate. The decision in Coffin ruled that prior to adoption of the appropriation doctrine in the Colorado Constitution of 1876 that the riparian doctrine had never been the law in Colorado.[1][2]Within 20 years the appropriation doctrine, the so-called Colorado Doctrine, had been adopted, in whole or part, by most of the states in the Western United States that had an arid climate.[3]

*Allotment Quantity: When Water was first put to beneficial use, users received an Allotment Quantity. This differs from “consumptive use” in that first users used Water as they determined their crop/acreage etc.


* 1. 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

2. 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…”
There shall be no agreement, decree, diversion or court decision made, that violates the Constitution of the State of Colorado or established Colorado statutes as pertaining to Platte River Vested Water Property.
*** 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) ***

Hydrology v. Property
By Ric Frost

Hydrology has nothing to do with property rights of the water owner. Property rights have never been extinguished in favor of hydrology! Senior Water users should not be prevented from exercising their use of their private property. If they are, please know that is a 5th and 14th Amendment takings depending on if it is Federal or State agencies committing the actual theft. Property theft will be addressed in the criminal court of law...not an administrative water court that ignores property rights of private citizens.
Whenever any agency/individual/group/district brings up hydrology, immediately hit them with, "So you claim to own our water property - and you are stealing our property by attempting to hide behind your hydrology assertions?" Ric Frost - Senior Policy Research Analyst www.LandAndWaterUSA.com