by: Jack Minor
GREELEY, Colo. – Colorado Gov. John Hickenlooper is telling farmers
in the state’s drought-stricken Weld County, where farmers face the
potential of losing millions of dollars in crops, they essentially are
on their own.
During a recent meeting with Weld County commissioners, the governor
said he would not issue an executive order overturning a 2006 decision
by the Colorado Supreme Court prohibiting farmers from pumping water
from area wells, despite the record drought conditions. Instead, he said
the farmers should work with municipalities and senior water rights
owners to figure out a solution.
“He is pulling a Pontius Pilate, by refusing to take a stand on this
issue,” said Dennis Hoshiko, who holds water rights dating back to 1861
but is unable to use them this year.
The problem is while the governor told locals to resolve the issue,
there is no water available from other sources such as municipalities
and he will not allow them to implement the one solution that would
solve the problem.
In years past, residents drilled a series of wells to help supplement
water shortages in times of drought. However, tapping the wells was
curtailed in 2006 after courts ruled that using them caused surface
flows on the South Platte River to be depleted, thus depriving senior
water users of their allotment of water.
However, while the wells have been shut down or curtailed for several
years, this year’s surface flow is at an all-time low, which would not
happen if the wells were the cause of the problem.
Under Colorado law, the governor has the ability to suspend the
provisions of any regulatory statute if compliance would in any way
“prevent, hinder, or delay necessary action in coping with the
emergency.”
While it would appear that the language would permit the governor to
allow the wells to be turned on, the state attorney general says
“regulatory statute” does not apply to judicial decisions and doing so
would run afoul of separation of powers concerns.
Under long-standing Colorado law, water rights are assigned based on a
system that grants rights to available water based on seniority. The
senior rights are similar to any other piece of property, meaning right
can be bought, sold, rented or leased.
Despite this, the decision to permit use of the wells rests solely on one man, state Attorney General John Suthers.
So far, his office has claimed the wording “regulatory statute” does not apply to judicial decisions.
Hickenlooper has said that until the AG issues a determination that
he has the legal authority to do otherwise, the wells will remain turned
off.
Colorado Secretary of Agriculture John Salazar, brother of Secretary
of the Interior Ken Salazar, said the same. His office told WND that if
the attorney general’s office could find a way to turn the wells on
legally, he would support it.
But the county commissioners said the governor already has the legal authority to turn the wells on.
Sean Conway, chairman of the commissioners, said, “We are not asking
to governor to overturn a court decision. We are simply asking him to
use his executive powers to commandeer the rights of senior rights
holder to deal with this emergency.”
He noted that the governor has already demonstrated he has no problem doing so to fight the wildfires raging in the state.
“We don’t have a problem with using the water to fight the fires,”
Conway said. “We understand and agree that it is an emergency and is
necessary. Our point is, the governor can do the same thing for us in
our emergency.”
Some area farmers currently are out of water and turning the wells on
was their last hope to salvage their crops this year. The governor’s
decision essentially means these farmers now stand to lose everything.
Gene Kammerzell, who operates a large nursery, said that he doesn’t have enough water to keep crops alive.
“Without turning on the wells, I have an $8.34 million dollar crop in
jeopardy unless we get substantial rainfall in the next few days.”
Hoshiko told WND, despite his senior rights status, he has been forced to abandon 65 percent of his planted crops this year.
However, his plight is not as bad as that of Harry Strohauer, one of
his neighbors who has been farming for more than 36 years. Strohauer
owns 1,700 acres, but in anticipation of water shortages he planted only
1,300. What he did not count on was the government refusing him access
to needed water right under his feet.
Strohauer now is looking at salvaging only about 160 acres.
“I have pulled all of my corn out of production, and now I am attempting to salvage my potato and onion crops,” he said.
Strohauer has spent years making inroads to markets for his onions and specialty potatoes.
“If I lose these markets this year, I will never get them back.”
Additionally, he has had to pay his corn customers a penalty fee for not being able to deliver the crop.
The impending economic disaster now threatens livestock producers as well.
Laprino foods, one of the country’s largest cheese manufacturers, is
currently building a plant in Greeley and has entered into contracts
with local dairies.
“I have had to tell the local dairy producers they cannot rely on me
for their feed,” Hoshiko said. “They have contracted to provide a
certain amount of milk to Laprino, and if they can’t fulfill it with
their own cattle they will have to get it from a third party to keep
from violating their contract. These producers are barely surviving as
it is, and that will break them. They are terrified at what will happen
if this issue isn’t resolved.”
Astoundingly, in a meeting with John Stulp, the governor’s water
adviser and other water officials, the government had some novel advice
for the groundwater issue.
Stulp’s solution defied common sense.
“If you are that concerned about it, you can always apply for a
de-watering permit to pump down the groundwater in that area,” he said.
However, while the permit would enable the farmers to drill a well
and pump the water, they would not be able to use it to water crops.
Stulp explained, “You would not be able to use if for a beneficial
purpose, such as watering your fields, but you could pump the water back
into the river for senior water holders to use.”
The governor offered little consolation for Weld County farmers. In
an interview with KDVR-TV in Denver, he said, “The last three years have
been the three best years in agriculture in the history of the state.
Part of being a farmer and a rancher is you have to learn to take the
bad with the good.”
Conway called the governor’s statement “insensitive” and said it
revealed a giant disconnect between agriculture and urban residents.
“What is going to happen to the state’s economy now that the state is
not able to produce the economic output in previous years?” he asked.
“In Weld County, it is a $1.5 billion contribution to the state
economy. Is the governor going to say to the state’s residents, ‘You
need to take the bad with the good’ when the unemployment rate rises, or
when the feedlots close?”
Note that Conyers is Chairman of the Judiciary Committee. Chairman!
