by Jack Minor –
Not taking no for an answer Weld County Commissioners have sent a letter to the state Attorney General asking him to review a memo issued by his staff that resulted in Governor Hickenlooper saying he could not order local wells turned on to prevent an upcoming economic disaster.
On Tuesday, Hickenlooper responded to an emergency request by the Weld County Board of commissioners to allow local farmers to turn on wells for 30 days and pump half of 1 percent of the 10.5 million gallons in the Alluvium Aquifer in order to prevent a massive loss of crops.
The governor cited an opinion from the Attorney General’s office that while the governor had the authority to overturn legislation to prevent a disaster such as was happening weld County, he does not have the authority to overturn a judicial decision.
In 2006, the Colorado Supreme Court ordered thousands of wells shut down or curtailed because the state believed the pumping of groundwater was depleting surface flows in the South Platte River. However, despite the wells being turned off for several years river flow is at an all-time low.
Glen Fritzler, one of the farmers leading the fight to get the Wells turned on said “if groundwater was the reason for depleted surface water flows, and the river should be running an all-time high with the wells turned off. It’s not, this is because of the low snowpack not because of groundwater pumping.
Interestingly, Jim Yahn manager of the North Sterling Irrigation District who is opposed to allowing Weld farmer pumping seemed to concede Fritzler’s point.
At a water board meeting Tuesday afternoon after the governor’s decision Dave Eckhardt, another area farmer asked Yahn if the wells do not get turned on and the two reservoirs downstream he is responsible for do not get filled this fall, would he still blame it on groundwater pumping. Yahn said no, it would be because of the low snowpack.
The commissioner’s letter requested that AG John Suthers personally review the decision. The memo issued from Suthers’ office that formed the basis for Hickenlooper’s decision was not written by Suthers himself because he was out of the state attending a conference. Instead it was written by aides in his office.
The letter notes that they are not asking the judge to overturn a judicial decision, rather they are asking him to order the state engineer to suspend or relax strict enforcement of the rules and regulations requiring compliance those court orders in order to allow farmers to save their crops.
They noted that the governor has essentially already admitted that the engineer does in fact have this authority by allowing senior water right holders to be deprived of water to fight the fires in Larimer County.
“We know of no concern expressed by the state engineer regarding the injury to senior appropriators in South Platte basin caused by the water taken in Larimer County to battle the fires. It appears the state engineer is using its enforcement discretion to allow such water use in this time of emergency.”
Sean Conway, chairman of the commissioners said, “We don’t have a problem with using the water to fight the fires. 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.”
Conway also said that for decision this important, Suthers himself should review it and make a decision.
The letter also notes that there is legal precedent allowing the Governor to allow the wells to flow. Kobobel v. State of Colorado Department of Natural Resources declared senior water rights to be private property, and that they can move her to Executive Order has the authority to commandeer the private property interests of senior water rights holders to the extent necessary to deal with the emergency drought, and then later compensate them for any injury caused.
Groundwater levels in the county are at an all-time high to the point where they are flooding basements, and causing leech fields to fail resulting in hundreds of thousands of dollars in repairs. Additionally fields are in danger of becoming unusable because of a high salt content.
The farmers say, it is insane that they cannot use the simple solution right below their feet while their basements are flooding, but their crops are dying.
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