BY WELD COUNTY COMMISSIONER SEAN CONWAY
Since discussion of creating a 51st State began, the most asked question I have had is how will the existing water rights our farmers and communities currently own be impacted?
First and foremost, water rights are private property. And like other private property – your home, car or land that you own – they cannot be taken away because you live in another state. Many water rights throughout Colorado are currently owned by individuals and entities who do not reside in the state of Colorado. Under the constitution, any private property that might be attempted to be seized would be called a “taking” and has been deemed by the U.S. Supreme Court as unconstitutional.
Second, the U.S. Supreme Court in 1982, in the landmark case of Nebraska v. Douglas, ruled no state may impose severe withdrawal, impede, divert or keep water from flowing into another state. This case, between the State of Colorado and Nebraska, is important, because this ruling would have precedence over the Colorado State Constitution and existing State law. This ruling protects all current water right holders.
Third, existing Water Compacts between the state of Colorado and the states of Nebraska and Kansas and other states must continue to be honored under federal law. This means that the water that flows currently from the Poudre River, South Platte and St. Vrain, along with other tributaries, must continue to flow as is, uninterrupted, toward those states to meet those federal compacts.
Fourth, the largest supplier of water to Weld, Morgan, Logan and Sedgwick Counties is the Big Thompson Water Project. This project, which is operated by the Northern Colorado Water Conservancy District (NCWCD), provides 220,000 acre feet annually to northeastern Colorado and is a federal project permitted by the Army Corp of Engineers. This permit would remain and continue to operate as usual. In addition, the only thing needed to protect the current boundaries of the district in the new state would be for those boundaries to be recognized in the new state’s constitution; something that would be almost certainly the first thing the new state constitution would include.
In discussions with several water attorneys and water experts about the new state, the one common phrase that was frequently stated to me about existing water rights and protection for water right holders was it is “very attainable.” Protection for the existing counties in the NCWCD and working out an agreement with Colorado and other current compact states are very “doable” and can be accomplished.
Finally, benefits overlooked by those looking at this issue in a parochial manner include the ability of a new state to enter into new compacts with other states and the ability of a new state to address the issues of needed water storage projects as well as the “buy and dry” issues that have seen tens of thousands of acres of productive farm land along the South Platte be transferred to metro Denver communities over the last three decades.
Another item which might escape naysayers is that a new state could include several western slope counties including Grand, Garfield, and Mesa. All head water counties for the Colorado River and the origin for much of the water we currently use in Northern Colorado. If these counties were to be part of the new state, our very valuable water rights would even be more protected.
To conclude, any new state would protect current water right holders. The actions needed to protect those water rights have been identified and certainly will be acted on by the new state.