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Farmers plead to use their own wells

By Jack Minor

GREELEY, Colo. – Lawmakers in Colorado say they want a study of groundwater issues in the northeastern part of the state where farmers have been banned from pumping from their wells for several years.

But farmers and local officials there say this historic drought is an emergency and the governor should use his executive authority to bypass the judiciary.

WND previously reported how farmers in Weld County are facing the possibility of losing their crops because the courts have refused them permission to use water right under their feet, groundwater that is rising and actually seeping into basements.

Now an estimated 200 farmers have met in a show of solidarity, signing a statement to the government that if they are not allowed to turn on their wells and irrigate their crops they will not be able to pay taxes next year.

This year’s snowpack is only 2 percent of average, tying a record low set during another historic drought in 2002.

Over the decades, wells were drilled to supplement low water usage during times such as this. However, several years ago the courts ordered the wells shut down because farmers were not “augmenting” or replacing the water they removed from the ground.

The reasoning was that any groundwater not used is water that will eventually flow into the South Platte River Basin at some point in the future and by using this water, farmers were depriving senior water right holders of their portion of water from the river.

Glen Fritzler, a farmer who operates a corn maze in LaSalle and hosted the event, disputed the contention that allowing area farmers to turn on the wells would deprive senior water holders.

“Our groundwater is at historically high levels to where it is flooding basements, septic systems are overflowing … but the river is still at historic lows,” he said. “The reason the river is low is because of the snowpack, not from farmers pumping the groundwater to save their crops.”

Several farmers testified that if the state did not give them the ability to pump within a matter of days they would be in danger of losing entire fields.

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 10 days.”

He went on to point out that the volume of groundwater in the aquifer they were seeking to pump from consists of 10.5 million acre-feet. One acre-foot is about 326,000 gallons.

“We have five Lake McConaughys under our feet and because of the political morass and the mismanagement it has been removed from our ability to tap it,” Kammerzell said.

He was not the only farmer facing these concerns. Third generation farmer Dave Patroco said he was on the brink of losing thousands of acres in corn, hay and other crops.

“If presidents can issue disaster declarations for places like New Orleans and other places where there are floods that need assistance, there is no reason they cannot do the same for us.

“We are only asking for around 90 days to be able to use the water during this drought,” he said.

Rather than simply complain about the issue, local authorities are taking action in an attempt to persuade the governor to turn the wells back on.

John Meininger, an attorney who has been representing many of the farmers on this issue pro bono, said while the courts have ordered the wells turned off, there is a solution available.

“The governor has the authority to order the wells turned on based on his authority to declare the imminent possibility of a disaster whether natural or man-made and this certainly qualifies,” he said. “The groundwater issue is man-made because of the wells being shut down. This is a very real disaster today and the government has a responsibility to protect people in times like this.”

County officials stated they agree with the farmers and plan to take swift action.

Sean Conway, chairman of the Weld County Commissioners, said they are going to pass a resolution on Monday morning declaring a natural disaster in the county.

“We’re going to pass an emergency declaration and send it on to the governor,” Conway said. “We’ll ask him to declare one too.”

The declaration will call on the governor to use his executive authority to turn on the wells for at least 30 days.

“We’ll also ask him to convene the drought task force,” said Commissioner Barbara Kirkmeyer, a fourth generation farmer.

Jim Yahn, who represents Colorado farmers near the Nebraska border, indicated that if the disaster declaration is issued, he will challenge it in court. Yahn’s fear is that by letting the farmers use the groundwater this summer it could impact their ability to have their reservoirs refilled from the South Platte River this winter.

“When you pump, there’s an effect,” Yahn said. “It may not be today. It may not be tomorrow, but there will be an effect.”

Commissioner Doug Rademacher disputed the contention that farmers were not being efficient users of their water, “Water from the South Platte is used an average of seven times before it leaves the state. It provides an economic return of 10 to 1 making it one of the most efficient rivers in the nation.”

Kirkmeyer said Yahn would not be able to succeed as the governor’s disaster order to turn on the wells for 30 days would override any court order on the matter. He could subsequently extend the order on a month by month basis to help the farmers get through this season.

However, there appear to be troubling signs that the state may not be so quick to provide relief until it is too late.

John Stulp, the governor’s water policy adviser, told Channel 7-KMGH Denver, the only television station present at the meeting, that he was skeptical that what was happening amounted to a disaster declaration at this time.

Stulp said the threshold for a disaster threshold is a 30 percent crop loss in a designated area and no one has lost any crops yet.

The farmers said the reason no crops have been lost is they are not ready to give up yet and they will be using the water as long as they can, hoping the governor will take action before the loss.

“We want to close the barn doors before the horses get out,” Conway said.

Recent legislation was passed ordering a study of the groundwater issue, but it is not expected to be completed until next year. Bob Sakuta, a senior farmer from Brighton, said turning the wells on for 90 days would actually help with the study, because they could monitor the usage and see how it affects river flow.

Wayne Stewart, a farmer from Eaton, said he wanted to send a clear message to government officials that they were not looking for a handout. “No one here is asking for money from the government. All we are asking is for the right to turn on our wells and we will use our own hard-earned money to pump the water.”

WND previously reported on the issue that has been created by the state Supreme Court’s decision in 2006 to order 440 wells shut down and another 1,000 curtailed.

Under Colorado water doctrine, water is distributed under the principle of first in use, first in right whereby prior users have senior rights to junior users. Senior right holders such as the cities of Boulder, Centennial, Highlands Ranch and Sterling, which had experienced phenomenal growth in the 1990s, became concerned their water supply in the river basin was being depleted by junior water-right well owners who were pumping water from the Alluvium Aquifer, which flows into the South Platte River Basin.