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?”