Brief by Central Staff
Water Politics – August 2005 – Colorado Central Magazine
The “takings clause” of the U.S. Constitution has been in the news of late due to the U.S. Supreme Court’s ruling in Kelo v. New Haven, Conn. The clause is part of the Fifth Amendment, which states in part that “neither shall private property be taken for public use, without just compensation.”
Colorado might also see some litigation about that issue if some farmers in the South Platte valley go through with a lawsuit about their water rights.
In Colorado, water rights are property which can be developed, bought, and sold. But the water itself belongs to the public. The 1876 state constitution states that “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”
So, if you have a right to water, but you cannot exercise that right without damaging people with older water rights, then you don’t get the water. It’s a right to take water “for beneficial use” if the water is available. Or so the state’s courts have held over the years.
The South Platte valley north and east of Denver is Colorado’s most productive agricultural area. Early on, it was laced with reservoirs and canals to use surface water.
It’s also home to a relatively shallow aquifer, and as surface water became scarce in the 20th century, farmers began tapping the aquifer with wells. At the time, it wasn’t understood that the aquifer and the river were connected, and that pumping water from the aquifer resulted in lower flows in the river, and thus less water for the surface users – who had the senior water rights.
That connection became very apparent during the drought in 2002. The holders of senior surface water rights could not get their water. But their neighbors with wells were pumping, even though their wells were newer than the surface water rights. The surface owners sued the state, charging that it was not properly administering water rights.
The courts agreed, culminating in a state supreme court decision that December. So the state engineer issued new regulations on wells, requiring increased augmentation for the river to replace what was consumed by the pumpers’ crops. The result was protection of the senior surface rights, but the pumpers lost water and the income from crops they could have grown.
Did the state engineer’s regulations deprive the pumpers of their property without compensation? Some of the farmers think so, and they’ve formed the Property Rights Foundation of the West, with the goal of raising $100,000 to engage an attorney who specializes in “takings cases.”.
One counter-argument is that they didn’t lose what they owned, their water rights. Thus private property was not taken for public use. There just wasn’t enough of the public’s water for them to exercise their rights, and that’s something no court ruling can fix. In other words, if lawyers could be “rain makers” in fact as well as in metaphor, they’d be a lot more popular.