The sharks are circling at the Colorado Legislature around freshman Rep. Jerry Sonnenberg’s bill to ban government entities from taking water rights through condemnation.
The Sterling Republican said he is disappointed the Democrat leadership hasn’t scheduled House floor debate on his House Bill 1036, which is opposed by two lobbying powerhouses — the Colorado Municipal League and Denver Water.
“I wanted it to come up pretty quick while I had good support and momentum,” said Sonnenberg, who is serving his first two-year term in the Colorado Legislature. “CML represents government entities who don’t like this bill and Denver Water hates it. I think it scared them a little when it came out of committee 10-3.”
Rep. Mary Hodge, D-Brighton, one of the three “no” votes in the House Committee of Agriculture, Livestock and Natural Resources, said she has asked Legislative Legal Services for an opinion on the constitutionality of Sonnenberg’s bill.
Hodge said that, coincidentally, the morning of last week’s committee hearing, she attended a breakfast sponsored by the greenhouse industry at which state Supreme Court Justice Gregory Hobbs spoke about eminent domain and water.
“Justice Hobbs said it was unconstitutional to take away that right (of condemnation) from home rule cities,” Hodge said. “He said the highest and best use of water is for people to drink and there could come a time when a city may need to use eminent domain to get drinking water.”
That is exactly was Sonnenberg and other of the bill’s proponents fear. A constant refrain from agricultural interests, who hold the rights to about 85 percent of Colorado’s water, is that their property rights are the lowest hanging fruit on the tree as cities look for water for their growing populations.
Sonnenberg said a fiscal note on his bill states that local governments may pay more for water rights and have difficulty planning for and controlling growth if his bill becomes law.
“If that’s not a reason to protect someone’s water for crying out loud I don’t know what is,” he said. “That’s all the more reason we need this bill if indeed a city is using eminent domain to buy things cheaper than the market value.”
CML lobbyist Kevin Bommer on Monday reiterated his argument that Sonnenberg’s bill stems from a “philosophical opposition to eminent domain.”
“We continue to oppose the gratuitous attacks of local powers of eminent domain and condemnation,” said Bommer, whose group represents 264 Colorado cities and towns. “Unlike previous rulings about land use, where there has been ample talk about restrictions and limitations, this bill comes out with no such discussion.”
Denver Water lobbyist Sara Duncan distributed a letter to Denver’s representatives asking them to vote against HB 1036. It cited a state Supreme Court decision in the case of Thornton vs. Farmers Reservoir and Irrigation Company that stated condemnation for water rights is clearly constitutional.
Duncan’s letter quoted from the ruling: “By adoption of Article XX…the people of Colorado intended to, and in effect did, delegate to home rule municipalities the full power to exercise the right of eminent domain in the effectuation of any lawful, public and municipal purpose, including particularly the acquisition of water rights.”
Sonnenberg believes the ruling is an example of judicial activism because the constitutional provisions regarding eminent domain make no mention of water rights.
“In the FRICO case, the court ruled that the constitution for home rules cities says you can use eminent domain for water works, but nowhere does it mention water,” he said. “The Supreme Court looked at that and said ‘you can’t have water works without water so I guess you can condemn water.’
“That’s an expansion of the use of eminent domain and my bill is to put it back to where our forefathers intended it to be,” Sonnenberg said.”
Backers of Sonnenberg’s bill include one of the Western Slope’s most influential water groups — the Colorado River Water Conservation District. The district’s board of directors circulated its own letter at the Capitol urging lawmakers to support HB 1036.
“The power to condemn should be a power granted because of necessity, not of convenience,” the letter said, noting governments can enter into contracts with farmers for water banking, rotating crop management, and substitute water supply plans to free up water. “All are viable alternatives to condemning someone else’s historical water right.
Bommer claimed Western Slope groups support the bill because they mistakenly believe it will prevent trans-mountain diversions of water to the Front Range. He gave the example of a Gypsum case in which the town began condemnation proceeding to protect reservoir water from crossing the Continental Divide.
“The town used a condemnation proceeding to force a settlement that stopped the water from leaving the town,” he said.
Sonnenberg’s bill is on the House calendar for second-reading debate, but the actual scheduling of debate is up House Majority Leader Alice Madden, D-Boulder.
Sterling CO Journal Advocate: http://www.journal-advocate.com