Eminent Domain to Condemn Water Rights Could Be Prohibited : Telluride CO Watch, 2/26/07

By K. C. Mason

With a little help from Western Slope Democrats, a northeastern Colorado Republican lawmaker is advancing his bill to prohibit government entities from using their power of eminent domain to condemn water rights.

The House voted 33-30 Friday to give preliminary approval to House Bill 1036, sponsored by Rep. Jerry Sonnenberg of Sterling. He said the two missing members – including Rep. Bernie Buescher, D-Grand Junction – are expected to support the bill when a final House vote is taken this week.

“Eminent domain should be used as a necessity and not as a convenience,” Sonnenberg said. “It’s getting to the point where we must do something to ensure that condemnation is not used as the path of least resistance.”

The measure is strongly opposed by the Denver Water Board and the Colorado Municipal League, whose lobbyists contend the power of municipalities to obtain water rights through condemnation is protected by the state constitution.

“A vote for this bill is a vote for violating the constitution,” said Rep. Randy Fisher, D-Fort Collins, who noted the bill also is opposed by the Colorado Water Congress. “Eminent domain is seen as a safety net for unforeseen circumstances. This bill leaves (government entities) with no flexibility.”

Sonnenberg countered that the constitution’s reference to the use of eminent domain was related to the infrastructure needed to convey water, such as ditches and drainages.

“It doesn’t say anything about the water right itself,” he said. “When that was challenged by home rule cities, the court said you can’t have water works without water rights so they can condemn for water rights. It was an expansion by the judiciary of what the constitutional says.”

Sonnenberg then amended his bill to state specifically that “water works shall not be construed to include appropriated water rights.”

Other opponents argued the bill wasn’t necessary because condemnation for water rights has rarely been used in Colorado.

“This bill chips away at the ability of locals government to provide needed services for cities and municipalities,” said Rep. Mary Hodge, D-Brighton. “There is no evidence of abuse. This is a bill in search of a problem.”

Rep. Kathleen Curry, D-Gunnison, said she was suspicious of the opposition.

“Why are they opposed to this bill if these folks are contemplation doing these takings,” Curry said. “The General Assembly has passed several measures than can be used as tools for governments to obtain water.”

Both Curry and Sonnenberg listed a number of recent laws that allow for flexibility in moving water from agriculture to cities without permanently drying up the land. They include leasing through temporary water supply plans, water banking and rotational crop management plans.

There are a variety of alternatives to condemning a water right,” Sonnenberg said. “Water rights don’t have the same quality as fixed real estate. The ability to use and develop water is not tied to specific location.”

Telluride’s representative in the House, Republican Ray Rose of Montrose, also supported the bill.

“We’re not talking about a gallon of water out of the Colorado River but very broad condemnation rights that could supersede such things as the (Colorado) River Compact,” Rose said. “If we allow this to happen, it will be a free-for-all for water in Colorado.”

Rep. Al White, R-Winter Park, said Colorado needed to be proactive to head off future water wars.

“I can envision a time in 20 years when the terms of fallowing and leasing contracts are over and a farmer says, ‘I want my water back,’” White said. “That’s when the municipality will come in with condemnation.”

Curry reacted strongly when Fisher claimed that “powerful interests on the Eastern Slope are going to get that water one way or another.”

“If that is true and that is their attitude, that reinforces the need for this bill,” Curry said. “Governments have other options. They don’t have to take water rights in a hostile action.”

Telluride CO Watch: http://www.telluridewatch.com