July 2012

The majority of the article below was written by Nancy Agro, a lawyer practicing water, real estate and business law in Durango. Since most of the readers of this newsletter depend on water, more specifically irrigation water for their livelihood I thought this to be a worthwhile subject.

“In Colorado, citizens can propose ballot initiatives to amend the Colorado Constitution or statute. Two such initiatives related to the “Public Trust Doctrine” – Proposed Initiative #3 and #45 – have recently emerged and, if adopted by voters, could have significant impacts on Colorado water law and vested water rights. These two proposed changes to the Colorado Constitution Article XVI, which would radically alter Colorado water law and the way water has been allocated since pioneers first began settling in Colorado.

Article XVI of the Colorado Constitution, enacted in 1876, provides that the waters of the natural streams of the state belong to the people of the state, subject to appropriation for use, and that the right to divert unappropriated water for beneficial use shall never be denied. Priority of appropriation gives the better right as between those using the water with domestic use and irrigation having priority over other uses in times of shortage. These constitutional provisions codify the foundation of Colorado water law that a water right is the private property right of the appropriator, and first in time, is first in right.

The Colorado Supreme Court, acknowledging that the doctrine of prior appropriation existed from the earliest appropriations of water, said, “The climate is dry, the soil, when moistened only by the usual rainfall, is arid and unproductive ... artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property.”

Proposed ballot initiatives 3 and 45 propose to turn these principles upside down by reversing the dominant and servient water estates. These amendments propose, among other things, that the public’s ownership of the waters of the natural streams supersedes property law, that the right of appropriation is servient to the public’s dominant water estate, including the protection of the public’s enjoyment of use of water, and that no water right has priority over the natural stream. If passed, these constitutional amendments will call into question, and potentially undo, long-established decreed appropriative water rights by subordinating those rights in favor of leaving the water in the stream. Vested water-rights diversions could be curtailed by holding unlawful any use of water causing irreparable harm to the public’s water estate, including the public’s enjoyment of water.

The well-settled principles of water appropriation have shaped the social and economicdevelopment of the arid West. It has always been the policy of government to encourage the diversion and use of water for agriculture and other beneficial uses. Significant expenditures of time and money have been made to put portions of Colorado’s unproductive land to beneficial use through irrigation. In the words of the Colorado Supreme Court, “Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.”

Ballot initiatives 3 and 45, if passed, will undercut the certainty established by the priority system that has provided the keystone to our economy since at least 1852, when the first canals were constructed. Not only would this deprive existing landowners of their vested appropriative property right, but it will affect future investment in agriculture and other economic development, placing the future of Colorado’s prosperity in jeopardy.

In an era when we have recognized that buying and eating locally grown food is imperative to our health, our economy and the environment, and where open space is treasured for its scenery and wildlife, these initiatives have the potential to wreak havoc on the sustainability of our economy including our local food supply and our picturesque rural setting.”

“These subject matters separately and together propose to drop what

amounts to a nuclear bomb on Colorado water rights and land rights. Masquerading

as a measure to protect the public, these initiatives contains surreptitious

measures that would strip members of the public, cities, farms, and families throughout this state of their most valuable economic interests.”

Colorado State Supreme Court Judge Hobbs on his Desenting Opinion

Upon review, the Colorado Supreme Court decided that the two measures are “single subject” measures sufficient to be placed on the 2012 General election ballot. Backers of the measures now must gather the November’s ballot. Have you been asked to sign? Perhaps the drive has more support on the other side of the mountains….

I spent last week in Washington State at the 2nd International Fruit Research Symposium. The purpose of this gathering is to listen to presentations by scientists active in the field of organic agriculture. The first two meetings of this type occurred in 2001 & 2003 right here in Grand Junction. They came about because of the desire to know what really worked and why within the “organic” system. Several more symposiums were held in Michigan and Washington in the following years. The International Society of Horticultural Science has since taken over the meetings and moved them world wide.

What follows is bits and pieces from my notes.

Howard Nager, Domex Superfresh Growers marketing:

Organic produce projected at $12 billion in sales for 2012
Sales of organic fruit, #1 item is berries, #2 apples, #3 bananas, #7 stonefruit
Anymore, every is allergic, organics appeal to the “causumer”.
Why buy organic? – Nutrient value, confidence value, 28% buy for safety (pesticide).
Biggest drag on sales is price.
It’s a “younger” demographic buying organics.
2006-2010 sales of organic produce increased 173%
In a typical produce department there is over 700 items. How do organic items gain shelf space? By displacing conventional items.

Don Harris, Organic marketing consultant, retired from Whole Foods:

Overall the organic produce industry is @ 4% of total sales.
2007 there were 30 organic produce items, in 2012 100 items.
Who buys organic? 8% are true believers, 30% are organic friendly, 30% are on the fence, 32% never.
Key demographics: #1 education, #2 income, #3 families with children, #4 baby boomers, #5 urban dwellers.

“Strengths”

“Halo” effect- perception that it’s better
Taste
Sustainability
Benefits for health and wellness

“Weakness”

Food safety- are organics immune from a Rocky Ford melon incident?
Pricing – on average 30% price premium.
Continuity – not available year round.
Pesticide Duality – organic produce is sprayed with pesticides.

“Opportunities”

Conventional produce department is wide open for penetration.

If the grower knows why, he will teach himself how. LIBERTY HYDE BAILEY,1916

Franco Weibel – FiBL Switzerland: “ It’s always hard to inform a not interested consumer in technical details of organic growing”. FiBL’s website www.organic-world.net

Vince Jones – WSU: “A harsh application at the start of the season will impact population dynamics for the entire season” www.enhancedbiocontrol.org

Codling moth is unable to fly against a wind of more than 2 ½ mph.

Alan Knight- USDA-ARS Yakima: 8# of sugar sprayed per acre reduced bird (starlings & robins) damage on cherries from 4% to 1%. Both of these species are unable to digest sugar so it makes them sick.

Ken Johnson-OSU: speaking on fireblight:

When does pathogen become active? At mid bloom < 5%, by petal fall >50% detection of fire blight.
Does delayed dormant copper have effect? YES
Does bloom thinning effect fire blight? Is lime/sulfur a bactericide? Who knows but it reduces fire blight
Can non-antibiotic control of fire blight be achieved? Blightban 2x’s then Serenade 2x’s through bloom gave good control. Another good program: lime/sulfur then Blightban 2x’s

Mark Mazzola, USDA-ARS: Fumigating with brassicaceae (mustard) seed meals.

Spread the seed down the future tree row, rototill and tarp with non-permeable material. Rest at least 6 weeks before planting.
Need to use more than one brassica species in mix. One alone always fails.
Weed control with mustard meal highly variable.
Spring applications has resulted in plant injury. Fall treatment best.
We toured Mark’s trials at a WSU research orchard. The results were impressive and equal to conventional fumigants. The downside? Sourcing the tons of seed meal needed and expense of tarping.

T. Grasswitz, New Mexico State Univ.: Mating disruption of Crown Borer.

Isomate P was applied at 250 dispensers per acre on a 1 acre peach block.
The pre-treatment infestation in April was 57.5% An August survey revealed a 40.8% infestation. Still relatively high since many of the previous year’s larvae were still in the trunks of the trees.
The following spring the effects of the treatment came to light when survey showed a 7.9% infestation. Similar levels were found that Fall.
71% of the infested trees were found on the outside row facing the prevailing wind.
Two species of entomophagous nematodes applied as a soil drench were also included in this trial.
No effect was observed from any of the nematode treatments.

Diane Alston, Utah State University

Life stage development of European Earwig by degree days.
As this project gets fine tuned it will help us determine when emergence and treatment timings occur.