The striking similarities between the way Congress acts and the way the Colorado General Assembly acts some times shock and disappoint.
Take HB10-1001 which raises the renewable energy standard for the two power companies that serve the Front Range from 20% to 30% by the year 2020.
I still remember the summer of 2008 when gas hit $4.00, natural gas spiked, and everyone’s utility bills were outrageous. I’m afraid that those days may come back, so I support an “all of the above” energy strategy that promotes development of a wide variety of energy sources so we will never again be hostage to one source of energy.
1001 doesn’t do that. It carves out market share for chosen and favorite sources of electricity without allowing out of favor forms of energy a seat at the table. Special interests controlled the bill, just like they so often do in Washington DC. And, just like when the socialized health care bill passed, 1001 passed without one Republican vote.
Further, embedded in the bill, is another carve out for another special interest. Just like in WDC, the unions have favor with the majority party, so they get special consideration in the installation of solar panels in Colorado.
Read the law out loud, it’s embarrassing.
(a) (I) THE PERFORMANCE OF ALL PHOTOVOLTAIC ELECTRICAL WORK,
THE INSTALLATION OF PHOTOVOLTAIC MODULES, AND THE INSTALLATION OF
PHOTOVOLTAIC MODULE MOUNTING EQUIPMENT SHALL BE SUBJECT TO
ON-SITE SUPERVISION BY A CERTIFIED PHOTOVOLTAIC ENERGY PRACTITIONER
AS DESIGNATED BY THE NORTH AMERICAN BOARD OF CERTIFIED ENERGY
PRACTITIONERS (NABCEP) OR ANOTHER NATIONALLY RECOGNIZED
PROFESSIONAL ORGANIZATION DESIGNATED BY THE COLORADO STATE
ELECTRICAL BOARD BY RULE.
The performance of all work: in other words, you can’t even do it yourself anymore.
Maybe one of the most frustrating and entertaining parts to read is this:
(I) DURING ANY PHOTOVOLTAIC ELECTRICAL WORK, THE RATIO OF
THE NUMBER OF PERSONS WHO ARE ASSISTING WITH THE WORK AND WHO
ARE NEITHER LICENSED ELECTRICIANS NOR REGISTERED ELECTRICAL
APPRENTICES TO THE NUMBER OF PERSONS WHO ARE CERTIFIED AS PROVIDED
IN PARAGRAPH (a) OF THIS SUBSECTION (1) SHALL NEVER EXCEED THREE TO
ONE, AND A PERSON WHO IS BOTH LICENSED AND CERTIFIED SHALL NOT
COUNT DOUBLE FOR PURPOSES OF MEASURING THIS RATIO; AND
Yes, the law controls approved to non-approved (cheaper) workers at the work site.
This bill was 1001, the number one bill of importance in the Colorado House and part of Governor Ritter’s agenda for the year. The agenda in Denver is no different than the agenda in Washington DC: special interest legislation to empower the party and the party’s friends.
Tuesday, March 23, 2010
Monday, March 1, 2010
Right to Float?
HB10-1188 takes on a complicated issue: is there a right to float down waterways in Colorado?
For years, the accepted answer was yes, as long as you don’t make contact with the bed or banks of the stream. This kept people off small rivers and streams, but allowed recreational activity on rivers like the Arkansas, Eagle, Colorado, Taylor and Yampa to name a few. I suppose that rafters technically break the law when they bounce off boulders in the middle of the stream, but I don’t know of any instances where someone was prosecuted for trespassing for that. I thought this was a settled question.
I was wrong.
There is now a landowner asserting that under a Colorado Supreme Court case called People v. Emmert, no one can float down a river through private property, where the same person or entity owns the land on both sides of the river, without permission. Emmert holds that not only does a landowner own the bed and banks of the river, but also controls the surface.
Emmert is in conflict with a statute passed as SB77-360 which established floating without touching the bed or banks. SB77-360 was carried by Senator Joe Kinnie and dealt with trespassing on the bed and banks but still allowed floating. Senator Kinnie said in committee: “This ... will not stop tubing, canoeing or boating on the water, but will give the property owners the help of law enforcement officials against a few people bent on causing trouble ....”
The problem is that Emmert was decided in 1979, two years after SB360 passed and the statute modified by SB360 was referenced in the opinion, so clever lawyers are arguing for this landowner that the landowner can stop passage down the river that is bounded by his property.
Enter Rep Kathleen Curry’s and Senator Mary Hodge’s HB10-1188 which would establish a “right of navigation” in Colorado, would allow incidental contact with the bed and banks of a stream and allow portage around a hazard or obstruction in the waterway.
A right of navigation is usually a dominant right, over and above other rights, like property rights. In other states, the right of navigation usually conveys ownership of the bed and banks of the waterway to the state. However, the latter is disallowed in this bill.
The new ability to touch the bed and banks and the portage are both substantial changes from the current status quo and, I think, infringements upon the rights of the property owners of said beds, banks and adjacent lands.
I am inclined to believe that on large rivers in Colorado, there exists a public right of way just like there is for roads that are bounded by private property. You can drive down a road, but you can’t stop and have a picnic on the adjacent privately owned land without permission. I think we should treat rivers in much the same way.
The big question that would need to be answered is: which rivers and streams does this “right of way” notion apply? The bill chooses to use streams commercially floated in 2008 and 2009. That’s probably too narrow, but a good starting point. It may be good enough to not name the rivers or establish in law which ones qualify. A law which doesn’t allow contact with the bed of the stream really settles that question. You can’t float it if you can’t float it (without touching that is).
Establishing this right to float would also establish that a landowner couldn’t block the waterway as that is specifically addressed in 18-9-107 where it is unlawful to block a road, street, waterway etc.
The challenge left is in making sure that fencing across a stream to keep livestock out doesn’t constitute blocking a waterway. That should be easy enough.
I will support 1188 if it re-establishes the status quo, but not if it does any more.
For years, the accepted answer was yes, as long as you don’t make contact with the bed or banks of the stream. This kept people off small rivers and streams, but allowed recreational activity on rivers like the Arkansas, Eagle, Colorado, Taylor and Yampa to name a few. I suppose that rafters technically break the law when they bounce off boulders in the middle of the stream, but I don’t know of any instances where someone was prosecuted for trespassing for that. I thought this was a settled question.
I was wrong.
There is now a landowner asserting that under a Colorado Supreme Court case called People v. Emmert, no one can float down a river through private property, where the same person or entity owns the land on both sides of the river, without permission. Emmert holds that not only does a landowner own the bed and banks of the river, but also controls the surface.
Emmert is in conflict with a statute passed as SB77-360 which established floating without touching the bed or banks. SB77-360 was carried by Senator Joe Kinnie and dealt with trespassing on the bed and banks but still allowed floating. Senator Kinnie said in committee: “This ... will not stop tubing, canoeing or boating on the water, but will give the property owners the help of law enforcement officials against a few people bent on causing trouble ....”
The problem is that Emmert was decided in 1979, two years after SB360 passed and the statute modified by SB360 was referenced in the opinion, so clever lawyers are arguing for this landowner that the landowner can stop passage down the river that is bounded by his property.
Enter Rep Kathleen Curry’s and Senator Mary Hodge’s HB10-1188 which would establish a “right of navigation” in Colorado, would allow incidental contact with the bed and banks of a stream and allow portage around a hazard or obstruction in the waterway.
A right of navigation is usually a dominant right, over and above other rights, like property rights. In other states, the right of navigation usually conveys ownership of the bed and banks of the waterway to the state. However, the latter is disallowed in this bill.
The new ability to touch the bed and banks and the portage are both substantial changes from the current status quo and, I think, infringements upon the rights of the property owners of said beds, banks and adjacent lands.
I am inclined to believe that on large rivers in Colorado, there exists a public right of way just like there is for roads that are bounded by private property. You can drive down a road, but you can’t stop and have a picnic on the adjacent privately owned land without permission. I think we should treat rivers in much the same way.
The big question that would need to be answered is: which rivers and streams does this “right of way” notion apply? The bill chooses to use streams commercially floated in 2008 and 2009. That’s probably too narrow, but a good starting point. It may be good enough to not name the rivers or establish in law which ones qualify. A law which doesn’t allow contact with the bed of the stream really settles that question. You can’t float it if you can’t float it (without touching that is).
Establishing this right to float would also establish that a landowner couldn’t block the waterway as that is specifically addressed in 18-9-107 where it is unlawful to block a road, street, waterway etc.
The challenge left is in making sure that fencing across a stream to keep livestock out doesn’t constitute blocking a waterway. That should be easy enough.
I will support 1188 if it re-establishes the status quo, but not if it does any more.
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