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Will Colorado Transform its Water Law to Prioritize the Public Good?

Colorado could amend its constitution to value public use over private and limit water diversions that negatively affect public uses.
 
 
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Photo Credit: courtesy of USGS

 
 
 
 

I hadn’t realized until I got an (en masse) email from Senator Mark Udall recently, that we’re celebrating water in Colorado this year. He and Sen. Michael Bennet introduced a resolution in May recognizing 2012 as the “Year of Water.” The declaration piggybacks on governor Hickenlooper’s “Colorado Water 2012” initiative which, among the goals of reminding citizens that water is liquid gold here, is intended to “motivate Coloradans to become proactive participants in Colorado’s water future.”

It may not be quite what those politicians had in mind, but two motivated Coloradans have made news recently with controversial proposals to amend the state constitution in a way that would dramatically change water management in the state, valuing public use over private and limiting water diversions that negatively affect public uses. Phil Doe of Littleton and Richard Hamilton of Fairplay have introduced Public Trust Initiatives #3 and #45.

The first measure would apply the common-law doctrine of “public trust” to water rights, and make “public ownership of such water legally superior to water rights, contracts, and property law.” Initiative 3 would also grant unrestricted public access to natural streams and their banks.

The second measure proposes to amend Article XVI, Section 6 of the state constitution, which talks about the diversion of un-appropriated waters of natural streams. Initiative 45 seeks to limit, and possibly prohibit, stream diversions that would “irreparably harm the public ownership interest in water.” 

In April, the Colorado Supreme Court cleared the way for the initiatives to proceed and, two weeks ago, the Colorado Secretary of State posted the final forms for Doe and Hamilton to be able to begin collecting signatures. In order for them to appear on the November ballot, each initiative must wrangle 86,000 valid signatures by August 6. Those are big hurdles to clear, but even the discussion around the measures merits some examination.

Proponents of the two initiatives insist that we’re at a crossroads in water control in this state, and that preparation for future strictures posed by, for example, climate change and increased fracking require that a stand be taken for public governance of our most valuable natural resource. Opponents counter that the initiatives are a slash-and-burn assault on uses like agriculture, and that they would invalidate prior, vested water rights, which have been in place since Colorado became a state. 

I tend to agree with the latter if only because the initiatives aim to drain the baby with the bathwater.  But what’s spot-on about them, and what’s wrong with water allocation in Colorado compared to every other Western state, is that the public interest is not well represented in water law here. That needs to be improved.   

Over 150 years ago, miners hacking away at Colorado’s mountainsides realized that the common law riparian system in place back East was fairly useless to them. They needed a lot of water in a dry land and, as demand grew, they applied the same rules that governed mineral allocation—you get to it first and use it in an approved way, it’s yours. From there, Western water law evolved toward guarding private interests and away from protecting public rights. While we now live in a vastly changed landscape, this “first in time, first in right” or “prior appropriation” doctrine remains the law of the land. 

Every Western state has language in its constitution or statute declaring that water is publicly-owned. All but Colorado make it clear that water allocation decisions should be made only after considering the public interest. Those other states have the right and arguably the responsibility to regulate water for public benefit—be that aesthetic, recreational, biological, economic or other. While states often seriously downplay this priority, or argue over the meaning of “public interest” (as those values shift over time), at least there exists some ground on which to balance private uses. 

The initiatives acknowledge that, especially as supplies decline, there needs to be a public interest standard which limits diversions and consumptive uses that endanger the public interest. Currently, roughly 88 percent of Colorado’s water flows to agriculture; 7 percent is used for toward industrial and recreational pursuits, including snowmaking; and the rest is put to municipal uses. 

Efforts to recast the priorities currently supported by Colorado law need to be part of our public dialogue and lead, ultimately, to legislative reform. While the Colorado Supreme Court has ruled that our state constitution lacks language requiring consideration of the  public interest, there are concepts that lay the groundwork for reform. Article XVI, Section 5 emphasizes the importance of public ownership of stream water and says it should “be dedicated to the use of the people of the state,” although it concludes with the phrase “subject to appropriation.” Section 6 says: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Accounting for the robustness of waterways to support fish and wildlife, or rafting and kayaking, and even power generation, all amount to “beneficial uses” in the “public interest.” 

There has been a promising agreement penned recently that may set a precedent for collaboration. The proposed Colorado River Cooperative Agreement, which brings together 40 entities including Denver Water and Grand and Summit counties, took years of negotiations and addresses decades-old conflicts from both sides of the Divide over water in the Colorado River basin. The so-called “historic” agreement provides for, “Additional water supply for those who live, work and play on the West Slope and for customers of Denver Water.” It also focuses on improving the environmental health of our rivers and streams. 

In that email I got from Udall, he refers to the weathered adage, “Whiskey is for drinking, water is for fighting.” Water is our deliverance in the West, but it can also imprison us. Establishing a new give-and-take that considers the public foremost will not be easy, but it is possible.

Essays in the Range blog are not written by High Country News. The authors are solely responsible for their content.

Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.

 
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