2012 Colorado November Election: Initiatives 3 and 45 would, ‘…turn 150 years of water law on its head’ — Doug Kemper


The Colorado Statesman (Peter Marcus) is running an article about the initiatives. So far the proponents have little organization or money to get on the ballot according to the article. Here’s an excerpt:

Hamilton says Colorado law is already explicit in that the public owns the water in the state, and not the state itself. The goal of the initiatives is to amend that law to adopt a public trust doctrine in legislative, executive and judicial affairs to protect the ownership interests of the people. “You may use that water… but when you return that back to the public streams, you can’t load it up with crap, or burden it with chemistries, or ruin its temperature,” said Hamilton, who has raised concerns over uranium and other elements from mining activities ending up in Colorado streams…

“Who will watch the watchers themselves?” he asked. “This would force accountability on state government… If they crap in the water, the people of the State of Colorado have a right to say, ‘We’re going to curtail and minimize your use until you clean your act up.’”

Hamilton and proponents have begun collecting signatures to place the initiatives on the November ballot. Proponents must submit 86,105 valid signatures to the secretary of state by Aug. 6 in order to qualify for the ballot. The petition format was only approved on May 14, so proponents have only just begun collecting signatures and developing a plan.

Proponents have registered an issue committee, Protect Colorado Water, to advance their efforts. The registered agent is river conservationist Phil Doe, who is representing the initiatives along with Hamilton. So far, the issue committee has only filed a $100 contribution from Be the Change — USA, described as a Lakewood-based grassroots political organization dedicated to promoting progressive issues…

“It subjects every water right that we have in the state to being reconsidered, or curtailed, or denied entirely based on a determination of what’s in the public’s good,” said Doug Kemper, executive director of the Colorado Water Congress, which is opposing the initiatives along with the Colorado Water Conservation Board — part of the Department of Natural Resources — and the Colorado River Water Conservation District.

Opponents point out that water frequently does not naturally exist in Colorado, and therefore government must step in to divert sufficient quantities to sustain human settlement and enterprise in Colorado. Critics say the state’s current appropriation system is “fair” and “orderly,” proving to be “flexible” and “successful.”

“The adoption of either of these initiatives would result in takings of private and public water rights that Coloradans rely on for beneficial uses for health and human safety as well as economic benefit,” states a resolution adopted by the board of the Colorado River Water Conservation District.

The Colorado Water Conservation Board has raised separate concerns about impacting more than 150 years of court opinions and legislation governing water rights. Kemper shares those concerns. “If you go down that path, then you turn 150 years of water law on its head, you just turn it upside down,” he said.

More coverage from Heather Hansen writing on the Red Lodge Clearing House blog. From the post:

…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. 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.”

Proponents of the initiatives insist that we’re at a crossroads in water control in this state, and that preparation for the future demands of, for example, climate change and 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 consumptive uses, such as agriculture, and that they would invalidate prior, vested waters 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, and it needs to be improved…

Water is our deliverance in the West, but it can also imprisons us, and establishing a new give-and-take that considers the public foremost will not be easy. But it is possible.

From email from the Colorado Water Congress (Doug Kemper):

The proponents of the Public Trust Doctrine Initiatives #3 and #45 are in the process of collecting signatures to get the initiatives on the November ballot. They have created a website (http://protectcoloradowater.org/), formed a campaign committee, and are soliciting funds and volunteers to support the effort.

We will have a workshop on the initiatives on June 18 from 1:30 to 4:30 at the offices of the Tri-State Generation and Transmission Association in Westminster. Please see the [this flyer] for details.

You are invited to attend the workshop. Seating will be limited and attendees must register in advance for the workshop. To register to attend in person, click on the following link: Attend In Person

More 2012 Colorado November Election coverage here.

You will also have an option of attending the meeting via GoToWebinar. To register for the Webinar, click on the following link: Attend via Webinar

In a rare departure from tradition, there will be no charge for the workshop!

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