CWC Summer Conference: ‘Public Trust’ initiatives and Colorado Water law

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From the Grand Junction Free Press (Hannah Holm):

In the 19th century, when Colorado water law was getting established, environmental values simply didn’t figure into the picture — “beneficial use” of water meant taking it out of a stream to do something with it! And whoever got there first had priority.

A pair of proposed ballot initiatives that sought to prioritize stream health and give boaters more access had Colorado’s water community very stirred up earlier this year. There was much concern that the initiatives could throw long-established water rights into question and provide full employment for many, many lawyers.

These initiatives have since been abandoned by their sponsors, due to a lack of success in gathering sufficient signatures, but the water community is well aware that the fundamental questions they raised are not going away. As I write this column, speakers are preparing for a panel discussion on this very topic at the Colorado Water Congress annual conference in Steamboat Springs (Aug. 15-17)…

Water attorney Aaron Clay noted that the greatest strength of Colorado water law is the same as its greatest weakness: The security of the property rights it provides for has led to rigidity. It’s a challenge to accommodate environmental values without running afoul of property rights issues. A challenge, but not impossible — he pointed out that water law and use practices have already adapted to changing values: The law now provides for water rights that can be appropriated for environmental and recreational purposes without taking water out of a stream.

He also pointed out that the Endangered Species Act and the National Environmental Policy Act (NEPA) provide examples of how environmental considerations can be brought into decision-making without changing our system of property rights. Furthermore, many water providers are public entities, and their practices can be influenced by the public to whom they are accountable.

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