Public Trust Doctrine: ‘…a private owner’s right would be diminished or lost to the public domain’ — Terry Scanga

Justian I first codifier of riparian rights
Justian I first codifier of riparian rights

From The Mountain Mail (Terry Scanga):

Inclusions of a public trust doctrine in the Colorado Constitution have been attempted for several years without success. Most citizens may be unaware of the devastation that would be wrought on private water rights should the proponents be successful.

In Colorado water rights are a private property right acquired by diverting and placing the water to a beneficial use. Priority of use is determined by the date of first use – “first in time is first in right.”

Since statehood Colorado’s constitution has guaranteed this right.

The value of a water right is created by the combination of various components. To own a water right, the water must be placed to beneficial use on the lands decreed by the water court in each particular circumstance. The water itself represents a small fraction of the value of the right. The creation of the infrastructure to divert and transport the water to the place of use, the laterals, sprinklers, storage vessels and labor to efficiently distribute the water to its intended use and the ongoing maintenance of the infrastructure account for 90 percent or more of the asset value of the water right. Without all the parts, the right could not be created nor maintained.

Historically public values of water have arisen incidentally from the private application of water rights to beneficial uses.

Examples are the return flows from irrigation or municipal uses to tributaries and rivers from private uses or the creation of wetlands from irrigation that support water fowl and nesting.

Privately held water rights have provided these public benefits we all enjoy, but they have not created public ownership of the water.

A public trust doctrine would create a public ownership of these benefits without just compensation to the private water right owner whose money and labor created the benefit.

In the past quarter-century a movement to recognize the public benefit and ownership of water has taken hold in the West, particularly in California and other Western states. The implementation of this ownership/right has been incorporated in these states into a public trust and has had the effect of undermining private ownership and use of water as a private property right.

Today some owners of irrigation water rights are trying to define the value of irrigated agriculture. In their quest to better understand the values created beyond their immediate application of the water to beneficial use, there is a tendency to quantify the external value incidentally created within the community.

Most of these inadvertently created values are public benefits. The public has little or no financial resources to replicate these values if the owner of the right wishes to move the use to another location or change type of use. Under current law water right owners have standing to defend against negative impacts to their rights from changes of use by adjacent water right owners. Those with no water right have no standing to claim injury to incidental public benefits. A public trust doctrine would create standing.

If a public trust doctrine were successfully adopted by Colorado, a private owner’s right would be diminished or lost to the public domain. Governmental bodies would impose conditions upon water right owners to continue to maintain inadvertently created public benefits without just compensation.
Inundation of these incidental benefits by the water right owner through changes in irrigation practices could trigger fines and require replacement of publicly perceived benefits created from past irrigation practices.
The potential implications of such a public trust doctrine upon existing water rights are infinite. Irrigated agriculture should reconsider how it measures water right value.

The negative implications to municipal water rights are even more tenuous under a Colorado public trust doctrine. As presently envisioned, all water must be diverted and returned unimpaired to the stream. Thus there can be no diminishment in quantity or quality – an impossible task.

The cost of a public trust doctrine to municipal dwellers as well as agricultural users is simply untenable and unaffordable.

More Public Trust Doctrine coverage here.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.