Water Lines: Water, democracy and private property rights

Flood irrigation in the Arkansas Valley via Greg Hobbs
Flood irrigation in the Arkansas Valley via Greg Hobbs

From the Glenwood Springs Post Independent (Hannah Holm):

Which is more important: The public’s enjoyment of healthy streams, or preserving private property rights and agriculture? Do we really have to choose?

Questions swirling around proposed ballot initiatives that assert public rights to Colorado’s water and environment reflect broader tensions between public and private rights that are inherent in our democracy, as well as changing public values regarding natural resources.

The U.S. Constitution barely mentions water, but the Colorado Constitution has an entire article (16) on “Mining and Irrigation,” which provides the underpinnings of Colorado water law. In summary:

• Water in streams is owned by the public: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state …”

• At the same time, individuals’ rights to take water out of a stream to use it are assured: “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.” Further details explain that “priority of appropriation shall give the better right…” In other words, first in time, first in right.

• Rights of way have to be provided to move water from a stream to where it’s needed: “All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water … upon payment of just compensation.”

These provisions reflect the necessity of access to water from streams for life and livelihoods in semi-arid Colorado and, according to legal scholar David Schorr, a desire to prevent that access from being controlled by a privileged few. This is a very democratic kind of desire.

Over the last 100-plus years, public values related to water have become more complicated. We all still want to drink water and eat food, but water in streams for recreation and a healthy environment have also become high priorities. And sometimes water taken out of streams to serve those long-established values of domestic use, agriculture and industry, and the livelihoods related to them, ends up leaving streams depleted and unhealthy.

The constitution clearly provides for taking water out of streams, but gives no direction about when water should be left in. The General Assembly passed laws allowing water rights to be filed for environmental and recreational purposes, but most of these rights are very junior to others and vulnerable to going unmet.

Proposed ballot initiatives to establish public rights in water and the environment seek to reverse the priority of these values. Initiative 103, “Public Trust Resources,” which focused on water, was derailed from its track to the ballot by the Supreme Court, but Initiative 89, “Local Government Regulation of Environment,” was cleared for signature collection.

Initiative 89 would amend Colorado’s constitution by asserting that Colorado citizens “have a right to Colorado’s environment, including its clean air, pure water and natural and scenic values.” It directs the state and local governments to protect these resources, and says that when local and state laws conflict, the more restrictive or protective would govern.

In his dissenting opinion, Justice Gregory Hobbs argued that the new public right to the environment “would override existing private and publicly held property rights,” and would require state and local officials “to act adversely to the interests of private parties …”

In addition to reflecting the ever-present tension between public and private rights, the dispute also reflects polarization between parties primarily interested in preserving the status quo and those seeking enhanced environmental protections.

Longtime environmental advocate and vice president of the Upper Gunnison River Water Conservancy District Steve Glazer, speaking at the Colorado Water Workshop in Gunnison in June, urged both sides in the conflict to “listen to each other more, and move together instead of apart” in order to find solutions that don’t sacrifice one set of values to serve the other.

From The Durango Herald (Sarah Mueller):

Douglas Kemper, executive director of Colorado Water Congress, joined Bruce Whitehead of the Southwestern Water Conservation District, and elected leaders to educate the council on two initiatives that could change the state’s prior appropriation system for managing water claims. Prior appropriation is a way of water allocation that controls who uses how much water, the types of uses allowed and when those waters can be used.

The secretary of state’s website said any person can draft a statewide initiative to amend the state constitution. If proponents of the ballot measure gets enough signatures, about 86,105, all voters in the state would decide the issue. The Colorado Supreme Court affirmed initiatives 89 and 75.

The Water Congress, a nonprofit group providing leadership on water issues, created a stewardship project that tracks, what it believes are, “public trust doctrine” initiatives that would change how Colorado allocates water. The group opposes public-trust initiatives. Switching to a public-trust system would mean the government would decide how to allocate water rights instead of who came first, according to Kemper.

Initiative 75 would give local governments the power to approve laws that would establish the fundamental rights of residents, communities and nature. It would give local governments expanded power over businesses, such as allowing local laws to establish or eliminate the rights of corporations and other businesses operating in the community to protect the rights of people, communities and nature.

“Those are some pretty far-reaching powers,” Kemper said. “Basically, it says those local laws would be superior to international, federal or state law.”

Initiative 89 declares that Colorado’s environment is the common property of all Coloradoans, including the clean air, pure water, and natural and scenic values. It makes state and local governments trustees of the environment and requires them to protect the environment.

Colorado Supreme Court Justice Gregory Hobbs Jr. wrote in a dissenting opinion on Initiative 89 that the initiative would create a new common property right that would override existing private and publicly held property rights.

“Initiative 89 would upend the existing regulatory balance and thrust private-property owners and governments into an uncertain future,” Hobbs wrote…

State Rep. Mike McLachlan, D-Durango, urged city councilors to draft a resolution opposing these initiatives. The Southwestern Water Conservancy District has issued a resolution in opposition to public trust initiatives.

More 2014 Colorado November election coverage here.

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