Dear government, pay me for my losses. Inside Amendment 74, a ballot measure that has Colorado’s towns and cities scared — @COindependent

(Photo by Evan Machnic via Flickr: Creative Commons)

From The Colorado Independent (Lars Gesing):

The Farm Bureau is the public face, the oil and gas industry is the money behind it

Imagine you are a property owner. One day, you decide you want to use your land to develop a sand and gravel operation. You do your research, and you find out that your property is smack in the middle of a floodplain the county has designated. So the local authorities turn down your request for that sand and gravel operation. What do you do? You sue, arguing that the designation is causing you financial harm.

You will lose.

In fact, the Colorado Supreme Court sided with La Plata County in this very case in 2001.

Now, 17 years later, a constitutional amendment that appears on the ballot this November seeks to significantly strengthen a property owner’s rights in the event of a loss based on a government rule or regulation. It would also ease access to financial compensation in such cases. Critics argue that, if passed, the measure would lead to a flood of lawsuits that could bankrupt smaller and less affluent municipalities or have a chilling effect on proposing regulations in the first place.

The proposed amendment, which is backed by the oil and gas industry, is the latest salvo in the ongoing turf war between municipalities seeking local control to protect the safety and health of their communities and powerful industries and individuals alike seeking to benefit from the extraction of resources close to those communities.

Amendment 74, as it will appear on the Colorado ballot this fall, reads as follows: “Shall there be an amendment to the Colorado constitution requiring the government to award just compensation to owners of private property when a government law or regulation reduces the fair market value of the property?

The Colorado Farm Bureau, a nearly 25,000-member-strong organization that represents the state’s farmers and ranchers as well as a variety of agriculture industry-related players, teamed up with the monetary muscle from the oil and gas sector and brought forward the initiative. The Bureau has also taken on the PR campaign to persuade voters, and it hails the measure as a leveling of the playing field, allowing individuals to seek compensation for what legalese refers to as a “regulatory taking” — the impact of a government action on their property value.

“As farmers, we think of things in acres,” said Marc Arnusch, a family farmer in the southeast corner of Weld County and a member of the Farm Bureau’s board of directors. “And just because I have 10 acres, it shouldn’t have to take a government action to take 9.5 of those acres away from me before a takings claim can be made. This [amendment] gives me as a farmer the right to seek just compensation through the court process and through government negotiation to satisfy me and keep me whole. Because nothing is more important to a farmer than his land. It is his livelihood.”

While the proposed amendment does not specify which kinds of private property would be affected and leaves such interpretations up to the courts, among the examples will most certainly be mineral and water rights as well as oil and gas resources.

“For property rights advocates, this is sort of a dream come true, because they know the upshot is that government will in most cases stop regulating because it is simply too costly to do so,” said Justin Pidot, a law professor specializing in property rights and environmental and natural resources law at the University of Denver’s Sturm College of Law. “They are deeply anti-government, anti-regulatory measures that are very consciously designed to prevent environmental regulations, public health regulations, zoning and the like.”

What does the law say right now?

Before diving deeper into the pros and cons of Amendment 74’s potential effects, a brief overview of existing property rights law — as provided by Pidot, a former deputy solicitor for land resources for the Department of the Interior during the Obama administration — serves as helpful guidance to understand the contradicting arguments swirling around the measure.

Basically, there are a couple of different situations in which property rights law comes into play. First: In what’s called a “physical appropriation of property,” the government simply seizes an individual’s property for public use. In this case, current state law mandates the government to pay the owner based on the property’s fair market value.

But it is the second area of this type of law that cuts to the core of Amendment 74. When lawyers speak of a “regulatory taking,” the government has enacted some sort of rule or regulation that negatively affected someone’s property value. And in these cases, rarely does the owner actually get compensated monetarily.

Pidot explained that the courts developed a standard in which they look at existing research showing that government regulations as a whole have positive and negative impacts on property values and overall creating a healthy balance. Cherry-picking one “bad” regulation would throw the whole system out of balance, Pidot said.

The legal doctrine that has evolved over time would require that a property owner experience a “very high set of losses” before compensation is warranted, he said. “The way the courts have described it is we are looking for a regulation that is the functional equivalent of the government taking title to your property entirely.”

But for farmer Arnusch, talk of a steady tide of regulations lifting all boats doesn’t count. He is staunchly opposed to governments taking away value from land in the first place.

Arnusch illustrated his point with a hypothetical scenario.

“For example, on my farm, if I wanted to put up a grain elevator…” he said. “If I had started down the pathway, defined the facility, it fit the code, I have my blueprints, I have hired a contractor, and then the government comes out and changes the code for my general vicinity, they have impacted me directly, because I was already so far down the track.”

And for that loss, the inability to reap maximum value from his land, Arnusch argued, he should be compensated.

Who’s to blame: zealous bureaucrats or faceless corporations?

Critics of Amendment 74 point out that other states have tried similar laws. Comparable efforts in Florida led municipalities – afraid of a flood of compensation claims – to severely dial back much of their regulatory prowess. Oregon voters in 2004 approved a similar amendment to the state’s constitution. Three years later, after angry property owners filed over 7000 claims totaling nearly $20 billion and local governments had to pay out $4.5 billion, voters amended the state constitution again, effectively retruning the bar for takings’ claims back to where it was before 2004.

And neither of these two states crafted as broad an amendment as the one the Farm Bureau and their allies in the oil and gas sector are now proposing, said Colorado Municipal League Executive Director Sam Mamet, a critic of the measure.

“It is the whole gamut of local government decision making and policy making that could be called into question here,” he said. “There was no care in drafting this, there was no thought to being more narrow, articulating certain exemptions, putting in some ability for the legislature to perhaps implement the measure by statute — and that is of major concern.”

Whether it is a liquor or marijuana license, street improvements or affordable housing, Mamet said local governments could come to a screeching halt because their prime worry would have to be about an individual or industry group depleting city coffers with a regulatory takings claim.

It is Mamet’s latter point that rings the alarm bells for Aurora City Councilwoman Nicole Johnston.

“If this passed, a whole new system of courts resolving property disputes could be required,” she cautioned. “There is no leveling of the playing field for the little guy or the small community, it’s basically those with deep pockets and resources can spend years in litigation to protect their interests. That puts the little guy and the smaller city and any municipality at a disadvantage.”

The elephant in the room: oil and gas fighting drilling setback measure

Councilwoman Johnston has a specific worry: that behind the farmers stands a mighty phalanx of oil and gas industry lawyers, just waiting to take down City Halls across Colorado that dare to wield local control to limit development of resources within their boundaries.

A brief flashback: In 2016, the Colorado Supreme Court ruled that municipalities do not have the power to impose fracking bans — as for example the cities of Fort Collins and Longmont did — but that it is up to the state to regulate such drilling. Various municipalities have continued to try to impose limits since.

Enter Proposition 112. Also on the ballot this fall, this measure asks Coloradans to enforce a 2,500-foot buffer zone between new oil and gas drilling operations and any occupied structure a municipality deems vulnerable.

Eric Sondermann, an independent political analyst in the state, called Amendment 74 “a bit of an insurance policy” for oil and gas and related agricultural groups against Proposition 112.

“The people who have most to risk on a new massive setback of oil and gas development is obviously the industry itself, but it is also the holders of mineral rights,” he said. “And the holders of those mineral rights are often farmers and ranchers.”

It comes as little surprise, then, that campaign finance filings show a multi-million dollar effort spearheaded by an oil and gas interest group called Protect Colorado to support the Farm Bureau. The issue committee invested more than $4 million into the signature-gathering process and has also spent money on pro-industry television ads. The result: The Farm Bureau earlier this year dropped a record 209,000 signatures on the Secretary of State’s desk, more than twice what was needed — which made Amendment 74 only the second such ballot measure since voters in 2016 approved an amendment that placed much stricter laws governing the signature-gathering process. Back then, the oil and gas industry and its allies contributed more than $3 million to proponents of that amendment — known as Raise the Bar — hoping that a higher bar for efforts to change the constitution would shield them from at least some citizen initiatives seeking to reign in drilling in the state.

Despite its substantial monetary support for Amendment 74 this year, Protect Colorado representatives were tight-lipped about the amendment, referring most questions about it to the Farm Bureau, and saying only that it is “a fair measure” for which they helped gather signatures.

Dan Haley, president of the Colorado Oil & Gas Association, in a statement hailed Amendment 74 as a “good government measure that makes sense for all of us.”

The fight over what rights property owners should have not only encompasses the PR arena, though. Court documents show that opponents of the amendment mounted a legal challenge, against it, saying the amendment was overly broad and violated the single subject rule for such measures. But the bid ultimately failed. The lawyer the Farm Bureau hired to defend its position was Jason Dunn, a Republican who works for Denver-based political power player firm Brownstein Hyatt Farber Schreck — and President Donald Trump’s nominee to become the next U.S. attorney for the state of Colorado. Dunn was also involved in finalizing the language of the proposed amendment.

The same court documents name Michelle Smith as a co-respondent beside the Farm Bureau’s executive vice president, Chad Vorthmann. Smith is an oil and gas operative with more than 35 years in the industry under her belt who has worked for organizations including the Colorado Chapter of the National Association of Royalty Owners as well as Denver-based Davis Oil Company and Anderman Oil Company. In 2015, the Denver Business Journal selected her to its “Top Women in Energy” class. Smith is an outspoken property rights advocate and a mineral rights owner herself.

Asked if Amendment 74 was in any way related to the proposed drilling setback measure, she said: “Not related, but property rights are property rights.” Smith then added that it would “only make sense” for a mineral owner to bring forward a case if you took away his or her right to drill.

Newspaper editorial boards across the state are chiming in, with the Grand Junction Daily Sentinel going as far as likening the fight over Amendment 74 to a “nuclear escalation hitting the initiative process.”

Such drastic language didn’t go unnoticed in the Capitol, either. Gov. John Hickenlooper’s office made what one of his advisors, speaking on the condition of anonymity, told The Colorado Independent were “a handful of calls” to see if a truce could be brokered and both measures would be withdrawn. The effort ultimately failed, and the mandated deadline to do so has since passed. The governor’s office declined to publicly comment on the issue.

Democratic gubernatorial candidate Jared Polis is opposed to Amendment 74. His Republican opponent Walker Stapleton’s spokesman has said the candidate supports the concept behind the measure, and his campaign website lauds Colorado’s farmers and ranchers, noting that many “use their property or mineral rights to produce energy” and so are able to benefit from a “diversified revenue stream.”

And so it will be up to Colorado voters this fall to decide the fate of Amendment 74 in this newest edition of property rights v. local control. Given the new Raise the Bar requirement that a constitutional amendment needs to gather at least 55 percent instead of a simple majority of yes votes, the measure still has a steep climb ahead, independent analyst Sondermann said.

But the war for the interpretative prerogative is well under way.

The Farm Bureau’s Vice President of Advocacy, Shawn Martini, cautioned against castigating the amendment in apocalyptical terms when really, he said, there was no reason to believe the courts would severely alter the historically narrow view they have taken when it comes to regulatory takings.

“For our members, this is much more broad than just mineral rights,” he said. “It cuts to the core of what makes agriculture successful, what makes most businesses in this country successful, and that is strong protections for private property. The government per the constitution is allowed to take away private property, but they are also required to provide just compensation for people who are impacted by this policy. And our members would like to see that right strengthened and push the court a little bit more to the center and to take a slightly more broad view of who can be compensated for a regulatory taking.”

DU law professor Pidot is having none of that no-big-deal argument.

“It seems quite odd to me for the proponents of a constitutional amendment to say, well it is not going to do very much,” he said. “The point of amending the constitution is people believe there is a severe problem that needs a severe response. We should take the measure seriously. It’s proponents believe that this will reshape our law in significant ways — and the question for us is, ‘Are those beliefs that we want to be reshaped?’”

Gilcrest: High groundwater levels affect residents

HB12-1278 study area via Colorado State University

From The Greeley Tribune (Tyler Silvy):

More than three years after water began seeping into Gilcrest and surrounding residents’ basements — the result of record high groundwater levels — the problem is spreading, impacting new homes.

Joanne Maes, a former Gilcrest town trustee, is one such resident. She doesn’t have more than a dozen sump pumps installed in her basement like a resident in 2014. She has one, and she and her husband did the work themselves, spending about $1,000 on materials.

Maes first noticed the problem a month ago. After 12 hours of continuous shop vac use, the family installed a sump pump, which runs automatically as water seeps in. Every 20 minutes or so, a PVC pipe in the backyard of Maes’ 12th Street house gurgles out water.

The same is true for a number of homes in Gilcrest, and Maes led the way around the quiet Weld County town Tuesday, pointing out more PVC pipes, connected to more sump pumps, dotting the front yards of more residents. An extra green patch of grass is another tell-tale sign.

Maes and her neighbors now, as residents did in 2014, blame the fact that farmers aren’t allowed to pump groundwater to water crops. She even testified before the Colorado Water Conservation Board, along with others from the area a couple weeks ago.

Residents here have largely given up hope anything will be done. And so, the sump pumps drone on, the water gurgles out of PVC pipes and residents hope things don’t get any worse.

Voters approve the Central Colorado Water Conservancy District’s bond issue


From The Greeley Tribune (Eric Brown):

Randy Ray was “pumped” after voters of the Central Colorado Water Conservancy District overwhelmingly approved a pair of water measures he says will “significantly” help farmers.

With votes cast by about 87 percent of Weld County’s eligible, active voters, 66.25 percent of those who live in Central’s boundaries had checked “yes” on Measure 4A. Measure 4A approves a $60 million bond issue to pay for three of Central’s endeavors. “This is so huge for us,” said Ray, executive director of Central.

Central, based in Greeley, is one of 15 water providers looking to take part in the proposed Chatfield Reservoir Reallocation Project, a $184 million undertaking that would provide an additional 2,849 acre­feet of water to some of Central’s users. Central Water officials also are considering the construction of gravel pits for an additional 8,000­9,000 acre­feet of storage, and buying 1,000 acre­feet of senior water rights with the bonds. Taxpayers within Central Water’s boundaries will now pay an additional $1.13 each month per $100,000 in property value for the next 25 years, Central officials estimate.

About 65 percent of Central voters approved Measure 4B, which allows Central’s Groundwater Management Sub­district to accept state and federal grant funding to construct projects.

Central’s district is mostly in Weld County, but its boundaries also stretch into Adams and Morgan counties. Central voters in Morgan County supported 4A by a 25­16 margin, and 4B by a 17­6 margin. Numbers for Adams County alone on the issues were not available as of press time.

More South Platte River Basin coverage here.



Please remember to vote today — if you haven’t already voted early — put up with the delays, have your voice heard! Send me email if you want some coaching about the issues or candidates. 🙂

The Central Colorado Water Conservancy District is asking voters to approve a $60 million water bond issue


From The Greeley Tribune (Eric Brown):

Fall is always a hectic time of the year for Randy Knutson, but the LaSalle­area farmer has spent more time away from home during this harvesting season than probably any other.
In addition to rounding up matured crops in his fields and also managing operations for Zabka Farms near Greeley, Knutson in recent weeks has been trekking across the area to convince fellow producers and other residents that approving a $60 million bond issue is in their best interest.

His long hours are well worth it, as far as he’s concerned.

Without the bond issue and the water that would be purchased with the millions of dollars, harvests of future autumns could be minimal in Weld County, he says, with the local economy suffering as a result.

Knutson and others are asking taxpayers of the Central Colorado Water Conservancy District to approve Measure 4A — the $60 million bond issue that would be used for more water storage and buying water rights.

Residents in Central’s district will vote on that measure as part of next week’s election. “Without the water, you’re going to see agriculture go away in Weld County,” said Knutson, who serves on the board of directors for Central and serves as chairman of the voluntary Yes For Water group that’s been promoting and raising funds for Measure 4A. “And now is the time we need to be going out to get the water we need.”

Central oversees two subdistricts that provide augmentation water to farmers in the LaSalle and Gilcrest areas and other parts of southern Weld County. The two subdistricts — the Groundwater Management Subdistrict (GMS) and the Well Augmentation Subdistrict (WAS) — also stretch into Adams and Morgan counties.

Augmentation water is needed to make up for depletions to the aquifer caused by pumping water out of the ground. All together, Central’s two subdistricts provide augmentation water for more than 100,000 acres of irrigated farmground, according to Randy Ray, executive director of the Central Colorado Water Conservancy District. The additional augmentation water is needed since many of the wells in Central’s subdistricts were either curtailed or shut down back in 2006, when the state determined the pumping of those wells was depleting stream flows in the South Platte River Basin. As part of those decisions, the state made augmentation requirements more stringent. Many farmers haven’t been able to use their wells since then because they haven’t had the necessary amount of augmentation water to do so.

Knutson, himself, has three wells he still can’t use. Those wells are needed in dry years like this one, when flows in the rivers are low, bringing little water to irrigation ditches, Knutson said.

Also, Knutson said, cities in the region are growing rapidly and need more water, causing supplies to get tighter and more much expensive. For example, one unit of water from the Colorado­Big Thompson project, one of the largest water projects in the region that supplies supplemental water for municipal and agricultural uses all over northern Colorado, now costs about $10,000. It was only about $7,500 three years ago, according to Brian Werner, a spokesman for the Northern Colorado Water Conservancy District.

“It’s only gong to get more expensive the longer we wait,” Knutson said. Knutson, Ray and others say the additional water and the bond measure are needed because Central Water relies heavily on leased water from cities to supply its farmers, and, as Front Range cities grow, those cities will lease out less water.

The $60 million in bonds would pay for three of Central Water’s endeavors.

The district is one of 15 water providers looking to take part in the proposed Chatfield Reservoir Reallocation Project, a $184 million undertaking that would raise the Denver­area lake by as much as 12 feet and provide an additional 2,849 acre­feet of water to Central Water. Central Water officials also are considering the construction of gravel pits for an additional 8,000­9,000 acre­feet of storage, and buying 1,000 acre­feet of senior water rights.

If the bond measure is approved, taxpayers within Central Water’s boundaries would pay an additional $1.13 each month per $100,000 in property value for the next 25 years, Knutson said.

The district recently sent out a survey to about 18,000 residents, which it said showed about 75 percent of respondents favored the bond issue. The district encompasses nearly 20,000 households.

There’s no organized group opposing the project, but some have questioned why they need to pay additional taxes for water they couldn’t personally use.

“To be completely honest, I still don’t know which way I’m going to vote,” said Dave Dechant, a Weld County farmer.

Public meetings on the bond issue held this summer grew heated at times.

In response to those residents, Ray said he hopes they’ll still support the project, since the additional water would go toward strengthening the local agriculture economy, which benefits the entire area. Ray said Central Water also might lease some of the water to residential or other users.

Some who would benefit directly from the additional water also expressed frustration at the meetings because they’ve been paying taxes to the district for several years and have yet to see any additional water. Ray said those previous taxes have paid for the legal and engineering fees that have now given Central rights to 68,000 acre­feet of additional water.

The $60 million bond issue would pay for the infrastructure to finally put some of those water rights to use, Ray explained.

More 2012 Colorado November election coverage here.

Where do the Presidential candidates stand on funding for infrastructure?


From the Associated Press (Jason Keyser) via The Denver Post:

President Barack Obama has favored stimulus-style infrastructure spending plans, talking up highway, bridge and rail repairs as job creators, and pushed for innovations like high-speed rail and a national infrastructure bank to finance projects with the help of private capital. But Republican opposition to increased spending and taxes has blunted many such plans.

Mitt Romney favors less involvement by the federal government in infrastructure, preferring to let states lead the way. Romney shuns the idea that public-works spending is a good way to jumpstart the economy, saying decisions on worthy projects should be based on need and potential returns. Romney also wants to privatize Amtrak by ending federal subsidies for the money-losing passenger rail system. He’s OK with borrowing to pay for megaprojects if there’s a revenue stream to pay the money back, like tolls or port fees.

More infrastructure coverage here and here.

I’ll be live-blogging the Presidential debate tonight on the Denver Post website


Update: Here’s the link where our posts will show up:

The Denver Post has recruited bloggers to cover the debate. My sources tell me that there will be a link from the Post home page later today. Please come by while you’re watching the debate.

I believe that the Twitter hashtag for tonight is #denverdebate. You can also check out the hashtag #zingerwatch.

More 2012 Colorado November Election coverage here.

2012 Colorado November election: 3rd District candidates Pace and Tipton square off at the Club 20 summer meeting

Click here to read The Denver Post (Lynn Bartels) recap.

Joe Hanel (@joehanel) — who writes for The Durango Herald — live-Tweeted from the meeting using Twitter hashtag #copolitics.

More 2012 Colorado November election coverage here.

Answers to the ‘Top American Science Questions’ from President Obama and Mitt Romney


General scientific knowledge is not the purview of Coyote Gulch. We try to confine ourselves to Colorado water issues, including the entire Colorado River Basin, with little opinion or editorializing. However, the presidential candidates’ answers to the questions posed by are important. The collapse of whole ecosystems is imminent with climate change yet our political process disallows discussion of the science. Instead we have polarized factions arguing issues that have been largely settled in the science community. Shameful.

Here’s a breath of fresh air. Both candidates this year have answered the Top American Science questions for 2012. Click through and read them for yourself. Here’s an excerpt:

[ Question] 2. Climate Change. The Earth’s climate is changing and there is concern about the potentially adverse effects of these changes on life on the planet. What is your position on cap-and-trade, carbon taxes, and other policies proposed to address global climate change—and what steps can we take to improve our ability to tackle challenges like climate change that cross national boundaries?

We’ll let President Obama go first:

Climate change is the one of the biggest issues of this generation, and we have to meet this challenge by driving smart policies that lead to greater growth in clean energy generation and result in a range of economic and social benefits. Since taking office I have established historic standards limiting greenhouse gas emissions from our vehicles for the first time in history. My administration has made unprecedented investments in clean energy, proposed the first-ever carbon pollution limits for new fossil-fuel-fired power plants and reduced carbon emissions within the Federal Government. Since I took office, the U.S. is importing an average of 3 million fewer barrels of oil every day, and our dependence on foreign oil is at a 20-year low. We are also showing international leadership on climate change, reaching historic agreements to set emission limits in unison with all major developed and developing nations. There is still more to be done to address this global problem. I will continue efforts to reduce our dependence on oil and lower our greenhouse gas emissions while creating an economy built to last.

And now, challenger Mitt Romney’s answer:

I am not a scientist myself, but my best assessment of the data is that the world is getting warmer, that human activity contributes to that warming, and that policymakers should therefore consider the risk of negative consequences. However, there remains a lack of scientific consensus on the issue — on the extent of the warming, the extent of the human contribution, and the severity of the risk — and I believe we must support continued debate and investigation within the scientific community.

Ultimately, the science is an input to the public policy decision; it does not dictate a particular policy response. President Obama has taken the view that if global warming is occurring, the American response must be to slash carbon dioxide emissions by imposing enormous costs on the U.S. economy. First he tried a massive cap-and-trade bill that would have devastated U.S. industry. When that approach was rejected by Congress, he declared his intention to pursue the same course on his own and proceeded through his EPA to impose rules that will bankrupt the coal industry.

Nowhere along the way has the President indicated what actual results his approach would achieve — and with good reason. The reality is that the problem is called Global Warming, not America Warming. China long ago passed America as the leading emitter of greenhouse gases. Developed world emissions have leveled off while developing world emissions continue to grow rapidly, and developing nations have no interest in accepting economic constraints to change that dynamic. In this context, the primary effect of unilateral action by the U.S. to impose costs on its own emissions will be to shift industrial activity overseas to nations whose industrial processes are more emissions-intensive and less environmentally friendly. That result may make environmentalists feel better, but it will not better the environment.

So I oppose steps like a carbon tax or a cap-and-trade system that would handicap the American economy and drive manufacturing jobs away, all without actually addressing the underlying problem. Economic growth and technological innovation, not economy-suppressing regulation, is the key to environmental protection in the long run. So I believe we should pursue what I call a “No Regrets” policy — steps that will lead to lower emissions, but that will benefit America regardless of whether the risks of global warming materialize and regardless of whether other nations take effective action.

For instance, I support robust government funding for research on efficient, low-emissions technologies that will maintain American leadership in emerging industries. And I believe the federal government must significantly streamline the regulatory framework for the deployment of new energy technologies, including a new wave of investment in nuclear power. These steps will strengthen American industry, reduce greenhouse gas emissions, and produce the economically-attractive technologies that developing nations must have access to if they are to achieve the reductions in their own emissions that will be necessary to address what is a global issue.

So there you have it. Click through and enjoy the rest of the answers. I also want to thank Mr. Romney for his answer, it will not sit well with his base.

Meanwhile, here’s an editorial from The Denver Post on the subject. Here’s and excerpt:

According to scientists at the National Snow and Ice Data Center (NSIDC) in Boulder, the ice cap has shrunk to a record extent and likely will continue to do so. An area of ice equivalent to the size of South Carolina is melting each day. That’s about twice the rate observed since 1979.

“As far as the larger scale, when you’re heating up a region of the world, compared to what it used to be, you’re changing the balance of the climate system,” NSIDC research scientist Walt Meier said during a conference call. “Now, your air conditioner is losing coolant, so to speak. It’s not as efficient as it used to be.”

It’s bad news, and it deserves more attention than it has gotten.

Earlier this month, a study co-authored by NASA climate scientist James Hansen concluded that a jump in the number of very hot summers can only be attributable to human-caused global warming.

Hansen linked several severe heat waves and droughts to global warming via statistical analysis.

In an op-ed piece that appeared in The Washington Post, Hansen wrote: “There is still time to act and avoid a worsening climate, but we are wasting precious time.”

Rifle City Council approves ballot question to raise sales tax for new water treatment plant


From the Rifle Citizen Telegram (Mike McKibbin):

If approved by city voters, the increase will help the city repay a $25.5 million loan from the Colorado Water and Power Development Authority. The loan, on which the city closed on Aug. 14, will fund the construction of a new water treatment plant to replace the current Graham Mesa plant, which is old and in danger of failure, according to city officials.

The sales and use tax hike, if approved in November, would take effect in January and would end once the loan is repaid. It would increase the city’s sales tax rate from 3.5 cents to 4.25 cents and would raise an estimated $1.65 million a year.

More Rifle coverage here and here.

Initiatives 3 and 45: ‘We now know that the process is adversarial’ — Richard Hamilton


From The Colorado Statesman (Peter Marcus):

Two efforts to protect water sources in Colorado also failed after sponsors were unable to submit signatures on Monday. Both initiatives aimed to declare water as belonging to the people of Colorado.

Initiative 3 would have simply declared that the public owns the water of Colorado; Initiative 45 would have addressed use and environmental issues by allowing the public to “limit” or “curtail” the right to divert water within the state.

Richard Hamilton, who sponsored both initiatives, said they were hampered by a challenge to the title language, which went to the Colorado Supreme Court and was not settled until April 16, dramatically shrinking the period of time sponsors had to collect signatures.

In the end, sponsors ended up with about 30,000 signatures, said Hamilton.

“We’ll go back and put something in and go after them again in 2014,” he said. “Hopefully there will not be such inordinate delays. We now know that the process is adversarial.”

Critics, including the Colorado Water Congress, the Colorado Water Conservation Board, and the Colorado River Water District, had opposed the measures, stating that the initiatives were too broad, allowing the public to block water diversions for a wide range of issues that could affect how the state and local governments distributed needed water.

More 2012 Colorado November election coverage here.

2012 Colorado November election: Rifle Council puts funding for new water treatment plant on the November ballot


From the Rifle Citizen Telegram (Niki Turner):

The city wants to get the money for the plant through a $25.5 million loan from the Colorado Water Resources and Power Authority.

City officials have said the existing Graham Mesa plant is aging, undersized to serve projected population growth and unable to meet possible tougher federal water quality standards in the future.

Under the water rate structure approved earlier this year by council to help repay the loan and cover operating costs of the new plant, the base rate charged to city water users will nearly double, as of Sept. 1.

City Finance Director Charles Kelty said Tuesday that if voters approve the three-quarter cent sales tax measure in November, the second phase of the rate hike, due to take affect April 1, could be lowered. That would require City Council action sometime after the first of the year, he added.

Kelty said the bonds for the loan were sold last week and he expected to receive the paperwork this week. After those documents are signed by city officials and returned to the water and power authority, the closing date will be Aug. 14. No further action by council is needed to finalize the loan, he added.

More 2012 Colorado November Election coverage here. More infrastructure coverage here.

‘Protect the Flows’ sends hayfield message to President Obama #CORiver


Click on the thumbnail graphic to see a photo of Protect the Flows hayfield message to the President located along the glide path to the Grand Junction airport.

From (Andie Adams):

The 360-foot natural canvas with letters 30 feet high spells out “Mr. Prez – we rely on the Colorado River.”

The one-acre work tells about our common need for one resource: the river.

“If it was a company in Colorado, it would be the biggest employer. Eighty thousand people rely on the Colorado River for their job in our state, and $10 billion is brought to our state every year,” said Molly Mugglestone, the coordinator for conservation group Protect the Flows.

The organization hopes will catch the eye of President Obama as he lands at the Grand Junction Regional Airport. They plan for him to see it, and then they will send him a letter to explain their intent.

That letter asks for his support on the Farm Bill, on which the U.S. Congress must vote.

Protect the Flows is especially interested in one of the bill’s provisions.

“The Regional Conservation Partnerships Program, which would provide for resources to farmers and agriculture to increase their efficiency, use the latest technology, to use water better,” said Mugglestone.

Mesa Park Vineyard owner Brooke Webb said she supported the crop art whole-heartedly because for her, the river is life.

“We rely on it completely. We have eight acres of grapes over on East Orchard Mesa that’s irrigated 100 percent by the Colorado River.”

More Colorado River Basin coverage here and here.

2012 Colorado November election: Proponents of Initiatives 3 and 45 withdraw them from ballot


From the Summit County Citizens Voice (Bob Berwyn):

Organizers said that, as of this week, they were able to collect about 30,000 signatures, with about 86,000 needed for ballot certification. With an Aug. 6 deadline looming, the backers said they didn’t think there was enough time left to gather the needed support.

The state’s entrenched water establishment, and even most environmental organizations, opposed the measures, and exaggerated potential impacts of the public trust doctrine, claiming the changes would threaten Colorado’s antiquated water appropriation scheme.

Backers of the measures claimed that a 100-[day] delay by the Colorado Supreme Court in approving the initiatives cost them precious time needed to gather the signatures. The delay came after the state’s water establishment filed a procedural lawsuit, challenging the sufficiency of the ballot titles. The Supreme Court dragged its feet on a relatively minor naming issue, initially taking the case January 19, but not issuing a ruling until April 16.

“That DELAY of ca.100 days of “decision rendering time” by the Colorado Supreme Court was the fatal element in the defeat of this petition collecting process . . . for, after the Supreme Court ruled, the initiative petition forms then needed to be approved by the Secretary of State’s staff (required by statute) – a process that took another two weeks – and then, the petitions could be printed for circulation,” backer Richard Hamilton wrote in an email announcing the decision to withdraw the initiatives.

More Initiatives 3 and 45 coverage here.

2012 Colorado November election: Initiatives 3 and 45 withdrawn, supporters hope to regroup for 2014


Practically everyone in the water business will breathe a sigh of relief now that Initiatives 3 and 45 have been pulled from the November ballot. The organization behind the attempt to get Coloradans to reject Prior Appropriation cannot get the required signatures. Here’s a report from Cathy Proctor writing for the Denver Business Journal. From the article:

Supporters of the initiatives “have withdrawn No. 3 and 45,” spokesman Rich Coolidge said. “They are not going to be submitting signatures.”[…]

Richard Hamilton, who worked on drafting the initiatives, said Monday that supporters decided it “would be a near impossibility” to get the needed number of signatures. But he said that supporters will continue work on them, hoping to submit similar proposals for the 2014 ballot.

More Initiatives 3 and 45 coverage here.

2012 Colorado November election: The Colorado Water Congress is stepping up its opposition to Initiatives 3 and 45


From the Denver Business Journal (Cathy Proctor):

“We’re opposed to them,” said Dan Pfeiffer, director of regional government affairs for Xcel Energy Inc., the state’s largest utility. “They would basically remove our water rights and could raise our costs if we can’t use our water [to generate electricity].”

Xcel is a member of the Colorado Water Congress, whose 350 members include river conservancy districts, environmental groups, cities and towns, water districts, agriculture and other business.

More coverage from John Stroud writing for the Glenwood Springs Post Independent. Here’s an excerpt:

The Associated Governments of Northwest Colorado (AGNC), whose members include Garfield, Mesa, Rio Blanco, Moffat and Routt counties, voted unanimously to support the River District in its previously stated opposition to Initiatives 3 and 45. Garfield County Commissioner Mike Samson, who chairs the AGNC board, said the measures would have “massive negative impacts” throughout Colorado. They are also too punitive and would likely result in decades of litigation, he said. “It would be difficult for anyone to understand the consequences and long-term damage to the economic well-being of Colorado,” Samson said in a press release sent out Thursday by AGNC, which has its offices in Rifle…

Routt County Commissioner and AGNC Vice Chairman Doug Monger stated, “All Coloradans must be overprotective of their water rights and cast suspicion on any attempt to throw the true and tested historic Colorado water law into the trash.”

More Initiatives 3 and 45 coverage here.

2012 Colorado November election: ‘In this November’s election, voters may be asked to destroy Colorado’s system of water rights’ — Craig Green


Here’s an opinion piece in opposition to the Initiatives 3 and 45 writing by Craig Green running on the Independence Institute website:

In this November’s election, voters may be asked to destroy Colorado’s system of water rights. A pair of ballot proposals would confiscate the water rights of cities, water districts, farmers, and ranchers.

The Colorado Constitution has always recognized water as a public resource, subject to claims for private uses. Under our Constitution, water rights can be claimed for beneficial purposes such as irrigation, domestic and city uses. Farmers can own water rights, and so can cities.

The authors of proposed ballot initiatives #3 and #4 propose eliminating the constitutional language which recognizes long-established private claims to water. This change would destroy the water rights of farmers and ranchers, and the water rights of cities and other government entities.

This proposed government takeover of Colorado water rights would be the most extreme confiscation of private property in the State’s history. The amendment would reverse Colorado’s long-standing recognition of senior water rights, recognition that began a quarter century before Colorado became a state.

According to the Colorado Constitution, water that has not been previously appropriated can be claimed for private use. Water rights established by this process, once ratified by a court, are considered to be property rights. This process of claiming water for private use is called “prior appropriation.” It means water rights are ranked by the date at which they were first established.

Colorado Supreme Court Justice Gregory Hobbs explains: “While the prior appropriation doctrine and western water development has been lampooned and lambasted, no one has made a serious proposal for substitution of a water law system that would better serve the needs of humans and the environment with equal or greater security, reliability, and flexibility – these being the hallmarks of an effective resource allocation system.”

Most water uses return less water to the stream than they divert. This is lawful, as long as a user with junior rights does not deprive a downstream senior user of the water to which he has a right. However, the proposed ballot initiatives would require that a water user return the same quantity of water that he uses. This would be impossible for any user, such as a farmer, who consumes some of the water.

The initiatives explicitly destroy property and contract rights. They would impose the so-called “Public Trust Doctrine,” which makes government control of all water in Colorado “Superior to Rules and Terms of Contracts of Property Law.”

Finally, the initiatives authorize any citizen of Colorado to file a lawsuit against current owners of water rights.

These socialist proposals would devastate irrigation, municipal, industrial and other water uses. Almost all current users would fail the new rule that they must return at least as much water as they take. Almost all current users would be vulnerable to lawsuits from those who oppose human use of natural resources. The result would be the largest confiscation of private property in the State’s history, and none of the victims of the confiscation would receive any compensation.

More Colorado November 2012 election coverage here.

2012 Colorado November election: Progressive 15 opposes Initiatives 3 and 45


Here’s the release from the Progressive 15 via The Fort Morgan Times:

Progressive 15 has issued a resolution opposing two initiatives dealing with water. The group’s board of directors has issued a statement that Progressive 15 opposes both 2011-2012 Initiative No. 3 and Initiative No. 45 as unwise, unnecessary, disruptive to the fair and responsible allocation and stewardship of Colorado’s scarce water resources and an unwarranted taking of vested property interests.

The resolution says that:

Water frequently does not naturally exist where and when it is needed in sufficient quantities to sustain human settlement and enterprise in Colorado.

As a scarce natural resource, water in Colorado requires a system of allocation, ownership, and enforcement to meet the needs of Colorado’s citizens and the natural environment.

The Colorado Water Congress supports Colorado’s system of prior appropriation as a fair and orderly system for allocating Colorado’s scarce water resources.

Colorado’s prior appropriation system has proven itself both successful and flexible in addressing the public’s changing demands, beneficial uses, and values regarding Colorado water resources (including instream flow water rights).

These two state constitutional amendment initiatives that would reject Colorado’s historical reliance on the prior appropriation doctrine for water allocation and replace it with an undefined public trust doctrine and certain public control mandates.

The adoption of either of these initiatives would undermine the constitutional foundation for Colorado’s prior appropriation system and result in a takings of private and public water rights that currently meet essential agricultural, commercial, environmental, industrial, and municipal needs.

The adoption of either of these initiatives would create great uncertainty in providing a secure water supply for agricultural, commercial, environmental, industrial, and municipal purposes.

These initiatives are masquerading as a measure to protect the public’s control of water, it would prevent farmers, cities, families and businesses from making beneficial use of water rights that have vested in them over the past 150 years under Colorado’s statues and constitution.

More 2012 Colorado November election coverage here.

2012 Colorado November Election: The Pueblo Board of Water Works is considering opposing Initiatives 3 and 45


From The Pueblo Chieftain (Chris Woodka):

Initiative 45 would change Section 6 or Article XVI to require return flows from any water used in the state to be returned to streams “unimpaired,” which could create restrictive water quality standards, said Paul Fanning, the water board’s legislative liaison.

Both initiatives also give every citizen of the state standing in any judicial proceedings. Currently, water rights holders are allowed to enter water court cases to defend their own rights. “If they prevail, there would be an unprecedented amount of litigation,” said Fanning, who attended the Water Congress workshop.

The water board directed staff to prepare a resolution opposing the initiatives for a later meeting. “I think these would be a disaster for our state, and to the future use of water whether it’s for municipal, agricultural or industrial use,” Hamel said.

More 2012 Colorado November Election coverage here.

2012 Colorado November Election: ‘Protect Colorado Water’ event Wednesday to kick off signature gathering for Initiatives 3 and 45


From the Examiner (Caryl Buckstein):

The event, known as “Protect Colorado Water,” is being launched by Be the Change, a grassroots political group with an environmental arm. The initiatives were written by Phil Doe, Be the Change environmental director, and Richard Hamilton, a long-time state environmental and conservation lobbyist.The website for Protect Colorado Water identifies Doe as a former environmental compliance officer for the U.S. Bureau of Reclamation…

Hamilton told the Colorado Statesman that state law already is explicit that the public owns water in the state. The initiatives would add teeth the citizens’ ability to demand enforcement. Initiative 3 would create the Colorado Public Trust Doctrine. It would make the water of streams public property and instruct the state to protect the public’s rights. Also, it would make the public’s rights superior to contracts or property law.

More 2012 Colorado November Election coverage here.

2012 Colorado November Election: The Colorado Water Congress is attempting to galvanize opposition to initiatives 3 and 45


Check out this blog post from the Your Colorado Water Blog. From the post:

These Initiatives, introduced by Phil Doe of Littleton and Richard Hamilton of Fairplay, aim to amend the state constitution in a way that would dramatically change water management in Colorado.

Here’s another article written by Jason Mumm that is running on the Stepwise Utility Advisors website. Here’s an excerpt:

The supporters of the public trust initiatives believe the 100+ year -old system of prior appropriation has worked against the public’s interests. The proposed initiatives would replace the existing process with one that would enable the state to determine what uses of water are in the beneficial public good, and which ones are not. The doctrine would appear to apply to all such uses, whether water rights were adjudicated in the past already, or not. In other words, the amendments, if approved, would cause all existing water rights in the state to immediately fall under a new review guided by the public trust doctrine. The Colorado Water Congress, opposes the initiatives for this reason.

No doubt that reviewing all of the state’s existing water rights and potentially reallocating them could be extremely chaotic, especially in a state where water resources are scarce. The current legal structure is a major expense in an of itself. The direct legal costs are astounding, but if one considers the amount of time and resources consumed from all parties, the cost is even higher. The public trust doctrine is used in other states and in the examples that we’ve seen, it tends to work reasonably well and appears to require far fewer resources of our municipal utility clients. What you find in those states that use some kind of public trust doctrine is an approach to water utility management much more focused on the facilities (e.g. treatment, pipes, etc.) than on acquiring and maintaining water rights for the source of supply. It’s a focus toward infrastructure and service, rather than natural resource management.

There are elements of a public trust approach that we like, but the proposed initiatives are fatally flawed because they fail to provide a means to equitably transition from one structure to another. Colorado’s legal system evolved from water scarcity. Within that structure is a very competitive market that is constantly determining the value of water rights and thus informing decisions of how water is used.

Thanks for posting the link in the comments, Mr. Mumm.

More 2012 Colorado November Election coverage here.

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 (, 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!

2012 Colorado November election: Proponents of Initiatives 3 and 45 launch website —


Here’s the link to the Protect Colorado Water website. They are in the process of gathering signatures to get the initiatives on the fall ballot. Here’s the link to their news page.

From the website:

On April 16th, the Colorado Supreme Court approved the text of two state-wide ballot initiatives – 3 and 45 – that create “an obligation to protect the public’s interests in water” and prevent any use that would cause “irreparable harm” to water. The two initiatives, drafted by Richard Hamilton and Phil Doe, were released to the public for collecting signatures.

Meanwhile, here’s an update from one of the opposition organizations, the Colorado Water Congress (Doug Kemper):

…the Colorado Secretary of State’s website posted that the final form for the petitions to collect signatures for Public Trust Initatives #3 and #45 have been approved. Also stated is that ballot proponents have until August 6 to collect signatures. This is a full month longer than we had originally believed. Regardless, the signature collection process may now begin…The Water Congress Board has taken a position to oppose the Public Trust Initiatives.

More 2012 Colorado November election coverage here.

2012 Colorado November Election: The sponsors of Initiatives 3 and 45 are looking for help gathering signatures


Here’s a letter to the editor written by Dennis Obduskey, Vice Chair, Park County Democrats that’s running in The Fairplay Flume. Here’s an excerpt:

Sponsored by microbiologist Richard Hamilton of Fairplay and Littleton attorney Phil Doe, both of whom have been active in Park County and Colorado water issues for years, Initiatives 3 and 45 are looking to give us more control over our water and treat it as a public trust. The proposals require more than 86,000 signatures to be placed on the November ballot, and we strongly support the effort to put the issues to a public vote. The amendments would change our water laws away from just who owned the water rights first to one related to the public good – something that should be important for the more than five million citizens who call Colorado home.

One underlying theme in Amendment 45 is allowing for control of “fracking,” the process of injecting millions of gallons of water and chemicals, some toxic, into the ground in an effort to induce natural gas back to the surface for profit, and returning that polluted water to large evaporation pools or, worse yet, dumping the contaminated water onto the ground…

Initiative 3 also grants public access to streams and waterways while also requiring state government to act as steward of and to protect, enforce, and implement public ownership of water. Our understanding is that they would allow anyone to use the state’s water and then leave it up to the public to determine if the water is being used for the common good. If members of the public were to determine the water isn’t being used for the common good, they could file a lawsuit in an effort to curtail or prevent further water use in that capacity…

Those proposed pieces of legislation collectively seek to apply the public trust doctrine to Colorado water rights through a constitutional change, and would override the state’s current prior-appropriation system – law that states those who own older water rights have a higher priority in using them…

If you would like to volunteer to help gather signatures to be able to see these initiatives on the ballot in November, please email:

2012 More Colorado November election coverage here.

2012 Colorado November election: Initiatives 3 and 45 clear the single subject requirement for the ballot


From the Summit County Citizens Voice (Bob Berwyn):

One of the ballot measures would apply the public trust doctrine to water in Colorado, declaring that unappropriated water in natural streams is public property, dedicated to the use of the people of the state. The public trust ballot measure would also clarify once and for all the public’s right to access streams and rivers. The second measure would put limits on diversions to protect the public’s interest in water, potentially prohibiting diversions “that would irreparably harm the public ownership interest in water.”

Upon review, the Colorado Supreme Court decided that the two measures are “single subject” measures sufficient to be placed on the 2012 General election ballot. Backers of the measures now must gather the required number of certifiied signatures to get the measures on the November ballot.

The public trust doctrine is rooted in ancient Roman law established by Emperor Justinian, essentially declaring that the waters of the state are a public resource. Most frequently, it’s been applied to ensure access to beaches, but also extends to other natural resources. This principle became the law in England under the Magna Carta and later part of common law in in the U.S. The legal principle was later subverted in dry western states, as private users came to dominate the allocation and distribution of water…

The public trust doctrine proposed for Colorado would boldly challenge existing water law by declaring that “The public’s estate in water in Colorado has a legal authority superior to rules and terms of property and contract law.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: Initiatives 3 and 45 clear the single subject requirement for the ballot


From the Associated Press via The Coshocton Tribune:

The Colorado Supreme Court has approved the titles for two proposals that critics say would change the way Colorado has handled water rights since 1876. The court announced Monday that each proposal properly asks voters to consider only one issue.

Proponents want to amend the constitution to highlight a clause that spells out that unappropriated water in natural streams is public property. A related proposal would spell out in the constitution that water rights can be constricted to prohibit uses that would harm the public’s ownership in the water.

Update: Doug Kemper, Executive Director of the Colorado Water Congress, sent along the Colorado Supreme Court rulings attached to email:

Initiative 3
Initiative 45

From Kemper’s email:

The Court held that Initiative #3 and its Title contain a single subject because they relate to “the public’s rights in the waters of natural streams.” According to the Court, the other subsections are necessarily and properly connected to subsection (2) because they explain the proposed doctrine’s relationship to existing contract, property, and appropriative rights and provide how the new regime will be enacted and enforced. The Court also found that the Titles clearly expressed the initiative’s single subject.

In his dissent, Justice Hobbs agreed with us that Initiative #3 has at least three separate subjects: (1) subordinating existing water rights to a newly created dominant water estate; (2) subjecting the lands of the banks of streams to a newly created navigation servitude for commerce and public use; and (3) creating a new property right of access by the public to any natural stream in Colorado. Because of this, he would have overturned the Title Board’s action in setting the titles.

Similarly, the Supreme Court held that Initiative #45 contains a single subject, concluding that “public control of waters” is one subject and all of the initiative’s provisions properly and necessarily relate to that subject. The Court also held that the Titles fairly and clearly expressed the subject of Initiative #45, because a “yes” vote will expand public control of the state’s water while a “no” vote will reject the proposal’s revisions to the existing constitutional framework.

Again, Justice Hobbs rejected the majority’s opinion and agreed with us that Initiative #45 will enact at least three multiple discrete subjects. He found that it will subordinate existing water rights in Colorado created over the past 150 years to the newly-created public’s dominant estate in water; allow non-tributary groundwater to be appropriated by anyone without consent of the overlying landowner; and impose riparian water law on the State of Colorado and on water rights that have already been appropriated. Justice Hobbs would also have overturned the Title Board’s decision on Initiative #45 because it, too, contained multiple subjects.

We will be discussing our next steps related to the proposed ballot initiatives in the next few days. Please remember that, to our knowledge, no signatures have been collected as yet for either initiative. So today’s rulings do not mean that the initiatives will be on the ballot. Additional information related to the ballot initiatives will be forthcoming.

More coverage from Eric Brown writing for The Greeley Tribune. From the article:

On Monday, the court approved titles to Initiatives 3 and 45. Those proposed pieces of legislation collectively seek to apply the public trust doctrine to Colorado water rights through a constitutional change, and would override the state’s current prior-appropriation system — law that states those who own older water rights have a higher priority in using them. Additionally, more than 130 years of case law that have helped define how water is used in Colorado would be thrown out the window if the initiatives are eventually voted into law, opponents say.

The Supreme Court said in its decision this week the proposals properly ask voters to consider only one issue. That’s been one source of debate in recent months regarding the proposals.

In a strong dissent, Justice Gregory J. Hobbs Jr. said: “Masquerading as a measure to protect the public’s control of water, it would prevent farmers, cities, families and businesses from making beneficial use of water rights that have vested in them over the past 150 years under Colorado’s statutes and Constitution.

Hobbs, one of the nation’s leading authorities on water law, added: “It would deprive Colorado of its interstate allocation of waters of the Platte, Arkansas, Rio Grande and Colorado Rivers by imposing a predominantly non-consumptive water regimen upon the State and its water users, resulting in the free flow of waters across our boundaries for the use of others, devastating Colorado’s economy and way of life.”

With the Supreme Court’s approval Monday, the initiatives could be on the ballot in November, if sponsors can get enough petition signatures.

Update: From The Pueblo Chieftain (Chris Woodka):

The ruling means the sponsors of the initiative may collect signatures to place the titles on the ballot. They must collect 86,000 signatures by July…

The initiatives are sponsored by Richard Hamilton of Fairplay and his Littleton attorney, Phil Doe. They seek to apply the public trust doctrine to Colorado water rights. Initiative 3 concerns “public rights in the waters of natural streams,” while Initiative 45 concerns “public control of waters.”[…]

Initiative 3 ignores the potential for the state to assume control of land alongside streams if a public right of use is applied, and ignores how common law measures have been interpreted in other states. Initiative 45 would subordinate water rights adjudicated in Colorado over the past 150 years, Hobbs wrote in the dissent. Passing the initiatives could create a “super water right” for environmental and recreation purposes, he said.

More 2012 Colorado November election coverage here.

2012 Colorado November election: A recent U.S. Supreme Court decision in a Montana case could affect initiatives 3 and 45


From The Mountain Mail (Joe Stone):

Ken Baker, consultant for the Upper Arkansas Water Conservancy District, called the ruling “one of the most important water cases ever heard in the Supreme Court” during the district board meeting Thursday. Baker said the unanimous ruling involves the definition of “navigable waters,” which determines ownership of the streambeds and riverbeds of U.S. waterways. When a state joins the United States, Baker explained, it obtains title to land underneath water that is “navigable.” Baker said the ruling emphasizes “navigability in fact,” a definition based on waterway commerce at the time of statehood, criteria that, for example, classify the Arkansas River as non-navigable. The ruling overturned a decision by the Supreme Court of Montana, whose justices cited the present-day ability of recreational boats to navigate the sections of river in question.

Baker said the State of Montana also argued that denying the state title to the riverbeds would undermine the public trust doctrine, an argument the justices dismissed.
As a result, Baker said the ruling “would support rendering the (‘public trust’) referendum unconstitutional if it were to pass.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: Farmers are eyeing initiatives 3 and 45 warily


From The Fence Post (Eric Brown):

Initiatives 3 and 45 — proposed citizen-sponsored legislation pieced together and filed by Richard Hamilton of Fairplay and his attorney, Phil Doe — seek to apply the public trust doctrine to Colorado water rights through a constitutional change.

[Gene Kammerzell], a Weld County produce grower who owns Arborland Nursery and is a member of the Colorado Farm Bureau Water Committee, has joined a number of other farmers, ranchers and agricultural organizations — as well as the Colorado Water Congress — in fighting the initiatives because they could cause chaos with state water rights, according to the opponents. Both sides agree in that the initiatives would override the state’s current prior-appropriation system — which states that those who own older water rights have a higher priority in using them — and 136 years of case law that have also helped define how water may be used in Colorado.

In addition to invalidating water rights, the proposed measures, if voted into law, would allow anyone to use the state’s water and then leave it up to the public to determine if the water is being used for the common good, Hamilton explained in a phone interview Wednesday. If members of the public were to determine the water isn’t being used for the common good, they could file a lawsuit in effort to curtail or prevent further water use in that capacity.

Hamilton, an aquatic microbiologist who has been a lobbyist in the environmental and natural resources industries for nearly 40 years, said the purpose behind his initiatives — in addition to placing control of the state’s water into the general public’s hands — is to prevent further contamination of water, often seen in return flows to the rivers following industrial use, and prevent the further depletion of the state’s rivers, caused by increased municipal, industrial and agricultural use. “Water is a public right,” Hamilton said, “and if you want it, don’t overuse the resource … and don’t send it back to the public filled with crap.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: The Colorado Water Congress is beating the drum against initiatives 3 and 45


From The Pueblo Chieftain (Chris Woodka):

Initiatives 3 and 45, sponsored by Richard Hamilton of Fairplay and his attorney Phil Doe, seek to apply the public trust doctrine to Colorado water rights with a constitutional change.

The Water Congress, which represents varied statewide water interests, has hired Steve Leonhardt to appeal a state title board decision on the grounds that the initiatives do not adhere to the single-subject rule, said Doug Kemper, CWC executive director.

If the initiative reaches the [ballot], CWC as a group will have less ability to fight it, because the group has many members from public-funded entities. Other groups, such as the Southeastern Colorado Water Conservancy District and Pueblo Board of Water Works have expressed similar concerns in recent weeks.

More 2012 Colorado November election coverage here.

Water issues were front and center at Club 20’s meeting yesterday


From (Taylor Temby):

It would only make sense that it was one of the major focuses of Wednesday’s Club 20 meeting. One issue that hit particularly close to home was the Ski Area Water Rights Clause. “For years the ski areas and the forest service have gotten along fine with the ski areas acquiring their own water rights to operates, whether it’s wells for mountain restaurants or base areas or water supplies for base making,” [water law practitioner Scott Balcomb] said. But that changed last year. Club 20 is concerned the forest service is now looking to enforce a rule that would require ski areas to put any new water rights it develops in the name of the federal government in order to get a new permit…

This issue affects Powderhorn Mountain Resort because of its recent change in management. “Powderhorn is right on the cutting edge of this issue because of the change in ownership and the need to get a new permit last fall,” Balcomb said. Club 20 argues this would be taking the mountain’s property and worries similar rules could be implemented in other industries if it survives in the ski industry. One other reason Club 20 is concerned? An effort to change water rights in the state.

“[There are] two initiatives, Initiative no. 3 and no. 45,” Colorado Water Congress executive director Doug Kemper said. Kemper says these initiatives would make water rights subject to a second look, and could ultimately change who has access to public and private water. An appeal has been filed with the Colorado Supreme Court and Kemper says he’s concerned about three things. “The property rights, the access to land. It deals with the Appropriation Doctrine, so it deals with water rights and also with water quality act as well,” he said. This could be bad news for some property owners, because water running through private land could be open to the public.

More water law coverage here.

2012 Colorado November election: Ballot initiatives 3 and 45 would challenge prior appropriation and beneficial use


Here’s an opinion piece about ballot initiatives 3 and 45 from Nancy Agro running in The Durango Herald. From the article:

Article XVI of the Colorado Constitution, enacted in 1876, provides that the waters of the natural streams of the state belong to the people of the state, subject to appropriation for use, and that the right to divert unappropriated water for beneficial use shall never be denied. Priority of appropriation gives the better right as between those using the water with domestic use and irrigation having priority over other uses in times of shortage. These constitutional provisions codify the foundation of Colorado water law that a water right is the private property right of the appropriator, and first in time, is first in right.

The Colorado Supreme Court, acknowledging that the doctrine of prior appropriation existed from the earliest appropriations of water, said, “The climate is dry, the soil, when moistened only by the usual rainfall, is arid and unproductive … artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property.”

Proposed ballot initiatives 3 and 45 propose to turn these principles upside down by reversing the dominant and servient water estates. These amendments propose, among other things, that the public’s ownership of the waters of the natural streams supersedes property law, that the right of appropriation is servient to the public’s dominant water estate, including the protection of the public’s enjoyment of use of water, and that no water right has priority over the natural stream. If passed, these constitutional amendments will call into question, and potentially undo, long-established decreed appropriative water rights by subordinating those rights in favor of leaving the water in the stream. Vested water-rights diversions could be curtailed by holding unlawful any use of water causing irreparable harm to the public’s water estate, including the public’s enjoyment of water.

The well-settled principles of water appropriation have shaped the social and economic development of the arid West. It has always been the policy of government to encourage the diversion and use of water for agriculture and other beneficial uses. Significant expenditures of time and money have been made to put portions of Colorado’s unproductive land to beneficial use through irrigation. Construction of houses and other improvements and the cultivation of soil which made Colorado’s land more valuable, were undertaken because water-rights appropriations were constitutionally protected. In the words of the Colorado Supreme Court, “Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: The Colorado Water Congress is working to keep ‘Public Trust Initiatives’ off the ballot


From the Associated Press via The Columbus Republic:

Denver-area resident Phillip Doe has proposed amending the state constitution to highlight a clause that says streams are the property of the public — and making the public ownership legally superior to longstanding water rights.

A related proposal would spell out in the constitution that water rights can be constricted to prohibit uses that would harm the public’s ownership in the water…

The Colorado Water Congress is going through the Colorado Supreme Court to try to keep the measures off the ballot.

Here’s the CWC’s summary of the initiatives and the sponsor responses to CWC staff questions.

Mr. Doe was at the Downstream Neighbor 2012 Symposium last week and said that they had a huge task ahead of them in collecting enough signatures. He asked the attendees for help. I gave him my business card with the hopes that he would contact me so that I can sit down with him with a few questions. So far I haven’t heard from him. Mr. Doe?

More coverage from Catharine Tsai writing for the Associated Press via From the article:

Denver-area resident Phillip Doe has proposed amending the constitution to highlight the clause saying streams are public property – and making the public ownership legally superior to longstanding water rights, contracts or property law. A related proposal would spell out in the constitution that water rights can be constricted to prohibit uses that would harm the public’s ownership in the water, and water that goes back into rivers would have to be returned unimpaired.

“It reaffirms and reasserts that the public of Colorado owns the water, and the state has an obligation to protect the public’s interests,” said attorney Richard Hamilton, who is working with Doe…

Efforts are under way to keep Doe’s proposals from making the ballot. The Colorado Water Congress, which includes water users and state agencies, is asking the Colorado Supreme Court to decide whether each proposal properly asks voters to consider only one issue.

Doe said if voters approve the proposals, farmers may not be able to exercise their water rights on rivers during droughts, for example, if that would dry up a river. He also said the proposals could prevent water from being used for hydraulic fracturing, though he said that wasn’t his intent in promoting the proposals.

Doe said he’s been disappointed with Front Range water providers’ plans to tap the Fraser and Cache la Poudre rivers to serve growing cities. Strengthening public’s ownership in state waters would prevent rivers from being polluted or depleted, he said.

“We’re down to our last drop of water. It’s time the public starts asserting its right to that which it owns,” Doe said…

“It’s too extreme, it’s too reckless,” Western Resource Advocates spokesman Jason Bane said of Doe’s proposals. “At the same time, we understand why this is coming up.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: Congressman Gardner talks water at Berthoud town hall meeting


From the Loveland Reporter-Herald (Pamela Dickman):

“Conditions at the beginning of 2012 are similar to the beginning of 2002,” Colorado Congressman Cory Gardner said at a town meeting in Berthoud on Monday…

“We must have the water that is necessary to thrive and grow,” Gardner said. That includes water storage, such as the proposed Northern Integrated Supply Project, as well as water conservation, Gardner said…

Decreasing business regulations, supporting water storage projects, protecting Social Security and Medicare and Medicaid are all in his purview this session, he said. So is supporting collaborations between private industry and the public sector — such as the Rocky Mountain Center for Innovation and Technology project in Loveland, which will bring jobs to the region — protecting agriculture from federal legislation that could harm the industry and urging renewable and traditional energy development.

More coverage from Bobby Magill writing for the Fort Collins Coloradoan. From the article:

Alarmed that the NRCS warned him this year’s mountain snowpack conditions are dangerously similar to those of 2002 – the year of the Hayman Fire and one of the Rockies’ worst droughts in recent memory – Gardner said these kinds of conditions will hurt Colorado farmers and the economy if more water storage isn’t available during dry years. “If we are going to have a long-term outlook for economic growth, we must have the water that is necessary to survive and grow,” he said. “That’s not only to meet the needs of the population, that’s to meet the needs of agriculture and industry. That’s why I think we need to go forward with projects like NISP, and we need to go look for other new projects.”[…]

Gardner said EPA regulations imposed by other federal agencies should not be used to stall new water storage projects, including NISP. The EPA criticized an environmental review of NISP for insufficiently addressing the project’s impacts on water quality and other issues. “The numbers speak for themselves: 69 percent-of-average snowpack,” he said. “Two-thirds of the value of the state’s agricultural production occurs in the South Platte Basin. Last year, a million acre-feet of water left the state that we could have stored right up here (in Glade).” Monday’s NRCS snowpack data show the South Platte River Basin, which includes the Poudre River, has a snowpack 72 percent of average, while the Laramie-North Platte River Basin, which includes Cameron Pass west of Fort Collins, has a snowpack 61 percent of normal. The driest river basins in the state are the Gunnison and Colorado river basins, which are at 56 and 57 percent of normal, respectively.

From the Greeley Gazette (Craig Masters):

The location at Northern Colorado Water was symbolic of what may well become a critical issue this coming year in much of rural Colorado; water for agriculture and industry. In his opening remarks, Congressman Gardner reviewed the current snowpack statistics, since snow on the ground in the winter is critical to water in the rivers during spring and summer growing seasons…

The 4th U.S. Congressional District, Gardner’s district, is only one of the several U.S. congressional districts spanning several states dependent on the flow of Rocky Mountain snowmelt feeding into the Platte River system.In response to audience questions about their concerns over the storage of Colorado River water for Mexico being considered by the Obama administration, Gardner stated he supports strong state control over water usage within the state. But he emphasized that to minimize federal intervention, it is important to establish workable cooperative agreements with downstream states. He further assured the resident, who identified himself as a local rancher, that no agreement for storage beyond 2013 had yet been worked out with Mexico. (The concerns were over a Dec. 2010 agreement to store 260,000 acre feet of Mexico’s Colorado River water in Lake Mead until 2013. This was to allow Mexico time to repair earthquake damage to water delivery infastructure in northern Mexico.)

More 2012 Colorado November election coverage here.

2012 Colorado election: The Colorado Water Congress issues an alert for Public Trust Initiatives #3 and #45


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

On Wednesday, the Title Board approved ballot titles on Public Trust Initiatives #3 and #45. The Water Congress will request a Rehearing on Initiative #45. That should take place on January 18. (Rehearing on Initiative #3 has already occurred.) Copies of the initiatives, ballot titles, and related information are attached and may be found on our website.

The Colorado Water Congress Board has unanimously voted to authorize appealing to the Colorado Supreme Court the action by the Title Board on both Public Trust Initiatives. We are seeking financial contributions for these appeals. If you are wish to contribute toward this effort (in any amount), please send me an email at

The sponsors’ basic premise is that the Colorado legislature and the courts have contravened the public’s ownership interest in water and the public trust initiatives are their way of tackling numerous injustices. If these initiatives pass, every water right in the state will be subject to reconsideration as to whether it is in the public’s interests. Further, discharges that are found to cause harm to the natural environment will also be subject to reexamination. And anyone could travel through private property to access the public’s waters (now all water in the Colorado) as long as they stay within the natural high water line.

After the unpleasant experience with Amendments 60 and 61 and Proposition 101; the days are gone where we can afford to let such ballot initiatives travel through the system without challenge. This system is heavily weighted in the favor of ballot proponents and legal action is very difficult.

For public entities, this appeal is your only opportunity to financially contribute toward action on the public trust initiatives. If they become certified for the ballot, your activities are severely restricted by law. Because the Colorado Water Congress receives a portion of its funding from public entities, we face the same restrictions.

Additional initiative information is available on the Colorado Secretary of State’s website at:

If you wish to listen to the archived audio of the hearing on Wednesday, you may access it at

More coverage from Patrick Malone writing for The Pueblo Chieftain. From the article:

Richard Hamilton of Fairplay has been making the argument that water and its use should be at the discretion of all people in the state — not just those that the doctrine of prior appropriation ascribes rights to. He wants to institute guidelines for water that predate the Colorado Constitution, and subsequently were undone by the General Assembly. “The state constitution is very explicit that water is owned by the public,” Hamilton said, and he wants it reiterated by his initiative…

Five times between 1994 and 2002, Hamilton’s ballot proposals have met with rejection. But that hasn’t stopped him from bringing back two more with an eye on this year’s November ballot…

Hamilton’s proposals seeks constitutional amendments that would give citizens control of tributary and nontributary water in Colorado, require appropriators of water (oil and gas drilling operations or industry, for instance) to replace what they take with clean water and give citizens standing to sue if they believe water is being misused. They also aim to allow unfettered recreational access to streams and place public health and well-being ahead of other uses of water, including contractual allocation and senior water rights.

More 2012 Colorado November election coverage here.

2012 Colorado November elections: Two ballot issues will be aimed at instituting a ‘public trust doctrine’ for the ownership of water


From The Grand Junction Daily Sentinel (Charles Ashby):

Phillip Doe of Littleton and Richard Hamilton of Fairplay have proposed two ballot measures for next year’s election that are designed to institute a “public trust doctrine” on the ownership of water in the state. That means if any Coloradan believes water isn’t being used properly anywhere in the state, that person would have legal standing to sue water users, including cities, water-conservation districts, or the state…

Douglas Kemper, executive director of the Colorado Water Congress, said the idea would turn water law on its head. He said it would force the Legislature to redo 150 years worth of Colorado water law, and the courts to rehear more than 150,000 water-rights decrees. “The Constitution says water is the property of the people, subject to appropriation,” Kemper said. “The general concept of the public trust doctrine says … you may have this legal piece of paper that has a decree, but those decrees should be always considered to have been subject to a great public need. That means each would be subject to modification.” As a result, anyone’s water decree could be re-examined at any time, meaning some users could lose their water rights, he said.

More water law coverage here.