#Colorado Supreme Court considers historic case that could broaden public access to rivers and upset years of #water law — Water Education Colorado #ArkansasRiver

Photo credit: Colorado Parks & Wildlife

Click the link to read the article on the Water Education website (Caitlin Coleman):

The Colorado Supreme Court heard this month the case, years in the making, of an angler seeking river access that could have wide-reaching implications for public access to wade and fish certain river stretches in Colorado.

Beyond expanding or restricting fishing access, the court’s decision could also have “monumental consequences for water rights in Colorado,” according to an April 2022 brief from Colorado Attorney General Phil Weiser. The state argues that the case could open the door to what’s known as the public trust doctrine, a move that could upset years of water law and impact how water rights are administered.

The lawsuit pits the State of Colorado and water users against the recreation industry and thousands of people in Colorado who believe that the public should have access to streams, even through segments on private lands.

The case, The State of Colorado v. Roger Hill, was initiated more than a decade ago, after Hill waded into the Arkansas River to fish. But private landowner Mark Warsewa, who, with Linda Joseph, owns the land adjacent to that stretch of river, pelted Hill with small stones, shooing him away from fishing on their land. Upon return to his car, Hill found a note threatening that if he returned to the stream, he would be arrested for trespassing on the property.

In 2018, Hill sued Warsewa and Joseph in federal court for Arkansas River access where the river flows past their property, arguing that the state owns the riverbed, and the public has a right to wade, walk, stand and fish there. The case moved to Colorado district court, where it was initially dismissed. But it was heard by the Colorado Court of Appeals in January 2022, and that court agreed that Roger Hill does have standing and sent the case back to the lower court.

Concerned, Weiser weighed in, asking the state’s Supreme Court to intervene in the suit. According to Weiser’s memo, if the state’s high court upholds the Court of Appeals’ decision, it could “disrupt settled agreements for the use of state rivers,” “threaten statewide collaborative efforts providing public fishing access,” upset the “settled expectations” of landowners and water right holders, and “encourage dangerous behavior.”

In December 2022, the Colorado Supreme Court agreed to hear the case, and to look at one question only: Whether Roger Hill has the right to even bring the lawsuit, a principal known as standing. The court heard oral arguments on May 2[, 2023].

The Colorado Supreme Court hears arguments May 2, 2023 in a case that could help introduce a public trust doctrine in Colorado. Credit: Caitlin Coleman/Water Education Colorado

“We’ve been focusing on standing for five years now,” said Hill’s attorney Mark Squillace, a University of Colorado law professor, last month during a talk at the University of Denver Water Law Review’s 2023 Symposium. “The argument we’re making is that Roger Hill has the right to stand on the bed of the river which is held by the state in trust for the people if the court is able to determine, which we think it will, that the Arkansas River at this particular location is navigable for title.”

This is the federal “equal footing doctrine,” which says that upon entering the union, a state gains title to the beds of streams that are navigable. For Colorado that means looking at navigability in 1876.

To be considered “navigable for title,” a river must have been used for commerce at the time of statehood using the type of boat or watercraft that would have been used at that time, Squillace said. This “trust” idea comes in if, indeed, the river was navigable in 1876, in which case, the state should be holding the riverbed “in trust” for the people.

During oral arguments, Supreme Court justices focused much of their questioning not on navigability but on the public trust doctrine.

The doctrine is a common law principle which provides that a state hold “in trust” for the public, the public right to navigable waters and the lands beneath them — it must be adopted at the state level.

“The Colorado Supreme Court has held, multiple times, that there is no public trust doctrine,” said Eric Olson, who represented the state on May 2 for the Colorado Attorney General’s Office. Olson has since left the AG’s office.

Establishing a public trust doctrine would require either an amendment to the state constitution or a change in how the Supreme Court interprets the constitution. This case could introduce a public trust doctrine in Colorado.

The Colorado Water Congress, a group that represents water interests in Colorado, opposes any move toward establishing a public trust doctrine because it could undo the way in which the state constitution has been interpreted and interfere with the state’s prior appropriation system of water rights.  The state constitution says that water is the property of the public and is subject to appropriation — currently, Coloradans also have a private property right to put water to beneficial use.

According to a fact sheet by the Colorado Water Congress, establishing a public trust doctrine would threaten the state’s “first in time, first in right” prior appropriation system, placing more emphasis on the public’s ownership of water rather than the rights of private water users. The Colorado Water Congress also argues that a public trust doctrine could prohibit or limit the consumptive use of water, alter the timing of diversions, and could invalidate or interfere with existing water rights.

If the court sides with Hill,  it would be “destabilizing” said Steve Leonhart, an attorney with the firm Burns, Figa and Will who represents Colorado Water Congress.

“Common law public trust is problematic in itself. If standing is allowed [in State of Colorado v. Hill], what kind of a can of worms could it open for other litigation?” Leonhart asked. “It would just be the beginning of potential litigation up and down the Arkansas River, potential litigation on other streams, potential litigation on land rights but also on water rights,” he said.

But Squillace said other states have public trust doctrines that allow more public access to streams.

“In virtually every other state in the country, the state enjoys broad access rights,” Squillace said during oral arguments. “We’re worse than any other state. One of the things the state is doing in this case is protecting wealthy private landowners. If the public is entitled to have access to those waterways, that’s something the court should protect.”

Groups who filed briefs in support of Hill include American Whitewater, Backcountry Hunters and Anglers, and Colorado River Outfitters Association. Those who filed briefs in support of the state’s arguments include Colorado Water Congress, the landowners, the Colorado Farm Bureau, and the Pacific Legal Foundation.

When Colorado’s high court will rule on the case isn’t clear yet, but attorneys said a decision could come by the end of the year.

Caitlin Coleman is a contributor to Fresh Water News and is editor of Water Education Colorado’s Headwaters Magazine. She can be reached at caitlin@wateredco.org.

Map of the Arkansas River drainage basin. Created using USGS National Map and NASA SRTM data. By Shannon1 – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=79039596

The public trust doctrine prevented Mono Lake from drying up. Could it be used to save the #GreatSaltLake? — KSL

Tufa columns, Mono Lake, Eastern Sierra, California. By Vezoy (talk · contribs) – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=30004462

Click the link to read the article from The Salt Lake Tribune on the KSL website (Leia Larsen). Here’s an excerpt:

Owens Lake was one of the first cautionary tales about a salty lake with no outlet when it dried completely from human water consumption in Los Angeles. Lake Urmia in Iran and the Aral Sea in Central Asia followed, drained by scaled-up agriculture. All have since become sites of major dust storms. The Great Salt Lake finds itself heading down a similar path, overtapped by agriculture, cities and industry. But Mono (pronounced “moan-oh”) Lake has emerged as a success story of sorts. Alarmed by the lake’s decline when its tributary rivers were diverted away to L.A., environmental advocates fought back.

“We basically said, ‘Hey, the state is in charge of water rights and you gave [away] these water rights,” said Geoff McQuilkin, executive director of the Mono Lake Committee. “What we see [as a result] is Mono Lake being destroyed. That doesn’t meet the public trust obligation of the state to protect resources for future generations.”

They took their case all the way to the California Supreme Court in the 1980s using that public trust doctrine argument. And it worked. The concept of a public trust has its roots in English law, and may date as far back as the Roman Empire. Various courts in various states have applied the doctrine throughout U.S. history, mostly to settle issues of water access. The Mono Lake decision was the first time the public trust argument secured a lake’s right to exist. Now L.A.’s water utility has to scale back its diversions until Mono Lake reaches a sustainable level. So could someone apply the public trust doctrine in Utah to save the Great Salt Lake?

Some Utahns formed FRIENDS of Great Salt Lake in the 1990s after drawing inspiration from the Mono Lake Committee’s efforts. The group has a similar mission to educate and engage Utahns, helping them understand that the Great Salt Lake isn’t just a dead, empty sea. While the public trust doctrine hasn’t been applied to the Great Salt Lake so far, “certainly, the lake is deserving of this kind of justice,” said Lynn de Freitas, executive director of FRIENDS.

One complication is how, exactly, the public trust doctrine would solve the Great Salt Lake’s problems. At Mono Lake, the culprit depleting the lake was clear: a single utility in L.A. that could be obliged to reduce its consumption. In Utah, a patchwork of cities, towns, agricultural fields and industries across the watershed have dropped the Great Salt Lake by as much as 11 feet, according to a Utah State University analysis.

“So who do you target [in] a public trust challenge?” de Freitas wondered. “… I’m not quite sure.”

Satellite photo of the Great Salt Lake from August 2018 after years of drought, reaching near-record lows. The difference in colors between the northern and southern portions of the lake is the result of a railroad causeway. The image was acquired by the MSI sensor on the Sentinel-2B satellite. By Copernicus Sentinel-2, ESA – https://scihub.copernicus.eu/dhus/#/home, CC BY-SA 3.0 igo, https://commons.wikimedia.org/w/index.php?curid=77990895

#California Court Finds #PublicTrustDoctrine Applies to State Groundwater Resources

Groundwater movement via the USGS

From Legal Planet (Richard Frank):

The California Court of Appeal for the Third Appellate District has issued an important decision declaring that California’s powerful public trust doctrine applies to at least some of the state’s overtaxed groundwater resources. The court’s opinion also rejects the argument that California’s Sustainable Groundwater Management Act (SGMA) displaces the public trust doctrine’s applicability to groundwater resources.

The Court of Appeal’s opinion in Environmental Law Foundation v. State Water Resources Control Board decides two key issues of first impression for California water law: first, whether the public trust doctrine applies to California’s groundwater resources; and, second, if it does, if application of that doctrine has been displaced and superseded by the California Legislature’s 2014 enactment of SGMA. A unanimous appellate panel answered the first question in the affirmative, the second in the negative.

The facts of the Environmental Law Foundation are straightforward and undisputed: the Scott River is a tributary of the Klamath River and itself a navigable waterway located in the northwestern corner of California. The Scott River has historically been used by the public for recreational navigation and serves as essential habitat for migrating salmon listed under the Endangered Species Act.

Critically, there are groundwater aquifers adjacent to the Scott River in Siskiyou County that are hydrologically connected to the surface flows of the Scott River. Local farmers and ranchers in recent years have drilled numerous groundwater wells and pumped ever-increasing amounts of groundwater from those aquifers. As a direct result, the surface flows of the Scott River have been reduced, at times dramatically. Indeed, in the summer and early fall months, the Scott River has in some years been completely dewatered due to the nearby groundwater pumping. The adverse effects on both the Scott River’s salmon fishery and recreational use of the river have been devastating.

Environmental groups and the Pacific Coast Federation of Fishermen’s Associations, relying on California’s venerable public trust doctrine, initially responded to this environmental crisis by petitioning Siskiyou County and the State Water Resources Control Board to take administrative action to limit groundwater pumping in the Scott River watershed. Both the Board and the County declined to do so.

Plaintiffs responded by filing suit, arguing that groundwater resources that are interconnected with the surface water flows of the Scott River are subject to and protected by the state’s public trust doctrine. Siskiyou County disputed that claim, arguing that the public trust doctrine is wholly inapplicable to groundwater and that the country has no duty to limit groundwater pumping, even in the face of the resulting environmental damage to the Scott River ecosystem. (The Board, by contrast, eventually reconsidered its position, ultimately adopting plaintiffs’ view that groundwater resources interconnected with surface water flows are indeed subject to the public trust doctrine.)

The trial court concluded that the public trust doctrine does apply to the groundwater resources of the Scott River region. While the litigation was pending there, however, the California Legislature enacted SGMA, which for the first time creates a statewide system of groundwater management in California, administered at the regional level. Siskiyou County seized upon that legislation to argue that even if the public trust doctrine would otherwise apply to the County’s groundwater resources, the doctrine was automatically displaced and made inapplicable to groundwater as a result of SGMA’s allegedly “comprehensive” statutory scheme. The trial court rejected this backstop argument as well, and the County appealed.

The Court of Appeal’s decision today resoundingly affirms the trial court on both issues. On the threshold public trust claim, the justices rely heavily on the California Supreme Court’s landmark public trust decision, National Audubon Society v. Superior Court. In National Audubon, the Supreme Court held that the public trust doctrine, a foundational principle of California natural resources law, fully applies to the state’s complex water rights system. Specifically, National Audubon found that the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine.

The court in the Environmental Law Foundation concluded that the rationale and holding of National Audubon are fully applicable to the facts of the Scott River case. Rejecting the County’s argument that extractions of groundwater should be treated differently from the diversions of surface water that were found in National Audubon to be causing environmental damage to Mono Lake, the Court of Appeal declares:

“The County’s squabble over the distinction between diversion and extraction is…irrelevant. The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violates the public trust.”

Accordingly, the Environmental Law Foundation court concludes that the public trust doctrine fully applies to extractions of groundwater that adversely affect navigable waterways such as the Scott River.

Denver: Public Trust lawsuit filed over the “rights” of the #ColoradoRiver #COriver

A heron at rest along the bank of the Colorado River. Photo credit Brent Gardner-Smith, Aspen Journalism.

From The New York Times (Julie Turkewitz):

If successful, [the lawsuit] could upend environmental law, possibly allowing the redwood forests, the Rocky Mountains or the deserts of Nevada to sue individuals, corporations and governments over resource pollution or depletion. Future lawsuits in its mold might seek to block pipelines, golf courses or housing developments and force everyone from agriculture executives to mayors to rethink how they treat the environment.

Several environmental law experts said the suit had a slim chance at best. “I don’t think it’s laughable,” said Reed Benson, chairman of the environmental law program at the University of New Mexico. “But I think it’s a long shot in more ways than one.”

The suit was filed Monday in Federal District Court in Colorado by Jason Flores-Williams, a Denver lawyer. It names the river ecosystem as the plaintiff — citing no specific physical boundaries — and seeks to hold the state of Colorado and Gov. John Hickenlooper liable for violating the river’s “right to exist, flourish, regenerate, be restored, and naturally evolve.”

Because the river cannot appear in court, a group called Deep Green Resistance is filing the suit as an ally, or so-called next friend, of the waterway.

If a corporation has rights, the authors argue, so, too, should an ancient waterway that has sustained human life for as long as it has existed in the Western United States. The lawsuit claims the state violated the river’s right to flourish by polluting and draining it and threatening endangered species. The claim cites several nations whose courts or governments have recognized some rights for natural entities.

The lawsuit drew immediate criticism from conservative lawmakers, who called it ridiculous. “I think we can all agree rivers and trees are not people,” said Senator Steve Daines of Montana. “Radical obstructionists who contort common sense with this sort of nonsense undercut credible conservationists.”

The office of Mr. Hickenlooper, a Democrat, declined to comment.

The lawsuit comes as hurricanes and wildfires in recent weeks have left communities across the country devastated, intensifying the debate over how humans should treat the earth in the face of global climate change.

Is the #ColoradoRiver a person? — The #Colorado Springs Independent #COriver

Homestake Dam via Aspen Journalism

From The Colorado Springs Independent (Pam Zubeck):

The Colorado River, which originates in Colorado, provides water to seven states and Mexico, and it should have rights of its own, according to a soon-to-be-filed federal lawsuit.

The lawsuit seeks status for the river as a person.

Colorado Springs has a huge stake in the Colorado River, as its Homestake Reservoir is located in the Colorado River Basin and supplies a significant amount of water to the city.

Here’s the release from the Community Environmental Legal Defense Fund (CELDF) (Mari Margil):

The Community Environmental Legal Defense Fund (CELDF) is serving as a legal adviser for the first-in-the-nation lawsuit in which a river is seeking recognition of its legal rights.

To be filed next week in federal district court in Colorado, the lawsuit Colorado River v. State of Colorado seeks a ruling that the Colorado River, and its ecosystem, possess certain rights, including the right to exist, flourish, evolve, regenerate, and restoration.

Further, the lawsuit seeks a declaration from the federal court that the State of Colorado – the defendant in the case – may be held liable for violating the rights of the River.

The Plaintiff in the action is the Colorado River itself, with members of the environmental organization Deep Green Resistance serving as “next friends” in the lawsuit on behalf of the Colorado River ecosystem. They are represented by Jason Flores-Williams, a noted Colorado civil rights attorney.

CELDF has been at the forefront of the growing movement to recognize the rights of nature, and has assisted the first places in the world to develop laws that establish legal rights of nature. This includes dozens of municipalities across the United States which have rights of nature laws in place, as well as the country of Ecuador.

Mari Margil, Director of CELDF’s International Center for the Rights of Nature, explained, “This action is the first of its kind in the United States, and comes as courts around the world are beginning to hold that nature and ecosystems possess legally enforceable rights. Recently, courts in India and Colombia held that rivers, glaciers, and other ecosystems possess rights of their own. Building on ongoing lawmaking efforts, we believe that this lawsuit will be the first of many which begins to change the status of nature under our legal systems.”

In 2008, CELDF assisted with the drafting of Chapter 7 of the Ecuador Constitution, which secures rights of nature, or Pacha Mama. CELDF is working in a number of other countries, including India, Nepal, and Australia, to advance legal frameworks that recognize legally enforceable rights of ecosystems and nature.

This fall, CELDF, with Tulane University Law School, will host the Rights of Nature Symposium. This will bring together rights of nature experts from around the world for a public conference in New Orleans on October 27.

About CELDF — Community Environmental Legal Defense Fund
The Community Environmental Legal Defense Fund is a non-profit, public interest law firm providing free and affordable legal services to communities facing threats to their local environment, local agriculture, local economy, and quality of life. Its mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature. http://www.celdf.org/.

@COWaterCongress: Colorado Water Congress 2017 Annual Convention

Credit: TechCrunch
Credit: TechCrunch

“We are more connected than we’d like to admit” — Travis Smith (from the film “The Great Divide“)

The Colorado Water Congress folks have released the Wednesday workshop schedule for the Annual Convention. Here’s the email from Doug Kemper:

Colorado water community:

Wednesday Workshops Program
I am pleased to announce the program for the Wednesday Workshops on January 25 at the 2017 Colorado Water Congress Annual Convention at the Hyatt Regency Denver Tech Center is now posted on CWC’s website. To view, click HERE. There are 25 opportunities for connecting with your colleagues as you learn about the latest happenings in Colorado water.

Annual Convention Program
The main program for the Convention is being built and should be ready next week. Our theme for the Annual Convention is Connectivity. We will go live with the new Colorado Water Congress Strategic Plan and link members with the future direction of our organization.

Flowing from the 2015 member survey, we learned that our outlook must be toward helping members feel connected to the Colorado Water Congress and engaged with our work to protect the interests of Colorado’s water community. And that is our goal!

The top thing that we will work on in 2017 is our communications. We will launch a new Communications Standing Committee at the Convention. Expressing your thoughts as to what you would like to see occur in this dynamic age of communications will be very helpful.

Annual Convention Registration
To receive the standard 10% early registration discount, register by December 31, 2016. Register for the Convention here – 2017 AC Registration

Hotel Registration
For room reservations at the Hyatt Regency DTC, please visit Hyatt Regency – CWC</a

Snowmass: Colorado Water Congress summer meeting “Rallying Our Water Community” August 20-22

Westin Snowmass Resort
Westin Snowmass Resort

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

Excitement continues to build for our 2014 Summer Conference and Membership Meeting. It will be held at the Westin Snowmass Resort, August 20-22. Our theme this year is “Rallying Our Water Community.” To register please visit: Conference Registration.

We will know in a couple of weeks if enough signatures have been gathered to place Initiative 89, Local Government Regulation of the Environment, on the 2014 Ballot. Whether it does or not, the water community will need to develop a greater public presence on these issues. Our conference is designed to help develop your advocacy skills and knowledge base.

We want to ensure we are focused on our member’s priorities when the Water Congress Board sets our priorities this fall. Summer Conference activities are designed to give you the opportunity to provide direct input to our leadership. We hope that you will take this chance to engage with us.

Our exciting program will again include a session with the Water Resources Review Committee. Additional honored guests include both Republican and Democratic candidates for the U.S. Senate, U.S. House Third District, and Attorney General. Don’t miss this chance to catch up with colleagues and meet new community members during our POND networking activities.

Highlights of our unique program sessions include:

Strategies for Finding Your Voice
Do you have adequate tools to advocate on behalf of Colorado’s water community? Practice conveying your message with other attendees and workshop leaders.

Senator Udall, Congressman Gardner, Congressman Tipton, and Former State Senator Tapia
We are pleased to host candidates for some of our top political offices as they address issues of keen importance to Colorado’s water community.

Costs of Doing the Right Thing
As we plan for our water allocation in the future, we rarely examine the full social and economic costs, including burdens on individual ratepayers. This panel will examine those costs, along with a brief overview of other economic challenges currently faced by Colorado water providers.

Mono Lake
For 100 years, the L.A. Aqueduct has been the source of legend and controversy. Today, drought imperils much of California’s water supply. How is Los Angeles handling the drought within the confines of a Public Trust Doctrine?

Mitigation for Transbasin Diversion
Past Aspinall Water Leaders will discuss historic transbasin water projects and their mitigation. What can we learn from the past?

We are looking forward to seeing you in Snowmass, August 20-22. Additional conference information and registration can be found at: Conference Information.

More education coverage here.

Colorado Water Congress: Initiative 75 withdrawn! #COpolitics

Click here to go to the CWC Colorado Water Stewardship Project web page.

Water Lines: Water, democracy and private property rights

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

From the Glenwood Springs Post Independent (Hannah Holm):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From The Durango Herald (Sarah Mueller):

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

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

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

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

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

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

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

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

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

More 2014 Colorado November election coverage here.

Initiative 103, Public Trust Resources, Denied by the Supreme Court Colorado Water Congress shifts focus to Initiatives 75 & 89


From email from the Colorado Water Congress (Fiona Smith):

The Colorado Supreme Court published an opinion today declaring that Initiative 103 (Public Trust Resources) may not proceed towards the 2014 Ballot. A 4-3 majority holds that the Title Board lacked authority to proceed with a substituted designated representative when one of the proponents could not attend the rehearing. This decision validates a May 1 appeal by the Colorado Water Congress (CWC) and Coloradoans for Responsible Reform.

Initiative 103, by Phil Doe and Barbara Mills-Bria, proposed to establish an “inalienable right” of the people of Colorado to clean air, clean water (including groundwater), and the preservation of the environment and natural resources (called “Public Trust Resources”), as common property of all people, including future generations. It would require the state, as trustee of Public Trust Resources, to conserve and maintain them for the benefit of all the people. CWC and over 70 supporting entities from around the state opposed this Initiative on the grounds that it was unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.

CWC will now shift its energy towards Initiatives 75 and 89, both of which are of concern to Colorado’s water community. A 5-2 Supreme Court majority decided today that Initiative 89 may proceed towards the 2014 Ballot. The Court similarly confirmed Initiative 75 last month. Each will require 86,105 valid signatures to be placed on the ballot in November.

Initiative 75 would strengthen “local control,” allowing local governments to adopt environmental regulations that override state laws, including the laws that limit and balance local governments’ regulation of water facilities. Initiative 89 would combine this local control theme with a Public Trust Doctrine, declaring “common property” in Colorado’s water and environment and obligating state and local government to conserve these resources as trustees. In his dissenting opinion today, Justice Gregory Hobbs cautioned that “Initiative #89 proposes to create an entirely unprecedented form of public trust duty requiring state and local governments to ‘conserve’ what are predominately privately held resources… [It] would upend the existing regulatory balance and thrust private property owners and governments into an uncertain future.”

The Colorado Water Stewardship Project, a special project of CWC, will continue to monitor Initiatives 75 and 89 and inform water stakeholders of the serious implications of amending the constitution to create a Public Trust Doctrine in Colorado.

From the Denver Business Journal (Cathy Proctor):

The so-called “public trust doctrine” measure, No. 103, had drawn opposition from the Colorado Water Congress, representing water users across the state, and the business-backed group Coloradans for Responsible Reform.

The high court ruled Monday that the Title Board, which reviews ballot proposals, made a mistake when it allowed the backers of No. 103 to have a substitute fill in during a hearing on the measure.

The court said that state law “does not allow designated representatives who are unable to attend a Title Board meeting to substitute alternates to serve in their place. Instead, the Title Board must delay its considerations until the next meeting at which both of the designated representatives who were so designated at the initial stages of the initiative process are able to attend the Title Board meeting.”

The ruling means that the proposal can’t be considered for the 2014 ballot because the Title Board is no longer meeting for the 2014 election cycle, said a spokesman for the Colorado Secretary of State’s office.

The backers of the proposal were Phil Doe and Barbara Mills-Bria. But Mills-Bria couldn’t attend a meeting of the Title Board because she as traveling to an out-of-state funeral, according to the court ruling.

The court said the Title Board should have postponed its hearing on No. 103 until Mills-Bria could attend rather than allowing a designee to fill in.

The proposal sought to establish a common property right to “clean air, clean water, including ground and surface water, and the preservation of the environment and natural resources.” It also would have required the state to conserve and maintain those elements for the benefit of all people.

The Colorado Water Congress said it opposed the initiative on the grounds that it was “unwise, unnecessary, expensive and disruptive to the responsible allocation and stewardship of Colorado’s water resources.”

The Colorado Water Congress said it would shift its resources to oppose Initiatives No. 75 and 89.

No. 75 is a proposal by the Colorado Community Rights Network that would allow cities to ban any for-profit business that community leaders don’t want to see in their towns.

No. 89, which says that Coloradans have a right to clean air, water and scenic values, is one of nine proposals that are backed by U.S. Rep. Jared Polis, D-Boulder.

The Colorado Supreme Court has rejected challenges to proposals No. 75 and No. 89, meaning supporters have until Aug. 4 to collect more than 86,105 valid signatures in order to have the initiatives placed on the fall ballot.

More 2014 Colorado November election coverage here.

2014 Colorado November election: Will the Public Trust Doctrine issue make the ballot this fall?

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

From the Valley Courier (Ruth Heide):

Water initiatives that could have a significant impact on the San Luis Valley are still awaiting Colorado Supreme Court decisions before moving forward to the November ballot box. Still awaiting the higher court’s direction are two initiatives Initiatives 89 and 103 that advocate the Public Trust Doctrine, which would present a radical change from the current water administration throughout the state.

Another ballot initiative, Initiative 75, has already passed through the higher court and now has the green light to collect signatures to place it on the 2014 ballot. Although not directly related to water issues, Initiative 75, the Right to Local Self-Government , could affect water developments and investments. It drew a court challenge from the business community.

The ballot title states: “An amendment to the Colorado constitution concerning a right to local self-government , and, in connection therewith, declaring that the people have an inherent right to local self-government in counties and municipalities , including the power to enact laws to establish and protect fundamental rights of individuals, communities, and nature and the power to define or eliminate the rights and powers of corporations or business entities to prevent them from interfering with those fundamental rights; and declaring that such local laws are not subject to preemption by any federal, state, or international laws.”

Initiative 75 was just one of more than 100 separate initiatives proposed or re-proposed this year. Eleven have been cleared so far to begin the signature-gathering process , and another 34 are still pending before the Colorado Supreme Court.

Those include Initiatives 89 and 103.

The Colorado Water Stewardship Project challenged the title-setting process for Initiatives 89 (Local Government Regulation of Environment ) and 103 (Public Trust Resources), arguing that the proposed initiatives did not meet the requirement of a single title.

These initiatives promote the Public Trust Doctrine. Since the 1800’s Colorado has operated under the Doctrine of Prior Appropriation, rather than the Public Trust Doctrine, so passage of these amendments could radically change the way water is administered in the state. Public Trust Doctrine holds that natural resources such as water are common property, while the Doctrine of Prior Appropriation operates under the principle that the first to put the water to use has priority over subsequent water users on that stream.

Colorado Supreme Court Justice Gregory Hobbs has described The Public Trust Initiative as dropping “what amounts to a nuclear bomb on Colorado water rights and land rights.”

Initiative 89’s ballot title is: “Shall there be an amendment to the Colorado constitution concerning a public right to Colorado’s environment, and, in connection therewith, declaring that Colorado’s environment is the common property of all Coloradans; specifying that the environ- ment includes clean air, pure water, and natural and scenic values and that state and local governments are trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local laws conflict the more restrictive law or regulation governs?”

Initiative 103’s ballot titles is: “Shall there be an amendment to the Colorado constitution concerning public ownership of natural and environmental resources, and, in connection therewith , creating a public trust in those resources, which include clean air, clean water, and the preservation of the environment and natural resources; requiring the state, as trustee, to conserve and maintain public trust resources by using the best science available to protect them against any substantial impairment, regardless of any prior federal, state, or local approval; seeking natural resource damages from anyone who substantially impairs them, and using damages obtained to remediate the impairment; allowing Colorado citizens to file enforcement actions in court; requiring anyone who is proposing an action or policy that might substantially impair public trust resources to prove that the action or policy is not harmful; and criminalizing the manipulation of data, reports, or scientific information in an attempt to use public trust resources for private profit?”

The Colorado Water Stewardship Project is supporting legal actions before the Colorado Supreme Court regarding these initiatives, and the higher court is expected to rule on these appeals before July.

In the meantime The Colorado Water Stewardship Project is continuing to bring awareness to these initiatives and what they could mean to the water community throughout the state.

About 70 groups ranging from municipal utilities and the Colorado Association of Commerce and Industry to conservation and conservancy districts have approved resolutions opposing the Public Trust Doctrine.

San Luis Valley entities that have passed resolutions include: San Luis Valley Irrigation District, Rio Grande Headwaters Land Trust and the Commonwealth Irrigation Company.

If the Colorado Supreme Court confirms the contested ballot titles and their proponents receive the green light to proceed with acquiring signatures, they would have to collect 86,105 valid registered voters’ signatures to get these initiatives on the ballot this fall. The deadline to collect those signatures and turn them in to the Secretary of State’s office would be August 4.

More 2014 Colorado November election coverage <a href="

2014 Colorado November election: Initiative 103 — ranchers and water users oppose assault on the Doctrine of Prior Appropriation

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

From the Ouray County Plaindealer (Sheridan Block):

In an attempt to protect Colorado’s natural resources, the Public Trust Initiative is again trying to make waves and earn its spot on ballots this year. While the initiative aims to secure protection for the state’s precious resources — particularly water — many local ranchers and water users are vehemently against the proposed measure.

Initiative 103, also known as the public trust doctrine, is an effort to protect the state’s natural resources from pollution and irresponsible use. The initiative asserts that it is the state’s responsibility “to secure the rights of the people to protect natural resources” such as “clean air, clean water, including ground and surface water, and the preservation of the environment” which the public is entitled to.

More Public Trust Doctrine coverage here. Here’s the link for the Colorado Water Congress Stewardship Project website for more information about the Public Trust Doctrine.

Colorado Water Stewardship Project: March Webinar Ballot Initiatives 2014 — Water and Related Issues

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

Click here for the details:

The CWSP is currently monitoring three proposed ballot initiatives which have the potential to significantly impact Colorado’s water allocation system. Join us March 25, at 12pm for this month’s webinar: Ballot Initiatives 2014- Water and Related Issues.

Doug Kemper of the Colorado Water Congress, Steve Leonhardt of Burns, Figa & Will P.C., and Floyd Ciruli of Ciruli Associates will present an overview of the recently proposed ballot initiatives related to a Public Trust Doctrine in Colorado, and will identify a few other proposed initiatives that may be of concern. They will provide understanding of the impact such initiatives might have and information on how you can take action to advance a sustainable water future for Colorado.

Register at: https://www1.gotomeeting.com/register/296202737

More public trust doctrine coverage here.

Rio Grande Water Users Association board meeting recap

Upper Rio Grande River Basin via the Colorado Geological Survey
Upper Rio Grande River Basin via the Colorado Geological Survey

From the Valley Courier (Ruth Heide):

Groundwater rules, endangered species and interstate lawsuits, public trust doctrine ballot initiatives on top of what could be the sixth belowaverage water year in a row add up to what Rio Grande Water Users Association Attorney Bill Paddock called a “horrifying list of what’s out in front of us.”

“That’s what we’re dealing with,” Paddock told water users at the association’s annual meeting in Monte Vista yesterday.

To make a bitter pill even harder to swallow, the assessments for association members increased by $2 per unit, from $25 to $27 per unit, at the recommendation of the board. Association members, who represent area canals and ditches on the Rio Grande, approved the increase. Association President Greg Higel said the assessment increase was not a unanimous recommendation from the board, especially since many of the ditch companies had already set their own assessments for the year. However, the board believed the assessments had to be increased to handle the pending challenges of the year, such as possible lawsuits that might affect water users along the river.

Higel said the board also voted to allocate 2,500 acre feet for Subdistrict #1 again this year. In addition, the board recommended an irrigation start date for water users association members of April 1, which is the standard start date for the irrigation season.

Water user Willie Hoffner voted against the assessment increase and suggested an earlier irrigation start date for folks on Saguache Creek who might not see water again for a while if they are not able to divert it now. Colorado Division of Water Resources Division Engineer for Division 3 Craig Cotten said he would be meeting with the Saguache Creek water users later this month to discuss their preferred irrigation start date.

Cotten said the storms during the last week brought the Rio Grande Basin’s snowpack up from 77 percent to 87 percent of average, but this basin is still the lowest in the state, with other basins way above 100 percent.

“If we can keep getting some storms coming through we have a good chance of reaching that 100 percent,” he said. “We will have to wait and see what the next couple of months bring.”

If things do not improve, this will be the sixth year in a row with below average stream flow on the Rio Grande, Cotten added. Since 2002, the river has registered only three years with above average stream flow , “which is very unusual, and even more unusual the last five years in a row have been below average.”

He said there has only been one other time since the gauges were put in at Del Norte in 1890 that there were five years in a row of below average stream flow , and never six years in a row.

The preliminary forecast for the Rio Grande this year, based on the Natural Resources Conservation Service’s February forecast, at least promises a bit higher numbers than last year. The February forecast for the Rio Grande is 520,000 acre feet, which is still below average but higher than the 459,900 acre feet that passed through the Del Norte gauge last year. Last year’s total was about 71 percent of the longterm average, Cotten said. If the 520,000 acre-feet forecast holds true, the Rio Grande’s obligation to downstream states this year will be about 133,800 acre feet, and the curtailment to meet that obligation could be about 13 percent. However, Cotten stressed that is a guess at this point, and there are many different factors to consider before implementing a curtailment .

Cotten also shared National Oceanic and Atmospheric Administration predictions for precipitation and temperatures for the next three-month period, which show this area as having equal chances for average precipitation and good chances for above average temperatures. Both Cotten and Paddock spoke to the water users yesterday about pending lawsuits that could have impacts on irrigators in the San Luis Valley.

The state of Texas petitioned the U.S. Supreme Court to file a lawsuit against New Mexico and Colorado concerning the Rio Grande Compact, and the U.S. government joined with Texas in the petition last week. The Supreme Court has accepted that lawsuit, so it will now begin moving forward. Colorado is a minor player in the suit at this point but was named because it is part of the compact. Texas’ main beef was with pumping below Caballo Reservoir in New Mexico.

“It didn’t have a lot to do with us but we got drug into that court case,” Cotten said. Paddock added that if New Mexico were to win such a suit, Colorado would definitely be affected because more water would have to be diverted from Elephant Butte Reservoir, one of the main storage facilities for Rio Grande Compact water, leaving less water that could be counted as usable water for compact purposes. If that total decreases below 400,000 acre feet, which was the case last year and will likely remain the case this year, reservoirs in Colorado built after the compact was ratified cannot store water. Platoro Reservoir Paddock added that no one has filed any specific claims against Colorado in the New Mexico/Texas suit, only including Colorado because it is a signatory on the Rio Grande Compact.

“Hopefully there won’t be any spillback on water users in the Valley,” he said. “There’s significant issues that could come up in that lawsuit that could be concerns to Colorado and that could be concerns to all of you.”

Other pending lawsuits, which would more directly affect the Valley, are suits by the WildEarth Guardians. The environmental group filed notice of intent to sue and has 60 days from the time of its notice before it can officially file suit, which would be March 22. That group is alleging violations of the Endangered Species Act protection of the silvery minnow and Southwestern Willow Flycatcher, and so far those who may be named in the suit include the State of Colorado, Corps of Engineers, Bureau of Reclamation and Fish and Wildlife Service.

“They are claiming that the use of water out of the Rio Grande in Colorado is causing some injury to the endangered species in New Mexico,” said Cotten. “Our position is we have the Rio Grande Compact and we meet our compact obligations each and every year. We have done what we are supposed to do legally to deliver water down there.”

Paddock said if the WildEarth Guardians do bring suit against Colorado it would be a precedent-setting form of litigation nationally, and “it will be an incredibly high stakes lawsuit. They are asserting that endangered species overrule the compact. They are saying you can’t exercise your water rights so water can flow unimpeded to the state of New Mexico to support the silvery minnow. That’s the bottom line.” Regardless of the outcome, such a lawsuit would take years to argue and decide “and will involve every water user from the headwaters of the Rio Grande down to Elephant Butte Reservoir because they would all have the same issues .” He said, the State of Colorado “will not go quietly” if such a lawsuit were to proceed. Paddock and Cotten also reminded attendees of the Rio Grande Water Users Association annual meeting yesterday that groundwater rules will likely be filed with the court this spring. Cotten said the next advisory committee meeting is at 10 a.m. March 12 at the Inn of the Rio Grande in Alamosa, and the state engineer’s goal is to promulgate the rules in April. Paddock added if there are objections to the rules, the court would have to schedule a trial, if those are not resolved beforehand, and that could very likely take place by this time next year. If/Once the rules are ultimately approved, there will be a limited time period for wells to either be under an augmentation plan of their own or through a sub-district , Paddock reminded the water users. Sub-districts would also have a limited time to finalize their formations and plans of management, he added.

“We’re looking at a major change in water management over the next two to three years,” he said.

Capping off “horrifying list of what’s out in front of us,” according to Paddock, is the potential for ballot issues to go before voters this fall regarding a constitutional change from the current priority water system to the Public Trust Doctrine. The Public Trust Doctrine would involve a permitting system, and whoever was in charge of the permitting could choose how water would be diverted and for what uses. For example, the most beneficial use of water could be determined to be instream flows in the Rio Grande rather than diversions for agricultural irrigation, Paddock explained.

“The Public Trust Doctrine is unpredictable,” he said. “It’s terrifying because it takes away people’s certainty of how they can use their water and when it is available.”

He said if those promoting the ballot initiatives collect enough signatures, the Public Trust Doctrine initiatives would probably appear on the ballots this fall.

“It is a significant threat to everyone’s established water rights.” is one of those.

Another even more substantial potential impact of Texas winning this suit and requiring more water to be delivered out of Elephant Butte would be less chance of the reservoir spilling. In a year when Elephant Butte spills, Colorado has no delivery obligation downstream.

“That makes a whole lot more water available in Colorado ,” Paddock said. “That’s pretty high stakes.”

More Upper Rio Grande River Basin coverage here and here.

The March 2014 Colorado Stewardship Project newsletter is hot off the presses

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

Click here to read the newsletter. Here’s an excerpt:

Public Trust Ballot Initiative Introduced

A proposed Public Trust Doctrine Ballot Initiative is progressing through the state’s review process. The proponents made changes to their initial version and re-submitted the amendment on February 25. It is set for a Review and Comment Hearing March 11 at 1:30pm.

The current version of proposed Initiative 83 would amend the Colorado Constitution by adding a new section to Article XVI (the provisions of the constitution that govern mining and water rights). This amendment would, among other issues, establish an “inalienable right” of the people of Colorado to clean air, clean water (including groundwater), and the preservation of the environment and natural resources (called “Public Trust Resources”), as common property of all people including future generations.

For additional summary of proposed Initiative 83 click HERE or visit http://www.cowaterstewardship.com.

CWSP and the Colorado Water Congress are monitoring all initiatives that could affect water resources. To view the full initiatives tracking document click HERE.

More 2014 Colorado November election coverage here.

Public Trust Doctrine effort spurs the Colorado Water Congress to respond

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

From the Northern Colorado Business Report (Steve Lynn):

One of Colorado’s oldest, most powerful water groups is raising a war chest to battle an initiative that would place the public’s interest in the state’s hallmark rivers and streams ahead of the interests of private water-right owners, changing the state Constitution.
The notion that the public has an inherent interest in free-flowing water is well-established in other states, which embrace what’s known as the “public trust doctrine.”

California, Wisconsin, Montana and New Jersey, for instance, have such a doctrine, according to a 2009 report from the Center for Progressive Reform, a nonprofit policy research organization based in Washington, D.C. In Wisconsin, for example, the public interest in a water source is paramount and a water permit only can be granted if its use does not obstruct navigation, reduce flood-flow capacity or harm the public interest.

This would mark a radical shift from Colorado’s prior appropriation system, which favors individual water rights owners, especially those with older water rights. During drought periods, water is provided to those with senior water rights while those who have junior, or newer, water rights don’t get water.

But the Colorado Water Congress, which represents private water-right owners, contends the Public Trust Doctrine runs counter to state law and 150 years of case law. The legal principle would make rivers and streams public property, superseding water rights of property owners in some cases.

Richard Hamilton, a retired aquatic microbiologist from Fairplay, is behind recent efforts to introduce a ballot initiative to ask voters to enact the public trust doctrine in Colorado. Hamilton and Phillip Doe have tried several times since 1988 to enact a public trust doctrine.

“The state does not now act as a steward of the people’s property,” Hamilton said.

“It goes ahead and decides what is the best interest of everybody and the government makes up its mind as to which of those interests shall supersede the public’s ownership.”

Hamilton said his measure failed last year because the state did not give him enough time to gather signatures for a ballot initiative. He said he does not know whether he will pursue a ballot initiative this year.

The Colorado Water Congress, nonetheless, is spending $325,000 on a campaign to oppose any effort to launch a public trust doctrine initiative. Founded in 1958, the not-for-profit lobbying organization represents water-right owners. The Colorado Water Congress claims an 85 percent “success rate” on state water legislation it endorses, and Colorado governors rarely have signed bills it has opposed.

More Public Trust Doctrine coverage here.

The latest Colorado Water Stewardship Project newsletter is hot off the presses

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

Click here to read the newsletter. Here’s an excerpt:

The Colorado Water Congress Board unanimously adopted a resolution opposing a public trust doctrine at its December 6th meeting.

The resolution declared:
A public trust doctrine is 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. –December 6, 2013

The resolution cites the risks to agricultural users and major concerns for Colorado’s economic stability. The Board also opposed the doctrine because it would increase uncertainty in the ownership and right to use water, and shift control from the local water providers to the courts in the form of litigation.

Board Chairman Regan Waskom said the Colorado Water Congress will strongly encourage its membership to adopt similar resolutions. “It is important that the water community be absolutely clear that the public trust doctrine, in whatever form it might be offered, would be a disaster for Colorado citizens and for good water management.”

View the Colorado Water Congress Resolution on a Public Trust Doctrine HERE.

More Public Trust Doctrine coverage here.

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

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

From The Mountain Mail (Terry Scanga):

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

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

Since statehood Colorado’s constitution has guaranteed this right.

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

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

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

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

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

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

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

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

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

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

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

More Public Trust Doctrine coverage here.

Floyd Ciruli’s presentation Public Perception of the Public Trust Doctrine is now available for download from the CWC website

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

Click here to go to the Colorado Water Congress’ Public Trust Special Project page to download the presentation.

Update: Here’s a report about the survey and the issue from Chris Woodka writing for The Pueblo Chieftain:

A survey by the Colorado Water Congress indicates voters trust local water providers, support agricultural water values and generally favor the existing legal framework of water rights in Colorado. The group is gathering the information in preparation for the possible return of a public trust question on next year’s ballot.

“The public trust doctrine in Colorado would be unlimited employment for water lawyers,” Doug Kemper, executive director of CWC, told the Southeastern Colorado Water Conservancy District last week.

“The survey showed most people are uncertain, but (the public trust proposal) does have certain resonance,” Kemper said. “Most people are comfortable with local control of water.”

The CWC has been gearing up for a return bout with Richard Hamilton of Fairplay, who is planning on using the same ballot language that finally was approved in 2012. Hamilton said legal challenges by the CWC to the ballot title hurt chances for gathering signatures by reducing the time needed, so he withdrew the initiative last July. After Hamilton earlier this year announced his intentions to begin a campaign for 2014, CWC began a two-year, $325,000 program to counteract the effort.

Water groups, such as the Southeastern district or Pueblo Board of Water Works — even the CWC itself — are limited in their ability to campaign against the measure once it is on the ballot, Kemper said.

The survey provides arguments that might be made by private groups against the proposal. The Colorado Farm Bureau already has stepped up to fill that niche.

The public trust doctrine, relied on by some other states, could throw the state’s prior appropriation doctrine into chaos because it could elevate “public good” arguments above property rights.

The Colorado Constitution provides that those who first divert water to beneficial use have a senior claim to water, and gives domestic use preference over agricultural and manufacturing uses. Subsequent court cases have interpreted the laws to provide a strict pecking order of water rights within seven water districts in Colorado. Changes in the law in 1969 incorporated groundwater diversions with surface rights. Interstate compacts have added more restrictions about how water can be diverted within the state.

More public trust doctrine coverage here.

Ute Water opposes public trust initiatives in effort to protect Colorado’s system of water rights

Colorado Water Congress Public Trust Special Project Fundraiser Alert


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

After failing to collect enough signatures to place Public Trust initiatives in front of Colorado voters in 2012, the sponsors announced that they are redoubling their efforts to bring the issue to Colorado voters as early as 2014. “We will stay at this until we win,” their leadership stated.

The Colorado Water Congress has strongly opposed the Public Trust Doctrine becoming law for the last two decades. It is critical that we act now to prepare for the next round in the Public Trust battle. Failure to prepare will certainly leave us in a precarious position.

The Water Congress Board established a new Public Trust Special Project to fervently challenge upcoming ballot initiatives and, as importantly, to engage our water community in positive public communication about Colorado’s water future. Our two-year budget is $325,000.

The first phase of fund raising is the reason I am contacting you now. Please review the attached Public Trust Special Project overview, which provides a description of the issue, our position, and the very high stakes at hand. It also details the specific activities that your special fund contribution will support.

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

We hope that you will consider this issue a priority. If you wish to contribute to this project (in any amount), please click here. Thank you for your consideration.

From The Pueblo Chieftain (Chris Woodka):

It’s kind of like watching thunderheads build over mountain ranges.

Colorado Water Congress is seeking to raise $325,000 to fight off the next attempt to apply the public trust doctrine to Colorado water law. The group took the lead role in 2012 to battle an initiative by Richard Hamilton of Fairplay that it claimed would have created legal turmoil over water rights. “We think this issue may be in front of us for some time,” said Doug Kemper, executive director of the CWC. “As the state is trying to develop a state water plan, this cuts the legs out from under it.”

For his part, Hamilton said he plans to launch a campaign to place ballot questions “exactly the same” as he attempted to place on the 2012 ballot.

In 2012, the ballot titles were challenged by the CWC, a process that cut four months off the six-month period to collect signatures, Hamilton said. In July, having collected only about 35,000 signatures of 86,000 needed to put the issues on the ballot, Hamilton withdrew the questions.

“The use of the public’s water is for the public’s good,” Hamilton said, saying Colorado’s constitution clearly says the state’s water is owned by the public. “It’s interesting that the state’s water interests try to block the initiative and refuse to have a full, open discussion with the public.”

Hamilton, a longtime lobbyist for water issues, has worked to place water issues on the ballot for the past 25 years. His concerns are rooted in the state’s priorities of placing development ahead of environmental and recreation concerns. “The water transfers that have happened in this state have benefitted real estate developers in Denver, Aurora, Colorado Springs and at times Pueblo,” Hamilton said.

The Water Congress is concerned about protecting water rights that have been in place for as long as 150 years, property rights associated with stream access and costly water quality legal battles, Kemper said. The fundraising effort will provide money for legal fights, surveying public opinion, tracking ballot issues and distributing information, Kemper said. “As a water community, we need to be organized,” he said. “Once a campaign begins, deadlines can be extremely short and time is limited.”

More 2014 Colorado November election coverage here.

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


From the Grand Junction Free Press (Hannah Holm):

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

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

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

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

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

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: 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: ‘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 (http://protectcoloradowater.org/), formed a campaign committee, and are soliciting funds and volunteers to support the effort.

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

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

More 2012 Colorado November Election coverage here.

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

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

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


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: ProtectColoradoWater@gmail.com.

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.

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 CBS4Denver.com. 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.

Colorado Water Congress 2012 Annual Convention: State lawmakers oppose public trust measures on fall ballot


From The Pueblo Chieftain (Chris Woodka):

“If we don’t defeat these initiatives, those uneducated about water will take control and irrigated agriculture will cease to be important,” said Rep. Jerry Sonnenberg, D-Sterling…

The [Colorado Water Congress] has opposed two initiatives by Richard Hamilton of Fairplay and his attorney Phil Doe of Littleton. Those measures seek to supplant constitutional provisions that form the basis for Colorado’s prior appropriation doctrine and replace it with a public trust doctrine. The CWC has hired attorney Steve Leonhardt to fight the ballot initiatives during the early stages and has received support of other water groups, such as the Southeastern Colorado Water Conservancy District, in its effort. The CWC plans to appeal the state title board’s approval of ballot measures 3 and 45 because they include multiple subjects in violation of Colorado law, Leonhardt said…

Rep. Randy Fischer, D-Fort Collins, said more education of the state’s population about water issues is needed to defeat such ballot measures.

More coverage of the CWC annual convention from Chris Woodka writing for The Pueblo Chieftain. From the article:

“The good news is that Colorado is coming out of the recession. It’s slow. It’s hard, but it’s there,” said Sen. Mary Hodge, D-Brighton, chairwoman of the Joint Budget Committee. The state has siphoned $200 million in mineral severance funds meant for water projects to bolster the general fund since 2008.

This has the potential to damage water availability in the future as more projects are backlogged. “We need something to show our grandchildren about our investment in water in Colorado,” said Sen. Gail Schwartz, D-Snowmass Village…

“Without water, we have limited jobs and growth,” [State Representative Jerry Sonnenberg] said. “We have water leaving the state beyond our compact obligations. Water storage has to be a priority.”

More 2012 Colorado legislation 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 dkemper@cowatercongress.org.

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: www.sos.state.co.us/pubs/elections/Initiatives/InitiativesHome.html.

If you wish to listen to the archived audio of the hearing on Wednesday, you may access it at http://www.sos.state.co.us/pubs/info_center/audioArchives.html.

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.