Water managers wary 
of draft ballot initiatives

Colorado water entities are monitoring state ballot proposals they fear could undermine water rights in the state.

The concern centers on an ongoing push for incorporation of what’s known as the public trust doctrine in governance of water within Colorado.

The Colorado Water Congress, a not-for-profit organization made up of governments, water districts, businesses with water interests and other entities, has a new undertaking to address any public trust doctrine initiatives “that would disrupt ownership or management of Colorado’s water resources.” That’s according to the website of the undertaking, called the Colorado Water Stewardship Project.

Under the state Constitution, its stream waters belong to the public but rights are appropriated for beneficial uses under a priority-based system in which junior rights are subordinate to more senior ones.

The public trust doctrine traditionally is based on the common-law concept that the public should have access to navigable waters, attorney Stephen Leonhardt said this week during a webinar presented by the Colorado Water Stewardship Project.

But in Colorado, he says, as upheld by a 1979 state Supreme Court decision, the only state protection of public water is for use by appropriation, as opposed to protecting it from use or for conservation. The ruling recognizes that Colorado’s streams aren’t navigable and there’s no constitutional right to float in Colorado, he says.

None of the measures that concern water interests has made it onto the ballot yet. One, Initiative 75, is a local control measure that generally would prevent local laws from being pre-empted by others. While it’s aimed at oil and gas regulation, Leonhardt said it raises water concerns as well.

Said pollster Floyd Ciruli, who is working with the Colorado Water Stewardship Project, “The energy debate this year will be very, very intense and to some extent water will be part of that.”

A second measure, Initiative 89, combines themes of local control and public trust, Leonhardt said. It declares Colorado’s environment the property of all Coloradans, designates the state and local governments as trustees that must conserve the environment, and provides that where local and state protections differ, the more protective shall apply.

A third, Initiative 103, specifically would govern water rights and mining, requiring the state to protect public trust resources, and applying even in the case of previously granted permits, which would apply to water rights, Leonhardt said.

The Colorado Water Congress has passed a resolution opposing the public trust doctrine, as have about 20 cities, counties and other water entities including the Grand Valley Water Users’ Association.

“We would like to move from 20 to 50 in the next month and go beyond that, because quite frankly this is something that is extremely important to the water community,” Ciruli said.

Richard Hamilton, who has tried before to put public trust doctrine initiatives on the ballot but isn’t involved in any of this year’s efforts, said the doctrine doesn’t diminish Colorado’s prior-appropriation system. But he says there’s a difference between a right to use water and the public’s ownership of that water. He said the public trust doctrine as supporters have proposed it in the past merely stipulates that the state is obligated to protect the public’s interest in water and that the right of use is subordinate to ownership.

The doctrine takes in concepts ranging from navigation rights, to conservation, to protection from pollution, he said.

“We are not taking care of the ownership values and interests of the ownership of water that is owned by the public,” he said.

Polling by Ciruli’s firm last year showed the public trust doctrine creates concerns among Coloradans over things such as potential impacts on agriculture, water and property rights; legal uncertainties and the potential for lawsuits; and the prospect for less rather than more local control, Ciruli said.

But he also said few people are familiar with the doctrine, pointing to the need for an education campaign.


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