Last week the Colorado Water Congress issued a Resolution in Opposition to Initiatives 3 and 45 . 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.
As a recent editorial blog post in High Country News’ The Range states:
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.”
In April, the Colorado Supreme Court approved the titles of the initiatives, while just a couple weeks ago, the Colorado Secretary of State posted forms for Doe and Hamilton to begin collecting signatures. Each initiative must collect 86,000 signatures by August 6 if they are to appear on the November ballot. What would this mean for Colorado water and water law? According to the Colorado Water Congress resolution and Colorado Supreme Court Justice Greg Hobbs:
WHEREAS, Justice Hobbs stated in his dissenting opinion in In re Title, Ballot Title and Submission Clause for 2011-12 #45, “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.”
What do you think? How do these initiatives work for or against the public’s interest? Share some examples of how Colorado’s current water law system protects or works against Coloradans. Read the rest of the Colorado Water Congress resolution below:
WHEREAS, water frequently does not naturally exist where and when it is needed in sufficient quantities to sustain human settlement and enterprise in Colorado; and
WHEREAS, 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; and
WHEREAS, the Colorado Water Congress supports Colorado’s system of prior appropriation as a fair and orderly system for allocating Colorado’s scarce water resources; and
WHEREAS, 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); and
WHEREAS, two individuals have proposed 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; and
WHEREAS, 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; and
WHEREAS, 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; and
WHEREAS, as Justice Hobbs stated in his dissenting opinion in In re Title, Ballot Title and Submission Clause for 2011-12 #3, the measure’s provisions “propose to drop what amounts to a nuclear bomb on Colorado water rights and land rights”; and
WHEREAS, Justice Hobbs stated in his dissenting opinion in In re Title, Ballot Title and Submission Clause for 2011-12 #45, “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.”
NOW THEREFORE BE IT RESOLVED that the Colorado Water Congress 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.
Related articles
- Colorado Water Law (yourwatercoloradoblog.wordpress.com)
- Colorado Supreme Court OKs ballot measures that would change state water law (yourwatercoloradoblog.wordpress.com)
- Colorado rivers, streams may get boost from lease of water rights (denverpost.com)
- Colorado Supreme Court OKs ballot measures that would revamp state water law by applying the public trust doctrine (summitcountyvoice.com)
- Colorado Water Trust Employs New Tactics in Drought Response (yourwatercoloradoblog.wordpress.com)
- Court Clears Way For 2 Water Ballot Initiatives (denver.cbslocal.com)
Your Water Colorado Blog 
First, I would like to commend the Colorado Foundation for Water Education and Water 2012 for their work to share water stories through this blog. I’ve enjoyed reading about issues throughout the state and am glad CFWE is continuing to cover Initiatives 3 and 45.
These Initiatives have the potential to turn the administration of water in Colorado completely upside down. By making water a public good, we would erase 150 years of water administration through the prior appropriations system. Through this period of time, the system of prior appropriations has proved to be flexible and an avenue through which all water interests may be represented. River flows are protected by Instream Flow Rights held by the Colorado Water Conservation Board and the Colorado Water Trust. Riparian areas and critical habitat are protected by water rights held by Colorado Parks and Wildlife and the US Fish and Wildlife Service. Rural agriculture and local farms utilize water rights held by farmers, ranchers, and irrigation districts. Municipalities ensure consistent supplies of water for residents through their water rights. These examples are just the tip of the iceberg of instances where water rights are working for Coloradans.
Rather than reduce water rights to nothing and make water a public good, I encourage passionate people to become active in the water community and work within the existing system of prior appropriations to ensure water is protected for future generations. It can be done.