This week the Colorado Supreme Court approved the titles of two ballot initiatives that could dramatically change the way water is managed in the state.
What is Colorado’s water rights system? Learn about it with the Citizen’s Guide to Colorado Water Law to better understand how these ballot initiatives might impact water in Colorado. Also, check out the Recreation edition of Headwaters Magazine to read in-depth information on the rafting, fishing and private property access conflicts.
Read the full text of Colorado Supreme Court Ruling 12SA8 (Initiative 3) and Colorado Supreme Court Ruling 12SA22 (Initiative 45).
As Bob Berwyn with the Summit County Citizen’s Voice writes:
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 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 California Supreme Court applied the public trust doctrine in a court case revolving around Los Angeles water diversions from the Mono Lake Basin, in the Eastern Sierra, in a ruling that forced the city to limit its diversions to protect the public interest in the waters of the Mono Basin.
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.”