While reading a recent article published by Fresh Water News on the Colorado Supreme Court case regarding public access to rivers, I noticed an emphasis on the potential disruption of the water rights system if Hill prevails and the public trust doctrine is asserted on portions of the Arkansas River in Colorado. I believe this emphasis is incorrect.
The public trust doctrine raised by Hill dictates that states receive ownership of the bed of any “navigable” water bodies in the state at the time of statehood. A water body is navigable if it was or could have been used for commerce at the time of statehood. Importantly, the public trust doctrine only impacts the bed of the water body, not the water itself.
The State of Colorado and Colorado Water Congress (CWC) conflate the public trust in water rights—which exists in California but not Colorado—with the public trust doctrine described above. The public trust in water rights requires an assessment of the public interest (such as habitat conservation) when issuing water rights. Hill is not seeking to establish a public trust in water rights, and the State and CWC are making misleading arguments when they claim that asserting the public trust doctrine would have “monumental consequences” for Colorado’s water rights. Further, challenging our system of water rights is extremely unpopular, likely leading the State and CWC to raise the issue in attempt to sway the Court and popular opinion.
If the Court invokes the public trust doctrine in this case, it means that the State of Colorado owns the bed of the river and that the public is allowed to be on that land. It would not impact the actual water in the river. The State and CWC are incorrect in their assertion that the public trust doctrine would threaten our established water rights system.
It is time for the State of Colorado to accept its trust responsibility for much of the Arkansas River and protect the public’s right to be on the river.
Derrek Wilson is a graduate student in Environmental and Natural Resource Policy at CU Boulder’s Masters of the Environment program, emphasizing in water law and policy.” He can be reached at email@example.com.