Colorado Water Law

A week ago on Monday May 14, the Colorado Secretary of State’s website posted that the final form for the petitions to collect signatures for Public Trust Initiatives #3 and #45 have been approved– these ballot initiatives could dramatically change water management in Colorado. To make the November ballot, each initiative must collect 86,000 valid signatures from Colorado voters by August 6th.

According to an article posted in the Summit County Citizen’s Voice on April 18:

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.”…

This, after the Colorado Supreme Court approved the titles of the two initiatives just under a month ago.  Read the full text of Colorado Supreme Court Ruling 12SA8 (Initiative 3) and Colorado Supreme Court Ruling 12SA22 (Initiative 45).

So what is the Public Trust Doctrine? The Colorado Water Congress prepared a document that says: The Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public’s reasonable use. In that document under Highlights from the Sponsors Answers to the Review and Comments Questions from the Staff of Colorado Legislative Counsel and the Colorado Office of Legislative Legal Services, Water Congress includes:

Adoption of this Colorado Public Trust Doctrine will mandate and necessitate review of water rights allocated where the public’s waters have been put through the appropriation system.

Colorado’s prior appropriation system is Colorado’s legal framework that regulates the use of surface water and tributary groundwater connected to rivers. Learn more about Colorado water law through CFWE’s Citizen’s Guide to Colorado Water Law. From the guide:

Water users with earlier court-decreed rights (senior rights) can divert in times of short natural supply before later-acquired rights (junior rights) can begin to use water. The phrase “first in time/first in right” is a shorthand description of the prior appropriation doctrine.
Appropriation occurs when a public agency, private person, or business places available unappropriated surface or tributary groundwater to a beneficial use according to procedures prescribed by law…

Beneficial use is the basis, measure, and limit of a water right…Over time, the uses of water considered “beneficial” have increased in response to the changing economic and community values of Colorado’s citizens. Recognized beneficial uses under the prior appropriation doctrine now include, among others:

  • Augmentation
  • Colorado Water Conservation Board instream flows and natural lake levels
  • Commercial
  • Domestic
  • Dust suppression
  • Evaporation from a gravel pit
  • Fire protection
  • Fish and wildlife culture
  • Flood control
  • Industrial
  • Irrigation
  • Mined land reclamation
  • Municipal
  • Nature centers
  • Power generation
  • Produced water from gas production
  • Recreation on reservoirs
  • Recreational in-channel diversions
  • Release from storage for boating and fishing
  • Snowmaking
  • Stock watering

What do you think about the Public Trust Initiatives? Please, share your thoughts!

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