Summit County Citizens Voice

Colorado voters won’t have a chance to update Colorado’s broken water laws at the ballot box this year.

Grassroots effort to revise state’s outdated prior appropriations system falls short, as backers fall short of gathering required signatures

By Summit Voice

SUMMIT COUNTY — An attempt to fundamentally alter Colorado water law via the petition process fizzled this week, as backers of the proposed initiatives 3 and 45 withdrew their bid for lack of enough signatures.

One of the ballot measures would have applied 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 public trust ballot measure would also have clarified the public’s right to access streams and rivers.

The second measure would have have put limits on diversions to protect the public’s interest in water, prohibiting diversions “that would irreparably harm the public ownership interest in water.”

Organizers said that, as of this week, they were able to collect about 30,000 signatures, with about 86,000 needed for ballot certification. With an Aug. 6 deadline looming, the backers said they didn’t think there was enough time left to gather the needed support.

The state’s entrenched water establishment, and even most environmental organizations, opposed the measures, and exaggerated potential impacts of the public trust doctrine, claiming the changes would threaten Colorado’s antiquated water appropriation scheme.

Backers of the measures claimed that a 100-delay by the Colorado Supreme Court in approving the initiatives cost them precious time needed to gather the signatures. The delay came after the state’s water establishment filed a procedural lawsuit, challenging  the sufficiency of the ballot titles.

The Supreme Court dragged its feet on a relatively minor naming issue, initially taking the case January 19, but not issuing a ruling until April 16.

“That DELAY of ca.100 days of “decision rendering time” by the Colorado Supreme Court was the fatal element in the defeat of this petition collecting process  . . .  for, after the Supreme Court ruled, the initiative petition forms then needed to be approved by the Secretary of State’s staff (required by statute) – a process that took another two weeks – and then, the petitions could be printed for circulation,” backer Richard Hamilton wrote in an email announcing the decision to withdraw the initiatives.

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.”

Backers of the initiatives say concerns about the impacts of fracking, as well as increased trans-mountain diversions from the Colorado River, show the need to re-assert public control over the state’s most valuable resource.

Filed under: Colorado, rivers, water Tagged: | Colorado, Colorado Supreme Court, prior appropriations, public trust doctrine, water