Second measure would ensure that diversions don’t harm the public interest
By Bob Berwyn
SUMMIT COUNTY — The Colorado Supreme Court this week cleared the way for two ballot initiatives that could dramatically change the way water is managed in the state.
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 public trust ballot measure would also clarify once and for all the public’s right to access streams and rivers.
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.”
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.
The ballot measures will be bitterly opposed, if not vilified, by state’s the entire water establishment, but if they make it on to the ballot, it would open the door for a fundamentally valuable public discussion about Colorado water.