Colorado Supreme Court OKs ballot measures that would revamp state water law by applying the public trust doctrine

Second measure would ensure that diversions don’t harm the public interest

Peru Creek, Colorado. PHOTO BY BOB BERWYN.

By Bob Berwyn

SUMMIT COUNTY ā€” 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.


7 thoughts on “Colorado Supreme Court OKs ballot measures that would revamp state water law by applying the public trust doctrine

  1. This is a timely and critical ballot issue that is sorely needed to prevent the devastation of groundwater and ecosystems by front range developers and out-of-state-interests. It is time to realize that there are natural limits to the amount of water available and to turn the water issue into one that serves the public interest instead of being hostage to the “grab it while the getting is good” attitude of industrialists and developers.
    Of course it will be opposed by water interests. They do not see it as a natural resource, they see it as a mine from which riches are extracted, mostly to the disadvantage of the public – and the the fish, and the birds, and the forest animals, and the trees …..need I go on? I am not an environmental radical, I am simply arguing from the standpoint of common sense. We have reached the carrying capacity of the natural environment of Colorado in terms of water. Mindless exploitation of the water resource must be stopped. Communities that own the water must allocate it properly and sell it dearly to development interests – if at all. One of those communities is the public at large enjoying the National Forests and public lands with which we are blessed.

  2. Both ballot measures are bad policy for Colorado!! Why do you think taking people’s property for your use is good for Colorado??

    1. I guess it depends on who the water belongs to in the first place. There are a lot of people who think it’s part of the public trust. Whether the majority agrees will be determined in the election.

    2. There are obviously flaws in the water laws and the system of ownership when environmental damage is caused by the circumstance of its distribution. Devastating the environment of the western slope to build new housing developments on the Front Range is a special kind of insanity. Thank goodness for the foresight of our courts. We should be even more thankful that human beings outnumber developers. See you at the polls!

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