Supreme Court decision keeps public water initiatives alive; farmers, municipalities concerned
April 19, 2012
Northern Colorado farmers and water officials expressed disgust and concern this week in response to a Colorado Supreme Court decision that kept alive proposals that would completely change Colorado water law – and for the worst, according to some.
On Monday, the court approved titles to Initiatives 3 and 45. Those proposed pieces of legislation collectively seek to apply the public trust doctrine to Colorado water rights through a constitutional change, and would override the state’s current prior-appropriation system – law that states those who own older water rights have a higher priority in using them. Additionally, more than 130 years of case law that have helped define how water is used in Colorado would be thrown out the window if the initiatives are eventually voted into law, opponents say.
The Supreme Court said in its decision this week the proposals properly ask voters to consider only one issue. That’s been one source of debate in recent months regarding the proposals.
In a strong dissent, Justice Gregory J. Hobbs Jr. said: “Masquerading as a measure to protect the public’s control of water, it would prevent farmers, cities, families and businesses from making beneficial use of water rights that have vested in them over the past 150 years under Colorado’s statutes and constitution.
Hobbs, one of the nation’s leading authorities on water law, added: “It would deprive Colorado of its interstate allocation of waters of the Platte, Arkansas, Rio Grande and Colorado rivers by imposing a predominantly non-consumptive water regimen upon the State and its water users, resulting in the free flow of waters across our boundaries for the use of others, devastating Colorado’s economy and way of life.”
With the Supreme Court’s approval Monday, the initiatives could be on the ballot in November, if sponsors can get enough petition signatures.
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Additional sources of debate revolve around fears that valuable water rights would become useless and worthless under the initiatives, and that Colorado’s agriculture as a whole would be at risk.
A number of municipalities, farmers, ranchers and agricultural organizations – as well as the Colorado Water Congress – have been fighting the initiatives for months. The Colorado Water Congress, which represents varied statewide water interests, led efforts in attempting to block the initiatives by appealing a state title board decision on the grounds that the initiatives do not adhere to the single-subject rule.
Even environmental groups have said the initiatives are too far reaching.
In addition to invalidating water rights, Initiatives 3 and 45 – citizen-sponsored proposals pieced together and filed by Richard Hamilton of Fairplay and his attorney, Phil Doe – would allow anyone to use the state’s water and then leave it up to the public to determine if the water is being used for the common good. If members of the public were to determine the water isn’t being used for the common good, they could file a lawsuit in effort to curtail or prevent further water use in that capacity.
Hamilton, an aquatic microbiologist who has been a lobbyist in the environmental and natural resources industries for nearly 40 years, said the purpose behind his initiatives – in addition to placing control of the state’s water into the general public’s hands – is to prevent further contamination of water, often seen in return flows to the rivers following industrial use, and also prevent the further depletion of the state’s rivers, caused by increased municipal, industrial and agricultural use.
Hamilton and Doe now must gather about 86,000 signatures on a petition to get the initiatives on a ballot in November. Hamilton expressed confidence in a phone interview Tuesday that he could gather the needed signatures, noting that his goal is to have about 115,000 signatures by the time the petition is due in August.
Some, including city of Greeley Water & Sewer Department director Jon Monson, are concerned that if the measures make it on to a ballot, there could be enough incentive for the general public to vote for the initiatives.
“It would basically allow fishing or other recreational activity on any water in the state for Colorado residents,” Monson said. “And that could appeal to a lot of people.
“The question is, do people really want to put in place a system we know nothing about, and do away with a system that’s worked for 130 or 140 years?”
Potential support from the general public has those in the agriculture industry particularly concerned. Weld County Commissioner Doug Rademacher, who farms about 1,200 acres in the Platteville area, said that, under the proposed initiatives, farmers and ranchers, who make up less than 2 percent of the population, would be in the minority, facing competing demands from recreational users and the general public.
“I’m just disgusted the Supreme Court has allowed this to move forward,” Rademacher said. “These initiatives would cause complete chaos. If by some chance they get passed into law in the fall, we’ll be in court the next day trying to get this undone.”
Rademacher and Monson said one proposal in the initiatives – that all water used must be returned back to the river in the condition it was prior to its use – would be an incredibly difficult regulation with which to comply, and extremely expensive.
Jason Bane, communications manager for Western Resource Advocates, said his organization – a regional nonprofit conservation and environmental group – isn’t opposing the initiatives, but said completely changing Colorado water law goes too far.
“We believe there’s good intentions behind these efforts,” he said. “But we’re not sure we need anything that goes to this extent.”