Protecting Colorado water: a constant battle

Water is the lifeblood of Colorado. 

The Colorado Constitution, Article 16, sections 5 and 6 provides that the water in streams belongs to the people this great state and that diverting unappropriated water for a beneficial use (eg- irrigation, mining, municipal use, electricity generation, etc) shall never be denied. An appropriation is made when an individual physically diverts water from a stream. The Colorado Doctrine, known as the “prior appropriation system” or more commonly referred to as “first in time, first in right” creates a real right in property for individuals. The doctrine stems from the ratio decidendi in Yunker v. Nichols (1872), and later codified in right to appropriate clause of the Colorado Constitution, which was affirmed by the Supreme Court in Coffin v. Left Hand Ditch (1882). The basic appropriation language is also mentioned in sections 37-82-101 and 37-92-102 of the Colorado Revised Statutes.

With the majority of water users in Metro Denver and along the Front Range, it is crucial for West Slope legislators to band together to protect our water rights from greedy downstream interests.

There are two proposed ballot initiatives (No 3 and 45) heading for this year’s general election which threaten to undo Colorado’s 120-plus years of Water law and precedence. On Friday (20 July 2012), the Daily Sentinel reported these two initiatives might not make the November ballot due to not enough signature. That said, those of us who have an interest in water, property rights, and legal consistency need remain mobilized to defend our way of life!

Richard Hamilton of Fairplay and Phillip Doe of the Denver Metro-Area are pushing have been pushing for major overhauls of Colorado water law since 1992 and initiatives 3 and 45 are current examples of how our rights must be constantly defended from attacks. The initiatives threaten everything from septic systems to stocked water ponds.

Initiative 3 would make public ownership of water in natural streams legally superior to water rights, contracts and property law. It would also turn all state waterways over to a public trust, which would allow recreational access along all streams and stream-banks.

Initiative 45 would place strict limits on water diversions, “prohibiting any use of water that would irreparably harm the public ownership interest in water”.

It is no wonder why the Associated Governments of Northwest Colorado (AGNC) and Xcel Energy have voted unanimously to oppose initiatives 3 and 45, and the Colorado Water Congress has legally challenged the initiatives all the way to the Colorado Supreme Court.

Protecting water is a constant battle.