Initiatives 3 and 45: ‘We now know that the process is adversarial’ — Richard Hamilton

From The Colorado Statesman (Peter Marcus):

Two efforts to protect water sources in Colorado also failed after sponsors were unable to submit signatures on Monday. Both initiatives aimed to declare water as belonging to the people of Colorado.

Initiative 3 would have simply declared that the public owns the water of Colorado; Initiative 45 would have addressed use and environmental issues by allowing the public to “limit” or “curtail” the right to divert water within the state.

Richard Hamilton, who sponsored both initiatives, said they were hampered by a challenge to the title language, which went to the Colorado Supreme Court and was not settled until April 16, dramatically shrinking the period of time sponsors had to collect signatures.

In the end, sponsors ended up with about 30,000 signatures, said Hamilton.

“We’ll go back and put something in and go after them again in 2014,” he said. “Hopefully there will not be such inordinate delays. We now know that the process is adversarial.”

Critics, including the Colorado Water Congress, the Colorado Water Conservation Board, and the Colorado River Water District, had opposed the measures, stating that the initiatives were too broad, allowing the public to block water diversions for a wide range of issues that could affect how the state and local governments distributed needed water.

More 2012 Colorado November election coverage here.

2012 Colorado November election: Proponents of Initiatives 3 and 45 withdraw them from ballot

From the Summit County Citizens Voice (Bob Berwyn):

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-[day] 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.

More Initiatives 3 and 45 coverage here.

2012 Colorado November election: Initiatives 3 and 45 withdrawn, supporters hope to regroup for 2014

Practically everyone in the water business will breathe a sigh of relief now that Initiatives 3 and 45 have been pulled from the November ballot. The organization behind the attempt to get Coloradans to reject Prior Appropriation cannot get the required signatures. Here’s a report from Cathy Proctor writing for the Denver Business Journal. From the article:

Supporters of the initiatives “have withdrawn No. 3 and 45,” spokesman Rich Coolidge said. “They are not going to be submitting signatures.”[...]

Richard Hamilton, who worked on drafting the initiatives, said Monday that supporters decided it “would be a near impossibility” to get the needed number of signatures. But he said that supporters will continue work on them, hoping to submit similar proposals for the 2014 ballot.

More Initiatives 3 and 45 coverage here.

2012 Colorado November election: The Colorado Water Congress is stepping up its opposition to Initiatives 3 and 45

From the Denver Business Journal (Cathy Proctor):

“We’re opposed to them,” said Dan Pfeiffer, director of regional government affairs for Xcel Energy Inc., the state’s largest utility. “They would basically remove our water rights and could raise our costs if we can’t use our water [to generate electricity].”

Xcel is a member of the Colorado Water Congress, whose 350 members include river conservancy districts, environmental groups, cities and towns, water districts, agriculture and other business.

More coverage from John Stroud writing for the Glenwood Springs Post Independent. Here’s an excerpt:

The Associated Governments of Northwest Colorado (AGNC), whose members include Garfield, Mesa, Rio Blanco, Moffat and Routt counties, voted unanimously to support the River District in its previously stated opposition to Initiatives 3 and 45. Garfield County Commissioner Mike Samson, who chairs the AGNC board, said the measures would have “massive negative impacts” throughout Colorado. They are also too punitive and would likely result in decades of litigation, he said. “It would be difficult for anyone to understand the consequences and long-term damage to the economic well-being of Colorado,” Samson said in a press release sent out Thursday by AGNC, which has its offices in Rifle…

Routt County Commissioner and AGNC Vice Chairman Doug Monger stated, “All Coloradans must be overprotective of their water rights and cast suspicion on any attempt to throw the true and tested historic Colorado water law into the trash.”

More Initiatives 3 and 45 coverage here.

2012 Colorado November election: Progressive 15 opposes Initiatives 3 and 45

Here’s the release from the Progressive 15 via The Fort Morgan Times:

Progressive 15 has issued a resolution opposing two initiatives dealing with water. The group’s board of directors has issued a statement that Progressive 15 opposes both 2011-2012 Initiative No. 3 and Initiative No. 45 as unwise, unnecessary, disruptive to the fair and responsible allocation and stewardship of Colorado’s scarce water resources and an unwarranted taking of vested property interests.

The resolution says that:

Water frequently does not naturally exist where and when it is needed in sufficient quantities to sustain human settlement and enterprise in Colorado.

As a scarce natural resource, water in Colorado requires a system of allocation, ownership, and enforcement to meet the needs of Colorado’s citizens and the natural environment.

The Colorado Water Congress supports Colorado’s system of prior appropriation as a fair and orderly system for allocating Colorado’s scarce water resources.

Colorado’s prior appropriation system has proven itself both successful and flexible in addressing the public’s changing demands, beneficial uses, and values regarding Colorado water resources (including instream flow water rights).

These two state constitutional amendment initiatives that would reject Colorado’s historical reliance on the prior appropriation doctrine for water allocation and replace it with an undefined public trust doctrine and certain public control mandates.

The adoption of either of these initiatives would undermine the constitutional foundation for Colorado’s prior appropriation system and result in a takings of private and public water rights that currently meet essential agricultural, commercial, environmental, industrial, and municipal needs.

The adoption of either of these initiatives would create great uncertainty in providing a secure water supply for agricultural, commercial, environmental, industrial, and municipal purposes.

These initiatives are 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 statues and constitution.

More 2012 Colorado November election coverage here.

2012 Colorado November Election: The Pueblo Board of Water Works is considering opposing Initiatives 3 and 45

From The Pueblo Chieftain (Chris Woodka):

Initiative 45 would change Section 6 or Article XVI to require return flows from any water used in the state to be returned to streams “unimpaired,” which could create restrictive water quality standards, said Paul Fanning, the water board’s legislative liaison.

Both initiatives also give every citizen of the state standing in any judicial proceedings. Currently, water rights holders are allowed to enter water court cases to defend their own rights. “If they prevail, there would be an unprecedented amount of litigation,” said Fanning, who attended the Water Congress workshop.

The water board directed staff to prepare a resolution opposing the initiatives for a later meeting. “I think these would be a disaster for our state, and to the future use of water whether it’s for municipal, agricultural or industrial use,” Hamel said.

More 2012 Colorado November Election coverage here.

2012 Colorado November Election: ‘Protect Colorado Water’ event Wednesday to kick off signature gathering for Initiatives 3 and 45

From the Examiner (Caryl Buckstein):

The event, known as “Protect Colorado Water,” is being launched by Be the Change, a grassroots political group with an environmental arm. The initiatives were written by Phil Doe, Be the Change environmental director, and Richard Hamilton, a long-time state environmental and conservation lobbyist.The website for Protect Colorado Water identifies Doe as a former environmental compliance officer for the U.S. Bureau of Reclamation…

Hamilton told the Colorado Statesman that state law already is explicit that the public owns water in the state. The initiatives would add teeth the citizens’ ability to demand enforcement. Initiative 3 would create the Colorado Public Trust Doctrine. It would make the water of streams public property and instruct the state to protect the public’s rights. Also, it would make the public’s rights superior to contracts or property law.

More 2012 Colorado November Election coverage here.

2012 Colorado November Election: The Colorado Water Congress is attempting to galvanize opposition to initiatives 3 and 45

Check out this blog post from the Your Colorado Water Blog. From the post:

These Initiatives, introduced by Phil Doe of Littleton and Richard Hamilton of Fairplay, aim to amend the state constitution in a way that would dramatically change water management in Colorado.

Here’s another article written by Jason Mumm that is running on the Stepwise Utility Advisors website. Here’s an excerpt:

The supporters of the public trust initiatives believe the 100+ year -old system of prior appropriation has worked against the public’s interests. The proposed initiatives would replace the existing process with one that would enable the state to determine what uses of water are in the beneficial public good, and which ones are not. The doctrine would appear to apply to all such uses, whether water rights were adjudicated in the past already, or not. In other words, the amendments, if approved, would cause all existing water rights in the state to immediately fall under a new review guided by the public trust doctrine. The Colorado Water Congress, opposes the initiatives for this reason.

No doubt that reviewing all of the state’s existing water rights and potentially reallocating them could be extremely chaotic, especially in a state where water resources are scarce. The current legal structure is a major expense in an of itself. The direct legal costs are astounding, but if one considers the amount of time and resources consumed from all parties, the cost is even higher. The public trust doctrine is used in other states and in the examples that we’ve seen, it tends to work reasonably well and appears to require far fewer resources of our municipal utility clients. What you find in those states that use some kind of public trust doctrine is an approach to water utility management much more focused on the facilities (e.g. treatment, pipes, etc.) than on acquiring and maintaining water rights for the source of supply. It’s a focus toward infrastructure and service, rather than natural resource management.

There are elements of a public trust approach that we like, but the proposed initiatives are fatally flawed because they fail to provide a means to equitably transition from one structure to another. Colorado’s legal system evolved from water scarcity. Within that structure is a very competitive market that is constantly determining the value of water rights and thus informing decisions of how water is used.

Thanks for posting the link in the comments, Mr. Mumm.

More 2012 Colorado November Election coverage here.

2012 Colorado November Election: Initiatives 3 and 45 would, ‘…turn 150 years of water law on its head’ — Doug Kemper

The Colorado Statesman (Peter Marcus) is running an article about the initiatives. So far the proponents have little organization or money to get on the ballot according to the article. Here’s an excerpt:

Hamilton says Colorado law is already explicit in that the public owns the water in the state, and not the state itself. The goal of the initiatives is to amend that law to adopt a public trust doctrine in legislative, executive and judicial affairs to protect the ownership interests of the people. “You may use that water… but when you return that back to the public streams, you can’t load it up with crap, or burden it with chemistries, or ruin its temperature,” said Hamilton, who has raised concerns over uranium and other elements from mining activities ending up in Colorado streams…

“Who will watch the watchers themselves?” he asked. “This would force accountability on state government… If they crap in the water, the people of the State of Colorado have a right to say, ‘We’re going to curtail and minimize your use until you clean your act up.’”

Hamilton and proponents have begun collecting signatures to place the initiatives on the November ballot. Proponents must submit 86,105 valid signatures to the secretary of state by Aug. 6 in order to qualify for the ballot. The petition format was only approved on May 14, so proponents have only just begun collecting signatures and developing a plan.

Proponents have registered an issue committee, Protect Colorado Water, to advance their efforts. The registered agent is river conservationist Phil Doe, who is representing the initiatives along with Hamilton. So far, the issue committee has only filed a $100 contribution from Be the Change — USA, described as a Lakewood-based grassroots political organization dedicated to promoting progressive issues…

“It subjects every water right that we have in the state to being reconsidered, or curtailed, or denied entirely based on a determination of what’s in the public’s good,” said Doug Kemper, executive director of the Colorado Water Congress, which is opposing the initiatives along with the Colorado Water Conservation Board — part of the Department of Natural Resources — and the Colorado River Water Conservation District.

Opponents point out that water frequently does not naturally exist in Colorado, and therefore government must step in to divert sufficient quantities to sustain human settlement and enterprise in Colorado. Critics say the state’s current appropriation system is “fair” and “orderly,” proving to be “flexible” and “successful.”

“The adoption of either of these initiatives would result in takings of private and public water rights that Coloradans rely on for beneficial uses for health and human safety as well as economic benefit,” states a resolution adopted by the board of the Colorado River Water Conservation District.

The Colorado Water Conservation Board has raised separate concerns about impacting more than 150 years of court opinions and legislation governing water rights. Kemper shares those concerns. “If you go down that path, then you turn 150 years of water law on its head, you just turn it upside down,” he said.

More coverage from Heather Hansen writing on the Red Lodge Clearing House blog. From the post:

…two motivated Coloradans have made news recently with controversial proposals to amend the state constitution, in a way that would dramatically change water management in the state. Phil Doe of Littleton and Richard Hamilton of Fairplay have introduced Public Trust Initiatives #3 and #45…

The first measure would apply the common-law doctrine of “public trust” to water rights, and make “public ownership of such water legally superior to water rights, contracts, and property law.” Initiative 3 would also grant unrestricted public access to natural streams and their banks.

The second measure proposes to amend Article XVI, Section 6 of the state constitution, which talks about the diversion of un-appropriated waters of natural streams. Initiative 45 seeks to limit, and possibly prohibit, stream diversions that would “irreparably harm the public ownership interest in water.”

Proponents of the initiatives insist that we’re at a crossroads in water control in this state, and that preparation for the future demands of, for example, climate change and fracking, require that a stand be taken for public governance of our most valuable natural resource. Opponents counter that the initiatives are a slash-and-burn assault on consumptive uses, such as agriculture, and that they would invalidate prior, vested waters rights, which have been in place since Colorado became a state.

I tend to agree with the latter if only because the initiatives aim to drain the baby with the bathwater but, what’s spot on about them, and what’s wrong with water allocation in Colorado compared to every other Western state, is that the public interest is not well represented in water law here, and it needs to be improved…

Water is our deliverance in the West, but it can also imprisons us, and establishing a new give-and-take that considers the public foremost will not be easy. But it is possible.

From email from the Colorado Water Congress (Doug Kemper):

The proponents of the Public Trust Doctrine Initiatives #3 and #45 are in the process of collecting signatures to get the initiatives on the November ballot. They have created a website (http://protectcoloradowater.org/), formed a campaign committee, and are soliciting funds and volunteers to support the effort.

We will have a workshop on the initiatives on June 18 from 1:30 to 4:30 at the offices of the Tri-State Generation and Transmission Association in Westminster. Please see the [this flyer] for details.

You are invited to attend the workshop. Seating will be limited and attendees must register in advance for the workshop. To register to attend in person, click on the following link: Attend In Person

More 2012 Colorado November Election coverage here.

You will also have an option of attending the meeting via GoToWebinar. To register for the Webinar, click on the following link: Attend via Webinar

In a rare departure from tradition, there will be no charge for the workshop!

2012 Colorado November election: Proponents of Initiatives 3 and 45 launch website — ProtectColoradoWater.org

Here’s the link to the Protect Colorado Water website. They are in the process of gathering signatures to get the initiatives on the fall ballot. Here’s the link to their news page.

From the website:

On April 16th, the Colorado Supreme Court approved the text of two state-wide ballot initiatives – 3 and 45 – that create “an obligation to protect the public’s interests in water” and prevent any use that would cause “irreparable harm” to water. The two initiatives, drafted by Richard Hamilton and Phil Doe, were released to the public for collecting signatures.

Meanwhile, here’s an update from one of the opposition organizations, the Colorado Water Congress (Doug Kemper):

…the Colorado Secretary of State’s website posted that the final form for the petitions to collect signatures for Public Trust Initatives #3 and #45 have been approved. Also stated is that ballot proponents have until August 6 to collect signatures. This is a full month longer than we had originally believed. Regardless, the signature collection process may now begin…The Water Congress Board has taken a position to oppose the Public Trust Initiatives.

More 2012 Colorado November election coverage here.

2012 Colorado November Election: The sponsors of Initiatives 3 and 45 are looking for help gathering signatures

Here’s a letter to the editor written by Dennis Obduskey, Vice Chair, Park County Democrats that’s running in The Fairplay Flume. Here’s an excerpt:

Sponsored by microbiologist Richard Hamilton of Fairplay and Littleton attorney Phil Doe, both of whom have been active in Park County and Colorado water issues for years, Initiatives 3 and 45 are looking to give us more control over our water and treat it as a public trust. The proposals require more than 86,000 signatures to be placed on the November ballot, and we strongly support the effort to put the issues to a public vote. The amendments would change our water laws away from just who owned the water rights first to one related to the public good – something that should be important for the more than five million citizens who call Colorado home.

One underlying theme in Amendment 45 is allowing for control of “fracking,” the process of injecting millions of gallons of water and chemicals, some toxic, into the ground in an effort to induce natural gas back to the surface for profit, and returning that polluted water to large evaporation pools or, worse yet, dumping the contaminated water onto the ground…

Initiative 3 also grants public access to streams and waterways while also requiring state government to act as steward of and to protect, enforce, and implement public ownership of water. Our understanding is that they 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 an effort to curtail or prevent further water use in that capacity…

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…

If you would like to volunteer to help gather signatures to be able to see these initiatives on the ballot in November, please email: ProtectColoradoWater@gmail.com.

2012 More Colorado November election coverage here.

2012 Colorado November election: Initiatives 3 and 45 clear the single subject requirement for the ballot

From the Summit County Citizens Voice (Bob Berwyn):

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 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.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: Initiatives 3 and 45 clear the single subject requirement for the ballot

From the Associated Press via The Coshocton Tribune:

The Colorado Supreme Court has approved the titles for two proposals that critics say would change the way Colorado has handled water rights since 1876. The court announced Monday that each proposal properly asks voters to consider only one issue.

Proponents want to amend the constitution to highlight a clause that spells out that unappropriated water in natural streams is public property. A related proposal would spell out in the constitution that water rights can be constricted to prohibit uses that would harm the public’s ownership in the water.

Update: Doug Kemper, Executive Director of the Colorado Water Congress, sent along the Colorado Supreme Court rulings attached to email:

Initiative 3
Initiative 45

From Kemper’s email:

The Court held that Initiative #3 and its Title contain a single subject because they relate to “the public’s rights in the waters of natural streams.” According to the Court, the other subsections are necessarily and properly connected to subsection (2) because they explain the proposed doctrine’s relationship to existing contract, property, and appropriative rights and provide how the new regime will be enacted and enforced. The Court also found that the Titles clearly expressed the initiative’s single subject.

In his dissent, Justice Hobbs agreed with us that Initiative #3 has at least three separate subjects: (1) subordinating existing water rights to a newly created dominant water estate; (2) subjecting the lands of the banks of streams to a newly created navigation servitude for commerce and public use; and (3) creating a new property right of access by the public to any natural stream in Colorado. Because of this, he would have overturned the Title Board’s action in setting the titles.

Similarly, the Supreme Court held that Initiative #45 contains a single subject, concluding that “public control of waters” is one subject and all of the initiative’s provisions properly and necessarily relate to that subject. The Court also held that the Titles fairly and clearly expressed the subject of Initiative #45, because a “yes” vote will expand public control of the state’s water while a “no” vote will reject the proposal’s revisions to the existing constitutional framework.

Again, Justice Hobbs rejected the majority’s opinion and agreed with us that Initiative #45 will enact at least three multiple discrete subjects. He found that it will subordinate existing water rights in Colorado created over the past 150 years to the newly-created public’s dominant estate in water; allow non-tributary groundwater to be appropriated by anyone without consent of the overlying landowner; and impose riparian water law on the State of Colorado and on water rights that have already been appropriated. Justice Hobbs would also have overturned the Title Board’s decision on Initiative #45 because it, too, contained multiple subjects.

We will be discussing our next steps related to the proposed ballot initiatives in the next few days. Please remember that, to our knowledge, no signatures have been collected as yet for either initiative. So today’s rulings do not mean that the initiatives will be on the ballot. Additional information related to the ballot initiatives will be forthcoming.

More coverage from Eric Brown writing for The Greeley Tribune. From the article:

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.

Update: From The Pueblo Chieftain (Chris Woodka):

The ruling means the sponsors of the initiative may collect signatures to place the titles on the ballot. They must collect 86,000 signatures by July…

The initiatives are sponsored by Richard Hamilton of Fairplay and his Littleton attorney, Phil Doe. They seek to apply the public trust doctrine to Colorado water rights. Initiative 3 concerns “public rights in the waters of natural streams,” while Initiative 45 concerns “public control of waters.”[...]

Initiative 3 ignores the potential for the state to assume control of land alongside streams if a public right of use is applied, and ignores how common law measures have been interpreted in other states. Initiative 45 would subordinate water rights adjudicated in Colorado over the past 150 years, Hobbs wrote in the dissent. Passing the initiatives could create a “super water right” for environmental and recreation purposes, he said.

More 2012 Colorado November election coverage here.

2012 Colorado November election: A recent U.S. Supreme Court decision in a Montana case could affect initiatives 3 and 45

From The Mountain Mail (Joe Stone):

Ken Baker, consultant for the Upper Arkansas Water Conservancy District, called the ruling “one of the most important water cases ever heard in the Supreme Court” during the district board meeting Thursday. Baker said the unanimous ruling involves the definition of “navigable waters,” which determines ownership of the streambeds and riverbeds of U.S. waterways. When a state joins the United States, Baker explained, it obtains title to land underneath water that is “navigable.” Baker said the ruling emphasizes “navigability in fact,” a definition based on waterway commerce at the time of statehood, criteria that, for example, classify the Arkansas River as non-navigable. The ruling overturned a decision by the Supreme Court of Montana, whose justices cited the present-day ability of recreational boats to navigate the sections of river in question.

Baker said the State of Montana also argued that denying the state title to the riverbeds would undermine the public trust doctrine, an argument the justices dismissed.
As a result, Baker said the ruling “would support rendering the (‘public trust’) referendum unconstitutional if it were to pass.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: Farmers are eyeing initiatives 3 and 45 warily

From The Fence Post (Eric Brown):

Initiatives 3 and 45 — proposed citizen-sponsored legislation pieced together and filed by Richard Hamilton of Fairplay and his attorney, Phil Doe — seek to apply the public trust doctrine to Colorado water rights through a constitutional change.

[Gene Kammerzell], a Weld County produce grower who owns Arborland Nursery and is a member of the Colorado Farm Bureau Water Committee, has joined a number of other farmers, ranchers and agricultural organizations — as well as the Colorado Water Congress — in fighting the initiatives because they could cause chaos with state water rights, according to the opponents. Both sides agree in that the initiatives would override the state’s current prior-appropriation system — which states that those who own older water rights have a higher priority in using them — and 136 years of case law that have also helped define how water may be used in Colorado.

In addition to invalidating water rights, the proposed measures, if voted into law, 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, Hamilton explained in a phone interview Wednesday. 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 prevent the further depletion of the state’s rivers, caused by increased municipal, industrial and agricultural use. “Water is a public right,” Hamilton said, “and if you want it, don’t overuse the resource … and don’t send it back to the public filled with crap.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: The Colorado Water Congress is beating the drum against initiatives 3 and 45

From The Pueblo Chieftain (Chris Woodka):

Initiatives 3 and 45, sponsored by Richard Hamilton of Fairplay and his attorney Phil Doe, seek to apply the public trust doctrine to Colorado water rights with a constitutional change.

The Water Congress, which represents varied statewide water interests, has hired Steve Leonhardt to appeal a state title board decision on the grounds that the initiatives do not adhere to the single-subject rule, said Doug Kemper, CWC executive director.

If the initiative reaches the [ballot], CWC as a group will have less ability to fight it, because the group has many members from public-funded entities. Other groups, such as the Southeastern Colorado Water Conservancy District and Pueblo Board of Water Works have expressed similar concerns in recent weeks.

More 2012 Colorado November election coverage here.

2012 Colorado November election: Ballot initiatives 3 and 45 would challenge prior appropriation and beneficial use

Here’s an opinion piece about ballot initiatives 3 and 45 from Nancy Agro running in The Durango Herald. From the article:

Article XVI of the Colorado Constitution, enacted in 1876, provides that the waters of the natural streams of the state belong to the people of the state, subject to appropriation for use, and that the right to divert unappropriated water for beneficial use shall never be denied. Priority of appropriation gives the better right as between those using the water with domestic use and irrigation having priority over other uses in times of shortage. These constitutional provisions codify the foundation of Colorado water law that a water right is the private property right of the appropriator, and first in time, is first in right.

The Colorado Supreme Court, acknowledging that the doctrine of prior appropriation existed from the earliest appropriations of water, said, “The climate is dry, the soil, when moistened only by the usual rainfall, is arid and unproductive … artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property.”

Proposed ballot initiatives 3 and 45 propose to turn these principles upside down by reversing the dominant and servient water estates. These amendments propose, among other things, that the public’s ownership of the waters of the natural streams supersedes property law, that the right of appropriation is servient to the public’s dominant water estate, including the protection of the public’s enjoyment of use of water, and that no water right has priority over the natural stream. If passed, these constitutional amendments will call into question, and potentially undo, long-established decreed appropriative water rights by subordinating those rights in favor of leaving the water in the stream. Vested water-rights diversions could be curtailed by holding unlawful any use of water causing irreparable harm to the public’s water estate, including the public’s enjoyment of water.

The well-settled principles of water appropriation have shaped the social and economic development of the arid West. It has always been the policy of government to encourage the diversion and use of water for agriculture and other beneficial uses. Significant expenditures of time and money have been made to put portions of Colorado’s unproductive land to beneficial use through irrigation. Construction of houses and other improvements and the cultivation of soil which made Colorado’s land more valuable, were undertaken because water-rights appropriations were constitutionally protected. In the words of the Colorado Supreme Court, “Deny the doctrine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.”

More 2012 Colorado November election coverage here.

2012 Colorado November election: ‘In this November’s election, voters may be asked to destroy Colorado’s system of water rights’ — Craig Green

Here’s an opinion piece in opposition to the Initiatives 3 and 45 writing by Craig Green running on the Independence Institute website:

In this November’s election, voters may be asked to destroy Colorado’s system of water rights. A pair of ballot proposals would confiscate the water rights of cities, water districts, farmers, and ranchers.

The Colorado Constitution has always recognized water as a public resource, subject to claims for private uses. Under our Constitution, water rights can be claimed for beneficial purposes such as irrigation, domestic and city uses. Farmers can own water rights, and so can cities.

The authors of proposed ballot initiatives #3 and #4 propose eliminating the constitutional language which recognizes long-established private claims to water. This change would destroy the water rights of farmers and ranchers, and the water rights of cities and other government entities.

This proposed government takeover of Colorado water rights would be the most extreme confiscation of private property in the State’s history. The amendment would reverse Colorado’s long-standing recognition of senior water rights, recognition that began a quarter century before Colorado became a state.

According to the Colorado Constitution, water that has not been previously appropriated can be claimed for private use. Water rights established by this process, once ratified by a court, are considered to be property rights. This process of claiming water for private use is called “prior appropriation.” It means water rights are ranked by the date at which they were first established.

Colorado Supreme Court Justice Gregory Hobbs explains: “While the prior appropriation doctrine and western water development has been lampooned and lambasted, no one has made a serious proposal for substitution of a water law system that would better serve the needs of humans and the environment with equal or greater security, reliability, and flexibility – these being the hallmarks of an effective resource allocation system.”

Most water uses return less water to the stream than they divert. This is lawful, as long as a user with junior rights does not deprive a downstream senior user of the water to which he has a right. However, the proposed ballot initiatives would require that a water user return the same quantity of water that he uses. This would be impossible for any user, such as a farmer, who consumes some of the water.

The initiatives explicitly destroy property and contract rights. They would impose the so-called “Public Trust Doctrine,” which makes government control of all water in Colorado “Superior to Rules and Terms of Contracts of Property Law.”

Finally, the initiatives authorize any citizen of Colorado to file a lawsuit against current owners of water rights.

These socialist proposals would devastate irrigation, municipal, industrial and other water uses. Almost all current users would fail the new rule that they must return at least as much water as they take. Almost all current users would be vulnerable to lawsuits from those who oppose human use of natural resources. The result would be the largest confiscation of private property in the State’s history, and none of the victims of the confiscation would receive any compensation.

More Colorado November 2012 election coverage here.