Ballot measures would upend Colo.’s water law

In 2012, Colorado voters may have the opportunity to vote on two proposed changes to the Colorado Constitution Article XVI, which would radically alter Colorado water law and the way water has been allocated since pioneers first began settling in Colorado.

If voters approve the constitutional amendment, the general assembly is powerless to enact laws that override it. This article addresses some of the implications of this vote.

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.”

What’s more, these initiatives are unnecessary and duplicative. The Colorado Legislature has already enacted laws that enable state and local governments to protect the natural stream, both for fish and wildlife and for recreation within the priority system. In our community, the Colorado Water Conservation Board has filed for instream flow rights on several rivers to keep water in the stream to protect fish and wildlife, and the city of Durango has obtained a recreational in-channel diversion to keep water in the Animas River for boaters at the boating park. Utilizing these laws, our governments have established their own property rights in the stream to preserve wildlife and recreation while still providing certainty and protection for established property rights to farmers, ranchers and homeowners who rely on water for their livelihood, their health and their well being.

Ballot initiatives 3 and 45, if passed, will undercut the certainty established by the priority system that has provided the keystone to our economy since at least 1852, when the first canals were constructed. Not only would this deprive existing landowners of their vested appropriative property right, but it will affect future investment in agriculture and other economic development, placing the future of Colorado’s prosperity in jeopardy.

In an era when we have recognized that buying and eating locally grown food is imperative to our health, our economy and the environment, and where open space is treasured for its scenery and wildlife, these initiatives have the potential to wreak havoc on the sustainability of our economy including our local food supply and our picturesque rural setting.

Nancy Agro is a lawyer practicing water, real estate and business law in Durango. Reach her at agro@mydurango.net.