State of Colorado to get water-law rewrite?

‘First in line, first in time’ rights could end with initiatives

The Southwestern Water Conservation District has joined other agencies in opposing two ballot initiatives that would overturn 160 years of Colorado water law.

No longer could individuals claim water under the current “first in time, first in line” standard. Instead, the public-trust doctrine, which dates to ancient Roman law that puts the general interest first, would hold sway.

Through the centuries, the public-trust doctrine has been applied mostly to land access and natural resources.

Authors of initiatives 3 and 45 are Richard Hamilton of Fairplay and Phil Doe of Littleton. They have until Aug. 6 to gather the signatures of 86,000 registered voters for each measure to get them on the November ballot.

Doe was a vocal opponent of the Animas-La Plata Project that provides drinking water for three Native American tribes and nontribal entities from a reservoir west of Durango.

Doe and Hamilton were unsuccessful in 2007 in establishing a state department to control use of public land. The state Supreme Court disallowed the ballot issue.

Initiative 3 says that public ownership of water trumps water contracts and property law. Initiative 45 would curtail appropriated water rights and require water users to return the resource unimpaired for public use.

Steve Harris, Durango water engineer, said if voters approve the initiatives, no one with a water right could be sure it would stand.

It would require starting over, Harris said. Recasting 160 years of legislation and water-case law would probably fall to legislators or the courts, he said.

“Whatever they decided probably would not be what we have now,” Harris said. “This affects everyone in the state because everyone uses water one way or another.”

Nancy Agro, a water attorney in Durango, said application of the public-trust doctrine could lead almost anywhere.

“Even if you have a water right you might not be able to exercise it if the state decided it wanted water in a stream for recreation, wildlife or simply for esthetics,” Agro said.

Even the right to store water in reservoirs or the issue of public access to the bed and banks of streams could fall under the public trust doctrine, Agro said.

As a recent guest columnist for The Durango Herald, Agro said the Colorado General Assembly already has enacted laws that allow state and local government to protect streams for fish, wildlife and recreation and that the city of Durango has obtained water for its whitewater park on the Animas River.

All the while, farmers, ranchers and homeowners can count on the water they need, Agro said.

In their resolution of opposition to the two initiatives, Southwestern Water Conservation District board members said the proposed measures are unnecessary, injurious, counterproductive and disruptive to the responsible allocation of Colorado’s limited water.

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