Proposed ballot initiatives on water rights are swirling in controversy

The Colorado Statesman

Advocates for water belonging to the people of Colorado believe there is a rapidly growing problem in the state flowing from local and state government’s abuse of public waterways in a manner that destroys the environmental and aesthetic values of the state’s lakes, rivers, ponds and streams.

To address their concerns, proponents have proposed two ballot initiatives that they hope will tackle the issue of the public’s control of water rights. Initiative 3 would clearly ensure that the public owns the water of Colorado, and Initiative 45 would address use and environmental issues by allowing the public to “limit” or “curtail” the right to divert water within the state in an effort to protect natural elements. The initiative would mandate the executive, legislative and judicial branches of Colorado government to act as “stewards” to protect and enforce the public’s environmental, aesthetic and health interests regarding those waterways.

Spearheaded by proponent Richard Hamilton — a longtime lobbyist at the Capitol for environmental, conservation and water issues — proponents equate the issue to letting someone borrow a car.

“If I can borrow your car, and in a couple of weeks from now you say, ‘Hey, Richard, I want my car back,’ and I say, ‘Oh, no, I’m using it,’ what the hell does that have to do with it?” asked Hamilton. “That’s Colorado water law. And when you finally convince me to bring the car back to find that I’ve run it into five cars on Interstate 25 and now it’s all messed up… How’s it fair that I first take your car, I won’t return it, and then scream about using my own property, and now I return it and it looks like a wreck?”

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.

Conservationists have for years been concerned about Colorado’s waterways, pointing out that in some instances fish have been reduced by as much as 95 percent because of water withdrawals, increased water temperature and a lack of flushing. Those who are concerned blame massive transfers of water out of the state’s river systems. And they worry that stakeholders such as Denver Water will only increase activities. Hamilton believes his initiative would add teeth to a citizen’s ability to go to court to enforce accountability.

“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.

What is the public good?

Critics, however, worry that the initiatives are too broad, allowing the public to block water diversions for a wide range of issues that could affect how the state and local governments distribute needed water to the public.

“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.

Kemper also worries about unintended consequences with opening all of the state’s streams to public access when many of those streams are currently considered to be private land.

“The ability for people to supply water for municipal, industrial and commercial agricultural needs really becomes in jeopardy; it undermines the whole constitutional foundation for our water sources,” he said.