MONTROSE–(June 3, 2014) It’s a concept that originated in England long ago, for the purpose of allowing public navigation rights to rivers and streams. Public Trust Doctrine sounds good on paper, water officials say, but would be disastrous if implemented here in Colorado. However, two ballot initiatives may come before the public in November, and could to change Colorado’s original prior appropriations system forever.
Last week’s forum at Heidi’s Deli brought together engineers from the Colorado Division of Water Resources and interested members of the public to learn more. Among those gathered was Marc Catlin, former head of the Uncompahgre Valley Water Users Association.
“I can’t tell you how to vote,” Catlin commented after the speakers addressed the subject of Public Trust Doctrine. “But if public trust passes, prior appropriations will be set aside. Everything our state has had for 150 years will be gone. “This is an out-of-state effort to move water to other states,” he said, “and it is a very, very frightening piece of work.”
Public Trust in the United States is determined at the state level, said Jason Ullman, Assistant Division Engineer for the Colorado Division of Water Resources. The concept originated here in Illinois in 1892, and has been adopted by other states, including California, Ullman said.
“California took water from Mono Lake for the City of Los Angeles,” he said, “and the state later decided it must be reconsidered due to damage to the environment.”
Public Trust Doctrine allows for governmental control of water, he noted. However, what works in other states may not be a good fit for Colorado, he said.
“This is the only state in which water leaves the state,” he said. “We are a high-altitude state, and all of our water eventually flows to the Atlantic or the Pacific. We were the first state to administer water development; first in time, first in right.”
The Division of Water Resources is charged with administering water through the state’s prior appropriations system, in place for more than 130 years. The oldest water right in Colorado, on Culebra Creek in the Costilla County, dates back to 1852.
“The benefit of prior appropriations is in stability and certainty for those who hold a water right,” Ullman said. “The value of a senior water right is in its priority; without that certainty, the economy of our state would not be what it is today.”
Because he administers rights on a day-to-day basis, a Colorado water commissioner has more authority than a sheriff, and must know the rights throughout a large territory–one person can cover 400 active ditches.
Division Engineer Bob Hurford noted that in other states that have implemented a public trust doctrine, users’ rights are conditional. “There is no specific right,” Hurford said. “You may be able to use it, but only under a program. With prior appropriation, it’s none of my business how you use your water right–that’s what makes Colorado different.”
Like Catlin, Ullman declined to tell others how to vote. However, he did offer a comment from Colorado Supreme Court Justice Justice Gregory J. Hobbs. “Justice Hobbs has said that here in Colorado, Public Trust Doctrine would drop what amounts to a nuclear bomb on our water and land rights,” Ullman said. “That’s just one man’s opinion; keep your eyes peeled for those initiatives.”
After a discussion of major basins, Ullman offered a “snapshot” of water in the state. “There is an abundance of water on the Western Slope,” he said, “but there are more people on the East Slope–the population there is more than four million, while the population of the Western Slope is around 500,000.
“Therein lies a big problem.”
Agriculture still uses 86 percent of water in Colorado, though that number is shrinking and domestic use rising, Ullman said. Because just two percent of the population makes its living as agricultural producers, officials are hoping to spread the word to voters throughout the region to pay attention to any public trust initiatives that do make it to the ballot in 2014.