Ballot Initiatives would Overturn Colorado Water Law

Proponents of two radical ballot measures are gathering signatures to put them on the November ballot. Initiatives 3 and 45 would change the Colorado constitution to give the public a superior interest in Colorado’s water, trumping private water rights. The measures seek to supplant constitutional provisions that form the basis for Colorado’s prior appropriation doctrine and replace it with a public trust doctrine.

According to proponents, concerns about the impacts of fracking, as well as increased trans-mountain diversions from the Colorado River, show the need to re-assert public control over the State’s most valuable resource. They believe the Colorado’s 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.

Opponents, such as the Colorado Water Congress, say Colorado’s water utilities stand to lose money and service capacity if these initiatives make the ballot are approved by voters in November.  These initiatives would, for the foreseeable future, make the already extremely difficult task of managing municipal water supplies even harder than it is today; rather than reducing the cost of municipal supply, the uncertainties introduced by the initiatives would likely force utilities to acquire even more water rights diverting limited capital dollars to acquiring the supplies rather than addressing our aging infrastructure and other key issues. Legislators who support Colorado agriculture – from Rep. Randy Fischer (D-Fort Collins) to Rep. Jerry Sonnenberg (R-Sterling) argue the measures would be very detrimental to farmers.

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