Public Trust Doctrine: Part 1

In an ongoing effort to inform the public and water community alike, the following is the first in a four part 2013 series related to a potentially emerging Colorado Public Trust Doctrine issue.

The Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. The doctrine stems from ancient Roman laws that held that seashores not appropriated for private use was open to all. These rights became part of the common law of the United States as established in Illinois Central Railroad vs. Illinois.
The doctrine has never been recognized in Colorado as it relates to water because the state already has a 150 year old system of laws that protect this resource. T
he Colorado constitution declares water of natural streams “to be the property of the public” and that this water is “dedicated to the use of the people of the state” and is “subject to appropriation,” both past and future. Moreover, the right to divert such water for beneficial use “shall never be denied,” so long as prior appropriations are satisfied.

For clarification, a definition of some of the above referenced terms is in order. Appropriation or prior appropriation is a court decreed water law that confers priority to use water from natural streams that is based upon when the water rights were acquired. It states that holders of historically senior rights have first claim to withdraw water over holders who have filed later claims. This is also known as ‘first in time, first in right.’ Beneficial use is defined as the lawful and prudent use of water that has been diverted from a stream or aquifer for human or natural benefit.

The problem that arises is that there have been proposed state constitutional amendment initiatives that would reject Colorado’s historical reliance on the prior appropriation doctrine for water allocation and replace it with an undefined Public Trust Doctrine and certain public control mandates. Colorado Supreme Court Justice Gregory Hobbs says of this action, “the measure’s provisions propose to drop what amounts to a nuclear bomb on Colorado water and land rights.”

Therefore, the Colorado Water Congress (CWC) is leading a statewide informational project on the Public Trust Doctrine to educate the public and policy makers on how it would affect state water law. The CWC was established more than a half century ago, in 1958, to provide leadership on key water resource issues and to be the principal voice of Colorado’s water community. The CWC’s Public Trust Special Project will build, inform, and maintain a robust communication network providing support for its members and project participants. Activities will include: web communication about the Public Trust Doctrine, initiative tracking, participation in ballot title proceedings, coordinating comments on the Blue Book, and providing information about the Public Trust Doctrine and compliance with statutes such as the Fair Campaign Practices Act. If appropriate, the CWC will work with the Colorado legislature to shape statutes to protect water interests from any adverse consequences related to the Public Trust Doctrine or similar constitutional changes. For more information, visit the CWC website or call (303) 837-0812.