Public Trust Doctrine: Part III

In an ongoing effort to inform the public and water community alike, this is the third in a four part 2013 series related to the Colorado Public Trust Doctrine (PTD) issue. The first story focused on the history of the PTD and the second story focused on whether unresolved water recreation claims could be at the heart of the issue and if so, would solving them help to resolve the PTD debate.
The Colorado Water Congress (CWC) recently commissioned Ciruli Associates to conduct a survey regarding their views on the PTD. The sample size was 500 Colorado residents from across the state. The following presents some of the results of that effort.
When asked whether they were in favor or opposed to the PTD, the majority (87%) either didn’t have an opinion or didn’t know. The Water Information Program's (WIP) interpretation of this is that, in general, it could indicate that the public may benefit from further education on the issue.
When read the following two statements, 40% and 46% respectively, of respondents were in favor versus opposed to the PTD. The percentage who were either neutral or unsure about the issue was 14%.
A statement in favor of the PTD could read something similar to: This measure will expand public control of all waters in the state’s natural streams. In addition, it will make the public control of natural streams legally superior to all historical water rights, contracts and property law, and prohibit the state from transferring its water rights. Moreover, it will grant unrestricted public access in and along any natural stream (i.e., it will open all water in streams to public recreational activities such as fishing, rafting, and tubing). Finally, the amendment will require that all branches of Colorado government protect and enforce the public’s interest in water and allow any Colorado citizen to sue the state to enforce this proposal.
A statement opposed to the PTD may look something like: This amendment will overturn the historical water rights that are used by cities for their customers, agriculture for farms and livestock, and businesses to support the economy and jobs. It will hurt agriculture and the economy. This amendment will remove control of water from local water providers. It will shift control of the state’s water to state regulators, attorneys, and the courts. The amendment will increase the cost of water and water rates. It will give unrestricted access to streams and rivers regardless of the environmental impact or private property rights in the land and water. It will prevent our ability to capture and use water and let Colorado’s water go to out-of state users.
Toward the end of the survey, after providing respondents more information about the PTD, the percentages changed to roughly 30% in favor and 48% opposed to the initiative. The number who were either neutral or unsure, however, increased by almost 10% to 23%. The WIP's interpretation of this is that it could indicate the complexity of the PTD issue, thereby establishing the need to provide information to the public that is as clear as possible.
As previously indicated, the second PTD article in this series posed the question of whether unresolved water recreation claims could be at the heart of the issue and if so, would solving them help to resolve the PTD debate. JR Ford, a SWCD board member and ranch manager, offers the following thoughts perhaps to get the dialogue rolling:
The Public Trust Doctrine’s unrestricted access to streams and rivers gives no thought to minimum stream flows or seasonal access timing to help protect fish habitat and private property rights and protect from other environmental impacts. Public Trust Doctrine does not account for problems created by longer stretches of river running through private property, to and from which there is no direct access for the public; it is these longer stretches that cause problems for stranded recreationalists and property owners alike.

The CWC opposes the PTD on the grounds they are disruptive, expensive, unnecessary, and unwise to the fair and responsible allocation and stewardship of Colorado's water resources. As part of the CWC leadership role in water issues affecting the state, the CWC’s Public Trust Special Project is preparing to address potential PTD ballot initiatives in Colorado. Their goal is to communicate to members and project participants critical issues surrounding the basis for Colorado water rights and the impacts that a PTD would have, while also encouraging these constituents to carry the message to their civic leadership networks, employees, members, and the public at large. For more information on the PTD and/or the CWC’s Public Trust Special Project contact Meg Meyer at [email protected] or 303-837-0812 x2.