WHAT IS THE PUBLIC TRUST DOCTRINE?

AND

WHY IT DOES NOT WORK FOR COLORADO!

Joe Frank, P.E. General Manager, Lower South Platte Water Conservancy District

March 28, 2014 9 am - 3 pm

Country Steak Out 19592 East 8th Avenue - Fort Morgan, CO

www.cowaterstewardship.com

Setting the Stage

4

Water Fact…

Average Annual Precipitation….

Northeastern Colorado 14-16 inches Northeastern United States 40-50 inches

• Prior Appropriation water rights (Prior Appropriations Doctrine) • Riparian Water Rights and Common Law / Common Land • Colorado Constitution and Water Law • Public Trust Doctrine

Prior appropriation water rights, sometimes known as the Colorado Doctrine in reference to the U.S. Supreme Court case Wyoming v. Colorado, is a system of allocating water rights from a water source that is markedly different from riparian water rights. Water law in the western United States generally follows the appropriation doctrine which developed due to the scarcity of water in that area. http://en.wikipedia.org/wiki/Prior_appropriation_water_rights

Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, and states in the eastern United States. Common land ownership can be organized into a partition unit, a corporation consisting of the landowners on the shore that formally owns the water area and determines its use.

http://en.wikipedia.org/wiki/Riparian_water_rights

Origin of the Prior Appropriations Doctrine The appropriation doctrine originated in Colorado in 1872 when the territorial court ruled in Yunker v. Nichols, 1 Colo. 552 (1872), that a non-riparian user who had previously applied part of the water from a stream to beneficial use had superior rights to the water with respect to a riparian owner who claimed a right to use of all the water at a later time. The question was not squarely presented again to the Colorado Court until 1882 when in the landmark case, Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882), the court explicitly adopted the appropriation doctrine and rejected the riparian doctrine, citing Colorado irrigation and mining practices and the nature of the climate. The decision in Coffin ruled that prior to adoption of the appropriation doctrine in the Colorado Constitution of 1876 that the riparian doctrine had never been the law in Colorado. Within 20 years the appropriation doctrine, the so-called Colorado Doctrine, had been adopted, in whole or part, by most of the states in the Western United States that had an arid climate. http://en.wikipedia.org/wiki/Prior_appropriation_water_rights

Colo. Const. Art. XVI, Section 5 (2013) Section 5. WATER OF STREAMS PUBLIC PROPERTY The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.

Colo. Const. Art. XVI, Section 6 (2013) Section 6. DIVERTING UNAPPROPRIATED WATER - PRIORITY PREFERRED USES The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.

Colo. Const. Art. XVI, Section 7 (2013)

Section 7. RIGHT-OF-WAY FOR DITCHES, FLUMES

All persons and corporations shall have the right-of-way across public, private and corporate lands for the

construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of

agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just

compensation.

Colo. Const. Art. XVI, Section 8 (2013) Section 8. COUNTY COMMISSIONERS TO FIX RATES FOR WATER, WHEN The general assembly shall provide by law that the board of county commissioners in their respective counties, shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations.

• Prior Appropriation water rights (Prior Appropriations Doctrine) • Riparian Water Rights and Common Law / Common Land • Colorado Constitution and Water Law • Public Trust Doctrine

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. Origins The ancient laws of the Roman Emperor Justinian held that the seashore (defined as waters affected by the ebb and flow of the tides) not appropriated for private use was open to all. This principle became the law in England as well. In the Magna Carta in England centuries later public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from rivers. http://en.wikipedia.org/wiki/Public_trust_doctrine

Examples of Public Trust Moving West – California, Hawaii, Montana (rejected), now Colorado push.

Proposed Ballot Initiative 103

Be it Enacted by the People of the State of Colorado SECTION 1. In the constitution of the state of Colorado, add section 9 to article XVI as follows: Section 9. The state’s duties under the public trust doctrine to secure the rights of the people to protect natural resources.

(1) THE PEOPLE OF COLORADO HAVE AN INALIENABLE RIGHT TO CLEAN AIR, CLEAN WATER, INCLUDING GROUND AND SURFACE WATER, AND THE PRESERVATION OF THE ENVIRONMENT AND NATURAL RESOURCES, REFERRED TO IN THIS SECTION AS “PUBLIC TRUST RESOURCES” ON WHICH WE ALL DEPEND AND THAT PROVIDE FOR THE HEALTH, SAFETY, AND HAPPINESS OF ALL NATURAL PERSONS, INCLUDING FUTURE GENERATIONS. PUBLIC TRUST RESOURCES ARE THE COMMON PROPERTY OF ALL THE PEOPLE, INCLUDING GENERATIONS YET TO COME. AS TRUSTEE OF THESE RESOURCES, THE STATE SHALL CONSERVE AND MAINTAIN THEM FOR THE BENEFIT OF ALL THE PEOPLE.

(2) THE STATE GOVERNMENT AND ITS AGENTS, AS TRUSTEES, SHALL PROTECT PUBLIC TRUST RESOURCES AGAINST SUBSTANTIAL IMPAIRMENT, INCLUDING POLLUTION FROM EXTERNAL SOURCES. IN SATISFYING THE STATE’S TRUST RESPONSIBILITIES, THE PRECAUTIONARY PRINCIPLE SHALL ALWAYS BE APPLIED; IF AN ACTION OR POLICY HAS A SUSPECTED RISK OF SUBSTANTIALLY IMPAIRING PUBLIC TRUST RESOURCES, IN THE ABSENCE OF SCIENTIFIC CONSENSUS THAT THE ACTION OR POLICY IS HARMFUL, THE BURDEN OF PROOF THAT IT IS NOT HARMFUL FALLS ON THOSE PROPOSING TO TAKE THE ACTION. THE STATE SHALL SEEK NATURAL RESOURCE DAMAGES FROM THOSE ENTITIES THAT CAUSE SUBSTANTIAL IMPAIRMENT OF PUBLIC TRUST RESOURCES AND USE SUCH FUNDS TO REMEDIATE THE HARM.

(3) ANY COLORADO CITIZEN, AS A BENEFICIARY OF PUBLIC TRUST RESOURCES, MAY PETITION A COURT OF COMPETENT JURISDICTION TO DEFEND AND PRESERVE SUCH RESOURCES AGAINST SUBSTANTIAL IMPAIRMENT AND TO ENSURE THAT THE STATE IS MEETING ITS OBLIGATIONS TO PRUDENTLY MANAGE SUCH RESOURCES AS A TRUSTEE. REMEDIES MAY BE GRANTED IN BOTH LAW AND EQUITY. IF A COURT FINDS THAT THE STATE HAS NOT FULFILLED ITS DUTIES AS TRUSTEE, CITIZENS ARE ENTITLED TO RECOVER ALL COSTS OF LITIGATION, INCLUDING EXPERT AND ATTORNEY FEES.

(4) THE FIDUCIARY DUTY OF THE STATE AS TRUSTEE REQUIRES IT TO USE THE BEST SCIENCE AVAILABLE IN ANY PROCESS OR PROCEEDING IN WHICH PUBLIC TRUST RESOURCES MAY BE AFFECTED. ANY PERSON, CORPORATION, OR OTHER ENTITY FOUND TO BE MANIPULATING DATA, REPORTS, OR SCIENTIFIC INFORMATION IN AN ATTEMPT TO UTILIZE PUBLIC TRUST RESOURCES FOR PRIVATE PROFIT SHALL BE REFERRED FOR PROSECUTION FOR ANY CRIMINAL OFFENSES THAT MAY APPLY IN ADDITION TO OTHER PENALTIES THE STATE MAY IMPOSE, INCLUDING LOSS OF CHARTER TO OPERATE IN THE STATE.

(5) THIS SECTION IS SELF-ENACTING AND SELF-EXECUTING AND SHALL APPLY TO A PUBLIC ACTION OR COMMERCIAL DEALING THAT WOULD VIOLATE IT, REGARDLESS OF THE DATE OF ANY APPLICABLE LOCAL, STATE, OR FEDERAL PERMITS. (6) LAWS MAY BE ENACTED TO ENHANCE, BUT CANNOT BE CONTRARY TO, THE PROVISIONS OF THIS SECTION.

http://cowaterstewardship.com/

www.cowaterstewardship.com

HELP!

Colorado General Assembly 2014 Proposed Water Legislation of Interest

• Senate Bill 14-072 – Forgive ongoing depletions from past

well pumping prior to September 2013 in South Platte Basin

• Senate Bill 14-147 – Allow 20% increased pumping in

Water District 2 until 2020 to study effects of pumping on stream flows

• House Bill 14-1332 – Further study and implementation of

HB 12-1278 (South Platte Alluvial Aquifer Study) recommendations

Questions?