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Confiscating your water rights

This column appeared originally in the Greeley Tribune on Thursday, March 29.

Colorado Ballot Proposal Would Confiscate Water Rights

by J. Craig Green, PE

In this November’s election, voters may be asked to destroy Colorado’s system of water rights. A pair of ballot proposals would confiscate the water rights of cities, water districts, farmers, and ranchers.

The Colorado Constitution has always recognized water as a public resource, subject to claims for private uses. Under our Constitution, water rights can be claimed for beneficial purposes such as irrigation, domestic and city uses. Farmers can own water rights, and so can cities.

The authors of proposed ballot initiatives #3 and #4 propose eliminating the constitutional language which recognizes long-established private claims to water. This change would destroy the water rights of farmers and ranchers, and the water rights of cities and other government entities.

This proposed government takeover of Colorado water rights would be the most extreme confiscation of private property in the State’s history. The amendment would reverse Colorado’s long-standing recognition of senior water rights, recognition that began a quarter century before Colorado became a state.

According to the Colorado Constitution, water that has not been previously appropriated can be claimed for private use. Water rights established by this process, once ratified by a court, are considered to be property rights. This process of claiming water for private use is called “prior appropriation.” It means water rights are ranked by the date at which they were first established.

Colorado Supreme Court Justice Gregory Hobbs explains: “While the prior appropriation doctrine and western water development has been lampooned and lambasted, no one has made a serious proposal for substitution of a water law system that would better serve the needs of humans and the environment with equal or greater security, reliability, and flexibility – these being the hallmarks of an effective resource allocation system.”

Most water uses return less water to the stream than they divert. This is lawful, as long as a user with junior rights does not deprive a downstream senior user of the water to which he has a right. However, the proposed ballot initiatives would require that a water user return the same quantity of water that he uses. This would be impossible for any user, such as a farmer, who consumes some of the water.

The initiatives explicitly destroy property and contract rights. They would impose the so-called “Public Trust Doctrine,” which makes government control of all water in Colorado “Superior to Rules and Terms of Contracts of Property Law.”

Finally, the initiatives authorize any citizen of Colorado to file a lawsuit against current owners of water rights.

These socialist proposals would devastate irrigation, municipal, industrial and other water uses. Almost all current users would fail the new rule that they must return at least as much water as they take. Almost all current users would be vulnerable to lawsuits from those who oppose human use of natural resources. The result would be the largest confiscation of private property in the State’s history, and none of the victims of the confiscation would receive any compensation.

J. Craig Green, PE is author of the Independence Institute’s primer on water rights in Colorado, “Use it or Lose it: Colorado’s Oldest and Best Recycling Program.”