MARCH 12, 2012 – A recent U.S. Supreme Court ruling could undermine a Colorado ballot initiative to impose the “public trust” doctrine on Colorado water law.
Ken Baker, consultant for the Upper Arkansas Water Conservancy District, called the ruling “one of the most important water cases ever heard in the Supreme Court” during the district board meeting Thursday.
Baker said the unanimous ruling involves the definition of “navigable waters,” which determines ownership of the streambeds and riverbeds of U.S. waterways.
When a state joins the United States, Baker explained, it obtains title to land underneath water that is “navigable.”
Baker said the ruling emphasizes “navigability in fact,” a definition based on waterway commerce at the time of statehood, criteria that, for example, classify the Arkansas River as non-navigable.
The ruling overturned a decision by the Supreme Court of Montana, whose justices cited the present-day ability of recreational boats to navigate the sections of river in question.
Baker said the State of Montana also argued that denying the state title to the riverbeds would undermine the public trust doctrine, an argument the justices dismissed.
As a result, Baker said the ruling “would support rendering the (‘public trust’) referendum unconstitutional if it were to pass.”
Board members also heard from Jeanne Foster, part owner of a ditch beside which the City of Salida is building the Milk Run Trail.
Foster said the trail is being built too close to her ditch, construction work is potentially damaging the ditch, and a fence to be installed will encroach on the easement that grants ditch owners access to maintain the ditch.
District Manager Terry Scanga said the district has no jurisdiction in the matter and referred Foster to a memo about ditch easements drafted by attorney Julianne Woldridge and posted at www.uawcd.com/documents/ditchMemo_090211.pdf.
The memo states, “The ditch owner is not entitled to expand the easement or right-of-way … beyond that which existed at the time it was constructed.
“The right-of-way extends to the bed of the ditch and sufficient ground on either side to operate it properly … .
“Traditionally, the rule was that a landowner could never alter the ditch or land subject to the right-of-way … .
“The current rule is that a landowner may not move or alter a ditch or right-of-way unless it has the consent of the right-of-way owner or obtains a declaratory judgment from court.”
In other business, board members:
Heard from Tom Simpson of Aurora Water, who discussed a “replacement pool” created by Aurora through an intergovernmental agreement with the district to offset calls on the Rocky Ford Ditch.
Heard from Scanga and Director Tom Goodwin, who reported on the Family Farm Alliance conference in Las Vegas, including small hydropower opportunities and a massive drought-motivated water project at Lake Mead.
• Watched a video about water in the Arkansas River basin that was recently posted on the district website.
• Discussed community outreach ideas for Colorado Water 2012.
• Heard a report from the Statewide Basin Roundtable pertaining to a water supply-demand gap tool and a proposed pipeline from the Missouri River.
• Learned that stipulations had been signed that remove district objections in two exchange cases involving the City of Aurora.
• Authorized Scanga, Woldridge and engineer Ivan Walter to craft a response to the proposed Super Ditch substitute water supply plan, which Walter called “not a good plan.”
• Agreed to purchase Colorado and U.S. flags for the conference room and begin each meeting with the Pledge of Allegiance.