“The water of every natural stream is declared to be the property of the public.” That text is from Article 16, Section 5 of the Colorado Constitution.
In the article by Terry Scanga, general manager of the Upper Arkansas Water Conservancy District posted on March 20, 2019, Scanga references numerous times that “Water in Colorado is allocated as a private property right…” With great respect for Terry and the services provided by the Upper Arkansas Water Conservancy District, how can the property of the public be allocated as a private property right?
This concept is frequency promoted by water rights holders and it erodes the true ownership of the public resource. A water right is the right to use a certain amount of water at a specific location, for a specific time, for specified beneficial uses. A water right is a usufructuary right not a private property right.
This was the concept in the Colorado Doctrine developed during the mining era before Colorado achieved statehood, and as I indicated, it is enshrined in the Colorado Constitution. Further, the Water Right Determination and Administration Act that became Article 92 of Title 37 of the Colorado Revised Statutes states as 37-92-102, “it is hereby declared to be the policy of the State of Colorado that all water in or tributary to natural surface streams … originating in or flowing into this state have always been and are hereby declared to be the property of the public, dedicated to the use of the people of the state, subject to appropriation…”
Yes, courts have given water rights similar attributes as private property rights, perhaps erroneously. The Constitution is clear, the resource belongs to the public. The public needs to remain vigilant to retain ownership of this resource. The Colorado Scenic Byways signs on the west side of Highway 285 just north of Centerville explain the concept of a water right quite well. Next time you drive by, stop and have a read.
Ralf Topper, Senior Hydrogeologist (retired)