Citizen's Guide to Colorado's Environmental Era

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Colorado's History of Environmental and Land Use Laws, and their Impact on Colorado's Water By H. Lawrence Hoyt Colorado's "Wild West" her- itage has colored our current environmental regulations and land use laws, as much as the parceling out of her notorious- ly shallow rivers has shaped modern -day water law. Much of Colorado's basic water law is derived from the state's chief economic engines in the mid to late 1800s— mining and agriculture. The Wild West In Colorado's early settlement years, water's power over people —not the strength of its current, but its irresistible necessity —was pervasive, dictatorial and unequivocal. There was no choice but to stay within easy reaching distance of water. By necessity, settlers sought out the floodplains of various creek and river basins. Without a physical system of irri- gation canals and ditches, and the legal system necessary to assure cooperation in getting the water from where it was to where it wasn't, community viability was extremely limited. Agriculture and mining were Colorado's chief economic engines in the late 1800s, and both were very thirsty endeavors. Agriculture, of course, required water to convert dry -land pasture into cropland, or to increase the animal units per acre production of pastureland. Increasing hay productivity through irrigation permitted 24 1 C O L O R A D O F O U N D A T I O N F O R WATER E D U C A T I O N over - wintering of larger herds of cattle as well as the horses needed by all segments of society. Placer mining by definition required significant on -site water resources, and other labor- intensive mining activities required water for the work force. Like any high- demand commodity, water's value is inversely proportional to its availability. The scarcer it is, the more valuable it is. And the more likely it is to cause disputes and friction between those who have it and those who need it. Hence the first laws concerning Colorado's scarce and precious water dealt with determining the priority of individuals' rights to use that water. Their focus was on access and quan- tity, rather than on water quality. These first water laws were enacted against a background of mostly laissez -faire attitudes about the environment, land use and development. Government regulation was intended to promote economic devel- opment. Favorable legislation eased the way for public entities and private ventures to finance and build irrigation canals and ditches. New laws also granted the state's power of eminent domain to water devel- opers, both governmental and private, thus ensuring that private property rights would not stand in the way of progress. The only regulation of land use and development, including what we now call environmental laws, came about haphaz- ardly and ad hoc via the legal concepts of nuisance and trespass. The law of nuisance establishes that when a landowner causes substantial harm to a neighbor by conduct- ing activities on the landowner's property that otherwise are perfectly legal, the neigh- bor can bring a legal action in court to get the nuisance activity stopped, or to recoup damages suffered from it. Trespass laws did then just as they do now; they protect land- owners by making it illegal for people to occupy property, even temporarily, without ownership or permission of the landowner. These laws, based on custom and not necessarily covered in statutes, worked for decades when most of the population was rural and the distances between landown- ers were great. However, as the population grew more urbanized and became more socially and economically complex, such recourse was only available to those who could afford to pay lawyers and await court actions and appeals.