FLOOD05728 - Laserfiche WebLink

Home Browse Search

1989] WATER RIGHTS PROTECTION 87' years ago, each of them is logical and consistent with sound public policy today. Stripped to the essentials, sections.5 and 6 of article XVI establish an ascertainable and stable policy for the allocation of ~ scarce and essential resource. While there is nothing sacred about the doctrine of prior appropriation, and other allocation methodologie1 could have been (but were not) chosen for use in Colorado, the exclu. sivity of the chosen allocation method must be honored, unless there i! a conscious and explicit decision by the people through a constitu. tional amendment to adopt another allocation method. Increasingly, the public trust doctrine is being advanced as ~ means for the prior appropriation or "hybrid" doctrine states to pur. sue riparian values, including wastewater assimilation. A review 0: federal law and the underpinnings of the public trust doctrine demon. strates that, in light of section 10 I (g), federal agencies cannot proper!) resort to the public trust doctrine for the purpose of superimposin{ riparian principles on the prior appropriation states. Application 01 rejection of the public trust doctrine is solely for each state to deter. mine under its laws. The public trust doctrine is rooted in the Institutes of Justiniar and was expressed by the sovereign's ownership of the beds of naviga. ble waters. Adopted in 533 A.D., the Institutes provided that runnin! water, like the air and the sea, is common to all and the property 01 none.203 This concept passed into the common law and is the basis 01 the riparian doctrine, which, as the Supreme Court of the Unitec States has noted, is applied "where lands were amply watered by rain. fal!."20' Under the equal footing doctrine, the ownership of lands be. neath waters that were navigable in fact passed to each state at the time of its admission to the Union, and the public had a right to fist and take shellfish in the waters. Each state possessed the right to de. fine navigability within its own boundaries for the purpose of deter. mining public access to the waters.20' In his leading article on the public trust, Joseph Sax asserted thai As opposed to the correlative rights of the common law, whereby all riparian owners on the stream have equal rights, under the law of appropriation the rights of the, claimants are unequal. Each has an exclusive right to the extent of his. prior appropriation. . .. So . long as 'the water is put to beneficial use, priority alone governs. See also Farmers High Line Canal & Reservoir Co. v. Southworth, 13 Colo. Ill, 134,21 P. 1028, 103' (1889) ("(I]flhe prorating of the water... in time of scarcity between all the consumers can be effecte< by legislative enactment, then the superiority of right acquired by priority of appropriation is withou protection or security. . . . "). 203. INSTITUTES OF JUSTINIAN 2.1.1 (1. Moyle trans. 5th ed. 1913). 204. United States v. Gerlach Live Stock Co., 339 U.S. 725, 745 (1950). 205. Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the PeopJe's Environ