What is a public benefit?

[Staci Matlock]

Some Coloradans are opening a Pandora's box where water is concerned, and it is something New Mexican in-stream water flow advocates should keep an eye on.  Environmental lobbyist Richard Hamilton and others are advocating for two initiatives on November's state ballot, according toThe Colorado Statesman.

They believe their government is allowing the state's lakes, rivers, ponds and streams to be abused. They're seeking clarification of state law that would ensure "the public owns the water" of the state and allowing the public to "limit" or "curtail" the right to divert water in order to protect waterways. Their group is calledProtect Colorado Water.

Unlike New Mexico, which is still years from clarifying all water rights in court, Colorado had that all done decades ago. Of course, they didn't have to deal so much with the most senior, firs- in-time water rights - that of tribes - the way New Mexico has to. But these initiatives back into a critical question that both states' laws have failed to address completely: What is a public benefit of water and if there are competing benefits, which one is given higher priority when there's not enough water to go around. And, should rivers, lakes and streams, plus the wildlife and ecosystems that depend on the water ways, have their own rights? Groups like WildEarth Guardians have actually been asking this question for awhile and trying to figure out ways to keep some water for rivers.

I think it is an interesting legal question. If corporations can be considered "people" (which they are now thanks to the Supreme Court) with the same rights as individuals, why shouldn't other living things/systems such as rivers and wildlife have rights as well? Should the "right to life" (in the Constitutional sense, reside only with humans?

These proposed Colorado initiatives, if they get anywhere, will really shake things up. The proponents need more than 86,000 signatures by Aug. 4 to get the measures on the ballot. Opponents say the measures are too broad. “If you go down that path, then you turn 150 years of water law on its head, you just turn it upside down,” Doug Kemper, exec dir of the Colorado Water Congress told The Colorado Statesman.

[Eric Perramond]

Fascinating - and ironic that I had to be in NM (now) to learn about my home state's efforts (or at least, CO NGO efforts) to resolve instream flow issues. What I love is the total assumption of logic by Kemper in the Statesment quotes, that water is "needed" by local or state authorities. Until I see golf courses and lawns that are brown, there's no additional 'need' for water. This was the case with SDS, the giant pipeline being built between the Pueblo Reservoir and Colorado Springs, so that CSU (our public utility) could bring 'needed' water for a development on the east side of the Springs. That development is now bankrupt, and the area is now being explored by frackers and natural gas wildcatters. So the water is not needed. The party line now at CSU, and I don't blame individuals for saying this (to be clear), is that it will "add redundant water to the Springs." Yes, because if you can't demonstrate need, then you build redundancy under some vague "resilience" kind of language for water. It's ridiculous.

This is not to say that this effort, by the Protect Colorado Water group, is worth pursuing. It would leave a lot of old decisions wide open, and the issue of "ownership" is fascinating. Does the public own it? Or is it only individuals who have rights to the use of water who should be considered the public? Fascinating stuff - thanks for posting this.

[Staci Matlock]

Thanks for reading and commenting Eric!. The whole issue of public benefit has come up in New Mexico, but kind of quietly, over the years. A group in Taos really tried to push this when it came to drafting the State Water Plan, but it remains highly controversial.  

So the SDS pipeline is built but the development it was built for is bankrupt? That is ironic.