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Law Offices of Ronald W. Rutz
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April 9, 2002: Colorado Water Law: A Background

Q: In going through some old fraternity notes, I saw that you had taught water law for a while. I was at a loss to understand this whole "right to float" controversy. Would you write a background column, since you are no longer available at the University?

A: Colorado is one of the very few states where the issue of the "right to float" remains unresolved. Since Colorado is an appropriation state, not a riparian state (except to the extent that the federal government is involved), it is necessary to look at the Colorado Constitution, statutes, and common law.

Oversimplifying this whole area, on one hand the water is owned by the state of Colorado and carries with it an "easement" to flow across private property. Property owners, however, have a right to be secure against unwelcome intruders, unless permitted by the law.

Given Colorado's climate, history, and topography, and using the traditional federal common law definition, only two, maybe three, rivers could be classified as being navigable (thereby permitting public use), at least for part of the year. Of course, there are 50 days or so each year when an estimated 75% of the available water in Colorado roars down from the mountains and out to the Colorado plains and beyond, making for a very wild ride for those out "floating" and permitting many more water courses to be capable of supporting watercraft.

Given the lack of historical use of the rivers for commerce and the lack of water for about 80% of the year, floating was never that big of an issue until after World War II (although there were a number of "interesting events" in the 20's and 30's and even a few cases).

Starting in the 60's and 70's and given the advent of rafting, minimum stream flow dedication of water, outdoor recreators, and extra water in the rivers caused by diversion and irrigation, the status quo was beginning to be shaken.

So along with others, Fort Collins' own Duane Woodard stepped forward during his term in the legislature and helped pass a bill defining what the "right to float" meant. However, the bill was struck down by the Colorado Supreme Court. The true holding of the court is in dispute with each side giving its own spin when discussing the case.

Undaunted, what did Mr. Woodard do upon being elected Colorado Attorney General (besides moving to Denver and changing parties to become a Democrat)? He issued an opinion as the Attorney General indicating what the Colorado law actually was, and low and behold it was very similar to the law that was declared unconstitutional.

And what was Mr. Woodard's determination? Again, vastly oversimplifying this area, in a nutshell, if you are floating, then you are using the people's easement. If you touch terra firma (or terra muddy as I once wrote), then that is a trespass.

Currently there are several civil cases, and I believe at least one criminal trespass case, in the court system, along with an attempt to amend the Colorado Constitution that may appear on the next state-wide ballot. Nothing seems to be successfully proceeding through the legislature.

In the meantime, at least this year there may not be enough water to float many boats, so the courts and politics seem to be the only arenas available to test the waters.

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