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Law Offices of Ronald W. Rutz
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February 14, 2004: Water Law Revisited

Q: This time of year I seem to get a lot of inquiries from students to run continuously my water law columns which I have written over the years. I tell them that until I write my book on Colorado water law for the layperson (aka I cannot understand water law in college), they should access the Coloradoan’s archives. But there is one topic that is "heating up" the waters because Club 20 (the west slope lobbying group) is suggesting points for the legislature to consider as to the right to "float your boat." Because several years have passed since I last wrote on the topic, now would be a good time to revisit this area of law.

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

On one hand, with an initial apology for oversimplification, the water is owned by the state and carries with it an "easement" to flow across private property. Land owners, however, have a right to be secure against unwelcome and illegal intruders.

Given Colorado’s climate, history, and topography, and using the traditional federal riparian common law water definition, only two, maybe three rivers could be classified as navigable (thereby permitting public use), at least for part of the year and in certain sections.

Of course, there are 50 days or so each year when an estimated 75 percent of the water produced in Colorado roars down from the mountains and out to the Colorado plains and beyond, making for a wild ride for those "floating" and creating many more water courses capable of supporting watercraft.

Given the lack of historical use in Colorado of rivers for commerce and the lack of water for about 80 percent of the year, floating was never that big of an issue until after World War II. Starting in the 1960s and ‘70s, the advent of rafting, dedication of water for minimum stream flow, outdoor recreators, and extra water in the rivers from diversion and irrigation started to shake up the status quo and set up conflicts between public users and property owners.

So, along with others, Fort Collins’s own Duane Woodard stepped forward during his term in the Legislature and helped pass a bill defining the "right to float." 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.

But after Woodard was elected the Colorado Attorney General, what did he do (besides moving to Denver and switching political parties)? He issued an Attorney General’s opinion indicating what the Colorado law was, which was almost identical to the law that he helped pass in the legislature, but which was declared unconstitutional.

What did the opinion determine? Again, vastly oversimplifying, if you are floating, then you are using the people’s easement. If you touch terra firma (or terra muddy), there is a trespass. And that has been the basis of the Colorado rule for almost three decades, although a few cases in the interim have partially addressed the issue without "clearing up the waters."

Thus, in a nutshell it seems that you can float on a river, stream, creek, etc., but if the water passes over private property, you cannot touch bottom or the banks without trespassing. So keep those tootsies in the boat, hope that you do not run aground, run out of water, or capsize, and do not even think about going to the bathroom (no, the latter probably would not be considered an emergency, which is an exception to the no trespass rules).

In summary, 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 state constitution that might appear on the next statewide ballot. No statutory changes seem to be successfully proceeding through the Legislature, but Club 20 may try.

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

If you do try to "float" where individual use is allowed (even though there may be a legal right the state still can regulate use), remember that a permit and a boat inspection may be required. And finally, on a personal note, be careful. The water you are on, especially higher up, may suddenly in part or in total, be diverted into siphons or tunnels, or flow over a dam. Very dangerous! Know what is ahead of you.

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