Q: I have been collecting your columns on Water law and have a two-part question. First, I liked your columns on the right to float on streams but I read in the newspapers that there are three or four suits now challenging the law that was discussed by you. Do landowners have a legal "boat to float on?"
A: Well, thank you. I have been thinking about rerunning that column and now may be a good time to do so, perhaps in a few weeks.
I have written a number of times that in water law to understand, teach, practice, and even acts as a judge, more is involved than memorizing rules and pontificating about cases. It is necessary to understand the reasons for the law, including Colorado history and the personalities behind the law.
Duane Woodard, originally from Fort Collins when first elected, successfully sponsored a bill that incorporated most of the current legal point on floating, but alas saw his piece of legislation struck down by the Colorado Supreme Court. So what did he do after being elected Attorney General (besides moving to Denver and switching from the Republican Party to the Democrat Party)? He issued an opinion as to what the law on floating is. And that, folks, has been our primary legal source for about two decades.
The essence of the law is that if you touch terra firma (or terra muddy for that matter), a trespass can occur. But if you can float, then that is O.K. The rule got around the traditional rule of what is a navigatable river, since Colorado would be hard pressed to find very many water features that could fit the traditional federal common law definition.
When I taught water law back east, there were several hundred years of case law and statutes to glen through. But in Colorado, until recently with recreational use and minimum stream flow issues, the right to float never seemed to be that pressing an issue.
So what is my prediction? Back in the 1970's I felt that Duane's position would have been overturned and Colorado for the most part would have backed the landowners (some very old cases). But do not be surprised if the Courts find legal justification to uphold the essence of the current "law".
Q: Second part of the legal question – what is your reaction to the news that Fort Collins intends to clean up part of the Cache La Poudre by restoring native vegetation and straightening the stream?
A: I have not talked with any of the City officials involved in the plan but I have gotten telephone calls from several water groups, including a spokesperson all the way from Crook, Colorado. I hope that a "heads up" has been done with the City's legal eagles. Since I am running out of space, let me be very general, which may overstate the problem a bit.
Many of our native plants, like the Cottonwoods, are described as siphons of water, taking from the "sheet of water" and fountaining it into the air. If the restored "native plants" take more water than has been "diverted" by the current existing vegetation, then the water is being taken from vested users who now have been alerted and are watching.
Secondly, if the work decreases "natural" seepage or increases evaporation, then again a taking can been deemed to have occurred. Yes, the foregoing is a somewhat simplistic and general overview. But even the government (at least the nonfeds) can not take property rights without just compensation, despite the recently evolving water concepts of minimum stream flows and recreational rights.