Oil and Gas Compromise Puts Final Nail in Coffin for Public Trust Initiatives

08/13/14 | By | More

WESTERN SAN JUANS – The last of 2014’s trio of Public Trust Doctrine initiatives died last week along with three other ballot initiatives that were pulled as a result of a compromise announced by Gov. Hickenlooper and Boulder Congressman Jared Polis.

The compromise between the two Democrats headed off a brewing multi-million dollar election maelstrom over local control issues pertaining to oil and gas drilling that potentially would have hurt both Hickenlooper and Senator Mark Udall (both of whom support fracking and the natural gas industry) in their reelection bids this fall. 

Polis, who has taken a firm stance against fracking, backed Initiative 89 (Local Regulation of Environment) as a means of asserting Coloradans’ right to clean air, water and scenic values. The initiative described all natural resources in Colorado as being “a public trust that the state should be protecting.” 

While the initiative’s main intent was to give citizens more control over fracking regulations in their own backyards, it also would have had the effect of dismantling Colorado’s 150-year-old water rights system known as the Prior Appropriations Doctrine, which establishes water rights as private property rather than a public trust.

Initiative 89 was one of a trio of so-called Public Trust Doctrine ballot initiatives headed for this fall’s ballot that had the potential to profoundly alter the way water is regulated in Colorado, by allowing local governments to adopt environmental regulations that override state laws.

The other two pending initiatives faltered earlier in the summer. Supporters of Initiative 75 (Right to Local Self-Government) withdrew their measure from the state ballot in mid-July, citing a Colorado Supreme Court challenge and lack of funding. 

In late June, the Colorado Supreme Court blocked the proposed Initiative 103 – Public Trust Resources from proceeding toward the state-wide ballot on a technicality. 

Written by former Department of the Interior staffer Philip Doe (of the grassroots group Be The Change U.S.A) and Barbara Mills-Bria, the proposed initiative (first introduced in 2012) was described by Colorado Supreme Court Chief Justice Hobbs as having the potential to “drop what amounts to a nuclear bomb on Colorado water rights.”

Even as these two  initiatives went down, proponents of Initiative 89 (with generous support from Polis) were able to secure the signatures needed to place their initiative on the November ballot prior to last week’s compromise.

Pollis also backed Initiative 88, which would have quadrupled the state’s minimum setbacks between oil and gas wells and occupied structures to a mandatory 2,000 feet.

In the compromise announced last week, Hickenlooper announced the creation of an 18-member task force aimed at crafting recommendations “to help minimize land use conflicts that can occur when siting oil and gas facilities near residential and commercial developments.”

The group will be chaired by La Plata County Commissioner Gwen Lachelt and XTO Energy President Randy Cleveland. 

Under the compromise, Polis withdrew his sponsored Initiative 88 and Initiative 89, and Representatives Frank McNulty and Jerry Sonnenberg withdrew their pro-industry  Initiative 121 and Initiative 137.

Initiative 89 was the final Public Trust Doctrine Initiative aimed at the 2014 ballot.

“We can finally breathe a sigh of relief – at least momentarily,” the Colorado Water Congress and Colorado Water Stewardship Program stated in a release. The two groups actively oppose any ballot initiatives or legislation intended to alter Colorado’s system of water allocation. 

That sigh may be short-lived, however, as Phil Doe and Barbara Mills-Bria (sponsors of Initiative 103 – Public Trust Resources) have already filed a similar version of their 2014 Initiative for the 2016 ballot.

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