Constitutional Limits on Police Power Regulations Affecting the Exercise of Water Rights
| Publication year | 1987 |
| Pages | 1626 |
| Citation | Vol. 09 No. 1987 Pg. 1626 |
1987, September, Pg. 1626. Constitutional Limits on Police Power Regulations Affecting The Exercise of Water Rights
To an individual living in the United States, one of the most important legally protected rights is the liberty to be free from government action that either unreasonably regulates privately owned property or takes such property from the individual. However, to government agencies of the state, one of the most important powers of governance is the power to regulate private property for the public good. An individual's right of autonomy over private property often collides with a government's right to affect that property. The result is a clash of inconsistent but theoretically equal powers.
How does the U.S. Constitution resolve this conflict? Ironically, in a year celebrating the Bicentennial of the nation's Constitution, it is interesting to note that the original 1787 Constitution explicitly addressed neither an individual's right of protection of private property from unjust government action nor the right of government to control any aspect of private property. It was not until 1791 that the Fifth Amendment acknowledged that "no person [shall] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."(fn1) The source of the government's power to regulate private property (police power), as well as the power to take private property (eminent domain power), were not mentioned in the original Constitution or in subsequent amendments.(fn2) However, both are considered "inherent" powers of government; therefore, federal and state governments may exercise the powers without articulated constitutional justification.
In Colorado, the unavoidable collision between private property rights and government power affecting these rights frequently has manifested. Of particular significance is the looming conflict between the need to protect private property rights to water and the occasional desire of the U.S. Congress, Colorado legislature and Colorado local government bodies to regulate the important private property right. Although the Colorado legislature historically has attempted to minimize the likelihood of such a conflict, police power regulations might be adopted at a federal or local level (or by a future state legislature) which adversely affect water rights.
When government regulation interferes too much with private property rights to water, the individual water right holder will usually seek judicial relief. The availability of such relief will depend on how the court resolves the conflict. If the conflict is framed in constitutional terms, the primary tools of judicial decision-making will be the due process and takings clauses of the Fifth Amendment.(fn3) These limit the exercise of governmental power over private property rights. This article examines the extent to which these limits will likely protect private property rights to water affected by governmental action.
Since both the federal and Colorado Constitutions afford protections to "property," the nature of the property interest in a water right must be understood. In one sense, a water right in Colorado is similar to other property rights. A water right is considered property; as such it is a freely alienable, incorporeal right to the use of the water that is the subject of the right.(fn4) The water right includes the priority date, quantity, source, right to the maintenance of stream conditions as of the time of appropriation, and right to change the place and manner of the appropriation.(fn5) The water right may not be "taken" or "damaged" without just compensation.(fn6)
The Colorado Supreme Court has also stated that "[t]he right to the use of water in the arid region is among the most valuable property rights known to the law."(fn7) To underscore the critical status of water as valuable property, the Colorado Constitution specifically guarantees that "the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied."(fn8)
Water rights, however, are different in many ways from rights to other forms of property, such as land or real property. These differences conceivably may be the basis for an argument that a water right is a lesser stature property right. For example, private persons may not "own" water in its natural state. Under the Colorado Constitution, the unappropriated waters of the state are "the property of the people" of the state.(fn9) This constitutional provision does not mean that the people of Colorado own the water in a proprietary sense; rather, its intent is to ensure that the people (through their elected representatives) allocate rights to the use of water, and regulate the use of water in the public interest. Thus, although a valid appropriation divests the people's title to the property interest in water, the state as sovereign still retains a police power interest in the privately held property right.(fn10)
Similarly, once acquired, the property right to direct and use water for beneficial purposes is not a "possessory" right; the holder has no legally protected interest in the ownership or possession of the water itself. The right is to the use of the water, making the water right a "usufructuary" right---more limited, uncertain and subject to regulation than ownership-possessory interests in land or real property.(fn11) As the U.S. Supreme Court has stated, "rights, property, or otherwise, which are absolute against all the world are certainly rare and...
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