dissenting.
T26 I respectfully dissent. In my view, Initiative 2011-12 # 45 relates to more than one subject and it has at least two distinct and separate purposes that are not dependent upon or connected with each other. Accordingly, under our precedent in Waters I1, we should hold that the Title Board erred in setting the Title and Ballot Title and Submission Clause for this initiative and remand the case to the Board with directions to strike them and return the initiative to its proponents. In re Title, Ballot Title, Submission Clause & Summary Adopted April 5, 1995, *584by the Title Board Pertaining to a Proposed Initiative "Public Rights in Waters II", 898 P.2d 1076, 1080 (Colo.1995) (Waters II).
I.
127 An initiative that joins multiple subjects poses the danger of voter surprise and fraud occasioned by the inadvertent passage of surreptitious provisions coiled up in the folds of a complex initiative. In re Title, Ballot Title & Submission Clause, for 2007-2008, # 17, 172 P.3d 871, 875 (Colo.2007) (In re 2007-2008, # 17). Grouping the provisions of a proposed initiative under a broad concept that potentially misleads voters will not satisfy the single subject requirement. In re Proposed Initiative 1996-4, 916 P.2d 528, 532 (Colo.1996). Multiple provisions fall under a single subject only if they have a "necessary and proper relationship." In re Title, Ballot Title & Submission Clause, Summary Clause for 1997-1998 No. 74, 962 P.2d 927, 929 (Colo.1998).
128 For initiatives seeking to repeal constitutional provisions, we examine the underlying constitutional provision in order to determine whether the repealing initiative contains a single subject. In re Proposed Initiative 1996-4, 916 P.2d 528, 533 (Colo.1996). If a constitutional provision contains multiple subjects and an initiative proposes to repeal the provision, then the initiative contains multiple subjects. Id.
129 "[In order to pass the single-subject test, the subject of the initiative should be capable of being clearly expressed in the initiative's title." In re Title, Ballot Title, Submission Clause, Summary for 2005-2006 No. 73, 135 P.3d 736, 738 (Colo.2006).
It is our role to "consider whether the titles, summary, and submission clause reflect the intent of the amendment." In re Proposed Initiative on Transfer of Real Estate to Amend Colorado Constitution by Adding a Section 9 to Article XVIII, 200 Colo. 40, 43, 611 P.2d 981, 983 (1980). We reverse the Board's action in preparing them "if they contain a material and, significant omission, misstatement, or misrepresentation." In re Title, Ballot Title & Submission Clause & Summary for 1997-98 No. 62, 961 P.2d 1077, 1082 (Colo.1998) (emphasis added). A title is unlawfully misleading if "voters ... could construe the titles" in a way incorrectly representing the text of the initiative. In re Title, Ballot Title & Submission Clause & Summary for 1999-2000 No. 215, 3 P.3d 11, 16 (Colo.2000). We reject titles if they "create confusion and are misleading because they do not sufficiently inform the voters" of important aspects of the initiative. In re Title, Ballot Title & Submission Clause for Proposed Initiatives 2001-2002 No. 21 & No. 22 ("English Language Educ."), 44 P.3d 213, 221 (Colo.2002).
130 We must ensure that the Board's titles and summary enable "informed voter choice." In re Title, Ballot Title, Submission Clause, Summary for 1999-2000 No.29, 972 P.2d 257, 266 (Colo.1999). The titles and summary must "convey to voters the initiative's likely impact." In re Title, Ballot Title & Submission Clause & Summary for 1999-2000 No. 37, 977 P.2d 845, 846 (Colo.1999). They must protect against "public confusion." In re Title Ballot Title & Submission Clause & Summary for 1999-2000 No. 25, 974 P.2d 458, 465 (Colo.1999). They must "enable the electorate, whether familiar or unfamiliar with the subject matter of a particular proposal, to determine intelligently whether to support or oppose such a proposal." In re Proposed Election Reform Amendment, 852 P.2d 28, 33 (Colo.1993).
131 The Board must "avoid titles for which the general understanding of a 'yes' or 'no' vote will be unclear." In re Title, Ballot Title & Submission Clause & Summary Approved April 6, 1994, & April 20, 1994, for the Proposed Initiative Concerning "Auto. Ins. Coverage", 877 P.2d 853, 855 (Colo.1994).
182 Just as "water" was too broad a theme in Waters II, 898 P.2d at 1080, to unite multiple subjects into a single subject, this initiative grouped by the Title Board as "public control of water" fails, in my view, to meet the single subject requirements of article V, section 1(5.5) of the Colorado Constitution and the Title Board's enabling statute, section 1-40-106.5(1)(a), C.R.S. (2011).
*585IL.
T 33 We have a duty to determine whether a proposed initiative the Title Board has approved for the ballot contains cleverly concealed multiple purposes under a seductively stated broad title In re 2007-2008, # 17, 172 P.3d at 875; see also In re Title, Ballot Title & Submission Clause for 2009-2010 # 91, 235 P.3d 1071, 1076 (Colo.2010). Here, the initiative states that its purpose is "to protect natural elements of the public's dominant water estate by holding unlawful any usufruct use of water causing irreparable harm to the public's estate." To that end, it requires all water use appropriators "to return water unimpaired to the public, after use, so as to protect the natural environment and the public's use and enjoyment of waters."
\ 34 While those provisions may appear to constitute one subject, ie. whatever the words "public's dominant water estate" may mean, the initiative also deletes a fundamental provision of section 6 of article XVI of the Colorado Constitution: the provision in effect since 1876 that appropriation of the public's water resource acts upon "unappropriated waters of any natural stream." 1 This deletion would subject "any water within the State of Colorado" to the appropriation system. This would include non-tributary groundwater, the allocation of which is currently within the plenary power of the General Assembly. See Colorado v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294, 1319 (Colo.1983). The General Assembly has employed its plenary authority to provide for the vesting of non-tributary groundwater in the overlying landowner. See Bayou Land Co. v. Talley, 924 P.2d 136, 148-49 (Colo.1996). Further, the deletion of the words "unappropriated waters" allows the appropriation of already appropriated water in order "to protect the natural environment and the public's use and enjoyment of waters."
€ 35 In addition, the requirement that water be returned to the stream "unimpaired" would radically transform Colorado into a riparian water law state, as the basis of riparian water law is that water use may cause only a minimal impact upon quality and quantity. See Tyler v. Wilkinson, 24 F.Cas. 472, 474 (C.C.D.R.I.1827) (No. 14,312); Pyle v. Gilbert, 245 Ga. 403, 265 S.E.2d 584, 587 (1980) (enunciating the modified riparian reasonable use doctrine). In United States v. Gerlach Live Stock Co., the United States Supreme Court explained that the common law riparian doctrine, based on the idea that running waters were "common to all and property of none," developed "where lands were amply watered by rainfall." 339 U.S. 725, 744-45, 70 S.Ct. 955, 94 L.Ed. 1231 (1950). Land, not water, was the primary natural asset in these areas, so water access became a right "annexed to the shore." Id. at 745, 70 S.Ct. 955. Each riparian right owner faced strict limits in how he or she could use the stream water, as each downstream user had "the right to have the water flow down to him in its natural volume and channels unimpaired in quality." Id. (emphasis added).
€36 This doctrine, also called the natural flow theory, "was a logical rule at a time when the primary use of water was to turn mill wheels because it insured that all mill sites would have equal access to necessary power."2 A. Dan Tarlock, Law of Water Rights and Resources § 3.12]1] (1989). But the rule was "inefficient because all but the last riparian on the stream must let the full flow of the stream drain to the sea." Id.
*58637 Were Colorado to adopt such a rule, of course, the full flow of our streams would drain not to the sea but to the reservoirs, fields, and cities of our neighboring states. We thought the U.S. Supreme Court put this possibility to rest in Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907). There, Kansas sought to enjoin Colorado diversions from the Arkansas River, under the theory that Kansans were entitled to the river's unimpaired flow. 206 U.S. at 48, 27 S.Ct. 655. The Court held that Kansas was not entitled to the whole of the river's flow but only to an "equitable apportionment of benefits between the two states resulting from the flow of the river," as determined by the Court. Id. at 118, 27 S.Ct. 655. Initiative # 45 would in effect overturn this decision.
€38 Thus, three subjects are concealed within the folds of this complex initiative. Any one of these subjects might lead a voter to vote for the initiative even though the voter does not favor one or more of the other subjects. This is precisely the logrolling dilemma that the voters intended to avoid when they adopted the single subject requirements of article V, section 1(5.5) of the Colorado Constitution. In re Title, Ballot Title & Submission Clause for 2009-2010 # 91, 235 P.3d 1071, 1079 (Colo.2010); In re Title, Ballot Title & Submission Clause for 2009-2010, # 24, 218 P.3d 350, 353 (Colo.2009). It also violates the requirements that an initiative must not potentially mislead voters, that its title must not misrepresent or insufficiently inform voters so as to create confusion, and that it convey the initiative's likely impact so as to enable voter choice.
1389 First, Initiative 2011-12 #45 would subordinate all existing water rights in Colorado created over the past 150 years to the newly created "public's dominant water estate" and hold "unlawful any usufruct use of water causing irreparable harm to the public's estate" in order "to protect the natural environment and the public's use and enjoyment of waters." This provision would create a super water right for such purposes. Under existing Colorado law environmental and recreational uses are currently subject to appropriation in priority by the Colorado Water Conservation Board for instream flow and lake level water rights under section 37-92-102(8), C.R.S. (2011), and by local governmental entities for recreational in-channel water rights under sections 37-92-103(10.3), 87-92-102(6)(b), and 37-92-805(13), CRS. (2011).
1 40 Second, Initiative 2011-12 # 45 would allow non-tributary groundwater to be appropriated by anyone without the consent of the overlying landowner.
141 Third, Initiative 2011-12 #45 would impose riparian water law upon the State of Colorado and upon already appropriated water rights, by requiring that the appropriator must return the water to the steam unimpaired.
" 42 These three subject matters separately and together propose to drop what amounts to a nuclear bomb on Colorado water rights. Masquerading as a measure to protect the public's control of water, it would prevent farmers, cities, families and businesses from making beneficial use of water rights that have vested in them over the past 150 years under Colorado's statutes and Constitution. It would deprive Colorado of its interstate allocation of waters of the Platte, Arkansas, Rio Grande and Colorado Rivers by imposing a predominantly non-consumptive water regimen upon the State and its water users, resulting in the free flow of waters across our boundaries for the use of others, devastating Colorado's economy and way of life.
43 Initiative 2011-12 #45 and the subject the Title Board identified in approving it-"public control of water"-can cause voter surprise and fraud by the inadvertent passage of surreptitious provisions coiled up in the folds of a complex initiative. The title is particularly misleading because Colorado exercises a high degree of public control of water through the prior appropriation system itself, curtailing junior uses to senior uses in order of priority during short supply. Indeed, the value of a water right resides in its relative priority vis-a-vis all other water rights. See Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1379 (Colo.1982). Enforce ment of the priority system makes a market in changes of water rights and lease water *587possible, adapting senior water right priorities to different uses, including environmental uses, while retaining the beneficial historical consumptive use allocation perfected under the original appropriation. Initiative 2011-12 # 45 would destroy the water market by rendering reliance on Colorado water rights insecure and unenforceable.
T 44 The title also fails to communicate the impact of "requiring water users to return water unimpaired"-converting Colorado to a riparian water rights system. See In re Title, Ballot Title & Submission Clause for Proposed Initiatives 2001-2002 No. 21 & No. 22 ("English Language Educ."), 44 P.3d at 221 (requiring the Title Board to "sufficiently inform the voters" of important aspects of the initiative). Voters are much more likely to construe this language as a general requirement that water users comply with water quality laws.
IH.
{45 In my view, we have a duty under article V, section 1(5.5) of the Colorado Constitution and the Title Board's enabling statute, section 1-40-106.5(1)(a), to reverse the Title Board's action in setting the title for this initiative. Accordingly, I respectfully dissent.
. Initiative #45 would amend Colorado Constitution article XVI § 6, by amending the first sentence of the section and adding subsections (2)-(6). The amendment to the first sentence reads as follows:
The right to divert the unappropriated-waters of any natural-stream warer wITHIN THE STATE OF Cororapo to beneficial uses shall never be denied, BUT MAY BE LIMITED, OR CURTAILED, S0 AS TO PROTECT NATURAL ELEMENTS OF THE PUBLIC'S DOMINANT WaTER ESTATE BY HOLDING UNLAWFUL ANY USUFRUCT USE OF WATER CAUSING IRREPARABLE HARM TO THE PUBLIC's ESTATE.
. In a region of water scarcity, however, a riparian doctrine would allow landowners to monopolize water resources. It was to promote distributive justice, and not to prioritize private over common property, that Coloradans adopted the Colorado doctrine. David B. Schorr, Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights, 32 Ecology L.Q. 3, 4 (2005).