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I I I I I I I I I I I I I I I I I I I groups, homeowners, municipalities or even affected industries oppose the issuance of a new consumptive water right on the ground that it will injure an existing state-held instream right? Second, may such groups force the state agency to call for water to fulfil an instream right? These questions are not squarely addressed by the statutes, nor have they been addressed by the courts.17 Arguments exist, however, in favor of both types of citizen enforcement. One commentator has suggested that the public's right to oppose water rights applications which would adversely affect instream flows (that is, to protect or enforce the instream rights where the state agency which is the nominal holder declines to do so) derives from the nature of the public's right in the resource. IS The public's right or entitlement in a licensed or decreed instream flow differs from state to state, but may be traced to one of four general, but related, concepts: specific statutory entitlements or rights as third party beneficiaries; public interest provisions in the states' water codes; contract rights; and public trust notions of the people's heritage or resources. Under each of these concepts, the public may acquire a protectable interest in the instream flow right. In many western states with instream flow rights, citizens may acquire an implied interest in those rights as the actual beneficiaries. Western water law recognizes the right of beneficiaries who are the users, but not the legal owners, of water rights to enforce those rights.19 The public interest provisions found in most western states' water codes supply a similar argument. These provisions typically require the administrative agency to review a water rights application to ensure that its issuance will conform with the public interest or public welfare.20 The provisions further specify that water right applications may be denied if approval is contrary to the public interest. Instream flow rights that are granted under such statutory schemes must be presumed to meet this explicit public interest standard. Thus, members of the public may be able to argue that instream rights, which are held for the public and its welfare, cannot be injured or abandoned without the public's consent. Colorado has recognized expressly the right of persons donating water rights to the state for instream uses to attach enforceable conditions to the transfer.21 One such condition might be enforceability by citizens. Finally, instream flow rights may be regarded as having been obtained and held as part of the public trust. While the public trust doctrine has been litigated extensively, no court yet has utilized the doctrine in the context of enforcement of instream rights. 2-7 '"