Instream Flows, Recreation as Beneficial Use, and the Public Interest in Colorado Water Law

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INSTREAM FLOWS, RECREATION AS BENEFICIAL USE, AND THE PUBLIC INTEREST IN COLORADO WATER LAW REBECCA ABELNt I . Introduction ......................................... ............................... 517 The Importance of Gateway Communities in Colorado ................. 518 II. Water Rights for Recreation ................. ............................... 520 The Changing Doctrine .............................. ............................... 520 Instream Flows and Recreation as Beneficial Use ......................... 522 The Case of Golden ..................................... ............................... 524 III. Limits on Instream Flow Appropriations .............................. 526 Minimum Flow as a Limitation .................. ............................... 528 Reasonableness of the Recreational Experience ............................. 531 Efficiency as a Limitation ........................... ............................... 531 IV. Public Interest Implications .................. ............................... 532 Instream Flows and Public Interest Considerations ...................... 532 The Public Interest in the West .................... ............................... 533 Public Interest Principles in Colorado Water Law ........................ 534 V . Conclusion ........................................... ............................... 540 Is the Public Interest Really Expressed by Prior Appropriation ?..... 542 I. INTRODUCTION Colorado is the leading prior appropriation state of the American West. In contrast to the riparian states of the East and the hybrid prior appropriation states of the West, Colorado remains loyal in its adher- ence to a common -law doctrine of water rights that emerged from the mining and irrigation practices in place at the time of statehood! However, as the population and economy of the West becomes increas- ingly urbanized and less agricultural,' effective management of water rights will test Colorado water law. In particular, the growth of gateway communities in the Colorado Rocky Mountains —and their increasing t J.D., December 2004, University of Missouri, Kansas City. My special thanks go to Professor John W. Ragsdale, Jr., Professor of Law at the University of Missouri, Kan- sas City, for his inspiration, guidance, and expertise in the field. 1. See COLO. CONST. art. XVI, §§ 5, 6; GEORGE VRANESH, VRANESH'S COLORADO WATER LAw 7 (James N. Corbridge, Jr. & Teresa A. Rice eds., rev. ed. 1999) . 2. The West experienced a 75 percent increase in population during the period from 1960 to 1990, during which domestic use of water rose from withdrawals of 6.5 million acre -feet ( "af') to 14 million af. 517 ( E ( t: