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

• Description: RICD Legislation - SB 37
• State: CO
• Date: 1/1/3000
• Author: Rebecca Abelin
• Title: Instream Flows, Recreation as Beneficial Use, and the Public Interest in Colorado Water Law
• Water Supply Pro - Doc Type: Publication

534 WATER LAW REVIEW Volume 8
water rights to an irrigation project. "' Instead, he granted rights for a
storage reservoir on the ground that the reservoir served the best in-
terest of the public. He concluded that the reservoir enabled resi-
dents in the surrounding vicinity to purchase water at a lower price
than if the irrigation project had been approved." The court effec-
tively rejected the contention that public interest concerns were lim-
ited to broad matters of public health and safety. "' The court inter-
preted the statutory local public interest to secure the greatest possible
benefit from water for the public. "`
Environmental factors also implicate public interest according to
the Washington Supreme Court. In Stempel v. Department of Water Re-
sources, an applicant sought a domestic use permit to withdraw water
from a lake, which raised concerns of numerous pollution and health
problems. The court held that legislative authority requires the
agency granting the permit to consider such factors. "' The court in-
ferred this conclusion from Washington's environmental protection
laws enacted subsequent to water permit laws, which did not expressly
require these considerations. "" Thus, the public welfare standard re-
quired consideration of the negative impact of appropriations on the
local environment.
In contrast to the Western states that implemented public trust
considerations in their water allocation schemes, Colorado purportedly
follows a "pure appropriation" scheme and refuses to acknowledge the
public interest as a matter of law. However, some expressions of the
public interest may be found in the state's laws and, to an extent, in
cases defining water rights.
Public Interest Principles in Colorado Water Law
The Colorado Constitution states "[t]he water of every natural
stream, not heretofore appropriated... is hereby declared to be the
property of the public, and the same is dedicated to the use of the
people of the state, subject to appropriation.... " "' This provision makes
it clear that the public holds rights to the state waters until appropri-
ated."` Further, "recognizing the need to correlate the activities of
107. Id. at 1046.
108. Id at 1046 -47.
109. Id. at 1047.
110. Id at 1050.
111. Id.
112. Stempel v. Dep't of Water Res., 508 P.2d 166, 168 (Wash. 1973).
113. Id. at 172.
114. Id
115. COLO. CONST. art. XVI, § 5.
116. See Wyatt v. Latimer & Weld Irrigation Co., 29 P. 906, 910-11 (1892) (conclud-
ing that the terms "public" and "people" are synonymous and intended to be so by the
Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 535
mankind with some reasonable preservation of the natural environ-
ment," the CWCB is vested with the exclusive authority to maintain j
minimum streams flows necessary to preserve natural environments. "'
This statute essentially codifies public interest principles reflected by
environmental purposes. "
In holding that the State Engineer has standing as a party to file a
protest in the adjudication of water rights, the Colorado Supreme
Courtin Wadsworth v. Kuiperstated:
There can be no question that, under the inferences in [Article XVI §
5 of the Colorado Constitution] ... the public has a vital interest in
preserving the water resources of this state and adhering to correct
I
rules for the allotment and administration of water.... [I] t is essen-
tial that the relief requested be granted in order that the people may
have their day in court in the assertion of the public interest. "'
The court reasoned that, by including the definition of "person" for
the purposes of appearing at water adjudication hearings in the 1969
WRDA Act, the Colorado legislature intended to give standing to the
State Engineer, who by protesting appropriations asserted the rights of
the public." The court justified its interpretation of legislative intent
by stating that "[t]he Colorado Constitution mandates the protection
of the public interest in water . "' What appears to make this expres-
sion of public interest unique from other Western states is that an
equal part of the public interest is the individual right to appropriate.
The State Engineer also has no express mandate to consider the public
interest beyond the function of contesting appropriations on behalf of
other appropriators.
In Colorado, the entity granting water rights is the water court. A
party may appeal the decision to the Colorado Supreme Court. The
CWCB is limited to an advisory role and may only hold or give recom-
mendations for instream flows. The Colorado judiciary has ruled in
terms of the public interest peripherally at best, diverging from the
legislative implementation of public interest considerations in the 1969
WRDA. In the decade following the enactment of the WRDA, the
courts seemed at least willing to incorporate public interest considera-
tions in its decisions. As indicated above, in 1977 in Wadsworth, the
framers of the state constitution). See also Cent. Colo. Water Conservancy Dist v. Colo.
River Water Conservation Dist., 526 P.2d 302, 304 (Colo. 1974) (noting the waters of
the state and the right to appropriate are vested in the people).
117. Coto. REv. STAT. § 37- 92- 102(3) (2004).
118. But see Hobbs, supra note 4, at 9 (characterizing the statute as an exception to
Colorado's prior appropriation and possibly confirming at least one justice of Colo-
rado's high court reluctance to consider the public interest in allocating water rights).
119. Wadsworth v. Kuiper, 562 P.2d 1114, 1116 (Colo. 1977).
120. Id. at 1116.
121. Id. at 1117.