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

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536 WATER LAW REVIEW Volume 8 Colorado Supreme Court specifically stated a mandate by the Colorado Constitution to protect the public interest in water, which justified the General Assembly in giving the State Engineer standing to contest ad- judications." Then in 1979, the court again upheld controversial in- stream flow appropriations — challenged as unconstitutional —in Colo- rado River Water Conservation District V. Colorado Water Conservation Board. 123 In 1983, the court decided the case of Alamosa La Jara," At issue was the State Engineer's interpretation of the law governing priority in the context of interstate compact agreements.` The court held that in- state users of water might have their supply curtailed in order to satisfy the essentially treated senior priority rights of out -of -state commit - ments. "' Important for public interest considerations, the court ac- knowledged the relevance of environmental factors and tempered the principle of maximum utilization by stating that the policy of maximum utilization does not require a single- minded endeavor to squeeze every drop of water from the valley's aquifers. [Statutory law] makes clear that the objective of "maximum use" ad- ministration is "optimum use" ... optimum use can only be achieved with proper regard for all significant factors, including environmental and economic concerns. 127 Seemingly, in Alamosa-La Jara, the Colorado Supreme Court mimicked the method of the Idaho court in Shokat by divining public interest considerations not from any existing statutory mandates, but instead from subsequent related statutes (i.e. the WRDA granting the CWCB authority to appropriate minimum flows for conservation) and aca- demic sources.' However, unlike the status of the law in Idaho at the ruling of Shokal, no express statutory duty to consider the public inter- est in allocating water rights existed in Colorado at the time when the court decided Alamosa -La Jara, nor does any such statute currently ex- ist. Thus, it seems that the State Engineer might still administer water rights without considering public interest factors," in which case the 122. Id at 1116 -17. 123. Colo. River Water Conservation Dist. v. Colo. Water Conservation Bd., 594 P.2d 570, 572, 578 (Colo. 1979). 124. Alamosa- LaJara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983). 125. Id. at 916 -17, 919. 126. Id. at 917, 925. See also VRANESH, supra note 1, at 539. 127. Alamosa -La Jara, 674 P.2d at 935 (internal citations omitted). 128. Shokal, 707 P.2d at 448 (finding that although the statute creating the duty to consider public interest, it does not define the term, the legislature did provide guid- ance in a related statute as well as sister states and the academic community). 129. Alamosa -La Jara, 674 P.2d at 935 (internal citations omitted). 130. A. DAN TARLocK ET AL., WATER RESOURCE MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY 342 (5TH ED. 2002), Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 537 grounds for a challenge would be failure to effect the optimum utiliza- tion of water under the maximum utilization doctrine. "' After the Alamosa-La Jam decision, the Colorado Supreme Court looked at the case of R.J.A., Incorporated v. Water Users Association of Dis- trict 6" In R.J.A., the Colorado Supreme Court denied a water right to an Estes Park summer resort business that wanted to remove peat moss from a mountain valley to free waters for appropriation.`' Though the case hinged on whether the waters sought from the peat bog were tributary and therefore subject to adjudication under the WRDA, again, as in Alamosa La,Jara, the court noted in terms of public interest concerns that [t]he water rights sought here are based upon alterations of long ex- isting physical characteristics of the land. Alteration of natural condi- tions and vegetation in order to save water carries with it the potential for adverse effects on soil and bank stabilization, soil productivity, wildlife habitat, fisheries production, water quality, watershed protec- tion and the hydrologic cycle. Whether to recognize such rights, and thus to encourage innovative ways of reducing historical consumptive uses by modifying conditions found in nature, is a question fraught with important public policy considerations. As such, the question is especially suited for resolution through the legislative process." While R.J.A. and Alamosa-La Jara are not monumental cases in themselves, they subtly demonstrate the Colorado Supreme Court's avoidance of fully implementing considerations of the public interest, though it clearly acknowledges the intention of the state legislature to protect those concerns. This is important because it explains, in part, why Colorado courts can today uphold that the state's doctrine of wa- ter rights remains that of "pure" appropriation. Whereas in most other Western prior appropriation states statutes require a court or adminis- trative agency to consider the public interest in granting water rights, in Colorado, the state legislature has not mandated these measures. As such, neither the Colorado water courts nor the state supreme court is required to adjudicate water rights in consideration of the public in- terest. Moreover, the current statutory configuration accommodates this avoidance of the public interest in the courts. As noted above, principles of the public interest appear by statute only in reference to minimum instream flows that the CWCB may appropriate and recom- mend for RICDs sought by local government entities. Even these pro- visions are not mandates, though, and since the function of the CWCB 131. Id. 132. R J.A., Inc. v. Water Users Ass'n of Dist 6, 690 P.2d 823 (Colo. 1984). 133. Id at 824. 134. Id at 828 (internal citations omitted). P m w r`