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

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538 WATER LAW REVIEW Volume 8 is advisory only, no court adjudicating water rights in Colorado must consider public interest factors. Colorado River Water t that the Conservation District, Hence, in United States v. the Colorado Supreme Court rejected an argument that the beneficial use test encompassed a broad public policy to protect the environ- ment." There, the court held that the consideration of the applica- tion for a conditional use decree for Arapahoe County for the con- struction of the Union Park Reservoir did not include evaluation of nvironmental factors." Environmental groups contended that the e Union Park Reservoir would have adverse effects on such factors as "fisheries and wildlife habitat, recreation, water quality, the basin's economy including the tax base, property values and land use, and the general quality of life - factors they deem[ed] vitally important to the public. " "' To justify its rejection of these arguments, the court rea- soned that the WRDA and its subsequent amendments, in recognizing the need to protect the environment, established an adequate mecha- nism for protecting the concerns of the environmental groups.' The court further explained that while environmental factors could be a "reasonable and sound basis for altering exiting law," the change from precedent would be a legislative function. " The court further excused itself from making public interest considerations by stating: The degree of protection afforded the environment and the mecha- nism to address state appropriation of water for the good of the pub- lic is the province of the General Assembly and the electorate. Con- ceptually, a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy. Finally, the enforcement of public interest principles by the Colo- rado Supreme Court emerged in Aspen Wilderness Workshop, Incorporated v. Colorado Water Conservation Board. " In 1980, the water court decreed to the CWCB 12 cfs on Snowmass Creek for preserving the natural en- 135. United States v. Colo. River Water Conservation Dist., 891 P.2d 952, 971 (Colo 1995). 136. Id. 137. Id. (internal quotations omitted). 138. Id. at 972. 139. Id. 140. 1d But see Thornton v. Bijou Irrigation Co., 926 P.2d 1, 86 (Colo. 1996) t_ ing the water court's imposition of a revegetation condition upon the adjudication of a water transfer, and held that it was within the authority of the water court to "balance the beneficial use of water with the preservation of other natural resources...'). 141. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1260 (Colo. 1995). Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC IN' F..RE ST 539 vironment. "` The Colorado River Water Conservation District objected to the application, claiming that the amount of flow exceeded the amount necessary to maintain a reasonable natural flow. "' Eleven years after the appropriation, the CWCB decided not to enforce its appropriation as too high as well as too low during certain times of the year because of Pitkin County's growth and development in the Aspen area." The Division of Wildlife initiated an investigation on behalf of the Aspen / Pitkin County Planning Office, which had contacted the Division seeking advice in dealing with instream flows in terms of snowmaking. "' The Division Wildlife found that the CWCB had erred in calculating the minimum flows for the 1980 decree. " The Division of Wildlife, upon request of the CWCB, then refigured the winter sea- sonal flow requirement and concluded that indeed, the CWCB appro- priated too much water. "' In light of these findings, the CWCB ulti- mately decided in 1992 to modify its water rights by not enforcing the full 12 cfs in sections of Snowmass Creek where flows exceeded rates recommended by the Division of Wildlife. " Conveniently, this reduc- tion in flows enabled the Aspen Skiing Company to increase its snow- making operation on Snowmass Creek. " The Aspen Wilderness Workshop, a nonprofit environmental group, " filed suit against the CWCB, arguing that the decision not to enforce its full instream flow appropriation was tantamount to "a per- manent relinquishment of a public instream flow right.... " "' The Colo- rado Supreme Court agreed, and held that the CWCB "has a unique statutory fiduciary duty to protect the public in the administration of its water rights decreed to preserve the natural environment." Thus, the court ruled that the CWCB, uniquely charged with holding water rights in the public interest, was not free to appropriate its water for any purpose or beneficial use at its discretion. "' Moreover, when the General Assembly created the CWCB it did not alter the exclusive ju- risdiction of the water court over the adjudication of water rights."" 142. Id. at 1253. 143. Id. 144. Id. at 1254. 145. Id. 146. Id 147. Id. 148. Id. at 1255. 149. Id at 1255 -56, n.9. 150. See Court Puts Crimp in Resort Expansion; Snowmass Creek Water Rights Upheld, THE DENVER Posy, June 20, 1995, at 3B. 151. Aspen Wilderness Workshop, Inc., 901 P.2d at 1255. 152. Id at 1260. 153. Id at 1259. 154. Id. at 1258.