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

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540 WATER LAW REVIEW Volume 8 The authority of the CWCB was therefore limited by statute and water court adjudications accordingly. "' The court's holding prompted a dissent that specifically objected to the majority's implication of the public interest in finding a fiduci- ary duty by the CWCB.'" justice Mullarkey argued in dissent that the CWCB satisfied any fiduciary duties it may have had by acting within its purported statutory authority to alter its decreed instream flows, and that no other responsibilities to the public existed.'" Further, Justice Mullarkey argued that water judges should not hear matters to deter- mine minimum instream flows for the preservation of the natural envi- ronment." Thus, the issue would not be a "water matter" over which the water court would have jurisdiction. At first glance, it may seem that Aspen Wilderness Workshop Incorpo- rated presented a platform for the public interest to enter the Colorado judicial scene. However, loyalists to the idea of "pure" appropriation could rest their fears that the public trust would come to impinge on water rights, for the petitioners contesting the CWCB's actions were careful to base their challenge on a statutorily defined fiduciary duty, not on the common law public trust doctrine.'" V.CONCLUSION The intersection between public policy considerations and Colo- rado water law thus remains limited. The initial enactment of instream flow laws in Colorado seemed to suggest that the state was following the lead of many other Western states by adapting its prior appropria- tion doctrine to weigh the public interest in the allocation of water rights."' To some, the acknowledgement of maintaining flows in natu- ral watercourses signaled the coming of the public trust doctrine. The Colorado judiciary, though, has managed to keep public interest fac- tors out of its allocation scheme, albeit by strict statutory construction. Even after the legislative recognition of RICDs expanded the list of beneficial use to include instream flows for recreation, public interest concerns remain the province of the CWCB. Although the CWCB is 155. Id The court further stated that the CWCB had to seek modification of its decree from the water court based on two policy considerations: 1) the original decree as a lawful order had to be given full force and effect until its terms were modified by the water court; and 2) unlike other appropriators, the CWCB was to be held to a dif- ferent standard because of its unique statutory responsibilities to public and limited authority. Id at 1259. 156. Id. at 1262 -63 (Mullarkey, J., dissenting). 157. Id at 1263. 158. Id. at 1266. 159. Id 160. Potter, supra note 101, at 77. 161. See, e.g., Charles F. Wilkinson, Western Water Lam in Transition, 56 U. Colo. L. Rev. 317, 335-36 (1985). Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 541 held to a fiduciary duty to the public while other appropriators are not, the CWCB is clearly limited to an advisory role and enjoys standing no different from that of any other appropriator, public or private. " Ad- ditionally, should the CWCB make recommendations in the interest of conservation and the environment, those recommendations must only be considered by the water court, not adopted nor followed per se. " According to Justice Hobbs of the Colorado Supreme Court, "there are no aspects of the public interest that cannot be protected within [the prior appropriation] framework. " " Defending the judiciary's adherence to the prior appropriation doctrine, Justice Hobbs posited that each element of the doctrine (diversion, beneficial use, and prior- ity) is consistent with public policy concerns." The sections of the state constitution adopting the prior appropriation doctrine establish a stable policy for allocating an essential but scarce resource among us- ers.'" There is nothing particularly sacred about the prior appropria- tion doctrine, but because Colorado chose this particular scheme, the courts must honor it as the exclusive means of allocation until the people of Colorado amend the constitution to adopt an alternative method."' Justice Hobbs also differentiated public interest considerations (purportedly expressed by Colorado's prior appropriation system) from the public trust doctrine (rejected under Colorado's system)."' While allocation under the public trust doctrine is subject to a deter- mination of navigability conferring a right in the public, the allocation of water rights in Colorado focuses on the right of citizens to divert water for beneficial use. Under the reasoning of People v. Emmert, " since Colorado's streams were not navigable at the time of statehood, and since landowners adjacent to natural streams owned the beds and banks, the General Assembly should resolve the question of public ac- cess to the waters of Colorado, not the courts. "' Criticized as resulting in uncertainty of allocation, the public trust doctrine, according to 162. Aspen Wilderness Workshop, Inc., 901 P.2d at 1257 -58. 163. See generally id. at 1259 -60 (establishing CWCB's statutory authority with regard to water courts). 164. Gregory J. Hobbs, jr. & Bennett W. Raley, Water Rights Protection in Water Quality Lam, 60 U. Coto. L. REv. 841, 874 (1989). 165. Id at 878 -79. 166. Id at 879. 167. Id. 168. Id at 874 -75, 881. 169. Id. at 879 -81. 170. People v. Emmert, 597 P.2d 1025 (Colo. 1979). 171. See Hobbs & Raley, supra note 164, at 881.