542 WATER LAW REVIEW Volume 8
<br />Justice Hobbs, provides no standards by which the Colorado judiciary
<br />may determine allocation among competing demands for water.'
<br />Is the Public Interest Really Expressed by Prior Appropnation?
<br />Colorado's focus on competing appropriators elevates consumptive
<br />interests over conservation interests β unless conservation serves an
<br />economic purpose. Under a democratic model, when representative
<br />state and local governments operate as appropriators, presumably they
<br />should do so in the interest of the public. But under a prior appro-
<br />priation scheme such as Colorado's, when local governments must
<br />compete for water rights with other appropriators (abuse of police
<br />power issues aside), privatization of public interest considerations oc-
<br />curs. The case of Golden, discussed above, provides an illustration.
<br />Developing a recreational watercourse is a reasonable means of achiev-
<br />ing legitimate ends of revitalizing the city's business district to sustain
<br />economic growth in the community, improve aesthetics and quality of
<br />life for the city's residents. The secondary effect of drawing tourists,
<br />and specifically their money, " is the real purpose of acquiring the wa-
<br />ter right, though. Acting on behalf of the public in this context means
<br />the city must show that leaving the water in its course β normally
<br />viewed as a measure of environmental conservation βis beneficial.
<br />However, the benefit cannot be for the public interest in terms of envi-
<br />ronmental conservation. Unlike the CWCB who exclusively may ap-
<br />propriate specifically for this purpose, local governments, by law, must
<br />appropriate instream flows for recreational (i.e. economic) purposes. "
<br />This privatization of the public interest arguably may provide a
<br />perverted means of achieving environmental conservation. Recall that
<br />among gateway communities, redefining their community identity in
<br />terms of developing a recreation and tourism industry based on a
<br />qualitatively superior natural environment is the modern trend. With-
<br />out intending, local governments could legitimately achieve dual pur-
<br />poses by appropriating RICDs, a prospect nonprofit conservation
<br />groups are already keenly aware of. Environmental groups like Trout
<br />Unlimited and Great Outdoors Colorado have provided major funding
<br />for some of the new boating courses constructed throughout the Colo-
<br />172. Id. But see Charles F. Wilkinson, supra note 161, at 336 ( "The recognition of the
<br />public trust doctrine in water law is the single strongest statement that historic uses
<br />must accommodate modern needs. ").
<br />173. See, e.g., Sherry A. Caloia et al., The Water Rights Determination and Administration
<br />Act of 1969. A Western Slope Perspective on the First Thirty Years, 3 U. DENv. WATER L. REV.
<br />39, 51 (1999). In 1997, the tourism industry in Colorado generated $7.1 billion in
<br />revenue and provided 112,000 jobs paying $1.5 billion in salaries. Id at n.60. About
<br />36 percent of Colorado's tourism dollars were spent in the mountain resort region in
<br />1997. Id,
<br />174. See Coto. REv. STAT. § 37- 92- 103(10.3) (2004).
<br />Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 543
<br />rado Rockies."' Following the Golden decision, Trout Unlimited indi-
<br />cated the potential for environmental groups to derive substantial
<br />benefits from RICDs sought for economic purposes by stating "[it's]
<br />not a kayaking organization, but these types of (recreational) rights do
<br />benefit fish, because they leave water flowing. " " Thus, in a somewhat
<br />distorted way, Colorado's prior appropriation doctrine might very well
<br />accommodate the public interest to some measure, at least to the ex-
<br />tent that keeping water in its natural course constitutes a beneficial use
<br />under the law (and concurrently to the extent that cities have priority
<br />over junior users). "'
<br />Local governments see the Golden decision as a green light to pro-
<br />ceed with plans to appropriate instream flows for similar recreational
<br />uses to revive local economies. For example, Fort Collins plans to
<br />build a whitewater kayak park in the next few years, hoping to collect
<br />significant revenue like that claimed by Golden. Golden apparently
<br />collects in excess of 2 million dollars annually from the kayakers and
<br />spectators drawn to its park, " and in total, the local economy took in
<br />23 dollars million from 45,000 park users plus accompanying specta-
<br />tors in the first three years of park operation." Vail and Breckenridge
<br />also seem to benefit substantially from their whitewater parks, enjoying
<br />increased tourism during the off - season that brings millions in sales tax
<br />revenue. Many municipalities with access to streams cannot resist the
<br />lure of such revenues, especially when cost comparisons project that
<br />development will yield such large monetary returns.
<br />Yet, as Colorado's gateway communities continue to rely on the
<br />recreation industry, tensions will result between sustaining the growth
<br />these communities desire and maintaining the environmental quality
<br />of the area that makes them appealing to visitors and businesses."
<br />175. Trout Unlimited helped fund the Golden whitewater course, and Great Out-
<br />doors Colorado funded more than half of the cost for a new whitewater park in Lyons,
<br />Colorado. Blevins, supra note 16, at 8A.
<br />176. Winters, supra note 90, at 3.
<br />177. The instream flow scheme is somewhat of a mixed blessing for mountain mu-
<br />nicipalities. Caloia et al., supra note 173, at 54 (noting rapid growth of towns due to
<br />the expanding resort, recreation, and tourism industries creates high demand for wa-
<br />ter flow in local streams, but upstream appr+iators holding rights to instream flows
<br />obstruct growth by limiting available water supply for diversion to domestic uses).
<br />178. See Editorial, Recreation is a Player in State Water Rights, FORT COLLINS
<br />COLORADOAN, July 7, 2003, at A4.
<br />179. Id.
<br />180. Pankratz, supra note 60, at 10A.
<br />181. Recreation is a Player in State Water Rights, supra note 178, at A4.
<br />182. Id. (noting that the cost of building a whitewater park in Fort Collins amounts
<br />to about $280,000 as part of a $4.2 million project involving other improvements like
<br />storm drains and cleaning the riverbank). See also Charley Able, In Wake of Ruling, River
<br />Runners' Spirits Buoyed, ROcEy MOUNTAIN NEws, May 20, 2003, at 5A.
<br />183. Unlike the prototypical recreation strategy of Vail in skiing and Golden in boat-
<br />ing, Kremmling, for example, has specifically limited tourism development to mini-
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