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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 β€”is 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- <br />4 <br />