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

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5 44 WATER LAW REVIEW Volume 8 Like Golden, mountain communities hoping to grow from the recrea- tion industry will be forced to choose (or at the very least balance) be- tween exploiting and preserving the natural resources that are the very foundation of the new tourism /recreation industry. One thing is for sure in the legal realm —until the Colorado Gen- eral Assembly mandates considerations of public interest factors in water rights adjudications or amends the state constitution, "' environ- mental conservation will justify minimum stream flows only for the CWCB. In the mean time, public interest groups will attempt to piggy- back onto local government RICD appropriations. Municipal water suppliers already have become important players in the legal arena of water rights. The inherent stability as public corporations, the ability to plan for growth and development of utilities, and the ability to fi- nance water development projects through taxing authority make mu- nicipal suppliers politically powerful at the local level.' Moreover, the statutory provisions enabling local government entities to appropriate instream flows also makes them increasingly powerful at the state level. Market forces will also continue to push Colorado's economy toward tourism and recreation, and as gateway communities exploiting RICDs begin to sprawl as a result, public interest concerns in terms of water supply and water quality will become ever more pressing. Ultimately, Colorado constituencies —from individuals to commu- nities and local governments to private enterprise —will have to decide whether it truly is in the best interest of all to compel public interest considerations in water allocation. On one hand, Colorado needs to sustain growth in increasingly urbanized areas in an era when tradi- tional industries are replaced by newer ones that still depend on the bounties of the state's natural resources. On the other hand, the state also must temper that demand in order to preserve the very elements that make economic survival possible. Regardless of any desire to ad- here to a water allocation scheme entrenched in history, as the preser- vation of the natural environment becomes more vital to local econo- mies, Colorado lawmakers will eventually have to reconcile goals that have historically been at odds: maximum application and consump- mite the industry's impact on the environment and the social and cultural assets of the small town. See Rasker, supra note 6, at 384. 184. The prospect of amending the state constitution is not far from the minds of Colorado citizens. As recently as 1996 there has been an attempt to amend the state constitution by adding a public trust mandate to Section 5 of Article XVI. See Mac - Cravey v. Hufford, 917 P.2d 1277, 1278 (Colo. 1996) (holding that initiative seeking to amend state constitution did not violate single- subject requirement). 185. SeeJankowski et al., supra note 4, at 22. 186. Id. Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 545 tion of water at present, and conservation of an economic asset for the future. 187. See, e.g., CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 17 (1992). While apparently there is a broad consensus in the West that development of natural resources should be prudent and balanced, "natural resource policy is dominated by the lords of yesterday, a battery of nineteenth- century laws, policies, and ideas that arose under wholly different social and economic conditions but that remain in effect due to inertia, powerful lobbying forces, and lack of public awareness." Id.