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

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518 WATER LAW REVIEW Volume 8 economic and political clout -could pose challenges to the state's pronounced rejection of the public trust doctrine.' The recent deci- sion of the Colorado Supreme Court to affirm water court decisions granting instream flows to the cities of Golden, Breckenridge, and Vail, and the legislative acknowledgment of local government influence on water development, foreshadow this proposition.' The Importance of Gateway Communities in Colorado The Western economy grew from intensive farming and natural re- source development. But times have changed significantly, bringing a new economic era featuring a new service sector dominated by profes- sionals and accompanying support jobs that no longer rely on raw re- source development.' Historically, access to repositories of raw mate- rials provided the economic benefit to Western rural communities, especially.' But as the new service sector grows, gateway communities are finding economic benefits from marketing their natural landscape and outdoor amenities in the growing recreation and tourism indus- try. For example, when nearly one third of the economic base of Kremmling, Colorado, was impacted by the permanent closing of the Louisiana Pacific wafer board plant in 1991, the tiny community of about 1,200 residents responded by drafting an economic development 3. See Jon Sarche, Recreational Users Win Water Rights in the West, THE PHILADELPHIA INQUIRER, June 25, 2003, at A2 (stating that the popularity of outdoor sports like kayak- ing and fishing has helped the recreation industry gain political clout in the West). The competition among members of the recreation industry is likely to heat up as hydroelectric dams are expected to be relicensed in the next fifteen years. Id 4. See David F. Jankowski et al, The 1969 Act's Contributions to Local Governmental Water Suppliers, 3 U. DEtw. WATER L. REv. 20 (1999) (noting that public water supply is particularly a function of local government, which has gained significant importance with the dual emergence of the 1969 Water Right Determination Act and rapid ur- banization of the state's population); See Gregory J. Hobbs, Jr., Colorado Water Law: An Historical Overview, 1 U. DENY. WATER L. REv. 1, 16 (1997) (stating that currently mu- nicipal government entities, including quasi- governmental entities like sanitation dis- tricts, are primary parties in the water acquisition arena). 5. See State Eng'r v. Golden, 69 P.3d 1027, 1028 (Colo. 2003), aff g by an equally divided court, en banc, Decree, In re Application for Water Rights of the City of Golden, No. 98CW448 (Water CL Div. 1, June 13, 2001) [hereinafter Golden Decree], available at http: / /www.coutts.state.co. its/ supct/ watercourts /watdivl /ordergolden.htm. 6. See, e.g., Raymond Rasker, A New Look at Old Vistas: The Economic Role of Environ- mental Quality in Western Public Lands, 65 U. COLO. L. REv. 369, 373 (1994). 7. Id. at 375. 8. See id. at 378. From 1969 to 1991, most of the two million new jobs added in the Rocky Mountain West were service- related. Id. at 377. While in 1969 more than I1 percent of direct employment was in the natural resource industries, by 1991, these industries provided less than 6 percent of all employment in the region, whereas ser- vice industries comprised over 81 percent of all employment. Id Issue 2 INSTREAM FLOWS, RECREATION, AND TILE PUBLIC INTEREST 519 plan marketing its environmental quality, including the designation of the nearby upper Colorado River as a scenic byway.' Vail, Colorado is the prime example of a burgeoning gateway community that developed around a modern recreation based econ- omy. Unlike surrounding revival towns like Aspen that started as min - ing settlements, Vail was born a small ski resort." But like many of the surrounding mountain communities in the later half of the twentieth century, the resort - turned - town" marketed its unique location and natural amenities and quickly became a resort phenomenon, sporting luxurious spas and resorts, fabulous ski facilities, and decadent hous- ing" for its wealthy visitors. But for its location in the high peaks of the Colorado Rockies, it is doubtful the town would have achieved such wealth. Vail and other gateway communities to the Rockies are exam- ples of communities finding economic wealth in the quality of the natural environment and the non - consumptive use of natural re- sources, both considered essential in retaining existing businesses and attracting new ones." More recently, mountain municipalities have emphasized other ! forms of outdoor adventure and recreation as part of the repertoire of available activities that help sustain the local economy year- round.'' The latest trend across Colorado has been to host the whitewater sports of boating and kayaking," which depend, of course, on water supply <� and the right to use it. 9. Id. at 384. 'e 10. See John W. Ragsdale, Jr., National Forest Land Exchanges and the Growth of Vail and Other Gateway Communities, 31 URB. LAW. 1, 1 -2 (1999) (describing the emergence of Vail as the quintessential modern gateway community). 11. The town of Vail became incorporated in 1965, three years after the ski resort opened. Id. at 2, n.1. 12. The resort town is so popular that even its manhole covers are a commodity. Marcia Martinek, Candidate, Issues and Manhole Covers, HERALD DEMOCRAT, July 23, 2004, available at http: / /www.leadvilleherald.com /archives /072904.pdf. 13. Of every four residences in Vail, three are occupied only a few weeks each year as second homes. Ed McMahon & Luther Propst, Park Gateways, NAT'L PARKS, May /June 1998, at 39. 14. Rasker, supra note 6, at 378. The remote nature of rural gateway communities an economic benefit, drawing a growing number of professionals seeking to escape the urban life for a higher quality of life in the country with entire firms migrating to more remote small -town communities, a phenomenon known as "green - fielding," made possible largely because of the mobility afforded by telecommunications. Id at 378 -79. 15. Whitewater parks extend the normal boating season by maintaining necessary stream flows in drier months. See Tom Boyd, Paddle Up; White -water Parks are Experienc- ing a Sort of Ripple Effect, ROCKY MOUNTAIN NEws, Aug. 30, 2003, at 1M. Whitewater parks in Colorado have been built in Boulder, Breckenridge, Denver, Durango, Golden, Gunnison, Lyons, Steamboat Springs, and Vail. Id 16. See Jason Blevins, Battle Looms Over Kayak Parks Critics: Recreation Sites are Wasteful Use of Water, THE DENVER POST, June 2, 2003, at IA (noting Colorado leads the nation in developing whitewater kayaking parks, with twelve parks completed and nine more planned). According to civil engineer Gary Lacey, whose company has helped design, aj t'