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

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520 WATER LAW REVIEW Volume 8 H. WATER RIGHTS FOR RECREATION The natural resources of the Rockies largely caused the success" of Colorado's gateway communities —first because of extraction of these resources and now the recreational uses of these resources. As a result, these places face conflicting goals of promoting the resort, recreation, and service industries that give economic life to the communities while preserving the quality of the natural environment that makes the ex- perience of these places so appealing. What this means for Colorado water law is that private industry could actually fuel a "quasi - environmental" or "quasi- public interest" argument in the courts and legislature. This clearly makes for strange bedfellows in terms of the constituencies that hold stakes in the future of Colorado water law, because rights in water are decided not by whose interests may override others on the basis of policy, but by the historical doctrine of prior ap- propriation. Further, what the Colorado public, environmentalists, and private industry believe should be "priorities" in policy terms does not necessarily translate into "priority" in legal terms. The Changing Doctrine Colorado expressly adopted the doctrine of prior appropriation in its state constitution," as interpreted in subsequent judicial decisions' and in legislation.' The creation of a water right in Colorado is ac- complished by fulfillment of three elements: 1) intent to use the water; build, or redevelop whitewater parks throughout Colorado, the parks are in demand because they can revitalize downtown areas and bring visitors to resort towns during the off-season. See Boyd, supra note 15, at 1M. 17. Success in this context relates to the economic success of resorts and the like. Communities like Vail and Aspen are not successful in terms of socioeconomic aspects of the community, in that people who work in resort communities are often unable to afford to live in the same or nearby towns. Property values have risen to astounding levels in Vail and Aspen, such that the cost of living is much higher than what may be affordable to the average person. Growth of these gateway communities has been characterized as urban sprawl, displacing the rural character of mountain communi- ties. Bob Sachs, National Perspective on Mountain Resorts and Ecology, 26 VT. L. REv. 515, 520 (2002). 18. Those mountain communities that depend on tourism for the local economy rely on the character and aesthetics of natural surroundings that influence the quality of visitors' experiences. See McMahon & Propst, supra note 13, at 39-40. 19. Coto. CONST. art. XVI, §§ 5-6. 20. Coffin v. Left Hand Ditch Co., 6 Colo. 443, 44647 (1882) ( "[I]n the absence of express statutes to the contrary, the first appropriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of appropriation. "). 21. See, e.g., COLO. REv. STAT. §§ 37 -92 -102 to-103 (2004). Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 521 2) diversion of the water; and 3) application of the diverted water to a beneficial use 22 "Diversion" remains an evolving concept. Usually meaning a direct physical taking of water from a natural source, a diversion does not necessarily mean removal of the water, as in the case of instream flows ' The codified definition of "diversion" includes either removal of water from a natural source or "controlling water in its natural course.... "" Though this conceptualization of diversion might seem discordant to the traditional concept of "appropriation," Colorado has clarified the definition of appropriation to mean "application of a specified portion of the waters ... to a beneficial use.... "'' For the purpose of environmental conservation, the Colorado legis- lature has also provided for the appropriation of minimum stream flows by the Colorado Water Conservation Board (CWCB). The Colo- rado Supreme Court in Colorado River Water Conservation District v. Colo- rado Water Conservation Board examined this provision challenged as a failure to divert under the state constitution.' The court upheld the minimum flow statute, concluding that the constitutional language preserving the right to divert water to beneficial use was not intended to establish a requirement that appropriation be based on diversion' 22. Colo. River Water Conservation Dist. v. Rocky Mountain Power Co., 406 P.2d 798,800 (Colo. 1965). 23. VRANESH, supra note 1, at 32 -33. 24. See COLO. REv. STAT. § 37- 92- 103(7) (providing, however, that only a local gov- ernment entity can control water in its natural course for recreational in-channel di- versions). 25. Id. § 37 -92- 103(3) (a). 26. Id § 37 -92- 102(3). Further recognizing the need to correlate the activities of mankind with some reasonable preservation of the natural environment, the Colorado water con- servation board is hereby vested with the exclusive authority, on behalf of the people of the state of Colorado, to appropriate in a manner consistent with [the state constitution], such waters of natural streams and lakes as the [Colo- rado water conservation] board determines may be required for minimum stream flows or for natural surface water levels or volumes for natural lakes to preserve the natural environment to a reasonable degree. Id. 27. Colo. River Water Conservation Dist. v. Colo. Water Conservation Bd., 594 P.2d 570, 572 -74 (Colo. 1979). 28. Id. at 574. There remains ambiguity in the statutory abolishment of the diver- sion requirement of appropriation; it could mean that the diversion requirement ap- plies only to the instream use by the CWCB specifically authorized by statute or that the diversion requirement has effectively merged with the beneficial use element. VRANESH, supra note 1, at 38.