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

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522 WATER LAW REVIEW Volume 8 Instream Flows and Recreation as Beneficial Use Beneficial use of water is the most fundamental diversion require- ment.' The rationale for the beneficial use element was to avoid speculation and to encourage rapid use of water.' But what constitutes beneficial use has been the subject of much debate, especially as pat- terns of use have changed over the last century with the decline of ag- riculture. Before the adoption of the Water Right Determination Act of 1969,' courts determined the relative priority among uses of water in times of shortage by reference to the state constitution. The consti- tution recognizes a domestic preference over those claims for any other purpose, and those using water for agricultural purpose have a preference over manufacturing purposes.' The Colorado Supreme Court did not interpret this list as exhaustive holding in City and County of Denver v. Sheriff that the municipal use of water for irrigation was a constitutional beneficial use.' The court reasoned that the determina- tion of what qualifies as beneficial use is a question of fact that depends on the circumstances of the case." In general, the common law inter- pretation of beneficial use under the prior appropriation doctrine compares wastefulness of a specific use of water to other possible uses and to alternative means of achieving the purpose for that particular uses The Water Right and Determination Act expanded the range of beneficial uses by explicitly stating that impoundment for recreation (i.e. fishing and wildlife) is a beneficial use.' The Act also includes a beneficial use for appropriation by the state for maintenance of mini- mum flows necessary for the reasonable preservation of the natural environment.' Thus, maintaining instream flow became a viable form of appropriation to establish a water right. Before the 2001 amendments to the Act, m the court determined which entities other than the CWCB could appropriate instream flows. In City of Thornton v. City of Fort Collins, Fort Collins filed an application for the appropriation of instream flows on a stretch of the Poudre 29. Thomas v. Guiraud, 6 Colo. 530, 533 (1883) ( "The true test of appropriation of water is the successful application thereof to the beneficial use designed; and the method of diverting or carrying the same, or making such application, is immaterial. "); VRANESH, supra note 1, at 43. 30. Combs v. Agric. Ditch Co., 28 P. 15 966, 967-68 (Colo. 1892). 31. COLO. REv. STAT. §§ 37 -92 -101 to -602 (2004). 32. COLO. CONST. art. XVI, § 6. 33. City fo' County of Denver v. Sheriff, 96 P.2d 836, 842 (Colo. 1939). 34. Id. 35. VRANESH, supra note 1, at 45. 36. COLO. REv. STAT. § 37 -92- 103(4) (2004). 37. Id 38. The language of the current statute expressly authorizes state and local gov- emment entities to make such appropriations. Id Issue 2 INS7 REAM FLOWS, RF.CREAT ION, AND THE PUBLIC INTEREST 523 River running through the city.' Thornton argued that the Act only authorized the CWCB to appropriate instream flows.' Fort Collins responded by amending its application." The city characterized two dam structures as diversions put to beneficial use: the Nature Dam, built to return the stream to its historic channel from a flood channel; and the Power Dam, built upstream to support a fish ladder and boat chute designed for recreational and piscatorial purposes. Though the water court approved the Nature Dam, it denied the Power Dam ap- propriation, claiming the structure did not amount to a diversion, but a minimum stream flow appropriation.' The Colorado Supreme Court on appeal affirmed the Nature Dam appropriation but also held the Power Dam to be a valid diversion.' Citing the statutory definition of a diversion, the court held that the conventional sense of removing water from its natural course was no longer the legal requirement for diversion.' The court also declared that a valid appropriation may result from controlling the flow of water by means of a device or struc- ture employed for beneficial use." Another decision by the state supreme court in 1992 upheld a de- cree granting a right to the Upper Gunnison River Water Conservancy District to refill the Taylor Park Reservoir in order to maintain fishery conditions." The court held that the Reservoir was a structure that effectuated beneficial use of captured water for purposes of recrea- tion.' The series of statutory amendments to instream flow legislation culminated in 2001, when the Colorado General Assembly established procedures for local governments to make appropriations for recrea- tional in- channel diversions." Specifically, the legislation amended the definition of beneficial use to include diversion "by a county, munici- pality, city and county, water district, water and sanitation district, wa- 39. City of Thornton v. City of Fort Collins, 830 P.2d 915,919 (Colo. 1992). 40. Id at 920. 41. Id 42. Id 43. Id at 921. 44. Id at 931 -33. 45. Id at 930. 46. Id. 47. Bd. of County Comm'rs v. Upper Gunnison River Water Conservation Dist., 838 P. 2d 840,854 (Colo. 1992). 48. Id 49. Act of June 5, 2001, S. 01 -216, § 1, 2001 Colo. Sess. Laws 305, 305 (current ver- sion at COLO. REv. STAT. § 37- 92- 102(5) (2004)) (requiring local government entity to submit a copy of the water right application to the CWCB for review within thirty days of filing for an RICD adjudication); Id. (current version at § 37- 92- 102(6)) (stating factors to be considered and requiring findings to be made by the CWCB regarding RICD requests). Legislation also added new code sections stating standards for deci- sions by the water court and referees regarding RICDs. Id. § 3 (current version at §§ 37- 92- 305(13)- (16)).