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

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524 WATER LAW REVIEW Volume 8 ter conservation district, or water conservancy district for recreational in- channel diversion purposes. "' Prior to the amendment, the statute had indicated only fishery or wildlife as recreational purposes qualify- ing as beneficial uses." The legislature also changed the definition of diversion to state, "only a county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district may control water in its natural course or location for recreational in- channel diversions. »32 Previously, the stat- ute had indicated only the CWCB could hold minimum flow rights." A new statutory subsection was also added to define RICD as "the mini- mum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control struc- tures pursuant to an application filed by a [local government entity] for a reasonable recreation experience in and on the water. "" Though these new provisions have yet to be directly tested in the courts, the recent case involving City of Golden's application for in- stream flow rights for a kayaking course suggests these amendments are viable changes the state's prior appropriation doctrine " Specifi- cally, the Colorado Supreme Court let stand the decision of the water court holding that the appropriation of instream flows for recreational purposes satisfies the beneficial use requirement under the Colorado Constitution.'' The Case of Golden In June of 2001, the Water Court issued a decree granting instream flow rights to the City of Golden, Colorado, against objections of the CWCB 5' and the State Engineer.' The water court granted a flow rate 50. Id. § 2 (current version at COLO. REV. STAT. § 37 -92- 103(4)). 51. COLO. REV. STAT. § 37- 92- 103(4) (2000). 52. § 2, 2001 Colo. Sess. Laws 305 (current version at COLO. REV. STAT. § 37 -92- 103(7) (2004)). 53. COLO. REV. STAT. § 37- 92- 103(b) (4) (2000). 54. § 2, 2001 Colo. Sess. Laws 305 (current version at Coto. REV. STAT. § 37 -92- 103(10.3) (2004)). 55. See Golden Decree, supra note 5. Since the City of Golden filed its application for the instream flow rights three years before the General Assembly enacted the 2001 amendments expanding the list of government entities eligible for minimum flows, the case granting the rights to the city did not rule on these issues. More likely, the 2001 amendments are a legislative confirmation of what has happened already in the state courts - allowing local government entities other than the CWCB to acquire minimum flow rights, as long as a structure "diverts" the water for beneficial use. See, e.g., City of Thornton, 830 P. 2d at 929 -31; Upper Gunnison River Water Conservancy Dist., 838 P.2d at 854. 56. Golden, 69 P.3d at 1028, aff'g by an equally divided court, en bans, Golden Decree, supra note 5. 57. Like its challenges in City of Thornton, 830 P. 2d at 920 and Upper Gunnison River Water Conservancy Dist, 838 P.2d at 853, the CWCB argued the appropriation was similar Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 525 of 1,000 cfs to Golden for use in seven dams and deflector devices con- structed on Clear Creek to form the Golden White -Water Course. " The Course design allows for the control and concentration of flow within the creek that sustains use of boating chutes throughout the year.' The city sought and the water court granted absolute water rights" for the existing dams and deflectors, plus conditional rights to maintain optimum flow during May and July." In accordance with City of Thornton," the court determined that Golden made an appropriate diversion of the water by means of con- trolling the natural flow using the dams and deflectors" The court affirmed that recreation for boating is a beneficial use of the water, and stated, "City of Golden derives substantial economic benefit from the recreational use of the Course. This benefit has been an important factor in the economic redevelopment of the Golden downtown area. "" The court also pointed out that the question of reasonableness of the amount of water appropriated was not whether the amount is reasonable in the abstract, but whether the quantity was "reasonable to an instream flow right that only it was authorized to hold under the statute in effect at that time. See Golden Decree, supra note 5. See also William H. Fronczak, Court Report, 5 U. DENv. WATER L. Rev. 650, 652 (2002). 58. CWCB, the State Engineer, and the Engineer for Water Division No. 1 were the only remaining objectors after Arvada, Idaho Springs, and Coors Brewing Company withdrew statements of opposition and Golden stipulated to rights held by the munici- palities of Westminster and Georgetown and the Clear Creek Skiing Company and Clear Creek County. Golden Decree, supra note 5, paters. B-C. 59. Id. paress. D, E(1) -(2), (9). 60. Id. para. D. Golden accomplished the physical diversion of the water in part by strategic placement of 4,000 tons of boulders creating waves, holes, and eddies. How- ard Pankratz, Recreational Water Use Buoyed: Colo. High. Court Lets 3 Towns Use Rivers for Kayak Courses, THE DENVER POST, May 20, 2003, at IA. 61. Golden Decree, supra note 5, para. E(6) (decreeing flow rights put to a beneficial use, specifically the absolute cfs to range from 42 cfs in February to 840 cfs in June). 62. Id. para. D. Golden also applied for conditional water rights for each of ten additional dam structures and deflector devices it proposed adding to the White Water Course. Id. The court distinguished daytime from nighttime use, selecting 6:00 p.m. and 6:00 a.m. as the average demarcation between light and dark. Id para E(6). The court noted that the city was still only in the planning stage of installing lights to en- able use of the Course at night, but that during the diligence period, Golden could establish actual use to secure absolute rights for 24 -hour use. Id. 63. City of Thornton, 830 P.2d at 930 (declaring the control of water in its natural course to be a valid appropriation). 64. Golden Decree, supra note 5, pares E(7). 65. Id para. E(8). The water court findings highlighted testimony that the 1,000 cfs sought by the city would support such world -class competitions as the United States Olympic trials and the Eddie Bauer Classic. Id The court was particularly responsive to the observation that thousands of dollars would be generated both by competitors using the course and spectators attending the events, concluding "Golden's ability to continue to attract such competitions depends on the possible availability of high flows in the 1,000 cfs range." Id.