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

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526 WATER LAW REVIEW Volume 8 for the purposes for which Golden made the appropriation.` In con- sidering the reasonableness of the amount of water claimed, the court stated "[a]lthough not required to consider other potential uses of water in quantifying a water right under the beneficial use statute, the Court notes that the rights at issue are non - consumptive, and the water claimed is always available for all downstream uses. "" Weighing the economically important recreational purposes of the whitewater course against the subordination of Golden's rights to senior users down - stream' and the city's stipulations to upstream users," the water court found the instream appropriations were reasonable within the statu- tory requirements for beneficial use.' The water court concluded Golden's constitutional right to appropriate a new water right in ac- cordance with Colorado law may not be denied or limited based upon the public trust doctrine, or similar policy restraints purportedly rooted in concern for the quantities that should be left for future wa- ter users. "[A] public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory author- ity, deny a legitimate appropriation based on public policy."" M. LDUTS ON INSTREAM FLOW APPROPRIATIONS The decision of the Colorado Supreme Court is less a monumental ruling than a procedural checkpoint in the tale of three cities. Since the court issued no opinion, the "ruling" is not really a holding on the merits of the case." This means that the ruling does not set any prece- dent and applies only to Golden, Breckenridge, and Vail." This leaves for another day the interpretation of new statutory provisions govern- 66. Id para. E(9). 67. Id 68. All of the water claimed by Golden for the whitewater course is subject to a senior call downstream in a dry water year. Id Eighty-four percent of the water claimed is subject to a senior call downstream in an average year. Id 69. As part of the city's stipulations, up to 41 cfs of the instream rights are subordi- nated to fixture exchanges upstream. Id The court also noted that the city agreed to provide 125 of of consumable dry year augmentation water in order to meet the pro- jected full build out requirements of the county. Id. 70. See COLO. REv. STAT. § 37- 92- 103(4) (2004) ( "Beneficial use is the use of that amount of water that is reasonable and appropriate under reasonably efficient prac- tices to accomplish without waste the purpose for which the appropriation is lawfully made... "). 71. Golden Decree, supra note 5, Conclusions of Law (quoting Bd. of County Comm'rs v. United States, 891 P.2d 952, 972 (Colo. 1995); Aspen Wilderness Work- shop v. Colo. Water Conservation Bd., 901 P.2d 1251, 1263 (Colo. 1995)). 72. Golden, 69 P.3d at 1028. 73. See Pankratz, supra note 60, at 10A. Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTEREST 527 ing the adjudication of instream flow applications by local government entities." From a policy standpoint, however, many observers interpreted the supreme court decision as a historic change in state water law, effec- tively placing the recreational uses of water for kayaking and fishing in I, equal standing with consumptive uses for farming, industry, and devel- opment." However, closer examination of the amended state laws governing instream appropriations by local entities suggests that pro- cedures empowering the CWCB to impose limits on flow amounts are likely to encumber the ability of local governments to exploit RICDs. A reading of the amended statutes reveals that, while enabling local governments to seek RICDs, the Colorado General Assembly at the II same time boosted the influence of the CWCB by adding procedures for the adjudication of instream flow rights. Specifically, any local gov- ernment entity' seeking adjudication of an RICD" must submit a copy of its application to the CWCB, who "shall make findings of fact and a final recommendation as to whether the application should be granted, granted with conditions, or denied. "' The factors under which the CWCB must make findings include: (I) Whether the adjudication and administration of the [RICD] would impair the ability of Colorado to fully develop and place to consumptive beneficial use its compact entitlements; (II) The appropriate reach of stream required for the intended use; (III) Whether there is access for recreational in- channel use; 74. The effect of the 2001 amendments on the adjudication of water rights appro- priated by a local government entity will be tested when the water court considers an application by the city of Pueblo, whose officials participated as Amicus Curiae in the Golden case. See Margie Wood, Colorado High Court Deadlocks on Golden Guaranteed Flow Case, THE PUEBLO CHIEFTAIN, May 20, 2003. Gunnison and Longmont also applied for RICDs under the new laws. Blevins, supra note 16, at 8A. 75. Pankratz, supra note 60, at IA (reporting statements of Glenn Porzak, counsel for Golden). 76. See COLO. REv. STAT. § 37 -92- 102(5) (2004) (defining local government entity as any county, municipality, city and county, water district, water and sanitation district, water conservation district, or water conservancy district). 77. Id § 37- 92- 102(10.3) (defining an RICD to mean "minimum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures pursuant to an application filed by a [local gov- ernment entity] for a reasonable recreation experience in and on the water.'). This new breed of diversion reserved for local governments is distinguished from the "minimum stream flows" that remain vested exclusively in the C:WCB under statute, which still reads "the [CWCB] is hereby vested with the exclusive authority ... to appro- priate such waters of natural streams and lakes as the board determines may be re- quired for minimum stream flows to preserve the natural environment to a reason- able degree." /d § 37- 92- 102(3) 78. /d. § 37- 92- 102(6)(a).