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

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530 WATER LAW REVIEW Volume 8 It remains to be seen how local governments will characterize the recreational purposes in order to "maximize the minimum" flow. That is, anticipating that the CWCB will recommend lower than desirable levels, a town could potentially over - appropriate in an attempt to claim maximum flows for conditional rights, and during the diligence period hope to establish the actual flow rate necessary to justify absolute rights. Glenn Porzak, who represented Golden in its request for in- stream flow rights, has put his faith in the water court e' and has dis- missed the minimum flow limitation, stating "[p]eople don't come to Colorado to enjoy our `minimum' amount of beauty, to climb our `minimal' -sized mountains or to have a `minimal' recreation experi- ence. "' It could therefore become vital for local governments that the state courts interpret the new RICD as an instream flow right measured by different standards than the minimum flows appropriated for con- servation purposes by the CWCB. A differentiation from the minimum flows necessary for conservation clearly would benefit local govern- ments seeking flows that will maximize recreational experiences. Therefore, much debate in Colorado courts will likely be over the legis- lative intent of defining RICDs for local governments separately from the minimum flows the CWCB may appropriate. One could infer from the statutory distinction that indeed more than the minimum flow for conservation may be necessary for a reasonable recreational experi- ence. Perhaps this distinction is also an attempt to avoid lumping other instream uses of water under the CWCB, which may give the im- pression that the CWCB in fact represents the public interest. The distinction generally seems to hinge on the fact that unlike the CWCB, whose purpose is really serving the public by taking conservation measures, local governments are not serving the public interest per se, but instead facilitate private enterprise in the form of attracting tour- ism and sporting events. 89. Blevins, supra note 16, at 8A. In Upper Gunnison River Water Conservancy District, the division of function and authority as between the CWCB and the water court was clarified. 109 P.3d at 588 -98. Construing various sections of the CWCB's enabling statute, the court held that, while the CWCB conducts fact finding and makes recom- mendations to the water court, its authority does not encompass "the extensive over- sight and adjudicatory authority it sought (in its arbitrary determinations regarding the Upper Gunnison River Water Conservancy District application]." Id. at 595. Only factual findings by the CWCB (i.e. that an RICD would impair upstream uses under compact entitlement), are presumed correct by the water court; the recommendation of the CWCB is only to be considered as part of the record by the water court, and therefore is not presumptively correct. Id. at 603. However, the applicant still bears the evidentiary burden to rebut the presumption that the findings of the CWCB are correct. Absent such a showing based on a preponderance of the evidence standard, "the findings of the CWCB are binding on the water court." Id. at 596 -98. 90. Rosemary Winters, Colorado Supreme Court Turns Tide in Favor of Koyakers, 35 HIGH COUNTRY NEws 3 (2003). Issue 2 IN.STREAM FLOWS, RECREATION, AND THE. PUBLIC INTERFST 531 Reasonableness of the Recreational Experience In Golden, the water court stated, "[w]ater rights in Colorado are quantified according to the amount of water that is reasonable to serve the appropriator's intended beneficial use. "" The new definition of the RICD states that the measure of the water right is the minimum flow necessary for reasonable recreation" Apparently, then, the rea- sonable amount of water for recreational use according to the CWCB is the minimum flow necessary for that use. This implies that the meas- ure of the water right ultimately may depend on the type of recrea- tional activities for which the instream flows are sought. For example, world -class kayaking obviously requires significantly more water flow than fishing. Cities seeking to maximize the amount of RICDs may thus be forced to choose from various recreational uses that utilized the great- est flow in water. While recreation is not defined yet in Colorado law, the term does suggest a variety of uses. Variability in seasonal flow, a factor already weighed in determining the amount of flow constituting the water right, could also weigh more heavily in the determination of reasonableness of the recreational use itself. The latter possibility is especially likely in times of dry water years, when domestic, agricul- tural, and manufacturing uses have preference. Debates over what types of recreation are legitimately beneficial uses of water will surely emerge as cities attempt to boost their economies by appropriating RICDs. Conceivably, the Colorado legislature eventually will have to consider creating statutory preferences. This measure, however, is unlikely because the doctrine of prior appropriation expresses prefer- ence as priority in time. Efficiency as a Limitation Some criticize leaving water in its natural course for the sake of maintaining flow as "wasteful" because water left in its course is not applied to a beneficial use. Indeed, the Colorado judiciary rejected the fundamental riparian principle of natural flow long ago, when it declared that the riparian doctrine made no beneficial use of water 91. Golden Decree, supra note 5, para. E (9). 92. COLO. REv. STAT. § 37 -92- 103(10.3). The issue regarding the meaning of an RICD made its debut in the case of Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District. 109 P.3d at 587 -88. The court noted the ambiguity in the definition of an RICD, in particular the phrases "minimum stream flow ... for a reasonable recreation experience." Id. at 592. The court found it "improper to defer to the CWCB's definition of a `reasonable recreational experience," opting instead to engage traditional statutory construction by examining the language and legislative history behind the RICD statute. Id. n.8. c