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

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532 WATER LAW REVIEW Volume 8 and was not applicable to Colorado.' Colorado applied the concept of maximum utilization historically to promote efficient use of water in the state. In Fellhauer v. People, the Colorado Supreme Court held vested rights acquired by appropriation coexisted with the principle of maximum utilization of water, stating "the right to water does not give the right to waste it. "' However, because the law has determined wastefulness of a use is relative to other use patterns, the legal opera- tion of "waste" under the prior appropriation doctrine gives appropria- tors a disincentive to make diversions more efficient. In the past, water claimed by an appropriator but left unused or that returned to its natural channel was lost to junior appropriators.' The concept of waste itself, however, changed when the benefit of its use is leaving it in its natural course. Objectors can no longer argue that leaving water in its course is "wasteful" or an invalid use after Golden and the modern development of Colorado's prior appropriation doctrine recognizing RICDs as a legitimate beneficial use. Until the state legislature ex- pressly defines "waste," then, the definition of the concept will con- tinue in terms of beneficial use.' And, when opponents of instream flow rights argue "waste," they will really be arguing over preferred uses among competing appropriators. As Professor Getches observed, "[i]f the city of Golden had authorized a subdivision to take the full amount of water out of the stream, no one would have objected .... " Thus, the true threat of the instream flow right is not that it is wasteful per se, but that the consumptive uses needed to sustain population growth will be subordinate to rights to nonconsumptive uses that, though junior to- day, will be senior rights in the future. IV. PUBLIC INTEREST IMPLICATIONS Instream Flows and Public Interest Considerations A major criticism of instream flow rights under Colorado's doctrine is that leaving water in its natural course is riparian and directly con- flicts with prior appropriation principles." However, as the Colorado Supreme Court noted in Colorado River Water Conservation District, the 93. See Coffin, 6 Colo. at 447. See also Empire Water & Power Co. v. Cascade Town Co., 205 F. 123, 128-29 (8th Cir. 1913) (denying landowner from a right to leave water in its natural course without diminution for piscatorial purposes). 94. Fellhauer v. People, 447 P.2d 986, 994 (Colo. 1969). 95. See, e.g., S.E. Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 529 P.2d 1321, 1325 (Colo. 1974); Comstock v. Ramsay, 133 P. 1107, 1111 (Colo. 1913). 96. SeeVRANESH, supra note 1, at 4452. 97. Winters, supra note 90, at 3. 98. See, e.g., Ed Quillen, Editorial, Why the Water Buffaloes are Snorting, THE DENVER PosT, June 3, 2003, at 7B. 99. See Rocky Mountain Power Co., 406 P.2d at 800-01; Empire Water and Power Co., 205 F. at 129. Issue 2 INSTREAM FLOWS, RECREATION, AND THE PUBLIC INTFREST 533 test for an appropriation of water is fundamentally whether water is put to a beneficial use, and that a diversion may legitimately be accom- plished by controlling water within its natural course. " Colorado im- plicates public interest considerations by instream flow rights that have the effect (if not purpose) of preserving natural flows for environ- mental conservation. The Public Interest in the West In most prior appropriation states, the entity vested with the power to grant water rights - usually a court or administrative agency -is re- quired to make public interest or public welfare considerations."' Where defined by state legislatures, state courts often look to the terms of public interest statutes to determine what factors those entities should consider. For example, in Shokal v. Dunn, the Idaho Supreme Court looked to the statutory language defining instream flows to de- termine what factors the state's Director of Water Resources was to consider in rejecting or modifying a fishery's application for water rights." The Idaho court noted that public interest duties derive from the larger public trust doctrine. Thus, the court ultimately looked to the state laws defining, inter alia, instream flows and conservation to determine the elements of the local public interest. "' The court con- cluded that it was in the public interest to conserve and protect mini- mum flows necessary to protect fish and wildlife, recreation, aesthetics, and water quality. Shokal also cited the case of Young & Norton v. Hinderlider. "' In that case, the New Mexico territorial engineer denied the application for 100. Colo. River Water Conservation Dist v. Colo. Water Conservation Bd., 594 P.2d 570,573 (Colo. 1979). 101. Lori Potter, The 1969 Act and Environmental Protection, 3 U. DEhv. WATER L. REV. 70, 76 (1999). In Colorado, the entity granting water rights is the water court and the supreme court The CWCB is limited to an advisory role and only gives recommenda- tions for instream flows. 102. Shokal v. Dunn, 707 P.2d 441, 449 (Idaho 1985) (looking also at similar laws from Alaska and California to determine the definition of public interest). 103. Id. at 447, n.2 ( "protect[ing] the public interest is related to the larger doctrine of the public trust...'). In perhaps the strongest application of public interest consid- erations in a prior appropriation context, a California superior court held that even after the waters from a lake had been acquired by appropriation, "[t]he state ha[d] an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." Nat'l Audubon Soc'y v. Superior Court, 658 P.2d. 709, 727 (Cal. 1983). 104. Shokal, 707 P.2d at 448 -49. But see Pyramid Lake Paiute Tribe v. Washoe County, 918 P.2d 697, 700-01 (Nev. 1996) (refusing to examine legislative intent in other con- texts and limiting the definition of public trust to the state engineer's definition). 105. Shokal, 707 P.2d at 448 -49. 106. Young & Norton v. Hinderlider, 110 P. 1045 (N.M. 1910). S