Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. Moreover, in attempting to limit Golden's right to preserve water for some future, undefined consumptive use, the State's argument amounted to a public trust -type argument in reverse. The public trust doctrine has been used in some states to limit or preclude proposed or existing water rights in order to ensure water is left in the stream to protect certain future public uses of water without water rights, such as recreation, boat passage and the environment. 12 The irony in the Golden case was that the State was making this argument so that future water appropriators could further deplete (not protect) the stream. Golden pointed out that Colorado courts had repeatedly rejected the public trust doctrine when it came to setting aside water for environmental benefits, and argued that the doctrine could not now be invoked to preclude a water right for a demonstrated, current beneficial use in favor of hypothetical future appropriations. Golden cited Board of County Commissioners of the County of Arapahoe v. United States, for the proposition that "a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy. " 13 It was almost worth the fight just to see the water buffaloes have to defend a public trust doctrine they have fought so vigorously against in the past. In its trial brief, Golden cited the diversion statute, C.R.S. § 37- 92- 103(7), the Ft. Collins decision, and other Colorado Supreme Court cases for the proposition that a diversion in the conventional sense, meaning removing water and carrying it away from the stream, was never a strict requirement of prior appropriation law in Colorado. 14 On the "beneficial use" question, Golden pointed out that the term was not defined in the Colorado Constitution. Case law was very clear that what constitutes beneficial use is a question of fact and depends upon the circumstances in each case. 15 Golden spent considerable time at trial proving the economic value of recreational uses of water, a value that vastly exceeded the economic value of most agricultural water uses. Agriculture accounts for 90% of all water consumption in Colorado. Golden's recreation use, by contrast, creates enormous economic value without consuming a drop of water. All of the water used in the course would be immediately available for use and re -use downstream of the kayak park. 12 National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983); Kootenai Envil. Alliance v. Panhandle Yacht Club, 671 P.2d 1085 (Idaho 1984); Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (Mont. 1984). is 891 P.2d 952, 972 (Colo. 1995). See also, Aspen Wilderness Workshop v. Colorado Water Conservation Bd., 901 P.2d 1251, 1263 (Colo. 1995) ( "This court has never recognized the public trust doctrine with respect to water. ") (Justice Mullarkey dissenting); People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979) (rejecting the public trust doctrine as a basis for recognizing public recreational use of water over privately owned stream beds of non - navigable waterways). 14 See Colorado River Water Conservation Dist. v. Colorado River Water Conservation Bd., 594 P.2d 570, 573 -574, (Colo. 1979); Genoa v. Westfall, 349 P.2d 370, 378 (Colo. 1960) ( "It is not necessary in every case for an appropriator of water to construct ditches or artificial ways through which the water might be taken from the stream in order that a valid appropriation be made. "); Larimer Co. v. Luthe, 9 P. 794 (1886) ( "We think there may be a constitutional appropriation of water without its being at the instant taken from the bed of the stream. "); Thomas v. Guiraud, 6 Colo. 531 (1883) ( "the true test of an appropriation 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. "). Other Western States have similarly recognized that the diversion element in prior appropriation law is better understood as requiring a degree of control over the water claimed sufficient to affect the desired beneficial use, rather than actual removal of the water from the stream. See State Dept. of Parks v. Idaho Dep't of Water Admin., 530 P.2d 924, 928 (Idaho 1974) ( "our constitution does not require actual physical diversion. "); Stevenson v. Steele, 453 P.2d 819 (Idaho 1969) (finding appropriation for instream livestock use); Steptoe Live Stock Co. v. Gulley, 295 P. 772, 774 (Nev. 193 1) (mechanical means of diversion from the stream not necessary for a livestock diversion). 15 State v. Southwestern Colorado Water Conservation Dist., 671 P.2d 1294 at 1322 (Colo. 1982 ) (quoting City and County of Denver v. Sheriff, 96 P.2d 836, 842 (Colo. 1939)). CLE INTERNATIONAL - ■ PAGE K -6 ■ COLORADO WATER LAW