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1989] WATER RIGHTS PROTECTION 87: est from the public trust, explore the limits of the application of watel quality regulations to the exercise of the appropriative water right, anc explain how water quality goals can be met through existing regula. tory programs. A. The Doctrine of Prior Appropriation is an Expression of the Public Interest Any resource allocation method must be judged against one stan. dard: It must provide maximum benefits from the resource. The twc essential requirements of a method that seeks to meet this standard an certainty and flexibility.182 The evolution of the doctrine of prior ap- propriation has been directed toward and shaped by these require- ments. Consequently, the proponents of a change in allocation methodology must disclose the effects of the proposed change on the ability of the proposed alternative to meet both criteria, and further establish that the alternative is superior to the existing system. In Col- orado, the requirement of certainty is satisfied by the decision to use one system for allocating the exclusive right to use a quantity of stream water in priority for beneficial uses. Flexibility exists because the water right can be changed to alternate uses, subject only to the prohibition against injury to other appropriative rights.ls3 In Colorado a water right is obtained by appropriation and can be confirmed by a conditional decree, which allows the owner of a large diversion project to preserve the priority date for administrative pur- poses while project engineering and construction proceed, to calculate the quantity to be derived therefrom with a reasonable degree of cer- tainty based on hydrologic studies, and to obtain the financing neces- sary to construct the required waterworks. in reliance thereon. The allocation determination that the water court makes at the conditional decree stage confirms a "vested right,,,,s4 which is later perfected by use. It is this critical element of certainty evidenced by a conditional 182. See Trelease, Policies/or Waler Low: Properly Rights, Economic Forces. and Public Regula- tion, 5 NAT. RESOURCES J. I (1965); 1 CLARK, WATERS AND WATER RIGHTS ~ 63 (1967); cf Somach, The Financial Impacts of Ins/ream Protection, 33 ROCKY MTN. MIN. L. INST. 925 (1987); Howe. Innovative Approaches to Water Allocation: The Potentialfor Water Markets, 22 WATER RESOURCES RES. 439 (1986). 183. Professor Trelease noles that there are two methods of.obtaining flexibility in the use of water rights. The first method is to build into the. right a degree of "plasticity," or the denial of cer- tainty of the right to use, and the second method is to maJlimize or guarantee the security of the right. Trelease recognizes that the denial of certainty is the antithesis of security, and concludes that flexibility is best achieved by the guarantee of security, so long as the right is not encumbered with irrelevant restrictions. Trelease, supra nole 182, at 30-34. I R4 .fi:_ R......l<v Mnlln',,;n Pnu'.... rn " "'l.;...>> ;,,~~ 'Cl~_ A __,_ 1 <: 1 ...._1_ ..." "" ""1'" n ~...l 1 <:0