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-. 1705 600 Colo. "" ... - -, --- ~_. --- 744 PACIFIC REPORTER, 2d SERIES adve....ely to the United State. in Denver I. Accordingly, the water court held that col. Iate....1 estoppel and stare decisis prevented the United States from relitigating the is- sue of instream flow righlll in the national foreslll, and that there was no genuine issue of material fact regarding the United State. claim. The judgment was certified as final pursuant to C.R.C.P. 54(b), and this appeal followed. We reverse, and conclude (I) that Denver 1 docs not foreclose the United States from asserting a claim that the Organic Act implicitly reserve. appur- tenant water neee&sary to ma.intain in. stream water flows in the nationsl forests, and (2) that the United States is not barred by the doctrines of collateral estoppel and stare decisis from claiming instream flow rights to achieve the 'purposes of the Or- ganic Act. Accordingly, we remand to the water court with directions. IV. INSTREAM FLOWS IN THE NATIONAL FORESTS [4J Until recently, a non-eonsumptive water right to preserve minimum instream water flows wa.s unknown in Western wa~ ter law. Boles & Elliot, 51 U.Colo.L.Rev. at 212 (1980); Tarlock, Appropriation jor Imtream Flow Maintenallce: A PT"ll'f038 Report on "New" Public Western Water Rights, 1978 Utah L.Rev. 211, 211-12. The doctrine of prior appropriation traditionally protects only the right to divert water from a natural stream and to put that water to a beneficial use. Denver I. 656 P.2d a 6-7; Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882). Water rights for minimum stream flows and other instream uses historically have not been permitted in stalea that ap- ply the doctrine of prior appropriation. Boles & Elliot, 51 U.Colo.L.Rev. at 212 (1980). In recent years, however, there has been a new emphasis on the preservation of nat. ural streams and lakes for recreational, aesthetic, and ecological purpose.. For ex. ample, the National Water Commission in 1973 recommended "that State law. should be improved to provide greater Jlrot!clil of social values in water [including) .. etic, recreation, [and] fish and wildlife Jltlt agation." ~ational Water ColllIllia&i>, Water Policies jor Ihe Future 271 (19'll. In Colorado, the General AsselDbly in If:! amended the Water Right Detenninatit and Administration Act of 1969, Be<tQ. 37-92-101 to ~ (1973 & 1986 Supp.),_ authorize the Colot'lllio Water Co_TV.tit Board to secure water righlll for minim.. stream flows "to preserve the natural m; ronment. ..." t 37-92-102(3), 15 C.RS (1973 & 1986 Supp.). Other western S\a1Ol including California, Montana, Utah, "" Washington, have also adopted legislstion aHowing for the protection of minimum i> stresm flows for recreation and wiJdIif, purposes. See, e.g., CaI.Pub.Res.Codt If 5093.50-.69 (1984); Mont.Code Ann I 85-2--316 (1985); Utah Code Ann. I 7:1- 3-8 (Supp.1987); Wash.Rev.Code I 90.22. 010 (1985). In contrast to the explicit legislativ. pn> tections enscted by Congress and some states to preserve lake levels and instresm flows, the national foreslll were reservrd for a very limited purpose, which did not explicitly include the preservation of in. stream flows. During deliberation on the Organic Act, Congressional concern ... rn..ined focused on the preservation of for, est growth to slow snowmelt and reduc. evaporation, and thereby to protect un> fonn stream flows outside the forest lands, Congressman McRae of Arkansas, a chief sponsor of the Organic Act, declared: (Arkansas] will join heartily with those of the dry and treeless region to protect the forests and preserve the water for useful and healthful purposes.... ColDmon sense and science, I think, will agree that the forest eover will hold both the rainfall and melting snow, so they will not rush to the streams in tor. rents in tho spring and early summer. We all know that in a well-timbered country tJu _ter goes more gradually into the stmams and gives a steadier flow, with fewer overflows and I... low waler. .~ ,..~ ~ long. branches, fa bOld much ( summer. and for the naviV for the irrig out forests \ be swollen s time, but sh tnd autumn The objec. vations sho' tion of the f tion by fire forest condi tions and w """",se, t maintain. ,.,ithout ex, ......tiO!lS j not parks , been estab SIl Cong.Rec, Tbe legislati' is replete wit the reservati means of p their role '" stteam flow. western eon [T]he only the State snOWS up snOWS an. bring do" our v..lle) to a grea\ ,. The Af!;d \he lIni,ed cern. Su 10. 't'W()Co' bale on Ih, eems: Tbe: objr head ....'a head W4l there \a) fell 10 ' timber ~ c.aust ~. cial pur for the