Colorado Legislature Protects Existing Recreational Water Rights

On May 25, 2017, the Colorado legislature passed House Bill 17-1990 addressing the 2015 Colorado Supreme Court decision of St. Jude’s Co. v. Roaring Fork Club LLC denying a private club’s ability to obtain an instream water right. Colorado, as a prior appropriation state, requires its water users to demonstrate that the water will be (1) diverted and (2) put to a beneficial use, in order to claim a water right. Beneficial use is defined by statute in C.R.S. §37-92-103(4), which by its terms does not allow private parties to appropriate instream flow rights.

In St. Jude’s Co., the applicant, Roaring Fork Club, was granted a new direct-flow appropriative right for aesthetic, recreation, and piscatorial uses. On appeal, the Supreme Court of Colorado held that a private club could not obtain a direct-flow water right for aesthetic, recreation, and piscatorial use because such uses are not beneficial uses of water under Colorado law. 351 P.3d 442, 445 (“the Club failed to demonstrate an intent to apply the amount of water for which it sought a decree to any beneficial use”).

The Colorado Legislature, recognizing the need to protect existing direct-flow rights for recreational, piscatorial, and aesthetic uses, passed House Bill 17-1990 in response to St. Jude’s Co.’s interpretation of “beneficial use.” The bill directs that the St. Jude’s Co. interpretation of Colorado Revised Statute 37-92-103(4) “…does not apply to absolute and conditional water rights for which a decree was entered as of July 15, 2015.” The bill thereby preserves existing private water rights decreed for direct-flow aesthetic, recreational, and piscatorial uses. Private water rights decreed before or on July 15, 2015 are not subject to the St. Jude’s Co. definition of “beneficial use,” although subsequent appropriations will be.

When the bill was first introduced, it also provided protection for anyone who had submitted applications for such water rights by July 15, 2015. The language protecting pending applications was struck by Colorado Senate amendment L.009, and the final version of the bill does not include protection for these applications. In the audio recording on April 20, 2017, for the Senate Agriculture, Natural Resources, and Energy Committee regarding amendment L.009, Chris Treese from the Colorado River District explains why the language for pending applications was struck. “A pending application had not been adjudicated by the water court, and therefore we accept that it should not receive the same protection as existing decreed water rights.”

The newly enacted statute benefits Colorado’s burgeoning recreational economy by protecting private landowners with existing direct-flow rights for recreational, aesthetic, and piscatorial uses. While this statute does not allow future appropriation of such recreational water rights, it ensures that existing appropriations and the private properties that rely on them are protected.