The Colorado Supreme Court issued a ruling that private streams do not constitute a beneficial use under Colorado law.
The case, St. Jude’s Co. v. Roaring Fork Club, L.L.C., stems from a controversy between landowners who share use of a ditch. In 2007, the Club filed two applications with the Water Court. One application was to appropriate water rights for aesthetic, recreational and piscatorial (recreational fishing) purposes; the other sought approval of an augmentation plan to mitigate evaporative losses due to diverting water through the wider-than-usual RFC Ditch. St. Jude’s Co., an agricultural business, opposed both applications and later filed a lawsuit claiming that the Club denied them access to a headgate located on Club property which prevented them from effectively using their water and that such action violated both Colorado law and a settlement agreement between the Company and the Club.
The court opinion is divided into five sections. The first section lays out the basic facts of the case and highlights the primary question before the court: “whether Roaring Fork’s claim for diversion into and through a ditch for piscatorial and aesthetic purposes, without impoundment, is a beneficial use under Colorado water law.”
In the second section, the court discusses the doctrine of beneficial use, including what would have been envisioned as beneficial use at the time that the state’s constitution was enacted and a 1969 law that expanded the definition of beneficial use to include three specific uses in which water is not applied. Originally beneficial use would have included only uses to which water was applied—i.e. domestic, agricultural, and manufacturing uses. The 1969 Adjudication and Administration Act expanded the definition to include impoundment for firefighting, storage of lawfully appropriated water, maintaining minimum streamflows for environmental protection, and recreational in-channel diversions. The court points out that the latter two purposes—where the water remains instream—are highly regulated. The court concludes that the Club’s diversion does not meet the legal requirements to be considered a beneficial use, stating, “There is not, and clearly could not be, any suggestion that the Club’s practice in this regard is one of the three applications specifically authorized as beneficial uses.”
Section three addresses areas where the Company claims that the Water Court erred—including how it interpreted an existing agreement between the Company and the Club, how it divided water from a decree that was called into question due because of the Club’s attempt to use that water right for its augmentation plan, it’s failure to accept certain late supplemental disclosures, and the award of attorney fees to the Club. In all cases, the Supreme Court found that the Water Court did not err.
In section four, another procedural section, the Club requests attorney fees for vindication of its rights on appeal. Since the Club prevailed in its defense, it is entitled to appellate attorney fees. The matter was remanded back to the Water Court to determine the amount.
In section five, the Court summarized its ruling.
Justice Marquez, joined by Justice Hood, penned a minority opinion concurring in part and dissenting in part with the majority opinion. Specifically, they joined with the majority opinion on sections I, III and IV—but disagreed with the Court’s discussion of beneficial use.
“The majority initially questions whether aesthetic, recreational, and piscatorial uses can even rightly be described as ‘uses’—much less beneficial ones…The majority supposes that these pursuits are ‘entirely passive,’ in that one merely ‘derives enjoyment from the water in its diverted state.’ …Yet it does not fully explain what distinguishes an ‘active use’ from a passive use,” Justice Marquez writes.
The minority opinion also notes that recent legislation includes several examples of beneficial uses, but “it expressly states that these examples are not intended to limit the meaning of ‘beneficial use.’”
Justice Marquez and Justice Hood would have affirmed the Water Court decree appropriating 21 cfs to the Club for its stated purposes.
Written by Marta L. Weismann