From Aspen Journalism (Brent Gardner-Smith):
The Colorado Supreme Court ruled on June 29 that the Roaring Fork Club in Basalt is not entitled to new “aesthetic, recreation and piscatorial (fishing)” water rights for a private fly-fishing stream the club created in an existing irrigation ditch.
“The club failed to demonstrate an intent to apply the amount of water for
which it sought a decree to any ‘beneficial use,’ as contemplated by either the constitution or statutes of the jurisdiction,” the court’s decision stated.
The court also found that “the club’s proposed ‘uses’ of the water in question, as expressed in its application, cannot be beneficial within the meaning of the Act because the only purpose they are offered to serve is the subjective enjoyment of the Club’s private guests,” the decision states.
“The flow of water necessary to efficiently produce beauty, excitement, or fun cannot even conceptually be quantified, and therefore where these kinds of subjective experiences are recognized by the legislature to be valuable, it has specifically provided for their public enjoyment, scientific administration, and careful measurement,” the court found.
The court, however, did side with the Roaring Fork Club in a related dispute with its downstream neighbor Reno Cerise, who is a partner in St. Jude’s Co. In its decision, the court rejected claims from St. Jude’s over access to and management of the irrigation ditch in question, and the court awarded the club attorney’s fees in that aspect of the case.
But a majority of the justices on the court said a prior water rights decree issued to the club in 2013 by the water court in Glenwood Springs was now invalid because the water was not being put to a lawfully recognized beneficial use, which is a keystone of Colorado water law.
In a brief against the club’s arguments, attorneys for the Colorado Dept. of Natural Resources told the court it had concerns that using irrigation ditches for private aesthetic purposes could dewater long stretches of streams and rivers.
“Without established limits, such uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream reach and its public aesthetic and piscatorial benefits, maximum utilization, and compact development,” the brief from the Dept. of Natural Resources stated.
As it stands now, the decision “effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” according to Peter Fleming, the general counsel for the Colorado River District, which filed a brief supportive of the club’s case.
Fleming, in an interview, said that while the court’s decision did strip the club of its decree for such uses, it did not apply to other existing water right decrees.
Origins of the case
In 2007 the club applied to divisional water court in Glenwood Springs for formal recognition of a right to divert 21 cubic feet per second from the Roaring Fork River into an existing irrigation ditch for “aesthetic, recreation and piscatorial uses.”
The application for new water rights were in addition to the club’s existing water rights on the ditch, which include an irrigation right.
In its application, the club told the water court that in 1997 it had improved an irrigation ditch – the RFC Ditch – which is 14-to-25 feet wide and can move up to 45 cubic feet per second (cfs) of water.
And it said it was now using the ditch, which it dubbed “Spring Creek,” as an “aesthetic and recreational amenity to a golf-course development, as well as for fish habitat and as a private fly-fishing stream.”
On its website, the Roaring Fork Club states that “fishing around the Club property includes private access to eight stocked ponds, a one-mile stretch along the acclaimed Roaring Fork River and the one-mile long ‘Spring Creek’, an offshoot of the Fork that flows through the golf course.”
The club straddles 383 acres on either side of the Roaring Fork River just upvalley of downtown Basalt. It has about 550 members and includes 40 privately owned cabins.
“The club’s fishing, non-fishing, golfing and other members and visitors enjoy the scenic beauty that is Spring Creek, as the visual backdrop of the water feature and the sound of higher flowing water combine to create a unique experience for members, cabin owners and guests alike,” wrote an attorney for the club, Scott Miller, of the Basalt law firm of Patrick, Miller and Noto, in a recent supplemental brief to the court.
Miller’s brief also notes that the irrigation ditch, now a private fly-fishing stream, includes “pools, riffles, drop structures, and spawning beds, all of which enhance the overall aquatic habitat and cold water trout fishery in Spring Creek, and which require flowing water.”
Miller could not be reached for comment on the court’s decision.
But in 2013 St. Jude’s, which also uses the RFC Ditch to receive water downstream of the club, appealed the water court’s issuance of a decree to the club for aesthetic uses to the Colorado Supreme Court, which directly hears appeals from divisional water courts around the state.
“Recognition of aesthetics as a beneficial use would effectively function as a policy decision that the visual enhancement of private property is more important than any uses of junior upstream appropriators, and also more important than maintaining streamflow in the natural stream,” St. Jude Co.’s attorney, Gregory Cucarola of Sterling, argued in a recent brief to the Supreme Court.
After review, seven of the justices on the Supreme Court sided with St. Jude’s, at least as far as its water rights arguments went.
“The water court’s judgment decreeing the club’s new appropriative rights must therefore be reversed, and the decree for aesthetic, recreation and piscatorial uses vacated,” the court ruled.
A variety of views
Two justices issued a dissenting opinion in the case.
“The value that Spring Creek creates, as well as the ability to determine the amount of water needed to achieve its purposes, suggests that aesthetic, recreational, and piscatorial uses satisfy the ‘beneficial use’ requirement,” the dissenting opinion stated. “So, is such a flow-through feature “tantamount to a ‘forbidden riparian right,’” as the majority asserts? I think not.”
The dissenting opinion was written by Justice Monica M. Marquez, who was joined by Justice William W. Hood, III.
The Colorado River District released a statement about the court’s decision, after an inquiry from Aspen Journalism, from Peter Fleming, the district’s general counsel.
“The River District is disappointed in the Colorado Supreme Court’s decision in the St. Jude’s Co. v. Roaring Fork Club case that effectively prohibits any future direct flow rights to divert water from the stream for aesthetic, recreation or piscatorial (fishery) purposes,” Fleming said in an email.
“The majority opinion mistakenly characterizes recreational and fishery uses as purely ‘passive’ uses of water. Perhaps more importantly, the opinion creates an entirely new requirement that a water right is valid only if the intended use is achieved through an ‘objectively-active’ means of production.
“As noted in the Court’s dissenting opinion, the majority opinion ‘abolishes a well-established practice of the water courts in granting applications for [aesthetic, recreational, and piscatorial flow-through water rights].’
“Many existing West Slope landowners have invested in such features – a practice that has little or no impact on Colorado’s consumptive use of its Colorado River Compact entitlement,” Fleming said. “The decision will adversely impact the future ability of private land-owners to increase the value of their property through the construction of water features.”
The “ranch owners”
Also filing a joint amicus brief in the St. Jude’s case – in support of the private club – were Roaring Fork Homeowners Association, Inc., Thomas Bailey, Galloway, Inc., Jackson-Shaw/Taylor River Ranch, LLC, Crystal Creek Homeowners Association, Inc., Charles E. Nearburg and Catamount Development, Inc., and the Flyfisher Group, LLC.
The self-described “ranch owners” told the court that together they own 27,000 acres of land in Colorado.
They argued in their brief that “private use of water” actually benefits the public.
“Private use of water for piscatorial and aesthetic purposes benefits the public and the appropriator,” the “ranch owners” brief states. “As noted above, the economy of western Colorado is changing. More and more ranches are being purchased not just for traditional ranching uses, but also for their aesthetics and fish and wildlife values.
“The resulting increase in land values significantly increases the tax base of local governments and the overall health of local economies. Moreover, it is well established in the scientific literature that ditches and man-made streams operated for fishery purposes benefit not just these off channel structures, but the fishery as whole,” the brief said.
The brief also said that “the ranch owners, and many others, have also constructed water features on their properties, such as artificial waterfalls, cascades and waterways that greatly enhance the aesthetics and value of a property. The design of these improvements often requires the services of landscape architects and engineers.”
The ranchers also argue that if private streams are valuable to a landowner, then they are “beneficial” under state water law.
“Just as beauty is in the eye of the beholder, beneficial use is principally in the eye of the (water) appropriator,” the brief states.
County and state don’t support
On the other side of the issue were Pitkin County and the Colorado Department of Natural Resources, both of which filed amicus briefs (Pitkin County, DNR) with the Supreme Court against the Roaring Fork Club’s arguments.
“A diversion into a ditch for private piscatorial, recreational, or aesthetic uses is not a statutorily or Supreme Court-approved beneficial use, but has been recognized by various water courts in unappealed decrees,” a brief filed by attorneys for the department states.
The department’s brief also noted that when it comes to the enjoyment of water, a “more is better” factor raises questions about the potential wasting of water.
“With a ‘more is better’ duty of water unsupported by scientific evidence, subjective private piscatorial and aesthetic uses can result in complete depletions of stream reaches for unlimited distances to the detriment of the stream and its public piscatorial and aesthetic uses, resulting in waste and inefficiency, impairment of existing undecreed exchanges of water, and future exchanges,” the department’s brief states.
Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and water. The Times published a version of this story online on Tuesday, June 30, 2015.
More water law coverage here.