Court Casts Doubt on Aesthetic, Recreational, and Piscatorial Water Uses 12:50, September 25, 2015

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Court Casts Doubt on Aesthetic, Recreational, and Piscatorial Water Uses

Court Casts Doubt on Aesthetic, Recreational, and Piscatorial Water Uses

Property owners often hold water rights for aesthetic, recreational, and/or piscatorial (fishing) uses, particularly in the Roaring Fork River valley.  Recently, the Colorado Supreme Court determined that certain private water diversions for such uses do not constitute “beneficial uses” of water under the 1969 Water Right Determination and Administration Act.  St. Jude’s Co. v. Roaring Fork Club, LLC, 2015CO51 (June 29, 2015).  Thus, they may not form the basis of a new appropriative water right under Colorado law.

At issue was an application for water rights filed by the Roaring Fork Club (the “Club”), a private golfing, fishing, recreational, and residential resort located near Basalt, Colorado.  The Club obtained a court decree to divert water into a ditch from the Roaring Fork River for aesthetic, recreation, and piscatorial uses.  The ditch operated as a flow-through structure – like a small stream – located entirely on Club land, and ultimately returned water to the Roaring Fork River.  In reviewing the Club’s case, the Colorado Supreme Court determined that the Club’s claimed uses of water failed to meet the legal requirement for a “beneficial use” of water and vacated the Club’s water right.

In Colorado, a water right arises by the application of water to “beneficial use,” Which is defined as “the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”  C.R.S. § 37-92-103(4).  In the Roaring Fork Club case, the Court stated that, in order to be beneficial, a water use must have objective limits.  The Club used its ditch as an aesthetic and recreational amenity and private fly-fishing stream.  The Court held that the only purpose served by such uses is “the subjective enjoyment of the Club’s private guests,” and that the amount of flow necessary to meet that purpose cannot be objectively measured.  Thus, the Club’s aesthetic, recreation, and piscatorial water uses were not beneficial uses under Colorado law, and the Court denied the Club’s requested water right.

Importantly, the Supreme Court’s opinion does not limit the right of individuals to store water in a reservoir or pond for recreational, fishery, or wildlife purposes, which Colorado statute expressly recognizes as a beneficial use of water.  The Court also distinguished its opinion from uses of water for fish culture in fish hatcheries, a recognized beneficial use of water that yields measurable results and implies objective limits.  Those distinctions notwithstanding, the Roaring Fork Club opinion could have a significant impact on private water rights, including decreed conditional water rights.

Inquires about how the Roaring Fork Club case may affect your water rights or questions in general about water rights can be made to  Garfield & Hecht, P.C. attorneys Nicole Garrimone-Campagna (e-mail:) or Mary Elizabeth Geiger (e-mail: ) who specialize in Colorado water rights issues.