Topic Area: Water Rights and the Public Trust Doctrine
Geographical Area: Colorado, U.S.A.
Focal Question: Was the Snowmass Creek water allocation issue successfully solved by utilizing the public trust doctrine?
Sources:
(1) Burns, Cameron M., "Snowmass Creek Flows to Water Court." The Aspen Times, 116(26).
(2) Corbridge, James N., Jr., 1998. "Historical Water Use and the Protection of Vested Rights: A Challenge for Colorado Water Law." University of Colorado Law Review, 69.
(3) Dillon, John, March 1990. "Water Worries in Vermont." Ski Area Management, p.30.
(4) Fasset, Gordon W., 1982. "Colorado Water Rights- an engineer's case studies." American Water Works Association, 74(7): 324-331.
(5) O'Donnell, Althea, 1996. "Something Old, Something New: Applying the Public Trust Doctrine to Snowmaking." Environmental Affairs, 24: 159-198.
Reviewer: Donn Downey, Colby College '99
Review:

Water rights in Colorado are often the most regulated in the country. The geography of the state lends itself to scarce water resources and a complex system of allocating them. It was in this region that the principle of "prior appropriation" was developed, yielding senior rights to the first user of the water, assuming the water was used efficiently. While this concept has shaped the water situation today, the public trust doctrine of natural resource management overrides traditional water rights, and is beginning to see use in modern allocation issues.

The public trust doctrine states that there are many natural resources that the government holds "in trust" for the citizens of the state. The public trust doctrine adds an element to water rights that is often overlooked in Colorado's "first in time, first in right" system. Rather than comparing the prior appropriation rights versus streamflow and downstream users, public trust doctrine compares the benefits of water usage versus streamflow. The idea is to maximize the net benefits of the water flow, regardless of who was "first in time".

In recent decades, ski resorts and ski tourism have grown dramatically in Colorado. Skiing is the largest industry in many counties, and many citizens depend on it for their livelihood. Ski resorts, however, have negative impacts on the environment, the most dramatic of which is water usage for snowmaking purposes. Snowmaking is used by resorts to remain competitive and to secure a base of snow during lean natural snow years. This insurance, however, comes with a price; sometimes 300-400 million gallons of water per season for larger mountains. This amount of draw on Colorado mountain streams has huge implications for both stream habitats and downstream users.

In 1976 the Colorado Water Conservation Board established minimum stream flow requirements at 12 cubic feet per second for Snowmass Creek, a water supply for the snowmaking procedures at Snowmass Ski resort. This creek contained large trout populations. When mountain streams are drawn too low during winter, "anchor ice" forms along the stream bed. This destroys trout spawning beds in the spring when the ice thaws and breaks away. However, fifteen years later, CWCB began to re-evaluate its' decree after observing dramatic economic expansion of Pitkin County, home to Snowmass Ski Resort. While searching for more supplies of water, they discovered that a computational error had been made in 1976, and their initial assessment was inaccurate. The minimum flow requirement was too low in some seasons and unnecessarily high in others, specifically winter.

In 1992, CWCB re-examined the flow requirements and decreased the required minimum 12 cfs. to 7 cfs. This would allow Aspen Skiing Company, operator of Snowmass Ski Resort, to draw more water for snowmaking. This decision came at a time when Snowmass was looking to complete a large expansion of their mountain, including new trails, lifts, a base lodge, and snowmaking. The decision to lower stream flow would make this expansion feasible for Snowmass, as they would need this extra water to accommodate the new trails.

That September, Aspen Wilderness Workshop filed a lawsuit against CWCB, stating that CWCB went beyond their jurisdiction when revising stream flow requirements. AWW felt that those decisions should be left to Colorado Water Court. Their basis was that CWCB's decision did not fulfill the states "fiduciary duty" to the citizens of the state. In other words, CWCB was not satisfying the public trust doctrine. The CWCB essentially privatized a public good when lowering the stream flow requirement, since Aspen Skiing Company would be the biggest beneficiary of this decision. Many argue that this lawsuit was actually more anti-ski resort development than pro-environment, but regardless the Colorado Supreme Court sided with Aspen Wilderness Workshop and sent the case to water court for them to establish new flow guidelines for the Snowmass Creek.

The water court conducted their own studies of the stream flow and enacted different requirements for three different sections of Snowmass Creek in all seasons. This provided for more accurate regulations, as this system more precisely reflected the needs of the stream habitat. As it turned out, the winter requirement for the section of Snowmass Creek that Snowmass Ski Resort depended on for snowmaking was set at 12cfs, as was determined earlier by CWCB. While this was a benefit for Snowmass snowmaking efforts and expansion, the decision demonstrated that the public trust doctrine could be applied to snowmaking water usage at ski resorts.

The public trust doctrine is an efficient way of examining water allocation issues, especially for ski resorts. Ski resort water use tends to have severe environmental impacts due to small available water supplies and very concentrated watersheds. It can also be easily studied due to precise draw locations and methods of flow monitoring. The Aspen Wilderness Workshop vs. Colorado Water Conservation Board case serves as a model of applying the public trust doctrine to ski resort snowmaking water allocation issues.