9352

• UCREFRP Catalog Number: 9352
• Author: White, C. B.
• Title: Private Interests in Instream Flows.
• USFW Year: 1990.
• USFW - Doc Type: \
• Copyright Material: NO

i
87CW040
The question of
the Colorado Supreme
District v. Colorado
594 P2d . ere
legislation authoriz
circumstances.
2
instream appropriation was again before
Court in Colorado River Water Conservation
Water Conservation Board, 197 Colo 469,
the Court upheld the constitutionality of
ing instream appropriation in certain limited
In 1973 the legislature amended the statutes to provide for
minimum stream flow appropriations. Ch. 442 L. 1973. It changed
the definition of "appropriation" from "diversion of a certain
portion of the waters of the state" to "application of a certain
portion of the waters of the state." It also provided that,
"For the benefit and enjoyment of present and future generations,
'beneficial use' shall also include the appropriation by the
state of Colorado in the manner prescribed by law of such
minimum flows between specific points or levels for and on natural
streams and lakes as are required to preserve the natural environment
to a reasonable degree." The legislation further provided that,
"the Colorado Water Conservation Board is hereby vested with the
authority, on behalf of the people of the state of Colorado, to
appropriate in a manner consistent with Sections 5 and 6 of Article
XVI of the state constitution, or acquire, such waters of natural
streams and lakes as may be required to preserve the natural
environment to a reasonable degree." Thus such minimum stream
flow appropriations were authorized only by the state of Colorado
on whose behalf the Colorado Water Conservation Board was
authorized to act.
The applicant in this case seeks to appropriate a portion
of the flow of the stream in order to maintain a certain rate
of flow in the stream for the support of fish life in the stream.
Such an attempted appropriation was denied legal recognition
in Colorado River Water Conservation District v. Rocky Mountain
Power Company, upra. Therefore IF-e-p-eMfioners- a tempte
appropriation may only achieve legal recognition if it is
authorized by the 1973 amendments previously referred to. However,
those amendments restricted stream flow appropriations to those
made by the Colorado Water Conservation Board acting on behalf
of the state of Colorado. Therefore, the applicant, as a
private individual (and as agent for the Citizens Committee
for the Protection of Middle Park Water, a private organization),
is not authorized to make such an appropriation for his own benefit
and lacks standing to make such an appropriation for the public
or the state of Colorado.