9356

• UCREFRP Catalog Number: 9356
• Author: Wigington, R.
• Title: Water Right Marketing Strategies to Protect Instream Flows in Colorado.
• USFW Year: 1990.
• USFW - Doc Type: \
• Copyright Material: NO

juniors. The theory is that the perfection of a conditional
water right for instream use is no different than perfecting a
conditional water right for any other beneficial use and that as
a matter of water law, the perfection of a conditional water
right could introduce a new call on upstream juniors. 16 The
agreement recognizes, however, that introducing a more senior
call for instream use on a river system where there was not such
call before is an important policy question for the Conservation
Board. If the call would be disruptive, the Conservation Board
could simply decline to accept ownership of the conditional water
right and to change it to instream use. The operation of the
Aspinall Unit is likely to buffer any call from a 1965 priority
300 cfs instream water right in the Black Canyon and we do not
expect the calls to be disruptive. The 1965 priority is also
junior to the larger absolute water rights upstream and would not
step in ahead of them.
6. If the Conservation Board determines that a 300 cfs
instream water right with a 1965 priority for the Black Canyon is
16 This legal theory is more fully discussed by David L.
Harrison and Robert Wigington in "Converting Conditional Water
Rights to Instream Use: A Property Transfer Strategy", Water as
a Public Resource: Emerging Rights and Obligations, Natural
Resources Law Center, University of Colorado School of Law, June
1-3, 1987. See especially C.R.S. 37-92-103(5) and 305(3); Twin
Lakes Reservoir and Canal Company v. Aspen, 568 P2d 45 (Colo.
1977); and Judgement and Decree in Case No. 2686, Water Division
No. 5, December 5, 1979. Two recent developments that reinforce
this theory are S.B. 13, 57th General Assembly, 2nd Session, and
Talco, Ltd. v. Danielson, 769 P2d 468 (Colo. 1989).
15