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3. Elements of an appropriation Historically, with little exception it has been the rule that there are two basic elements to an appropriation. The first is that the water must be diverted from its source.. The second is that the water diverted must be applied to some beneficial use. a. Diversion requirement The diversion requirement is generally held to mean the actual physical taking of water from a stream and transporting it to an- other location for use. The requirement of a diversion prevented the appropriation of water for instream uses, such as the propa- gation of fish and maintenance of the natural environment.21/ In 1973, the Colorado legislature revised sections 37-92-102 and 103, C.R.S. (1973), to authorize the Colorado Water Conservation Board 22/ to acquire instream water rights and minimum lake lev- els to preserve the natural environment to a reasonable degree. The Colorado Supreme Court stated that a diversion is not consti- tutionally required and upheld the constitutionality of this statute.23/ The Water Conservation Board is now in the process of adjudicating minimum stream flow and minimum lake level water rights. ' In addition, the means of diversion must be a reasonably effi- cient one. At his own point of diversion on a water course, each diverter must establish some reasonable means of effectuating his diversion. He is not entitled to command the whole or a substan- tial flow of the stream merely to facilitate his taking the frac- tion of the whole to which he is entitled.24/ This principal ap- plies equally to those who take their water from surface and un- derground sources. Thus, well owners have been held not to be entitled to the maintenance of a certain ground water level.25/ b. Beneficial use The constitution and applicable statutes all require that water be placed to a beneficial use. The term beneficial use remained undefined until the passage of the 1969 Act. Prior to that time, the courts treated beneficial use as a question of fact which de- pended upon the circumstances of each case.26/ The statutory definition 27/ does little to clarify the meaning of the term ex- cept to make clear that the impoundment of water for recreational purposes, including fishery and wildlife propagation, is a bene- ficial use. It also makes clear that minimum stream flows and lake levels obtained by the Colorado Water Conservation Board are beneficial uses of water. Other categories of beneficial use of water which have been approved by the courts include domestic -8-