7921

• UCREFRP Catalog Number: 7921
• Author: Trembly, T. L. and G. A. Gould.
• Title: Opportunities To Protect Instream Flows In Colorado And Wyoming.
• USFW Year: 1987.
• USFW - Doc Type: Biological Report 87‎(10)‎,
• Copyright Material: NO

board shall request recommendations from the division of wildlife
and the division of parks and outdoor recreation. Nothing in this
article shall be construed as authorizing any state agency to acquire
wa ter by emi nent doma in, or to depri ve the people of the state of
Colorado of the beneficial use of those waters available by law and
interstate compact.

The constitutionality of S.B. 97 was challenged and upheld by the Colorado
Supreme Court in the case of Colorado River Water Conservation District v.
Colorado Water Conservation Board [197 Colo. 469, 594 P2d 570 (1979)]. Under
the facts of this case, the Colorado River Water Conservation District and
other plaintiffs challenged the authority of the Colorado Water Conservation
Board to apply for and receive water right decrees for three segments of the
Crystal River and its tributary, Avalanche Creek, located in Gunnison, Pitkin,
and Garfield Counties. The decision is summarized below in some detail because
of the importance of the Colorado Supreme Court's rulings relative to the
status of instream flow appropriations under the Colorado Constitution and the
enabling legislation enacted by the Colorado Legislature.

The challenges against the instream flow law were based on four key
arguments:

1. S.B. 97 is unconstitutional and the decreed priorities are void
because a requirement of a physical diversion is absent.

2. The water court erred in not limiting the awards to IIwaters available
by law and interstate compact.1I

3. S.B. 97 is unconstitutionally vague and and makes an impermissible
delegation of legislative authority to the Water Conservation Board.

4. The Water Conservation Board failed to establish the quantity of
water necessary to IIpreserve the natural environment to a reasonable
degree."

In addressing the first issue, the Colorado Supreme Court acknowledged
that a diversion has been conventionally considered the act of taking water
from a stream and transporting it to another location for use, but that until
the 1969 Water Rights Determination Act (CRS ~ 37-92-101 to 502) made a diver-
sion an essential element of appropriation, the diversion requirement was a
court-made element. liAs to the appropri at i on of water, the Colorado
Constitution uses the word "divert" only once, and here it was not used to
make an essential element of an appropriationll [supra, at 573].

The rationale for this provision in the Constitution was to negate any
thought that Colorado would follow the riparian doctrine in the acquisition
and use of water [supra, at 573]. The court used the reasoning set forth
earlier in Thomas v. Guiraud, 6 Colo. 530 (1883), wherein that court stated:

The word I di vert I must be interpreted in connection wi th the word
'appropriation' and with other language used in the remaining
sections of that instrument referring to the subject of irrigation.

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