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

Nature of CWCB Water Rights

The nature and long-range viability of the water rights held by the CWCB
under its instream flow program has also become a point of interest for various
reasons. Detractors of the program who would like to see the program ended or
severely 1 imited argue that all rights would revert back to the State of
Colorado as unappropriated water and would then became available for new
appropriations by private interests.

The more commonly held view, however, is that the water rights acquired
under the instream flow program are held in public trust on behalf of the
peop 1 e of the State of Colorado. If the i nstream flow program were to be
repealed or the CWCB abolished, the water rights obtained under the program
would likely remain and be administered under a limited public trust concept.
This public trust concept is to be distinguished from the application of a
public trust doctrine over all surface waters of the State. In Colorado, this
broader public trust doctrine is thought to have been rejected in People v.
Emmert [198 Colo. 137, 579 P2d. 1025 (1979)]. See the Public Trust section of
this report, or Hobbs (1986) for more detailed discussions of the possible
application of a limited public trust concept for Colorado instream flow
program water rights.

CWCB Administrative Procedures for Implementation of the Instream Flow Program

The general statutory provisions of Colorado's instream flow law leaves
considerable opportunity for administrative discretion in determining the
operational characteristics of the program. The CWCB has established a set of
general administrative procedures for initiating, processing, filing, and
maintaining water rights appropriations authorized under the instream flow law
(Procedures for the Administration of the Instream Flow/Natural Lake Level
Program, CWCB, July 10, 1981 as amended May 3, 1985). The procedures identify
the functions of the CWCB, DOW, DPOR, and the Attorney General (AG) and are
summarized below.

1. Requests for Recommendations for Appropriation

The director of the CWCB requests written recommendations from DOW
and DPOR for stream segments for which appropriations may be sought.
The recommendation contains a statement that the agencies have
determined that there is a natural environment that can be preserved
to a reasonable degree. (Under the provisions of S.B. 91, presumably
a similar request may be extended to the Federal Government, with
assistance from DOW and DPOR.) The recommendations of DOW and of
DPOR are to be received by the CWCB staff at least 75 days prior to
the CWCB meeting where they are to be presented.

2. CWCB Staff Review of Recommendations

On receipt of recommendations from DOW and DPOR, the CWCB staff
reviews each recommendation and the supporting data. Following this
review, the CWCB staff prepares preliminary recommendations and
notifies persons on a mailing list kept by the CWCB that these
segments are being considered for appropriation of water.

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