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

objectors or other interested parties in attempting to resolve potential
problems in water court. This strategy also promotes public acceptance of the
program and its administrative efficiency.

Private filing for a water right, in most instances, requires a fairly
substantial effort on the part of the would be appropriator to demonstrate to
the water courtls satisfaction that the appropriated water is being or will be
put to use in the near future. The most troublesome filings of water rights
that would affect the subsequent filing for instream flow rights are
conditional filings for large quantities of water wherein the appropriator has
not yet put the water to beneficial use but intends to do so following the
occurence of a series of events, including water resource planning, surveys,
land acquisition, or construction of necessary diversion works and reservoirs.

Colorado law provides for an applicant to obtain a conditional decree to
hold rights to a particular quantity of water for a future project. To obtain
a conditional decree, in the filing the appropriator must demonstrate present
intent to put the water to beneficial use and to proceed with due dilegence to
divert the water. (For a more detailed treatment of the legal concepts dis-
cussed here the reader is directed to the following Colorado cases: Colorado
River Water Conservation District v. Vidler Tunnel Co. [197 Colo. 413, 594
P.2d 566 (1979)]; Elk-Rifle Water Co. v. Templeton [173 Colo. 438, 484 P.2d
1211 (1971)]; Colorado River Water Conservation District v. Rud1ay Mountain
Power Co. [174 Colo. 309, 486 P.2d 438 (1971)]; Denver v. Sheriff [105 Colo.
93, 96 P. 2d 836 (1939)]; City and County of Denver v. Northern Colorado Water
Conservancy Dist. [130 Colo. 375, 276 P.2d 992 (1954)]).

It is not known how many stream segments have had private filings made
prior to CWCB filings as a result of the public notice policy of the CWCB.

Effect of 5.8. 414 on Administrative Procedures

In following the directives of the legislature in administering the
original instream flow law and S.B. 414, CWCB has been very careful in seeking
comp 1 i ance with the statutory requi rement of CRS 37-82-102( 3) wherei n
II. . . 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 consi stent 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 ~ reasonable degreell (emphasis
added.).

CWCB has interpreted its statutory directives to include evaluation of
three major technical considerations prior to filing for an instream flow.
The mechanics of these technical evaluations have been previously discussed.

1. Documentation of the exi stence of a natural envi ronment worthy of
protection.

2. Quantification of the flow necessary for preserving that environment
to a reasonable degree.

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