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

Colorado Water Conservation Board [197 Colo. 469, 594 P2d 510 (1979)], it was
thought that an actual physical diversion of water was required as an element
of appropriation in Colorado. The court, in Colorado River Water Conservation
District held that this was not so and gave considerable historical development
on the origin of this requirement as an element of appropriation in Colorado
water law. (See Section on State Appropriation of Instream Flows for more
discussion on this subject.)

Additionally, S.B. 97 changed the definitions of "appropriation,"
"beneficial use," and "priority" as follows. (Capital letters indicate new
material added to existing statutes, bracketed words indicate deletions from
existing statutes. These statutes are < now codified as CRS ~~ 37-92-103(3);
103(4); 103(10); and 102(1973 and Cum. Supp. 1985.):

Sect ion 1. 148-21-3 (6), (7), and (10), Co 1 orado Revi sed Statutes
1963 (1969 Supp.), are amended to read:

148-21-3. Definitions. (6) "Appropriation" means the [diversion
of a certain portion of the waters of the state and the] application
of [the same] A CERTAIN PORTION OF THE WATERS OF THE STATE to a
beneficial use.

(7) "Beneficial use" is the use of that amount of water that is
reasonable and appropriate under reasonably efficient practices to
accomplish without waste the purpose for which the [diversion]
APPROPRIATION is lawfully made and, without limiting the generality
of the foregoing shall include the impoundment of water for
recreational purposes, including fishery or wildlife. FOR THE
BENEFIT AND ENJOYMENT OF PRESENT AND FUTURE GENERATIONS, "BENEFICIAL
USE" SHALL ALSO INCLUDE THE APPROPRIATION BY THE STATE OF COLORADO
IN THE MANNER PRESCRIBED BY LAW OF SUCH MINIMUM FLOWS BETWEEN
SPECIFIC POINTS OR LEVELS FOR AND ON NATURAL STREAMS AND LAKES AS
ARE REQUIRED TO PRESERVE THE NATURAL ENVIRONMENT TO A REASONABLE
DEGREE.

(10) "Pri ori ty" means the seni ori ty by date as of whi ch a water
right is entitled to [divert] USE or conditional water right will be
entitled to [divert] USE and the relative seniority of a water right
or a conditional water right in relation to other water rights and
conditional water rights deriving their supply from a common source.

One reading of these definitions, excluding the other language of S.B. 97
giving authority to the CWCB to appropriate or acquire waters of streams and
lakes "as may be required to preserve the natural environment to a reasonable
degree," suggests that anyone may "appropriate" water for "beneficial" use to
include such appropriation for recreation, fisheries, or wildlife, and that
water need not be diverted to perfect the appropriation.

Example

In December of 1986, the City of Fort Collins filed for water rights for
the Poudre River Recreational Corridor and the Poudre River Dilution Corridor.

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