8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

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northwestern Nevada. While the court did not squarely address the issue, its reasoning would
support recognition of instream flow water rights by private parties as well.

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E.g., "The right to divert and appropriate the unappropriated waters of any natural stream to
beneficial uses, shall never be denied, except that the state may regulate and limit the use thereof
for power purposes. ft Idaho Const., an. XV, ~ 3. "The right to divert the unappropriated waters
of any natural stream to beneficial uses shall never be denied. ft Colo. Const. art. XVI, ~ 6. "The
right to divert unappropriated waters of every natural stream for beneficial use shall never be
denied except when such denial is demanded by the public interest. ft Neb. Const. art. XV, ~ 6.

"The sole time [the word 'divert'] appears as to water is in Colo. Const. Art. XVI, ~ 6: 'The right
to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.'
The reason and thrust for this provision was to negate any thought that Colorado would follow
the riparian doctrine in the acquisition and use of water. ... The word 'divert' must be
interpreted in connection with the word 'appropriation,' and with other language used in the
remaining sections of [the constitution] referring to the subject of irrigation: Colorado River
Water Conservation Dist. v. Colorado Water Conservation Bd., 594 P.2d 570, 573 (Colo. 1979)
(quoting from Larimer County Reservoir Co. v. Luthe, 9 P. 794 (Colo. 1886)).

ft[N]or shall private property be taken for public use, without just compensation: U.S. Const.
amend. V (takings clause). Most states have similar versions. E.g., ftPrivate property may be taken
for public use, but not until a just compensation, to be ascertained in the manner prescribed by
law, shall be paid therefor: Idaho Const. art. 1, ~ 14.

ftNo state shall . . . deny to any person within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, ~ 1. Idaho's state version is typical: ft All political power is inherent in
the people. Government is instituted for their equal protection. . .: Idaho Const., art. 1, ~ 2;

ALAsKA STAT. ~~ 46.15.145, 46.15-260 (1991); ARIZ STAT. ANN. ~ 45-141A (Supp. 1992).

Back in the 19705 a Colorado water court interpreted Colorado's instream flow statute, which
authorized the Colorado Water Conservation Board (ftCWCBft) to hold instream rights, to
eliminate the diversion requirement for all citizens. In the Matter of Applications for Water
Rights of R.I. Vader & Sons, et al., No. W-I991 (Colorado Water Court Div. No.4, referee's
ruling confirmed Feb. 11, 1975). In Board of County Comm'rs. of the County of Arapahoe v.
Collard, 827 P.2d 546 (Colo. 1992), the Colorado Supreme Court upheld similar privately held
instream flow rights on res judicata grounds, but hinted that the challenged rights may have been
granted improvidently. In response to the Vader case (and others), the Colorado law was amended
in 1987 in order to ftclarifyft that only the CWCB could obtain instream flow water rights. Senate
Bill 212, 1987 COLO. SESS. LAws ch. 269 at 1305 (codified at COLO. REV. STAT. ~ 37-92-102(3)
(1990)).

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830 P.2d 915 (Colo. 1992).

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Colorado's ftconditional rightft is the rough equivalent of most states' permit. That is, a conditional
right is secures the appropriator's priority date while the project is developed. In Fort Collins'
case, the water rights were conditional while the Nature Dam and Power Dam construction
projects were underway.

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830 P.2d at 930.

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