9351

• UCREFRP Catalog Number: 9351
• Author: Hobbs, G.
• Title: Water For Recreation, Water Quality, and Wetlands".
• USFW Year: 1990.
• USFW - Doc Type: \
• Copyright Material: NO

provides that the appropriation and use of water is subject to
the Constitution and the provisions of Article 92, the Colorado
Water Right Determination and Administration Act, which as
amended, defines "Appropriation" as:
[T]he application of a specified portion of
the waters of the state to a beneficial use
pursuant to the procedures prescribed by law;
but no appropriation of water, either
absolute or conditional, shall be held to
occur [if] the purported appropriator
of record does not have a specific „plan and
intent to divert store or otherwise
capture, possess, and control a specific
ctuantity of water for specific beneficial
ses. (Emphasis added.)
C.R.S. ~ 37-92-103(3)(a).
Sections 37-92-305(9)(a) and (b) are parallel
provisions which expressly prohibit the recognition of a claim
for or grant of a decree for a conditional or absolute water
right. by the water .court unless the waters are intended to be or
have been "diverted, stored, or otherwise captured, possessed,
and controlled and have been applied to a beneficial use ."
It is therefore clear that a diversion, storage, or
other form of capture, possession, and control of water is a
required statutory element of water appropriations in Colorado.
See Fort Lyon Canal Co. v. Amity Mut. Irrigation Co., 688 P.2d
1110, 1113 (Colo. 1984); Lamont v. Riverside Irrigation Dist.,
179 Colo. 134, 498 P.2d 1150 (1972). The only exception is for
the minimum stream flow program of the Colorado Water
Irri~aq_ting Co. v. Arthur Irrigation Co., 37 Colo. 530, 87 P. 799
(1906).
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