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

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Conservation Board. See C.R.S. $~ 37-92-103(3)(b) and 305(9)(a)
and (b).
1. Private Instream Flow Approgriations_are
Disallowed in Colorado.
Applications not authorized by the special statutory
authority of the Water Conservation Board seeking instream flow
water rights between designated points on a river have been
rejected. In C~,lorado River Water Conservation Dist. v. Rocky
Mountain Power Co., 158 Colo. 331, 406 P.2d 798 (1965), the Court
affirmed the denial of the Colorado River Water Conservation
District's application for a minimum stream flow appropriation
for piscatorial purposes, concluding that it was sought for a
forbidden riparian right. In Case No. 87-CW-040 the Court for
Water Division 5 rejected riparian landowner claims to a private
instream flow appropriation on the Colorado River for fishery
purposes.
The Supreme Court in Rocky Mountain Power reached its
conclusion despite the River District's argument that the General
Assembly had granted it the requisite statutory authority for
such an appropriation in C.R.5. ~ 37-46-107(1)(j):
General Powers. In its corporate capacity, such
district shall have the power:
(j) To file upon and hold for the
use of the public sufficient water
of any natural stream to maintain a
constant stream-flow in the amount
necessary to preserve fish .
Notwithstanding this language, the Court concluded that:
There is no support in the-law of this state
for the proposition that a minimum flow of
water may be "appropriated" in a natural
stream for piscatorial purposes without
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