Crystal River Supreme Court Case Decision

• Case Number: 76W2720
• Stream Name: Crystal River
• Watershed: Roaring Fork River
• Water Division: 5
• Instream Flow App - Doc Type: Final Decree/Stipulations

No. 1 10 22

No. 2 40 80

No. 3 60 100

*473 Following the enactment of Senate Bill 97 the Colorado Water Board requested
recommendations from the Colorado Division of Wild Life (DOW) and the Colorado
Division of Parks and Outdoor Recreation (DPOR). After making studies DOW submitted
its recommendation to the Colorado Water Board for water flows for maintenance of
fisheries. The DPOR did not make a separate study, but advised the Colorado Water
Board that it concurred in the recommendations of DOW and that it had determined that
the minimum flows recommended by DOW were adequate for other parks and outdoor
recreation purposes. Thereafter, the Colorado Water Board filed its applications.[FN4]
FN4. The statement was made at oral argument that other similar
applications have been filed by the Water Board as to other streams.

The Districts urge the following four arguments:
I. Senate Bill 97 is unconstitutional, and the decreed priorities are void, because a
requirement of a physical diversion is absent.
II. The water court erred in not limiting the awards to "waters available by law and
interstate compact."
III. Senate Bill 97 is unconstitutionally vague and makes an impermissible delegation of
legislative authority to the Water Board.
IV. The Water Board failed to establish the quantity of water necessary to "preserve the
natural environment to a reasonable decree."
I
[1] Historically, with little exception it has been the rule that an appropriation is to
be made by (1) diverting the water and (2) placing it to a beneficial use. A diversion has
been conventionally considered the act of taking water from a stream and transporting it
to another location for use. Until the legislature in 1969 specifically made diversion an
essential element of appropriation,[FN5] Diversion was a court-made element. Examples
of this principle are to be found in the footnote.[FN6]
FN5. 1969 Perm.Supp., C.R.S.1963, 148-21-3(6).

FN6. Lamont v. Riverside District, 179 Colo. 134, 498 P.2d 1150 (1972);
Colorado River District v. Rocky Mountain Power Company, 158 Colo.
331, 406 P.2d 798 (1956); Denver v. Miller, 149 Colo. 96, 368 P.2d 982
(1962); Denver v. Northern Colorado District, 130 Colo. 375, 276 P.2d
992 (1954); and Board of Commissioners v. Rocky Mountain Water
Company, 102 Colo. 351, 79 P.2d 373 (1938).

**573 As to appropriation of water, the Colorado Constitution uses the word "divert"
only once; and here it was not used to mandate an essential element of an