Crystal River Supreme Court Case Decision

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"(6) 'Appropriation' means the diversion of a certain portion of the waters of the state and the application of the same to a beneficial use." 1969 Perm.Supp., C.R.S.1963, 148- 21-3. In 1973, four years later, the General Assembly made the modification here involved. It deleted the diversion requirements from the definition of an appropriation and at the same time in S.B. 97 enacted: "For the benefit and enjoyment of present and future generations, 'beneficial use' shall also include the appropriation by the statute 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." In Colo. River Dist. v. Rocky Mountain Power Co., 158 Colo. 331, 406 P.2d 798 (1965), the Colorado River Water Conservation District played a somewhat different role. This District was created by statute in 1937 and was given the power, among others, "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, and to use such water in connection with retaining ponds for the propagation of fish for the benefit of the public;" Section 37-46-107(1)(j). Under this power it brought the action to preserve and keep water in the stream to the extent necessary for the preservation of fish life. *476 This court affirmed the dismissal of the District's claims. The court considered this as an attempted appropriation of "a minimum flow of water . . . for piscatorial purposes without diversion." The opinion continues. "By the enactment of (the statutory power quoted above) the legislature did not intend to bring about such an extreme departure from well established doctrine, and we hold that no such departure was brought about by said statute." Without at this juncture commenting upon the subject of "minimum flow," it is obvious that the General Assembly in the enactment of S.B. 97 certainly did intend to have appropriations for piscatorial purposes without diversion. We hold that under S.B. 97 the Colorado Water Board can make an in-stream appropriation without diversion in the conventional sense. We wish to emphasize that we are not hereby causing any erosion of the many opinions of this court, some of which are cited above, holding that a diversion is an essential element of the water appropriations involved in those cases. The many cases are distinguishable. Several really had no issue as to diversion. Others involved (1) a diversion (proposed or actual), (2) a beneficial use (involved or contemplated) clearly requiring a diversion, (3) situations in which the evidence and measurement of an appropriative intent could be predicated upon only the capacity to divert, (4) circumstances where there could not be a bona fide appropriation without a physical diversion, or (5) matters in which a lack of diversion violated the principle of maximum utilization enunciated in Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968), and Colorado Springs v. Bender, 148 Colo. 458, 366 P.2d 552 (1961). Colo. Water Dist. v. Rocky Mountain Power Co., supra, involved a situation which this court found to be an appropriation of Minimum flow of water and, consequently, a forbidden riparian right. Irrespective of **575 how the court as presently constituted might decide this issue, the opinion as there written is clearly distinguishable from the statute and claims here under consideration. The crucial consideration is that this court has never decided a case such as this on a constitutional basis. We overrule nothing in now holding that S.B. 97 is not unconstitutional in this respect. II [2] The last sentence of Senate Bill 97 reads: "Nothing in this article shall . . . deprive the people of the state of Colorado of the beneficial use of those waters available by law and interstate compact." The Districts contend that the provision mentioning "waters available by law" means that