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

later junior appropriators may have their rights adjudicated, which rights will be superior
to those here decreed to the *477 Colorado Water Board. Further, the Districts suggest
that this wording means that the only awards the Colorado Water Board may receive are
to water already adjudicated to senior appropriators downstream.
We do not agree with either of these two contentions. The legislative intent is quite clear
that these appropriations are to protect and preserve the natural habitat and that the
decrees confirming them award priorities which are superior to the rights of those who
may later appropriate. Otherwise, upstream appropriations could later be made, the
streams dried up, and the whole purpose of the legislation destroyed.
We simply cannot follow the logic of the second contention to the effect that the
Colorado Water Board is entitled only to water already appropriated by downstream
seniors. We fail to see how downstream appropriators are going to be effected by the
Colorado Water Board's decrees, nor any reason for so circumscribing the effect of the
legislation.
We admit that we are puzzled as to the reason the General Assembly placed this clause
in the Act. Perhaps later circumstances and cases may clarify our curiosity in this
respect. We are not, however, puzzled concerning our ruling as to what the General
Assembly did Not intend. It did not intend the construction urged by the Districts.
The Water Judge stated:
"There was no evidence that these appropriations resulted in any people of the State of
Colorado being deprived of the beneficial use of water. Until such time as a person is in
fact deprived of the beneficial use of available water because of these appropriations the
alleged harm is purely speculative and must be rejected."
We approve of this statement as it relates to the deprivation of water available by
"interstate compact." We have already spoken as to the remainder of the clause and see
no need to comment on the Water Judge's statement as it related to "available by law."
III
[3] The third issue concerns the constitutionality of the legislative delegation of
power to the Colorado Water Board. The Districts contend that the statutory language
[FN7] empowering the Colorado Water Board to " appropriate . . . such waters of natural
streams and lakes as may be required to preserve the natural environment to a
reasonable degree" is unconstitutionally vague and, therefore, an impermissible
delegation of authority. Colo.Const., Art. III.
FN7. The language appears in sections 37-92-102(3) and 37-92- 103(3),
(4) and (10), C.R.S.1973.

The Districts correctly note that the issues of vagueness and delegation are considered
in Colorado as aspects of the same question. Fry Roofing v. Dept. of Health, 179 Colo.
223, 499 P.2d 1176 (1972). "The legislature does not abdicate its function when it
describes what job must *478 be done, who must do it, and the scope of his authority."
**576 Swisher v. Brown, 157 Colo. 378, 402 P.2d 621 (1965). The legislature must
make the law even though "it may delegate the power to determine some fact or state
of things to effectuate the purpose of the law." People v. Giordano, 173 Colo. 567, 481
P.2d 415 (1971).
The Districts rely upon the fact that the General Assembly did not define the phrase
"natural environment", nor specify what it meant by requiring "such minimum flows . . .
as are required to preserve the natural environment to A reasonable degree." (Emphasis
added) The Districts argue that such definition and specification are insufficient here
since the terms do not have any commonly accepted meaning. In this respect, they
contend that the instant delegation differs from those approved in Giordano, supra, and