Senate Bill 212 Transcript: Exhibit A-B

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} the state's major river basins. The State Engineer, the Attorney General, and the Executive Director of the Department of Natural Resources also sit on the Board. Since 1973 the Board has worked carefully to develop an instream flow program which takes into account the needs of the environment,- as well as the present and future needs of the state to further develop and manage its water. The Board currently holds instream flow appropriations on nearly 6,000 miles of the state's streams. This has not been without controversy at times but, in general,. the Board has been quite careful about where " it - appropriates water and the quantityin- volved. The Colorado Supreme Court has recognized that the General Assembly, by statute, can define the word "appropriation." In the instream flow law of 1973'the General Assembly redefined "appro- priation" by dropping the "diversion" requirement and including "preservation of the environment to a reasonable degree" by Water Conservation Board instream flow appropriations as a beneficial use. This was done in light.of a prior case which held that instream flow appropriations are not valid in Colorado because a diversion must be made to have a valid appropriation, Colorado River Water Conservation District v. Rocky Mountain Power Co ,. 406 P.2d 798 (Colo. 1965). The constitutionality of the instream flow law was upheld by the Colorado Supreme Court in 1979, Colo - .rado River Water Conservation District v. Colorado Water Conser:L_._ vation Board 594 P. 2d 798 . (Colo. 1979) . Suer- ewe Court�ecision was' - announced upholding e zns -ream flow w 'the General Assembly passed a law redefining the term "appropriation" in order to require that an appropriator must "di`vezt, store, or otherwise capture"; possess and. - control,." water td , a vaidl appro cept priation, ex . for the Water Conservation Boar C.R.S. 37-92-l 0 -- 3(3) (a) and 37- 92-30519) This was done to make it clear that only the Board can make an unharnessed use of - the stream, in the name*of the people of the state as a wh All others must harness a portion of the waters of a stream for a specified use. In other words, the Legislature in 1979 accepted the Supreme Court's decision upholding the Colorado Plater Conservation Board program and making it clear that the Rocky Mountain Power case should apply to preclude all others from making instream flow appropriations. In 1981, through Senate Bill 414, the General Assembly added criteria to further govern instream flow appropriations by the Board, and in1986, through Senate Bill 91, the General Assembly provided that others could make available water rights, decreed for other uses, to the Board for the purpose.of changing the use and making.the water usable for the Board's program. Now recent happenings threaten the underlying principle that only the Board can*make appropriations or hold water rights for instream flow purposes. -2-