Case No. 90SA514 Memorandum Brief of NCWCD in Support of Affirmance of Water Court Decision

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1368 WATER AND IRRIGATION Ch. 346 (b) A STREAM SYSTEM WHICH ARISES AS A NATURAL SUR- FACE STREAM AND, AS A NATURAL OR MAN - INDUCED PHENOMENON, TERMINATES WITHIN THE STATE OF COLORADO THROUGH NATURALLY OCCURRING EVAPORATION AND TRANSPIRATION OF ITS WATERS, TOGETHER WITH ITS UNDERFLOW AND TRIBUTARY WATERS, IS A NATURAL SURFACE STREAM SUBJECT TO APPROPRIATION AS PROVIDED IN PARA- GRAPH (a) OF THIS SUBSECTION (1). Section 5. 37 -92 -103 (3), Colorado Revised Statutes 1973, is amended, and the said 37 -92 -103, as amended, is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 37 -92 -103. Definitions. (3) (a) "Appropriation" means the application of a eertetin SPECIFIED portion of the waters of the state to a beneficial use PURSUANT TO THE PROCEDURES PRESCRIBED BY LAW; BUT NO APPROPRIATION OF WATER, EITHER ABSOLUTE OR CONDI- TIONAL, SHALL BE HELD TO OCCUR WHEN THE PROPOSED APPROPRIATION IS BASED UPON THE SPECULATIVE SALE OR TRANSFER OF THE APPROPRIATIVE RIGHTS TO PERSONS NOT PARTIES TO THE PROPOSED APPROPRIATION. AS EVIDENCED BY EITHER OF THE FOLLOWING: (p THE PURPORTED APPROPRIATOR OF RECORD DOES NOT HAVE EITHER A LEGALLY VESTED INTEREST OR A REASONABLE EXPECTATION OF PROCURING SUCH INTEREST IN THE LANDS OR FACILITIES TO BE SERVED BY SUCH APPROPRIATION. UNLESS SUCH APPROPRIATOR IS A GOVERNMENTAL AGENCY OR AN AGENT IN FACT FOR THE PERSONS PROPOSED TO BE BENEFITED BY SUCH APPROPRIATION; (II) THE PURPORTED APPROPRIATOR OF RECORD DOES NOT HAVE A SPECIFIC PLAN AND INTENT TO DIVERT, STORE. OR OTHERWISE CAPTURE. POSSESS. AND CONTROL A SPECIFIC QUANTITY OF WATER FOR SPECIFIC BENEFICIAL USES. (b) NOTHING IN THIS SUBSECTION (3) SHALL AFFECT APPRO- PRIATIONS BY THE STATE OF COLORADO FOR MINIMUM STREA _Nf FLOWS AS DESCRIBED IN SUBSECTION (4) OF THIS SECTION. (10.5) "Storage" or "store" means the impoundment, possession, and control of water by means of a dam. Waters in underground aquifers are not in storage or stored except to the extent waters in such aquifers are placed there by other than natural means with water to which the person placing such water in the underground aquifer has a conditional or decreed right. Section 6. 37 -92 -305. Colorado Revised Statutes 1973. as amended, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 37 -92 -305. Standards with respect to rulings of the referee and decisions of the water judge. (9) (a) No claim for a water right may be recognized or a decree therefor granted except to the extent that the waters have been diverted. stored, or otherwise captured, possessed, and controlled and have