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830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 15 <br />• <br />is for a beneficial use. <br />A beneficial use is defined in section 37- 92- 103(4), <br />15 C.R.S. (1990), as: <br />the use of that amount of water that is reasonable <br />and appropriate under reasonably efficient <br />practices to accomplish without waste the purpose <br />for which the appropriation is lawfully made and, <br />without limiting the generality of the foregoing, <br />includes the impoundment of water for recreational <br />purposes, including fishery or wildlife. For the <br />benefit and enjoyment of present and future <br />generations, "beneficial use" shall also include the <br />appropriation by the state of Colorado in the <br />manner prescribed by law of such minimum flows <br />between specific points or levels for and on natural <br />streams and lakes as are required to preserve the <br />natural environment to a reasonable degree. <br />This statute provides that water appropriated for <br />municipal, recreational, piscatorial, fishery, and <br />wildlife purposes is water put to beneficial uses. <br />As to the appropriation of a minimum stream flow, <br />in 1987 the General Assembly amended section <br />37 -92- 102(3) and vested the CWCB with "exclusive" <br />authority to appropriate "minimum stream flows" <br />and "natural surface water levels or volumes for <br />natural lakes." See 1987 Colo. Sess. Laws, ch. 269 <br />at 1305 -06. Section 37 -92- 102(3) in relevant part <br />now reads: <br />Further recognizing the need to correlate the <br />activities of mankind with some reasonable <br />preservation of the natural environment, the <br />Colorado water conservation board is hereby <br />vested with the exclusive authority, on behalf of <br />the people of the state of Colorado, to appropriate <br />in a manner consistent with sections 5 and 6 of <br />Article XVI of the state constitution, such waters <br />of natural streams and lakes as the board <br />determines may be required for minimum stream <br />flows or for natural surface water levels or <br />volumes for natural lakes to preserve the natural <br />environment to a reasonable degree. In the <br />adjudication of water rights pursuant to this article <br />and other applicable law, no other person or entity <br />shall be granted a decree adjudicating a right to <br />water or interests in water for instream flows in a <br />stream channel between specific points, or for <br />natural surface water levels or volumes for natural <br />lakes, for any purpose whatsoever. <br />The exclusive authority vested in the CWCB to <br />appropriate minimum stream flows does not detract <br />from the right to divert and to put to beneficial use <br />unappropriated waters by removal or control. See <br />Colo. Const., Art. XVI, § 6. <br />[24] Thus, according to the plain language of the <br />foregoing statutes, we hold that water may be <br />appropriated by a structure or device which either <br />removes water *931 away from its natural course <br />or location and towards another course or location <br />or which controls water within its natural - <br />watercourse, assuming such action puts the water to <br />beneficial use. The type of beneficial use to which <br />the controlled water is put may mean that the water <br />must remain in its natural course. This is not an <br />appropriation of a minimum stream flow, an <br />appropriation given exclusively to the CWCB. A <br />minimum stream flow does not require removal or <br />control of water by some structure or device. A <br />minimum stream flow between two points on a <br />stream or river usually signifies the complete <br />absence of a structure or device. Furthermore, that <br />an appropriation of a minimum stream flow by the <br />CWCB must put that stream flow to the beneficial <br />use of the preservation of nature does not mean that <br />the beneficial uses to which waters controlled by <br />some structure or device may not also redound to <br />the preservation of piscatorial and other natural <br />resources. Although controlling water within its <br />natural course or location by some structure or <br />device may effect a result which is similar to a <br />minimum flow, that does not mean that the <br />appropriation effected by the structure is invalid <br />under the Act. When the application of water to <br />beneficial use is effected by some structure or <br />device, the resulting appropriation is by a diversion <br />within the meaning of the Act. <br />[25] [26] The issue then is whether the <br />appropriation of water effected by the Nature Dam <br />is a removal or control of water for beneficial use <br />within the meaning of the foregoing statutes. The <br />water court found that the Nature Dam removes <br />Poudre River water from its natural course or <br />location and puts that water to a beneficial use. We <br />agree. As on the issue of relation back of the 1988 <br />amendments to the 1986 application, Thornton again <br />argues that Fort Collins's persistent intent to <br />appropriate minimum stream flows means that the <br />appropriation at the Nature Dam is an invalid <br />appropriation. To be sure, re- labeling what is <br />Copyright (c) West Group 1999 No claim to original U.S. Govt. works <br />