5-76W2720 Crystal River

• Case Number: 76W2720
• Stream Name: Crystal River
• Watershed: Roaring Fork River
• Water Division: 5
• Instream Flow App - Doc Type: Final Decree/Stipulations

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572 Colo. 594 PACIFIC REPORTER, 2d SERIES
XVI of the state constitution, or acquire,
such waters of natural streams and lakes
as may be required to preserve the natu-
ral environment to a reasonable degree.
Prior to the initiation of any such appro-
priation, the board shall request recom-
mendations from the division of wildlife
and the division of parks and outdoor
recreation. Nothing in this article shall
be construed as authorizing any state
agency to acquire water by eminent do-
main, or to deprive the people of the state
of Colorado of the beneficial use of those
waters available by law and interstate
compact."
The applications were made under the
authority of these sections. They embraced
three segments of the Crystal River and its
tributary, Avalanche Creek, which lie in
Gunnison, Pitkin and Garfield Counties.
One segment (No. 1) consists of Avalanche
Creek from its confluence with Hell Roar-
ing Creek to its confluence with the Crystal
River. A second segment (No. 2) encom-
passes the Crystal River from its confluence
with Carbonate Creek (near Marble) to its
confluence with Avalanche Creek (below
Redstone); and the third (No. 3) includes
the Crystal River from its confluence with
Avalanche Creek to its confluence with the
Roaring Fork River. The Colorado Water
Board asked and was granted the following
awards:
Cubic Feet Per Second of Time
October 1 to April 30 May 1 to September 30
No. 1 10 22
No.2 40 80
No. 3 60 100
Following the Enactment of Senate Bill
97 the Colorado Water- Board requested rec-
ommendations from the Colorado Division
of Wild Life (DOW) and the Colorado Divi-
sion of Parks and Outdoor Recreation
(DPOR). After making studies DOW sub-
mitted its recommendation to the Colorado
Water Board for water flows for mainte-
nance of fisheries. The DPOR did not
make a separate study, but advised the
Colorado Water Board that it concurred in
the recommendations of DOW and that it
had determined that the minimum flows
recommended by DOW were adequate for
other parks and outdoor recreation pur-
poses. Thereafter, the Colorado Wat,�r
Board filed its applications.°
The Districts urge the following four ar-
guments:
I. Senate Bill 97 is unconstitutional,
and the decreed priorities are void, be-
cause a requirement of a physical diver-
sion is absent.
II. The water court erred in not limit-
ing the awards to "waters available by
law and interstate compact."
III. Senate Bill 97 is unconstitutional -
ly vague and makes an impermissible del-
egation of legislative authority to the
Water Board.
IV. The Water Board failed to estab-
lish the quantity of water necessary to
"preserve the natural environment to a
reasonable decree."
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[1] Historically, with little exception it
has been the rule that an appropriation is to
be made by (1) diverting the water and (2)
placing it to a beneficial use. A diversion
has been conventionally considered the act
of taking water from a stream and tran�-
porting it to another location for use. Until
the legislature in 1969 specifically made di-
version an essential element of appropria-
tion, diversion was a court -made element.
Examples of this principle are to be found
in the footnote .6
4. The statement was made at oral argument
that other similar applications have been filed
by the Water Board as to other streams.
5. 1969 Perm.Supp., C.R.S.1963, 148- 21 -3(6).
6. Lamont v. Riverside District, 179 Colo. 134,
498 P.2d 1150 (1972); Colorado River District
v. Rocky Mountain Power Company, 158 Colo
331, 406 P.2d 798 (1956); Denver v. Miller, 1C,
Colo. 96,.368 P.2d 982 (1962); Denver v. North
ern Colorado District, 130 Colo. 375, 276 P.2d
992 (1954); and Board of Commissioners k
Rocky Mountain Water Company, 102 Colo
351, 79 P.2d 373 (1938).
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