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5-76W2720 Crystal River
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Last modified
6/30/2016 9:38:34 AM
Creation date
6/13/2011 3:25:52 PM
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Instream Flow Appropriations
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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qq* K.' <br />COLO. R. W. CON. DIST. v. COLO. R. W. CON. BD. Colo. 575 <br />Cite as, Colo., 594 P.2d 570 <br />how the court as presently constituted <br />might decide this issue, the opinion as there <br />written is clearly distinguishable from the <br />statute and claims here under consideration. <br />The crucial consideration is that this <br />court has never decided a case such as this <br />on a constitutional basis. We overrule <br />nothing in now holding that S.B. 97 is not <br />unconstitutional in this respect. <br />We admit that we are puzzled as to the <br />reason the General Assembly placed this <br />clause in the Act. Perhaps later circum- <br />stances and cases may clarify our curiosity <br />in this respect. We are not, however, puz- <br />zled concerning our ruling as to what the <br />General Assembly did not intend. It did <br />not intend the construction urged by the <br />Districts. <br />II <br />[2] The last sentence of Senate Bill 97 <br />reads: <br />"Nothing in this article shall <br />deprive the people of the state of Colora- <br />do of the beneficial use of those waters <br />available by law and interstate compact." <br />The Districts contend that the provision <br />mentioning "waters available by law" <br />means that later junior appropriators may <br />have their rights adjudicated, which rights <br />will be superior to those here decreed to the <br />Colorado Water Board. Further, the Dis- <br />tricts suggest that this wording means that <br />the only awards the Colorado Water Board <br />may receive are to water already adjudicat- <br />ed to senior appropriators downstream. <br />We do not agree with either of these two <br />contentions. The legislative intent is quite <br />clear that these appropriations are to pro- <br />tect and preserve the natural habitat and <br />that the decrees confirming them award <br />priorities which are superior to the rights of <br />those who may later appropriate. Other- <br />wise, upstream appropriations could later <br />be made, the streams dried up, and the <br />whole purpose of the legislation destroyed. <br />We simply cannot follow the logic of the <br />second contention to the effect that the <br />Colorado Water Board is entitled only to <br />water already appropriated by downstream <br />seniors. We fail to see how downstream <br />appropriators are going to be affected by <br />the Colorado Water Board's decrees, nor <br />any reason for so circumscribing the effect <br />of the legislation. <br />The Water Judge stated: <br />"There was no evidence that these appro- <br />priations resulted in any people of the <br />State of Colorado being deprived of the <br />beneficial use of water. Until such time <br />as a person is in fact deprived of the <br />beneficial use of available water because <br />of these appropriations the alleged harm <br />is purely speculative and must be reject- <br />ed." <br />We approve of this statement as it relates <br />to the deprivation of water available by <br />"interstate compact." We have already <br />spoken as to the remainder of the clause <br />and see no need to comment on the Water <br />Judge's statement as it related to "available <br />by law." <br />III <br />[3] The third issue concerns the consti- <br />tutionality of the legislative delegation of <br />power to the Colorado Water Board. The <br />Districts contend that the statutory lan- <br />guage 7 empowering the Colorado Water <br />Board to "appropriate . . . such <br />waters of natural streams and lakes as may <br />be required to preserve the natural environ- <br />ment to a reasonable degree" is unconstitu- <br />tionally vague and, therefore, an impermis- <br />sible delegation of authority. Colo.Const., <br />Art. III. <br />The Districts correctly note that the is- <br />sues of vagueness and delegation are con- <br />sidered in Colorado as aspects of the same <br />question. Fry Roofing v. Dept. of Health, <br />179 Colo. 223, 499 P.2d 1176 (1972). "The <br />legislature does not abdicate its function <br />when it describes what job must be done, <br />who must do it, and the scope of his author- <br />7. The language appears in sections 37- 92- 102(3) and 37-92-103(3),(4) and (10), C.R.S.1973. <br />
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