Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd. 1979

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OCT -07 -3003 14:44 FROM -DOL NATURAL RESOURCES 3038663558 T-582 P.005/008 F -774 594 P.2o 570, Colonado River W tier C OT1scrVanon Di,[. v, Colorado Wairr C'onscrvauoi� 13d., (Colo. Purge 5 1979) 1197 Cults. 4761 'Phis court atfirmed Lhc dismissal of Lhe Di;trlet's claim,. "1,hu eaurt e011,ielcrcd this us 4n aucTnpt[d 4ppr0pri46un of "a minimum flow at water . for piNcawrial purpnsrs without dwersioo." The upiniou continues. "By the Onae:rmcni of (the srattitory power quoted lbovc) ihr legislature did not intend ui hring about auch an cXlrcnlc departure from well established doctrine, anti we hold that no such dcparwrt was brought. 413OUL by Said astute. Without Ltt this juncture Lminrauming Upon Lhe sulbjeCf of "multttlunt tlow," it is obviou, LhnL Lhe General Assembly in The enaeunem of S_B. 97 evrtainly did inrencl to have appropriations for piscarorial purposes withour diversion. Wu hold that under S.1i, 97 Lhv Colorado wilco— Board can slake an in- sircam appropriation without diversion in the eonveuuonal sense. We wish to emphasize Lhat we arc not hereby eaumtng any erosion of the marry upiniun, of Lhia vurt, slime of which are cited above, holding that a diversion is an eti,ontial ricmcnt of The water appropriations invtolvctj m those cases. The many cases arc disungilisltable. Several really had no issue as to diversiort. Urhers involved (1) a diversion (proposed or actual), (2) a beneficial use (involved ur contemplated) clearly requiring a diversion, (3) situations in which Ate evidence and ntcasurenleni of an appropriative intent could he predicated upon only the capacity 10 divert, (4) circumstances whcrc there could not be a bona fide appropriation without a physical divrrsiciri, or (5) matters in which a lack Of divrrsicni violated the principle of maximum urilicadaii crimiciarcd in F'cllhaurr v. Pcoplc, 167 Colo. 320, 447 P.2d 986 (1968), and Colorado Springs v. Bendcr, 148 Colo. 458, 366 P.2d 552 (1961). Colo. Water DisL. v. Rooky Mounuiin Power Co., supra, involved a situation which thin court (sound to be an appropriarion of Minimum flow of water and, consequcmtly, a furbiddert riparian right. jrrespecTive of +575 how the Court as prcacntly consiiitttcd night decide this issue, the opinion as Thcrc written is clearly distinguishable front the staTute and claim, burr under consideration. The crucial consideration is Thai rhis court has never decided a case such as This on a consiiLUtiunc l basis. We UverrUle nothing in now holding Thar S.H. 97 IS 1111 1tT1L00STITUTiOial In This r'csllect. 121 The Iasi staivacc of SenaTe Bill 97 read,: "Nothing in Lh1N artielc shall . . . deprive: The people of The state of Colorado of The beneficial use of Those waters Available by law and intersTaw umipacL," The DisTrivis contend that the provision nivnrioniag "waters available by law" means that later .junior appropriators may have their rights adjudicated, which rights will he ,uperiur vi thusc here dcerced K) the 1197 Coln. 4771 Coklrado Water board. Further, the Dis[rt[l> suggest char this wording mean, that Lbv only awards ncV Calorado Water Hoard may receive arc ul water already adjudicated to senior appropriators downstream. We du noL agree with either of these Lwo eunLVntiUTt,. The legislative: intent is quite clear that These appropriations are To protect and preserve the natural habimi and That The decrees coafirming Them award priorities which are superior To [he righTS of those who may later appropriate. Otherwise, upstream appropriations could later be trade, die sirefuns dried Lip, and the whole purpose of the legislation destroyed. We simply earuiot follow the logic of the second contention To the cifcet Lha[ Ll1V CelklradO Wd[cr Board is entitled only to water already appropriated by downsTrcain seniors. We fail to see how dowustreani appropriators are going to be efieeicd by the Colorado Water Board's decrees, nor any reason for so circumscribing the effect of the legislation. We admit that we are puzrlcd as in the reason the General Assembly placed This ulausc in the Act. Perhaps later circumstances and cases may clarify our eurio,ity in LltiN respceT We are noT, however, puzzled concerning our ruling as Lu what the General Assembly did Not intend. it dill not iatcrid the eonstructiou urged by the Districts. The Water Judge stated: "There was no evidence that These appropriations resulted in any peoplu of The State of Colorado being deprived of the bcac-ficial use of Waxer, Lsi 2003 Wcst, a Tliotnson business. No claim to original U.S. Govt. works.