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

• Description: Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd. 1979. No. 28407 May 1, 1979 No. 28907
• State: CO
• Date: 5/1/1979
• Title: Colorado River Water Conservation Dist. v. Colrado Water Conservation Bd. 1979
• Water Supply Pro - Doc Type: Court Documents

003 14:44 FROM -DOL NATURAL RESOURCES 3038663558 T -562 P- 006/008 F -774
594 P.2d 570, Cnlnraflo River Water Conservation hiss, v. Ctrlllrallo WaLcr Consrrvatiotl Bq., (Colo. Pale 6
1979)
1-1mil such L)mc :ts a person is in tact dvprived of
the beneficial use of uv ;cilablc water Because of
[nest: appropriatioTis the alleged 11:11'111 is purely
speculative and must be rejcutca."
We approve of This smwi -num as it relates To Ilse
deprivation of water available by "inirmare
compact." We have already !,pukell as to The
remainder of ihC clause and sec no nccd to COI11n1eill
oil the Water ludgv's STatemcnt a, It related to
"available by law."
[3] Thu third issue concerns the constitutionality of
the lugiskttivc delegation of power to the Colorado
Water Board. The Districts contend that the
slatuwry language ([FN7]) erl)puwering Lhc
Colorado Water Board Tn " ;)ppropriatc . . . Such
waters of nawral streams and lakes as may be
required to preserve Elie natural environmcnr to a
reasonable degnc" is unconstitutionally vague and,
alercfcre, an impermissible dulcgetion of authority.
Culo.Const., Art. ill.
Thc� Districts correctly note that Lhc issues of
vagucrne„ and delegation are considered in Culoradc,
RS aspCCTS of Thu same question. Fry Roofing v.
Dept. of Hcalth, 179 Colo. 223, 499 P.2d 1176
(1972). "tile legislature does not abdicate its
function when it acsoribes what job must [197 CLAD.
4781 be done, who must do it, and The scope: of his
authority." *576 Sw6her V. Brown, 157 Colo.
378, 402 P.2d 621 (1965). Thr legislature must
make T.hC law evert though "il may delegate the
power To dcturmine some fact or state of Things to
effCCtuatt The purpose of The law." PeaplC v.
Giordano, 173 Colo. 567, 461 P.2d 415 (1971).
The hiSlriCLS rely upon The fact that thi' General
Aasetnbly did nut acfine The phrase "natural
Cllvironment" , nor speedy what it meant by
requiring, "suc:h minimum lbws . _ . as are required
to pmiurve the natural environment to A reasonable
degree." (L,mPhasis added) The Districts argue that
such deiiniTlon and specification are insufficient here
since the terms do lloT have any commonly acccpled
meaning. 111 this respect, they contend That ilia
instant delegation differ, Ir1.1111 Those approved in
Giordano, supra, and Swisher, supra, where the
legislaTivr directives could br interpreted in light of
objective scientific ant] economic standards. ([FNS
])
Whilc wu agree Lh.tii the standards set forth call for
cvaluaiiuus by biologists miller than ass055nlCl1LN
regarding public bralth or CCOnO111iC '1, vvv cannot
agrcv that dlc tt tndlirds arc nor such as corlid hu
implcmunwd by agencies having, specific uxpurnm:
regarding the preservation of flora, fauna and Other
aspects of the natural covcronmeaf. Nor do we
belicvc TbaL the term "niturfd envir0111ne11t,"
anymore Than similar terms conatimily coaled such
as "natural MOIIrces," is ,,L) vague that it does not
indicate the task which The General Assembly
imend-�d the Colorado Water Board io accomplish.
To require an cnumcralion of the forms of plant
and animal life, as well as T1atUra1 formations, which
the legislature wished to pruscrve would be to
impose an impossible task. The legislative objcedvc
is to prescrvC reasonable ponioris of the natural
enviro4imeni in Colorado. Factual acLcrnlinations
regarding such questions as which areas arc most
amenable to preservation and what life foruls are
prestmtly flourishing or capable of Iourishing Should
be delegated to an administrative aguncy which may
avail itaelf of expert scientific opinion. This is
particularly true, considering Thar The Gcner;d
ASsenibly unduubtcdly anticipated that Lhc
Wnaiderations for each locale might vary. Indeed,
the Districts asacrt this as to the environs of the
three stream segments here in question.
Moreover, combining the leg,islativc direCdVe to
preserve The natural environlllent with tbu power to
appropriate minimum stream flows narrows Elie
delegation NO that it involves only that part of The
natural vnvironm( nm where survival is afi«ted by
stream flow and lakes.
The Districts argue that anc indication That The
term " nawral enviropmcnt" 6 vague is That Tile
Colorado Water Board is aulsidering [197 Coto.
4791 preservatioa of five noninlligelious fish species
which are now in ilia stream augments: Coloradn
River Whitefish and Cutthroat, Rainbow, 2astern
Brook and Brown Trout. They claim that These
species should not be considered "natural." The
parties' stipulation of facts states that related species
of fish have Cxiswd in the streams in question in
1 -cci:nt years, but have lumen destroyed due To natural
or elan- related causes. All of Ile existing species
are naturally reproducing in the stream systems,
except some stocking is necessary for the Rainbow_
4> 2003 West, a Thomwil business. NLl claim to original M, Govt. works.