Laserfiche WebLink
The Court has also held that the concept of "beneficial use" is not limited to the three <br />examples listed in the Colorado Constitution, but is a question of fact and depends upon the <br />circumstances in each case. State of Colorado v. Southwestern Colo. Water Conservation Dist., <br />671 P.2d 1294, 1322 (Colo. 1983). However, consistent with the flexible approach to the <br />definition of beneficial use in case law, this Court has recognized that the General Assembly <br />plays an appropriate role in defining beneficial use. Id. Likewise, the Court has held that a <br />physical diversion is not a constitutional requirement, and has recognized the General - <br />Assembly's power to allow appropriations that do not require a physical diversion, subject to <br />careful limits to ensure the maximum utilization of water. Colorado River Water Conservation <br />Dist., 197 Colo. at 476, 594 P.2d at 574 -75. Such minimum flow appropriations are the <br />exception to the rule that water rights are decreed to structures and points of diversion. Dallas <br />Creek Water Co. v. Huey, 933 P.2d 27, 38 & n.9 (Colo. 1997). <br />Senate Bill 216 is the second time the General Assembly has defined a non - consumptive, <br />in- stream right with specified limits. In 1973, the General Assembly passed the Colorado <br />Instream Flow Law, Colo. Sess. Laws 1973, Ch. 442, codified at §§ 37 -92- 102(3) & (4), 10 <br />C.R.S. (2003), which limited the appropriation of water for instream flow purposes to the <br />minimum flows between specified points on natural streams as are required to preserve the <br />natural environment to a reasonable degree. § 37- 92- 103(4), 10 C.R.S. (2003). The General <br />Assembly vested the Colorado Water Conservation Board with the exclusive authority, on behalf <br />of the people of the state of Colorado, to make such appropriations and stated that no other <br />person or entity shall be granted a decree adjudicating a right to water for instream flows "for <br />any purpose whatsoever." § 37 -92- 102(3), 10 C.R.S. (2003). The General Assembly further <br />provided the admonition that nothing in article 92 of title 37 shall be construed as authorizing <br />Ire] <br />