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of Colorado, and further is not necessary, suitable, or proper for parks
<br /> and outdoor recreation purposes or for the preservation or conservation
<br /> of sites, scenes, open space, and vistas of public interest. Rather,
<br /> the real purpose of the use proposed by applicant is to lease the water
<br /> to the Service for release into the Yampa drainage as in-stream flows to
<br /> augment the habitat of endangered or threatened fish. Under Article 10,
<br /> Title 33, of Colorado Revised Statutes, the authority of applicant to
<br /> act with regard to fishing or fisheries is circumscribed by the
<br /> definition of "Fishing" under C.R.S. S33-10-102(7) , which cross-
<br /> references to C.R.S. S33-1-102, in which "fishing" is defined as "any
<br /> effort made to take any fish, amphibian, crustacean, or mollusk."(My
<br /> emphasis) . The Service intends to use the leased water to improve the
<br /> habitat of fish which are endangered or threatened, and which under the
<br /> Endangered Species Act, may not be taken but are to remain in their
<br /> habitat and even be "recovered" by the Service. Hence, the fishing
<br /> purpose sought by this application is one which is beyond the power and
<br /> jurisdiction of applicant under Colorado law and cannot therefore by
<br /> approved or decreed herein. Further, the application fails to seek a
<br /> change in use of the water decreed in 90CW01 to include the purposes
<br /> sought by the applicant and the Service in this case, and the decreed
<br /> use of "fishery" does not, as above explained, lawfully include the new
<br /> and different use sought in this case.
<br /> (m) Under C.R.S. §33-10-107(1) (a) , the applicant is only empowered to
<br /> acquire water or interests in water by gift, transfer, lease, purchase,
<br /> or long-term operating agreement which are necessary, suitable, or
<br /> proper for parks and outdoor recreation purposes or for the preservation
<br /> or conservation of sites, scenes, open space, and vistas of public
<br /> interest. The uses decreed in Case No. 90CW01 for irrigation,
<br /> municipal, and industrial, including irrigation on undefined land below
<br /> Steamboat Lake on the Elk & Yampa drainages, are not uses for which
<br /> applicant is empowered by statute to acquire water or interests in
<br /> water, and therefore the decreed purposes in Case No. 90CW01 for
<br /> irrigation, municipal, and industrial were ultra vires and beyond the
<br /> power of the Court therein to decree, and are void. This Court should
<br /> in this proceeding decree such impermissible uses and the downstream
<br /> irrigation place of use as void, and set aside so much of the decree in
<br /> Case No. 90CW01 as included such impermissible uses and place of use.
<br /> (n) Application in Case No. 90CW01 for the decreed purposes of
<br /> irrigation, municipal, and industrial, including irrigation on undefined
<br /> land below Steamboat Lake on the Elk & Yampa drainages, may not have
<br /> been approved by the Colorado Director of Natural Resources, as required
<br /> by C.R.S. §33-10-107(1) (a) , and, if such be the case, the decreed
<br /> purposes in Case No. 90CW01 for irrigation, municipal, and industrial
<br /> were ultra vires and beyond the power of the Court therein to decree,
<br /> and are void. This Court should in this proceeding decree such
<br /> impermissible uses and the downstream irrigation place of use as void,
<br /> and set aside so much of the decree in Case No. 90CW01 as included such
<br /> impermissible uses and place of use.
<br /> (o) The application in this case, if granted, would constitute a new
<br /> interest in water, and may not have been approved by the Colorado
<br /> Director of Natural Resources, as required by C.R.S. §33-10-107(1) (a) ,
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