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and, if such be the case, the application should be dismissed as being <br /> beyond the power of this Court to decree. <br /> (p) The proposed change is for the purpose of a use constituting <br /> maintenance of stream flows to improve the habitat of endangered fish <br /> which cannot be taken or killed by recreation or fishery purposes. Such <br /> proposed use is not a beneficial use of water within the meaning of the <br /> Colorado constitution or Colorado statutes, and the change cannot <br /> therefore be granted. <br /> (q) The proposal of applicant in this case is based upon the <br /> speculative sale or transfer of the appropriative rights to persons not <br /> parties to the appropriation of the water involved in this case, <br /> contrary to C.R.S. 537-92-103(3) (a) . Applicant does not intend to place <br /> the water to a beneficial use at the new place of use as instream flows <br /> on the Yampa River; rather, applicant intends to lease the water to the <br /> Service, but no lease has been made or obtained, and it is speculative <br /> to assume that any such lease will in fact be made or obtained. <br /> Applicant has no legally vested interest or expectation of procuring <br /> such interest in lands or facilities to be served by the use of the <br /> water at the new location, since such use is not to made to any land or <br /> any facilities, but is proposed to be undiverted in-stream flows. Even <br /> though this is a change case, not an initial appropriation, and even <br /> though applicant is a "governmental agency, " the proscription that no <br /> appropriation of water can be held to occur, as contained in C.R.S. §37- <br /> 92-103(3) (a) should nevertheless constitute a legally sufficient basis <br /> to deny the application in this case because (1) the "governmental <br /> agency" exception of C.R.S. §37-92-103(3) (a) (I) cannot be used where the <br /> governmental agency has not been granted the power by statute to <br /> appropriate water for the in-stream purposes at the locations sought in <br /> this case (i.e. , the "governmental agency" exception is applicable only <br /> if the agency can lawfully appropriate the requested water in the first <br /> instance) , and (2) the purpose and intent of the limitations in C.R.S. <br /> §37-92-103(3) (a) would be frustrated and rendered meaningless by <br /> speculators taking a 2-step process to seek to accomplish that which the <br /> speculators could not accomplish directly in one step. Stated <br /> differently, if the applicant has no power to appropriate water of <br /> Willow Creek, the Elk River, or the Yampa River for in-stream flow <br /> purposes on the designated reach of the lower Yampa River to protect or <br /> enhance the habitat of endangered or threatened fish in the first <br /> instance, then it cannot do so by appropriating water and obtaining a <br /> decree for other uses and locations and then seeking to change the use <br /> and location to the impermissible use and location. Any new use or <br /> location must be of a kind which an applicant has the intrinsic power to <br /> appropriate in the first instance. <br /> (q) The proposed use and location in this case for which the change is <br /> sought by applicant is speculative and prohibited by the caselaw in this <br /> jurisdiction. Applicant cannot lawfully use the water for the purposes <br /> and at the locations intended, and the Service has no lease and no <br /> vested interest or a reasonable expectation of a vested interest in the <br /> lands or facilities to be served by the changed use and location, since <br /> no lands or facilities are intended to be served by the changed use or <br /> location. <br /> —5— <br />