93CW16 56h Motion

• Case Number: 95CW0150
• Stream Name: Yampa River
• Acq Structure: Steamboat Lake
• Watershed: Upper Yampa
• Water Division: 6
• County: Moffat
• County: Routt
• Instream Flow Acq - Doc Type: Misc

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(c) Applicant seeks by this application to obtain a decree for an
instream flow right downstream on the Yampa River from the point of
storage in Steamboat Lake. Colorado law has vested the Colorado Water
Conservation Board with exclusive jurisdiction and authority to
appropriate waters of streams and lakes to preserve the natural
environment to a reasonable degree, and provides that no other person or
entity shall be granted a decree adjudicating a right to water or
interests in water for instream flows for any purpose whatsoever. See
C.R.S. 537-92-102(3) . Therefore, the change of location of use sought
by applicant is beyond the jurisdiction or authority of applicant and
cannot be granted.
(d) The change proposed by the applicant will injuriously affect the
Objector as a person entitled to use the water vested under the subject
water right decreed in Case No. 90CW01. If any water stored in
Steamboat Lake under the decree in Case No. 90CW01 is released from the
Lake, such release deprives the Objector and other members of the public
of the ability to use such water for recreation and fishing, thereby
causing injury. Granting of a decree in this case to permit any part of
the water decreed in Case No. 90CW01 to be released for downstream use
on the Yampa River would cause injury to Objector and other members of
the Public, and therefore the application should be wholly denied.
(e) In a change proceeding, an applicant may relocate to another place
of diversion only that part of the decreed water right which has been
historically consumptively used by the applicant, if the change will
injuriously affect persons entitled to use water under a vested water
right or a decreed conditional water right. See C.R.S. §37-92-305(4) .
The applicant in this case has not historically consumed for any
beneficial use any of the water stored under the decree in Case No.
90CW01 in Steamboat Lake, other than for evaporation; rather, such water
has remained in Steamboat Lake for recreation and fishing purposes,
which have been non-consumptive. If any water adjudicated in Case No.
90CW01 has been previously released from Steamboat Lake, it has been
done by or at the request of the Division Engineer, Water Division 6,
for the sole purpose of augmenting the flow in the Elk River and the
Yampa River below the confluence with the Elk River, available for
appropriation generally (and including for irrigation) , which is a non-
consumptive in-stream flow use with no diversions. Such released water,
if any, has been treated by the Division Engineer and applicant as
unappropriated water in the Elk and Yampa Rivers, available to
downstream appropriators, and applicant has deliberately released
dominion and control of any such water after release from the dam at
Steamboat Lake, so that applicant cannot credit any consumptive use of
any such released water. Therefore, applicant has no history of
consumptive use of the subject water right, and therefore no part
thereof may be decreed to a new use at a new location of instream reach
of the Yampa River downstream from Steamboat Lake itself.
(f) The application proposes to enlarge the historic use of the water
right sought to be changed to the detriment and injury of Objector and
other persons entitled to use the waters stored in Steamboat Lake for
recreation and fishery purposes, and should therefore be denied.
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