CameronCreekISFProposalWithAttachmentsHCCA2022

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other hand, can be made by applying the waters of the State to beneficial use, in place, without an actual diversion. The Constitution of Colorado requires that in order to appropriate waters, such waters must be applied to a beneficial use. The Legislature has never attempted to define exclusively what the term "beneficial" means. The Colorado Supreme Court has held that a "beneficial use" is a question of fact and depends upon the circumstances of each individual case. ulebsters New Colie9iate Dictionary says, "any use which to the appropriator is profitable, good, useful , advantageous, helpful or gainful." The State Legislature, in the Statutes, has stated certain uses as beneficial; for example, 148--21-8(7) in- cludes impoundment of water for recreational purposes, including fishery or wild- life. 148-2-3 uses are stated to include domestic use, uses for private and public bathing, bottling, commerce, irrigation, etc., and others could be I ound and cited. Only in recent years has the true esthetic value of water through, near or under the land been recognized in relation to the value of the land and- its uses. Land use cannot be defined without water because, without water there is no land use. The definition of "beneficial use" contained in 148-21-3 is as follows: "(7) 'Beneficial use' is the use of that amount of water that is reasonable and appropriate under the reasonably efficient practices to accomplish, without waste, the.pur- pose for which the appropriation is lawfully made and without limiting the generality of the foregoing, shall include the impoundment of water for recreational purposes, including fishery or wildlife. For the benefit and enjoyment of present and future generations, 'beneficial use' shall also include the appropriation by the State of Colorado in the manner prescribed by law of such minimum flows between specific points or levels for and on natural streams and lakes as are required to preserve the natural environment to a reasonable degree." The question then arises whether a private individual or group of in- dividuals, a political subdivision, or the United States of America, may have the right, along with the State of Colorado, to obtain a decree for stream flow.maintenance. It is the opinion herein that such a right is contemplated by the new law for several reasons. The first is that the deletion of the require- ment of a diversion for all appropriators, rather than for the State alone; is most consonant with the allowance of stream-flow maintenance decrees for private appropriators, as well as the State of Colorado; otherwise, there is no evident reason for not continuing to require the traditional diversion and application to beneficial use for private appropriators in order to constitute a valid appropriation, as had been clearly established by law in Colorado for almost a hundred years. Secondly, the definition of "beneficial use" does not purport to limit or classify those uses which are, in fact, beneficial; thus, we are left to case law, and the cases are numerous allowing instream appropriations. Thirdly, it has been suggested in the matter that the provisions contained in the second sentence of 148-21-3(7), which confers standing upon the State of Colorado, is an exclusive right of the State and, therefore, should be interpreted as denying the right to private citizens or any other entity. It appears, however, that the wording suggests that it is not an exclusive right in any way limiting, but, instead, enunciates a new right or standing of the State of Colorado itself to obtain such a decree. Had this not been the intent, the Legislature could very easily have drafted the section in such a manner that no question could have been left. Instead, the Legislature has deleted the diversion requirement for all appropriators. The -2-