BOARD00175

• Board Meeting Date: 9/21/1998
• Description: ISF Section - New Appropriations - Notice to Appropriate Instream Flow Water Rights in Water Division 2
• Board Meetings - Doc Type: Memo

e

e

e

Colorado Water Conservation Board
August 26, 1998
Page 3

2. In order to Demonstrate the Intent to ApllrQpriate. all Applicants including the
CWCB Must Make Specific and Definite Determinations relZardinlZ the Scope of
the Water Right beinlZ Sought.

Requiring the Board to make its statutory findings in order to have the intent to
appropriate is consistent with general principles of Colorado water law. Colorado courts have
uniformly required the intent to appropriate be accompanied by a specific and definite knowledge
of the water right being sought. That knowledge simply cannot exist prior to the Board making
the determinations required of it by law.

It is clear that the CWCB is subject to the same legal principles that apply in
determining the appropriation date for all claimed appropriations. "[T]he Conservation Board, as
any other appropriator, may perfect its water rights by applying for and obtaining a decree from
the water court." Aspen Wilderness Workshop v. Colorado Water Conservation Bd.. 901 P.2d
1251,1257 (Colo. 1995). The Supreme Court further stated that filings for appropriations by the
CWCB "shall be 'consistent with other appropriations and with the requirements of [our water
lawl.'" 1!;l at 1257-58, citing C.R-S. S 37-92-102(3)(e) (emphasis added).

In defining what is required to establish intent, the Colorado Supreme Court has held that
intent does not exist when, for example, there was "no definite calculation of the amount of the
appropriation in cubic feet per second or any other exact calculation" and no known place of use
of the water. BunlZers, 557 P.2d at 395. Similarly, the Supreme Court held in a later case that the
applicant had "fall[en] short of what is necessary to indicate an intent to appropriate" because
there was no evidence that the applicant "intended to use anv Quantified portion of the claimed
water." Rocky Mountain Power Co. v. Colorado River Water Conservation Dist., 646 P.2d 383,
389 (Colo. 1982). As the Court in Rockv Mountain Power elaborated, there must be "a definite
commitment for use required to prove the necessary intent." Id. at 390 (emphasis added). See
~ In re Upper Gunnison. 838 P.2d at 847 ("appropriation requires diversion ofa definite
quantity of water").

In addition to the specificity generally required of all appropriators in establishing their
intent to appropriate a specific water right, the CWCB has other threshold factors required by
statute. For example, "the statutory authority of the [CWCB] to appropriate minimum instream
flow rights is limited to water 'in a stream channel between specific points.''' In re Ullper
Gunniso!l, 838 P.2d at 854 (citing City of Thornton v. City of Fort Collins. 830 P.2d 915 (Colo.
1992)); see C.R.S. S 37-92-103(4). Knowledge of a fundamental feature of an instream flow
right such as its location is necessary to form the intent to appropriate that water right. See
BunlZers, 557 P.2d at 394 ("it is fundamental to Colorado water law that an appropriation be
made in connection with some land area" and failure to know the location of use indicates a
failure to meet the "first step" test). The Board cannot, however, know the location of an