BOARD01483

• Board Meeting Date: 7/24/2000
• Description: ISF Section - Recreational Instream Flows - Policy Discussion
• Board Meetings - Doc Type: Memo

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830 P,2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992)

Page 15

is for a beneficial use,

.

A beneficial use is defined in section 37-92-103(4),
15 C.R.S. (1990), as:

the use of that amount of water thai is reasonable
and appropriate under reasonably efficient
practices to accomplish without waste the purpose
for which the appropriation is lawfully made and,
without limiting the generality of the foregoing,
includes the impoundment of water for recreational
purposes, including fishery or wildlife, For the
benefit and enjoyment of present and fumre
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 namral
streams and lakes as are required to preserve the
natural environment to a reasonable degree.

This statute provides that water appropriated for
municipal, recreational, piscatorial, fishery, and
wildlife purposes is water put to beneficial uses.

.

As to the appropriation of a minimum stream flow,
in 1987 the General Assembly amended section
37-92-102(3) and vested the CWCB with "exclusive"
authority to appropriate "minimum stream flows"
and "natural surface water levels or volumes for
natural lakes. " See 1987 Colo.Sess.Laws, ch. 269
at 1305-06. Section 37-92-102(3) in relevant part
now reads:

Further recognizing the need to correlate the
activities of mankind with some reasonable
preservation of the namral environment, the
Colorado water conservation board is hereby
vested with the exclusive authority, on behalf of
the people of the state of Colorado, to appropriate
in a manner consistent with sections 5 and 6 of
Article XVI of the state constitution, such waters
of natural streams and lakes as the board
determines may be required for minimum stream
flows or for natural surface water levels or
volumes for namral lakes to preserve the namral
environment to a reasonable degree, In the
adjudication of water rights pursuant to this article
and other applicable law, no other person or entity
shall be granted a decree adjudicating a right to
water or interests in water for instream flows in a
stream channel between specific points, or for
natural surface water levels or volumes for natural
lakes, for any purpose whatsoever.

.

The exclusive authoriry vested in the CWCB to
appropriate minimum stream flows does not detract
from the right to divert and to put 10 beneficial use
unappropriated waters by removal or control. See
Colo. Const., Art. XVI, Ii 6.

[24] Thus, according to the plain language of the
foregoing starutes. we hold that water may be
appropriated by a strucmre or device which either
removes water *931 away from its namral course
or location and towards another course or location
or which controls water within its natural-
watercourse, assuming such action puts the water to
beneficial use, The type of beneficial use to which
the controlled water is put may mean that the water
must remain in its natural course. This is not an
appropriation of a minimum stream flow, an
appropriation given exclusively to the CWCB. A
minimum stream flow does not require removal or
control of water by some strucmre or device. A
minimum stream flow between two points on a
stream or river usually signifies the complete
absence of a structure or device, Furthermore, that
an appropriation of a minimum stream flow by the
CWCB must put that stream flow to the beneficial
use of the preservation of nature does not mean that
the beneficial uses to which waters controlled by
some structure or device may not also redound to
the preservation of piscatorial and other namral
resources, Although controlling water within its
namral course or location by some strucmre or
device may effect a result which is similar to a
minimum flow, that does not mean that the
appropriation effected by the structure is invalid
under the Act. When the application of water to
beneficial use is effected by some stmcmre or
device, the resulting appropriation is by a diversion
within the meaning of the Act.

[25] [26] The issue then is whether the
appropriation of water effected by the Namre Dam
is a removal or control of water for beneficial use
within the meaning of the foregoing statutes. The
water court found that the Nature Dam removes
Poudre River water from its natural course or
location and puts that water to a beneficial use. We
agree. As on the issue of relation back of the 1988
amendments to the 1986 application, Thornton again
argues that Fort Collins's persistent intent to
appropriate minimum stream flows means that the
appropriation at the Namre Dam is an invalid
appropriation. To be sure, re-labeling what is

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