BOARD01703

• Board Meeting Date: 5/5/1981
• Description: CWCB Meeting
• Board Meetings - Doc Type: Meeting

Senators Anderson and Yost
4/28/81
Page 2

The Colorado Supreme Court has upheld the constitu-
tionality of the State's minimum stream flow. Colorado River
Water Conservation District v. Colorado Water Conservation Board,
Colo. , 594 P.2d 570 (1979). The Senate version of
S.B. 414 would have tightened the procedures for obtaining and
defending a minimum stream flow decree in the name of the people
of the State of Colorado.

But the recently adopted House version of Senate Bill
414, if allowed to become law, would destroy the minimum stream
flow law of this State. This is because the House version provides
that all minimum stream flow appropriations would be subject not
only to senior appropriations and exchanges in existence on the
date of the minimum stream flow appropriation, but also to all
potential uses or exchanges which might be made by the appropriator.
In other words, any time a senior wanted to make a change of water
right, the Colorado Water Conservation Board would be the only
appropriator who could not object, even if this meant the destruction
of the minimum flow for which the appropriation was made.

Water rights in Colorado are fungible. They may be
bought, sold, and changed, subject to the rule that any change
must not cause material injury to any other water right. C.R.S.
1973, 37-92-305(3); Farmers Co. v. Golden, 129 Colo. 575, 578-580,
272 P.2d 629 (1954); Shawcraft v~ Terrace Co., 138 Colo. 342, 350,
333 P.2d 1043 (1958). Thus, for example, II a municioalitv or
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an energy company buys a senior agricultural water right, it
can change the use, or time, place or extent of use, or point of
diversion only if all other appropriations on the stream, including
minimum stream flow appropriations, are protected.

But under the House version of S.B. 414, minimum stream
flow water rights would be singled out as the only type of right
which could not be protected against material injury. A more direct
approach, if such is the will of the Legislature, would be to
simply repeal the minimum stream flow law; this same result will
be accomplished if the House version of S.B. 414 is allowed to
become! law.

The Board of Directors of the Northern District, in pur-
suing the Windy Gap transmountain diversion project, reached a
settlement with western slope water users, recreational and en-
vironmental interests by pledging to subordinate its water rights
decree to a junior minimum stream flow appropriation of the Colorado
Water Conservation Board. Careful engineering, negotiation, inter-
governmental cooperation, and just plain good citizenship convinced
all the parties that the water project could proceed in a way which
would ensure that a valuable trout fishery and aquatic environment
along the mainstream of the Colorado River would be preserved.