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<br />B. Prior Appropriation, Public Trust, and the Real Public
<br />Interest
<br />
<br />Sections 5 and 6 of article XVI of the Colorado Constitution de-
<br />rmine how water is to be allocated in Colorado. Section 5 provides:
<br />fhe water of every natural stream, not heretofore appropriated,
<br />ithin the state of Colorado, is hereby declared to be the property of
<br />Ie public, and the same is dedicated to the use of the people of the
<br />ate, subject to appropriation as hereinafter provided." 196 Section 6
<br />ates: "The right to divert the unappropriated waters of any natural
<br />ream to beneficial uses shall never be denied.,,'.7 This language is
<br />ear and unambiguous and establishes three principles. First, and
<br />,remost, the doctrine of prior appropriation is the exclusive method
<br />,r allocating rights to use quantities of stream water in Colorado.'.'
<br />:ctions 5 and 6 are clear in this regard. I.. The application of riparian
<br />. reasonable use doctrines to the allocation of water has been ex-
<br />'essly rejected in Colorado.200 Second, the right to appropriate water
<br />only for beneficial useS.201 Finally, conflicts between mutually ex-
<br />usive demands for the right to use water quantities are to be resolved
<br />, reference to the priorities of the competing uses. 202
<br />Although these principles were established over one hundred
<br />
<br />lrtz & Raley, Administering Colorado's Water; A Critique of the Present Approach, in TRADITION,
<br />,"OVATION AND CoNFLICT. supra, at 41.
<br />196. COLO. CONST. art. XVI, ~ 5 (emphasis added).
<br />197. [d. ~ 6 (emphasis added).
<br />198. In Hobbs & Raley, supra note 1, at 24.44, the authors refer to the superior right to "deplete
<br />, stream" as the element of the appropriative right that is to be proteCted. In the context of most
<br />>ropriative rights, the superior right recognized by 'the doctrine of prior "appropriation is in fact
<br />:rcised by depleting the stream. However, nonconsumptive rights such as hydropower rights or the
<br />tream flow rights held by the Colorado Water Conservation Board are exercised by calling the ap.
<br />.priated water past upstream consumptive uses. Accordingly, the characterization of the right as an
<br />:lusive right of use is more comprehensive.
<br />199. See also Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co., 197 Colo.
<br />1,594 P.ld 566 (1979); Metropolitan Suburban Water Users Ass'n v. Colorado.River Water Conser.
<br />ion Dist., 148 Colo. 17J, 365 P.2d 273 (1961); Wheeler v. Northern. Colo. Irrigation Co., 10 Colo.
<br />~, 17 P. 487 (1887); Larimer County Reservoir Co. v. Luthe, 8 Colo. 614, 9 P. 794 (1885). It is
<br />~ossible to interpret the words'''right to divert.. . shall never be denied," CoLO. CoNST. art. XVI,
<br />~ as anything other than a guarantee that the .appropriation doctrine will be the only allocation
<br />thod for the water resource, unless one wishes to engage in what Justice Scalia referred to as the "use
<br />I words in a manner that deprives them of all their ordinary meaning." NaHan v. California Coastal
<br />mm'o, 107 S. O. 3141, 3145'(1987).
<br />: 200. Yunker v. Nichols, 1 Colo. 551 (1872); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
<br />, 201. See Thomas v. Guiraud, 6 Colo. 530 (1883); COLO. CoNST. art. XVI, ~ 6.
<br />202. IS. WIEL, WATER RIGHTS rN THE W~TERN STATES 9 279 (3d ed. 1911):
<br />
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