FLOOD05728

• County: Statewide
• Community: State of Colorado
• Basin: Statewide
• Title: Water Quality/Quanity Relationships
• Date: 6/1/1989
• Floodplain - Doc Type: Educational/Technical/Reference Information

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lSes a physical diminution in the quantity of water otherwise avail-
e will be regulated,215 and that impairment of water quality by pol-
int discharges will be prohibited in order to prevent injury to water
~tS."6 State water rights and water quality officials thereby have
h a statutory and constitutional duty of maintaining the "use regi-
n" of the stream when fashioning and enforcing their regulations.
In 1973, without intervention by the courts, the Colorado Gen-
I Assembly authorized the state's Water Conservation Board to ap-
'priate instream flows and lake levels in the name of the people of
state, for the purpose of preserving the natural environment of the
te to a reasonable degree.211 Because of the carefully drawn nature
the statute, the Colorado Supreme Court, in the same year it re-
;cd the public trust doctrine as inapplicable, was able to uphold the
tream flow law as a reasonable delegation of authority to a state
:ncy.218 Thus, Colorado has a mechanism for allotting water to
s such as fish, wildlife, and aquatic biota, which many critics of
Jr appropriation law consider to be among those in-place water
s protected by the "public trust." In view of Colorado's constitu-
1al rejection of the riparian water law doctrine, it is highly doubtful
t its surrogate, the public trust doctrine, can be applied to water
>cation determinations by the courts in Colorado.219

213. Martz & Raley, supra note 195, at 42-43.
214. CoLO. REV. STAT. ~~ 37-92-501, -305 (1973 & Supp. 1988); Me Danielson v. Jones, 698 P.2d
250 (Colo. 1985).
2n. COLO. REV. STAT. ~ 37-92.502(2) (Supp. 1988).
216. COLO. REV. STAT. ~ 25-8-102 (1973 & Supp. 1988). See Wilmore v. Chain O'Mines, Inc.,
010. 319,44 P.2d 1024 (1934).
2.17. CoLO. REV. STAT. ~ 37-92-102(3) (Supp. 1988).
U8. Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd., 197 Colo.
594 P.2d 570 (1979). In 1987 the General Assembly reaffirmed its inlent that only the Water
ervation Board can make instream flow appropriations. The sponsor of the 1987 amendment said
~ statement to the General Assembly:
I Colorado is nol a riparian water law state. The Board's instream Row program is
carefully defined and narrowly circumscribed as an eWort by a prior appropriation state to
keep a specified amount of water in streams for environmental purposes. This very careful
piece of legislation needs to be reaffirmed, so that those who desire to see flows preserved
, between specific points on a particular stream will be required to make a convincing presen.
I tation to the Water Conservation Board and work through the Board's administrative and
I judicial procedures.
:COlo. Gen. Assembly, 1st Reg. Ses.s. (May 12, 1987) (statement of Sen. McCormick concerning
e Bill 212).
~19. If there is an unmet need in the eyes of some advocates, it might be for more water for
ltional use within the nalural stream channel for ftoalboating or kayaking or wilderness preserva-