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<br />1989] <br /> <br />WATER RIGHTS PROTECTION <br /> <br />88 <br /> <br />C The Use of the Police Power for Water Quality Purposes Ma; <br />Not Abrogate the Doctrine of Prior Appropriation <br /> <br />Much of the current water quality/quantity debate has focuse <br />on the extent to which the police power of the state authorizes th <br />restriction of the right to divert pursuant to the doctrine of prior ar <br />propriation.220 This question must be answered for two different a! <br />pects of the doctrine of prior appropriation-the method of allocatin <br />unused portions of the resource, and the allocation of quantities c <br />water among competing uses. First, in the absence of an amendme. <br />to the state constitution, the selection of the doctrine of prior apprc <br />priation as the exclusive method of allocating the right to use th <br />stream in priority for beneficial uses is explidt and immutable. Whil <br />the police power of the state is broad and powerful, it does have it <br />limits, one of which is that "the police power cannot transcend th <br />Constitution nor be so exercised as to abrogate it."2O' The primar <br />principle inherent in sections 5 and 6 of article XVI, that an appropri <br />ation is the exclusive way to obtain an allocation of or from the natu <br />ral streams within the state, does not permit the allocation of water t <br />other than appropriators. Consequently, the police power cannot b <br />used to allocate or reallocate the waters of the state, or to reserve wa <br />ters from use, as this would be indistinguishable from the purpose an, <br />effect of riparian allocation systems. Instead, the proper role for th <br />police power is to maximize and protect the resource for use in accord <br />ance with the doctrine of prior appropriation. Accordingly, the stat <br />has an affirmative obligation to prohibit excessive or inefficient divel <br />sions, regulate the pollution of return flows, and adjudicate and ad <br /> <br />tion. However, it is the legislature's prerogative to include such uses within the scope of the Wal, <br />Conservation Board's inslream ftow program, as there is no constitutional protection of the right to u: <br />water without the diversion, storage, capture, possession, or control of tbe water to be appropriate< <br />Only the right to divert the previously unappropriated waters is protected by article XVI, sections 5 ar <br />6 of the Colorado Constitution. The instream flow program is a statutory creation. The absence I <br />such an extension of the instream flow program can only be interpreted as an expression of pub1 <br />policy by the legislature. <br />220. This discussion of the police power refers to the state, and not the federal, police powe <br />However, the authors assert that there is no such thing as a "federal police power water right" in lig] <br />of the congressional deference to state water allocation systems. See supra part II; the McCarran Ac <br />43 V.S.c. S 666(a) (1982); ~ 101(g) of the Clean Water Act, 33 V.S.C. S 1251(8) (1982). These CO! <br />gressional decisions constitute an explicit rejection of federal water rights for the purpose of protecti. <br />water quality. Moreover, section 101(8) requires that federal regulations respect each state's decisic <br />regarding the exercise of its police powers over the use of the water resource. Finally, the only way tho <br />a "water right" can be used to solve waler. quality problems is if il is used for dilution purposes so th <br />source treatment of pollution can be avoided, which would be contrary to the letter and spirit of t1 <br /> <br />!, <br />