ISFAPP00048

• Case Number: 75W2721
• Stream Name: Crystal River
• Watershed: Crystal River
• Water Division: 5
• Water District: 38
• County: Gunnison
• Instream Flow App - Doc Type: Final Decree/Stipulations

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Not,....ithstanl..:ing t:l!s feature of instream uses of

water, the Court in Colorado River Water Conservation District

v. Rocky r'fountain Power Co., supra, held that a minimum flow
of water could not be appropriated for piscatorial purposes

,

without diversion of the water from the natural course of a

stream. The Court based its holding in part upon its deter-
mination that the legislature, by enacting C.R.S. 1963,150-7-5

CIa), (now C.R.S. 1973, 37-46-107 (1) (j) ), did not intend to

authorize appropriations by the River District in the absence

of actual diversion.

Although the Rocky Mountain Power Co. case is factu-

ally similar to the present action insofar as it involved claims

for instream uses of water, it is not controlling h~re. Fol1ow-

ing the decision of Rocky Mountain Power Co., the Colorado

General Assembly in 1973 amended the statutory definition of

"appropriation" contained in the 1969 Water Right Determination

and Administration Act. "Appro~riation" had previously been

defined in C.R.S. 1963, 148-21-8 (6) (1%9 S:lPP.) as:

liThe diver"sion of a certain portion of
the waters of the stat~ and the npplica-
ticn of the same to a beneficial use."

~ The effect of the amendment was to delete the diversion

requirement frow the definition of nilppropriation". "Appro-
priation" is presently defined in C_R.S. 1973, 37-92-103(3), as:

"The a~)plication of a certain portion of tl1e
waters of the state to a beneficial use."
(Emphasis supplied.)

The amendment thus clearly demonstrates that the Iegislat:lre

intended to provide that a valiJ appropriation udes not req:lire

that water be actually diverted from a natural streaffi.
Briefly, an ~naly91s of Lamont ,~. Riverside Irr~:jfltion
District,supra, also discloses that at the time it was decided
(1972), th~ statutes required a diversion ~n order to be~efi-

cially use water. T~ere the Ccurt had an opportunity to discuss

Genoa, supra, did not overrule ~, but merely distinguished

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