ISFAPP00648

• Case Number: 75W2720
• Stream Name: Crystal River
• Watershed: Crystal River
• Water Division: 5
• Water District: 38
• County: Garfield
• Instream Flow App - Doc Type: Final Decree/Stipulations

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Notl<ithstan,;ing t:lis feature of instrea'j' uses of
"
wnter, the Court in Colorado River Water Con~ervation District

v. Rocky Hountain fower 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
(10), (now C.R.S. 19?J, 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 here. Follow-

ing the decision of Rocky Mountain Power Co., the Colorado
General Assembly in 1973 amended the statutory definition of
"appropriation" contained in the 1969 \Vater Right Determination
and Administration Act. "Appro;lriation" had previously been

defined in C.R.S. 1963, 148-21-8(6) (1~69 S~pp.) as:

liThe diversion of a. certain portion of
t.he waters of the state and the applica-
tion of the S3.ffiC to a beneficial use.1I

'1' The effect of the amendment was to delete the diversion

requirement from the definition of "appropriation". "Appro-

priation" is presently def~ned in C.R.S. 1973, 37-92-103(3), as:

"The application ,of a certain portion of the
waters of the state to a beneficial use."
(Emphasis supplied.)

The amendment thus clearly demonstrates that the legislat~re
intended to provide that a vaU,] appropriation ,lCles not req~ire
that water be actually diverted from a natural stream.
Briefly, an analysis of Lamont v. Riverside Irrj:;';tio~
District,supra, also discloses that at the time it was decided
(1972), thi st3tutes required a divcrsinn ~n order <0 be~cfi-

cially use water. There the Court had an opportunity to discuss

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

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