Colorado River Water Conservation District v. Colorado Water Conservation Board

594 P.2d 570, 197 Colo. 469, 1979 Colo. LEXIS 585
CourtSupreme Court of Colorado
DecidedMay 1, 1979
DocketNo. 28407
StatusPublished

This text of 594 P.2d 570 (Colorado River Water Conservation District v. Colorado Water Conservation Board) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colorado River Water Conservation District v. Colorado Water Conservation Board, 594 P.2d 570, 197 Colo. 469, 1979 Colo. LEXIS 585 (Colo. 1979).

Opinion

MR. JUSTICE GROVES

delivered the opinion of the Court.

This case involves three applications by the Colorado Water Conservation Board (Colorado Water Board) for minimum stream flow rights under an act commonly referred to as Senate Bill 97,1 enacted by the General Assembly in 1973.2 The Colorado River Water Conservation District and the Southwestern Water Conservation District (the Districts) objected. The water judge entered decrees as requested in the applications. The Districts appealed. We affirm.

The first three sections of Senate Bill 97, as they appear in Colo. Sess. Laws 1973, ch. 442, at 1521 and 1522, read as follows:3 “Section 1. 148-21-3(6), (7), and (10), Colorado Revised Statutes 1963 (1969 Supp.), are amended to read:

“148-21-3. Definitions. (6) ‘Appropriation’ means the diversion of a certain portion of the waters of the state and the application of the same A CERTAIN PORTION OF THE WATERS OF THE STATE to a beneficial use.

[472]*472“(7) ‘Beneficial use’ is the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the diversion APPROPRIATION is lawfully made and, without limiting the generality of the foregoing, shall include the impoundment of water for recreational purposes, including fishery or wildlife. FOR THE BENEFIT AND ENJOYMENT OF PRESENT AND FUTURE GENERATIONS, ‘BENEFICIAL USE’ SHALL ALSO INCLUDE THE APPROPRIATION BY THE STATE OF COLORADO IN THE MANNER PRESCRIBED BY LAW OF SUCH MINIMUM FLOWS BETWEEN SPECIFIC POINTS OR LEVELS FOR AND ON NATURAL STREAMS AND LAKES AS ARE REQUIRED TO PRESERVE THE NATURAL ENVIRONMENT TO A REASONABLE DEGREE.

“(10) ‘Priority’ means the seniority by date as of which a water right is entitled to divert USE or conditional water right will be entitled to divert USE and the relative seniority of a water right or a conditional water right in relation to other water rights and conditional water rights deriving their supply from a common source.

“Section 2. 148-21-2. Colorado Revised Statutes 1963 (1969 Supp.), is amended BY THE ADDITION OF A NEW SUBSECTION to read:

“148-21-2. Declaration of policy. (3) Further recognizing the need to correlate the activities of mankind with some reasonable preservation of the natural environment, the Colorado water conservation board is hereby vested with the authority, on behalf of the people of the state of Colorado, to appropriate in a manner consistent with sections 5 and 6 of article XVI of the state constitution, or acquire, such waters of natural streams and lakes as may be required to preserve the natural environment to a reasonable degree. Prior to the initiation of any such appropriation, the board shall request recommendations from the division of wildlife and the division of parks and outdoor recreation. Nothing in this article shall be construed as authorizing any state agency to acquire water by eminent domain, or to deprive the people of the state of Colorado of the beneficial use of those waters available by law and interstate compact.”

The applications were made under the authority of these sections. They embraced three segments of the Crystal River and its tributary, Avalanche Creek, which lie in Gunnison, Pitkin and Garfield Counties. One segment (No. I) consists of Avalanche Creek from its confluence with Hell Roaring Creek to its confluence with the Crystal River. A second segment (No. 2) encompasses the Crystal River from its confluence with Carbonate Creek (near Marble) to its confluence with Avalanche Creek (below Redstone); and the third (No. 3) includes the Crystal River from its confluence with Avalanche Creek to its confluence with the Roaring Fork River. The Colorado Water Board asked and was granted the following awards:

[473]*473 Cubic Feet Per Second of Time

October 1 to April 30 May 1 to September 30

No. 1 10 22

No. 2 40 80

No. 3 60 100

Following the enactment of Senate Bill 97 the Colorado Water Board requested recommendations from the Colorado Division of Wild Life (DOW) and the Colorado Division of Parks and Outdoor Recreation (DPOR). After making studies DOW submitted its recommendation to the Colorado Water Board for water flows for maintenance of fisheries. The DPOR did not make a separate study, but advised the Colorado Water Board that it concurred in the recommendations of DOW and that it had determined that the minimum flows recommended by DOW were adequate for other parks and outdoor recreation purposes. Thereafter, the Colorado Water Board filed its applications.4

The Districts urge the following four arguments:

I. Senate Bill 97 is unconstitutional, and the decreed priorities are void, because a requirement of a physical diversion is absent.

II. The water court erred in not limiting the awards to “waters available by law and interstate compact.”

III. Senate Bill 97 is unconstitutionally vague and makes an impermissible delegation of legislative authority to the Water Board.

IV. The Water Board failed to establish the quantity of water necessary to “preserve the natural environment to a reasonable decree.”

I.

Historically, with little exception it has been the rule that an appropriation is to be made by (1) diverting the water and (2) placing it to a beneficial use. A diversion has been conventionally considered the act of taking water from a stream and transporting it to another location for use. Until the legislature in 1969 specifically made diversion an essential element of appropriation,5 diversion was a court-made element. Examples of this principle are to be found in the footnote.6

As to appropriation of water, the Colorado Constitution uses the word “divert” only once; and here it was not used to mandate an essential element of appropriation. The sole time it appears as to water is in Colo. Const. Art. XVI, § 6: “The right to divert the unappropriated waters of [474]*474any natural stream to beneficial uses shall never be denied.” The reason and thrust for this provision was to negate any thought that Colorado would follow the riparian doctrine in the acquisition and use of water. In 1883, early in the history of this state, this court in Thomas v. Guiraud, 6 Colo. 530, rejected the argument that Guiraud’s appropriation was invalid because he had constructed no ditches. Less than three years later in Larimer Co. v. Luthe, 8 Colo. 614, 9 P. 794 (1886), we find this court saying:

“The maxim, Expressio unius est exclusio alterius, is here invoked. It is claimed that when the constitution recognizes the right to appropriate water by diversion, it excludes the appropriation thereof in any other manner. Further, that the word ‘divert’ means to take or carry it away from the bed or channel of the stream; that therefore respondent’s act of utilizing a natural reservoir in the bed of the stream, and thus storing surplus water for future use, not being a diversion in the sense of the constitutional provision cited, is in conflict therewith.
“We are not prepared to concede the correctness of counsel’s position.

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Bluebook (online)
594 P.2d 570, 197 Colo. 469, 1979 Colo. LEXIS 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-river-water-conservation-district-v-colorado-water-conservation-colo-1979.