dissenting.
T32 In this case, the majority recognizes, for the first time, a conditional right to appropriate the same physical water previously decreed to, and being diverted by, another appropriator. The applicants' proposed diversion of this water to generate hydroelectric power for household use is both creative and, by all appearances, environmentally sound. However, as a practical matter, the applicants' use of this water relies entirely upon a diversion under a more senior priority-indeed, the applicants seek to intercept a portion of the very water diverted under a senior irrigation right. In other words, these applicants have been decreed a conditional right with a 2010 priority but will access the water only because other appropriators are diverting it under an 1890 priority. In my view, the majority's recognition of this novel conditional water right runs contrary to our time-honored prior appropriation doctrine, see Kobobel v. State, 249 P.3d 1127, 1134 (Colo.2011), and is not authorized under current law. Accordingly, I respectfully dissent.
133 The Opposers ("the Frees") hold a decreed right under an 1890 priority to divert up to 64 cfs of water from Garner Creek for irrigation. The Frees divert this water from a headgate on Garner Creek into Garner Creek Ditch No. 1, which the Frees own. This ditch runs across the Applicants' ("the Tidds") property before it reaches the Freeg' land. Garner Creek Ditch No. 1 serves no other water rights. Indeed, it is undisputed that when water flows into this ditch, it is flowing solely to irrigate land owned by the Frees. During irrigation season, the Frees water right in Garner Creek Ditch No. 1 takes the entire flow of Garner Creek, absent occasional high water conditions.
134 The Tidds have sought a conditional right to intercept 0.41 cfs of water as it flows through Garner Creek Ditch No. 1, pipe this water 1222 feet downhill to generate up to 3.48 kW of electricity for household use, and then return it to the ditch at a lower elevation. The Tidds' initial application sought to divert this water directly from Garner Creek Ditch No. 1. After the Frees objected on grounds that an appropriator can only take water from a "natural stream" (and not a ditch), the Tidds amended their application to identify the diversion point for their conditional right as the Garner Creek Ditch No. 1 headgate on Garner Creek.
T 35 In theory, the Tidds propose to divert water from Garner Creek and convey it through Garner Creek Ditch No. 1 to their pipe intake. Importantly, however, the Tidds acknowledge that they do not seek to divert additional, unappropriated water from Garner Creek. That is, they do not intend to divert an additional 0.41 efs from the creek beyond the 6.4 cfs decreed to the Frees for irrigation. Rather, the water court's order makes clear that the Tidds propose to intercept a portion of the 6.4 cfs of water already decreed to the Frees for irrigation, after the Frees have diverted this water from the nat-wral stream into Garner Creek Ditch No. 1 «under their 1890 priority. Thus, although the Tidds' conditional right ostensibly carries a 2010 priority, they propose to use the water actually diverted by senior appropriators under their 1890 priority. Under the majority's holding, a new appropriator can effectively divert water out of priority by en-grafting a non-consumptive use on the same physical water that a senior appropriator is already diverting.
¶ 86 The majority acknowledges that the Tidds' 2010 hydropower right "must be in priority vis & vis all the users on Garner Creek to divert when the Frees are not diverting." Maj. op. 125 (emphasis added). But as a practical matter, their 2010 priority "vis a vis all the users on Garner Creek" will be inconsequential. The Tidds admit in their briefing to this court that the 0.41 efs conditionally decreed to them for hydroelectric power use might not be sufficient to reach their pipe intake were the Tidds to divert. it themselves from Garner Creek. 1 Thus, the Tidds presumably will be able to intercept *2700.41 cfs of water from the ditch only when the Frees are diverting-under their 1890 irrigation priority. In short, the majority's holding permits a new appropriator to intercept water that is "available" only by virtue of a senior appropriator's diversion. By piggybacking on the senior appropriator's diversion, the new, junior appropriator effectively gains an overvalued water right by "diverting" under an earlier priority date.
137 Under the Colorado Constitution, the water of every natural stream within the state is the property of the public and is dedicated to the use of the people, subject to appropriation as provided by law. See Shirola v. Turkey Cañon Ranch Ltd. Liab. Co., 937 P.2d 739, 747-48 (Colo.1997) (citing Colo. Const. art. XVI, § 5). We have made clear that a water right is a usufructuary right, giving its holder the right to use and e¶njoy this public resource. See Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1377 (Colo.1982). Thus, although a water right is a property right, Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 53-54 (Colo.1999), "one does not 'own' water but owns the right to use water within the limitations of the prior appropriation doctrine," Kobobel, 249 P.3d at 1134 (emphasis added); see also maj. op. ¶ 14.
138 Given the demand for water, there is no guarantee that sufficient water will be available to satisfy all claims to this searce resource. Kobobel, 249 P.3d at 1134-35. Accordingly, this court has recognized that the primary value of a water right lies " 'in its relative priority'" Maj. op. ¶ 25 (quoting Navajo Dev. Co., 655 P.2d at 1377); see also Colo. Water Conservation Bd. v. City of Central, 125 P.3d 424, 484 (Colo.2005). Indeed, the very definition of a water right under the 1969 Water Right Determination and Administration Act is the "right to use in accordance with its priority a certain portion of the waters of the state by reason of appropriation of the same." $ 37-92-108(12), C.R.S. (2014) (emphasis added); see also Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1147 (Colo.2001) (explaining that a water right is a right "to use in accordance with its priority a certain portion of the waters of the state"). Specifically, "[the Colorado Constitution guarantees the right to use beneficially a specified amount of [water] in priority under a decree, to the exclusion of all others not then in priority under decreed water right." Upper Eagle Reg'l Water Auth. v. Wolfe, 230 P.3d 1203, 1210 (Colo.2010) (emphasis added); see also Empire Lodge, 39 P.3d at 1147.
139 The majority emphasizes that a water court must assure the "maximum beneficial use" of water. Maj. op. M12, 14. But this principle must be applied in conjunction with the prior appropriation doctrine; it cannot trample it. To the extent that the legislature has recognized the need for flexibility, it has expressly authorized certain forms of out-of-priority diversions, such as those in compliance with the augmentation plans described by the majority. See id. at 124. My point is simply that the exceptions to the prior appropriation doctrine noted by the majority all have been recognized and codified by the legislature, whereas the exception created by the majority today has not.
1 40 As explained above, I believe that the operation of this conditional decree runs contrary to our prior appropriation doctrine. The Tidds, as new appropriators, will be intercepting a portion of water that senior appropriators are diverting under an 1890 priority. As the majority recognizes, if the Tidds were actually diverting an additional 0.41 cfs from Garner Creek under their 2010 priority, their right would be subordinate to all senior appropriators on that creek. Id. at 125. Instead, the Tidds, as new appropriators, have acquired a conditional right to intercept and use the very water being diverted by other appropriators under those appropriators' decreed 1890 priority. This arrangement is troubling and, in my view, does not meet the requirements for a new appropriation. >
€41 Importantly, "[the right guaranteed under the Colorado Constitution is to the appropriation of unappropriated waters of the natural stream, not to the appropriation of appropriated waters." Empire Lodge, 39 P.3d at 1147 (citing Colo. Const. art. XVI, §§ 5, 6). We have made abundantly clear that a water right is created when one appropriates previously "unappropriated waters of *271the natural stream" by "placing the unappropriated water to beneficial use." Id.; see also Trail's End Ranch, L.L.C. v. Colo. Div. of Water Res., 91 P.3d 1058, 1061 (Colo.2004) ("Rights to the waters of the natural surface streams of this state are acquired by appropriating previously unappropriated water and putting it to beneficial use."); Shirola, 937 P.2d at 748 ("A water right is created when a person appropriates or initiates an appropriation of unappropriated water of a natural stream of the state.").
{42 An applicant seeking a conditional water right "must prove that unappropriated water is available based upon conditions existing at the time of the application, in priority, in sufficient quantities, and on sufficiently frequent occasions to enable the applicant to complete the appropriation with diligence and within a reasonable time." Buffalo Park Dev. Co. v. Mountain Mut. Reservoir Co., 195 P.3d 674, 683 (Colo.2008). Courts should caleulate availability of unappropriated water based on historic beneficial use of perfected water rights. Id. Rather than require the Tidds to prove that an additional 0.41 cfs of unappropriated water was available in Garner Creek for their use, the majority instead holds that unappropriated water is "available" so long as a new appropriation will not injure senior water rights. Maj. op. 128. Indeed, the majority cites Buffalo Park to suggest that water becomes "available" so long as "the decree for the junior water right contains sufficient conditions to prevent injury to other adjudicated water rights." Id. at 123 (citing Buffalo Park, 195 P.2d at 685). However, it relies on the section of the Buffalo Park opinion discussing the statutory requirements for augmentation plans. See id. As stated above, the legislature has expressly recognized and codified certain ex-. ceptions to the prior appropriation doctrine, such as augmentation plans. The conditional decree here is not for a diversion under an augmentation plan. And while the legislature may wish to extend the principles of augmentation plans to the type of arrangement proposed by the applicants here, to date, it has not.
1 43 I find the remainder of the majority's analysis equally unconvincing. The majority asserts that "(olur previous cases make clear that whether water is available is inseparably intertwined with the question of whether a new appropriation will injure senior water rights." Maj. op. 128. The majority cites Mount Emmons Mining Co. v. Town of Crested Butte, 40 P.3d 1255, 1260 (Colo.2002), for this proposition. Maj. op. ¶ 28. In Mount Emmons, this court observed that, typically, applicants for a conditional water right "must convinee the water court that their diversion will cause no harm to senior appropriators: Le., that water is available." 40 P.3d at 1260. The syllogism evident in this statement is that, if unappropriated water is available, then the applicant's proposed new diversion will not harm senior appropriators. Yet the majority turns this logic on its head and effectively holds that, if a new diversion will not harm senior appropriators, then water is available for the new appropriation. Maj. op. 128. I fail to grasp how Mount Emmons supports the majority's conclusion. Notably, the two cases cited in Mount Emmons for the proposition quoted by the majority both emphasize an applicant's obligation to demonstrate the availability of unappropriated water. 40 P.3d at 1260 (citing Se. Colo. Water Conservancy Dist. v. City of Florence, 688 P.2d 715, 718 (Colo.1984) (rejecting conditional decree applicants' argument that they need not show the availability of unappropriated water);2 Empire Lodge, 39 P.3d at 1148 ("The applicant for issuance of a conditional decree bears the burden of demonstrating that there is unappropriated water available for the appropriation, taking into account the historic exercise of decreed water rights.").
T44 I also disagree with the majority's attempts to distinguish Public Service Co. of Colorado v. FERC, 754 F.2d 1555 (10th Cir.1985). See maj. op. ¶¶ 20-22. In that case, Public Service Co. ("PSC") held an adjudicat*272ed right to use 1250 cfs of water in the Colorado River to generate electricity at its Shoshone Hydroelectric Plant. Pub. Serv. Co. of Colo., 754 F.2d at 1558. Upstream from the Shoshone plant, the Bureau of Ree-lamation operated Green Mountain Reservoir, a water storage facility on the Blue River, which is tributary to the Colorado River. Id. Green Mountain Reservoir is part of the Colorado-Big Thompson Project, an elaborate system of reclamation facilities authorized and funded by Congress to divert water from Colorado's western slope across the continental divide to the front range. Id. Water is released from the reservoir in sufficient quantity to maintain the specified flow of 1250 efs for operation of the Shoshone plant. Id. at 1559-60. At issue in Public Service Co. of Colorado was whether the Federal Energy Regulatory Commission ("FERC") could assess PSC for "headwater benefits"-that is, for increased flow in the river created by the controlled release of storage water that "allow[ed] a downstream hydroelectric facility to generate more electric power than would otherwise be possible." Id. at 1561. The Tenth Circuit held that such an assessment is not an unconstitutional taking. Id. at 1565.
4 45 The majority here points out that PSC was allowed to divert the released storage water to its hydroelectric plant for non-consumptive use as this water was being delivered to other downstream appropriators, much as the Tidds seek to do here. Maj. op. T21. That fact alone, however, misses the key holding of Public Service Co. of Colorado: FERC's assessment for headwater benefits was not an unconstitutional taking of property because PSC had no vested water right in the additional storage water being released from Green Mountain Reservoir-even for a non-consumptive use such generating hydroelectric power. See 754 F.2d at 1565. The release of the additional storage water for delivery to other downstream appropriators augmented the stream flow in excess of the 1250 efs decreed to the Shoshone plant. Id. Because PSC was able to use this augmented flow to generate more electricity than it otherwise could have, it was "getting more than it [was] entitled to under Colorado's prior appropriation doctrine." Id. In short, this case stands for the proposition that a downstream user cannot obtain a vested water right in already appropriated water simply by applying that water to a beneficial, non-consumptive use.
1 46 I am also concerned about the potential policy implications of the majority's holding. I fear that this holding could lead to unforeseen complications. What happens, for example, if the Frees wish to change the point of diversion for their Garner Creek Ditch No. 1 water right at some point in the future? If doing so would impact the availability of water for the Tidds' hydroelectric water right, is this "injury" sufficient to preclude such a change to the Frees' water right? In other words, what obligations do the Frees now have to avoid injury to the Tidds (or to a future holder of the Tidds' hydroelectric power right)? It is unclear what obligations the Frees will need to meet to avoid injury to the Tidds in a change case, given that the Tidds' conditional water right intercepts a portion of the water that the Frees divert from Garner Creek under their 1890 priority. See Weibert v. Rothe Bros., 200 Colo. 310, 618 P.2d 1367, 1371 (1980) (stating that the right to change the point of diversion "is qualified in that injury to others must not result from the change"). Even assuming that the Frees have no obligation to avoid injury to the Tidds if they change their point of diversion, the ramifications of the majority's holding, when applied on a larger scale, are still troubling. Should the Frees change their point of diversion, a permanent shutdown of the Tidds' small-scale hydroelectric power project would be unlikely to cause the Tidds serious harm. However, one can imagine a situation in which a large hydroelectric plant with water rights to intercept a senior appropriator's diversion of water would have to be taken offline when the senior appropriator decides to divert its water farther downstream. A shutdown in this scenario could have significant impacts on both the plant owner and the public.
1 47 Finally, I note that many of the conditions imposed in this case to ensure that the Tidds' use of Garner Creek Ditch No. 1 does not "interfere with the quantity, quality, or timing of the water to be delivered to the *273Opposers under their prior water rights," maj. op. T5, arise because the senior appropriators hold a ditch easement on the new appropriators' property. However, the majority's holding is not in any way limited to the unique facts presented here.
1148 To be sure, the Tidds' proposed hy-dropower use appears to be a creative, environmentally beneficial application of the waters of this state that may well advance the policy goals of Colorado water law. Whatever the desirability of this particular project, however, the conditional water right decreed in this case is, in my view, incompatible with our system of prior appropriation as it currently stands. This court should defer to the judgment of the legislature on whether to allow such novel, out-of-priority diversions, rather than upholding a conditional water right in the unique cireumstances of this case and thereby establishing potentially dangerous precedent. Accordingly, I respectfully dissent.
I am authorized to state that JUSTICE COATS joins in this dissent.
. Thus, when the Frees are mot diverting (e.g., during non-irrigation season), it is difficult to imagine how the Tidds could actually put their decreed water to beneficial use, even assuming that there was sufficient water in Garner Creek at such times to satisfy their 0.41 cfs right under their 2010 priority. i
. In Southeastern Colorado Water Conservancy District, this court similarly indicated that, if an appropriator replaces water according to an augmentation plan, a new out-of-priority diversion will not injure senior appropriators. 688 P.2d at 718. However, the court did not suggest the reverse; i.e., where a new appropriator establishes non-injury to senior appropriators, a new appropriation can be decreed regardless of the availability of unappropriated water.