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Upper Gunnison River Water Conservancy District <br />02CW038 <br />could talce place within a river channel, so long as the water was controlled in the channel by means <br />of a structure or device, and applied to beneficialuse. Id.4 Recreational in-channel water rights were <br />also decreed in Water DivisionNo. l(Application of City of Golden, Case No. 98CW448) and Water <br />DivisionNo. 5(Appdication of Eagle River Water and Sanitation District, Case No. 04CW259 and <br />Application of Town of Breckenridge, Case No. OOCW281, and affirmed by the Colorado Supreme <br />Court by operation of law. State Engineer v. Golden, 69 P.3d 1027 (Colo. 2003); State Engineer <br />v. Eagle River Water and Sanitation District, 69 P.3d 1028 (Colo. 2003); State Engineer v. Town <br />of Breckenridge, 69 P.3d 1028 (Colo. 2003).5 The legislature was well aware of the existence of <br />ofArapahoe v. Crystal Creek Homeowners Association, 14 P.3d 325, 340 (Colo. 2000) (holding <br />that recreation and fish and wildlife are recognized beneficial uses in Colorado, citing May <br />v. United States, 756 P.2d 362, 371 (Colo. 1988)). In Crystal Creek Homeowners, the court <br />rejected the argument that "recreation" was an incidental purpose of the Aspinall Unit and relied <br />upon the state-decreed absolute water rights in support of its holding that recreation and fish and <br />wildlife purposes were not merely incidental. <br />4 The CWCB is severely misguided in its attempt to discredit the Fort Colllins <br />authority by arguing that somehow it would have come out different under SB 212. SB 212 <br />simply clarified ex.isting law conceming instream flow appropriations by the CWCB. It did not <br />apply to statutorily-defined diversions, including the controlling of water in its natural course. See <br />Fort Collins, 830 P.2d at 931. <br />5 The decrees entered in the Golden, Vail, and Breckenridge cases, copies of which <br />are attached to the ApplicanYs Closing Brief, were based, at least in part, on Fort Collins. In all <br />three cases, the judgments of the trial court were affirmed by operation of law. See, C.A.R. 35(e), <br />which states: "When the Supreme Court acting en banc is equally divided in an opinion, the <br />judgment of the trial court sha11 stand affirmed." <br />-5-