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While there is a right to appropriate water in Colorado, that right has never been <br />unlimited.3 Traditionally in Colorado, water rights have always been diverted out of the <br />stream under the prior appropriation system.4 "A diversion has been conventionally <br />considered the act of taking water from a stream and transporting it to another location for <br />use." Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd., 594 <br />P.2d 570, 572 (Colo. 1979) ("CWCB" . <br />This Court first rejected a claim for water for recreational/piscatorial in-channel uses <br />in 19655 because such uses were considered a"maintenance of the `flow' of the stream," <br />which is a riparian right and is completely inconsistent with the doctrine of prior <br />appropriation." Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 406 <br />3Even diversionary water rights are limited. For example, it is not an acceptable practice in <br />Colorado for an agricultural water rights holder to divert 10 acre-feet of water per acre of land <br />when only 2 acre-feet of water is really needed to accomplish the intended purpose. Similarly, an <br />unnecessarily large in-channel recreational use is wasteful if a lower amount can achieve a <br />reasonable recreation experience. <br />4CRCD argues that SB 216 does not create an exception to the historical diversion requirement. <br />CRCD argues that it "would stretch the bounds of reason for the legislature to name the water <br />right a`recreational in-channel diversion' if it did not intend that the appropriation of such a <br />water right would actually require a statutory diversion." (Brief, p. 11). A"statutory diversion" <br />is a statutory construct, not a physical diversion. In fact, recreational in-channel uses, like CWCB <br />instream flow water rights, are not actually diverted from the stream. (See, attached Exhibit <br />19d1). In State Engineer & CWCB v. Eagle River Water & Sanitation District, 69 P.3d 1028 <br />(Colo. 2003), the recreational in-channel water right and a CWCB instream flow water right <br />flowed together in the stream. "While keeping water in a stream as a`diversion' sounds <br />oxymoronic, that is the legal framework that has to be used in Colorado." The Vail Trail, Ken <br />Neubecker (attached as Exhibit 1). <br />SThe Appellee was claiming in-channel flows for what it and the objector argued were <br />"recreational purposes," (piscatorial, not kayaking). Id., at 799-800.