Reply Brief; Case No. 04SA44 - Laserfiche WebLink

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opposed to 1500 c.f.s. here); and (3) recognized that if the water "continues to flow as it did prior to the renovation" of the dam, then the water was not controlled and the appropriation would have been an instream flow. Id. at 919-20, 932. Additionally, the Legislature passed Senate Bi11212 was enacted in order to prevent further or expanded Fort Collins type appropriations.9 This Court should hold that there is no constitutional right to recreational in-stream flow water rights, and that it is clearly the duty of the Legislature, not the water courts, to determine whether and under what conditions Colorado will recognize such water rights. II. THE LEGISLATURE HAS THE AUTHORITY TO LIMIT IN- CHANNEL USES TO A MINIMUM STREAM FLOW. The Water Court erred in holding that it could not "intervene to usurp the Applicant's determination of the size and scope of a RICD" or "second guess the Applicant in its requested amount." (Order, p. 19). With that holding, the Water Court refused to limit in- channel uses to a"minimum stream flow"10 and to recognize the Legislature's authority to limit in-channel uses to a minimum. 9Certain amici argue that the State fails to note that SB 212 was passed in 1987 and the Fort Collins application amended in 1988. (Steamboat Brief, p. 15). However, "the 1988 amendments relate back to the 1986 application." Fort Collins, 830 P.2d at 923. Thus, if this Court applied SB 212 to that application, it was retroactively applying a 1987 law to a 1986 application. Notably, only municipal uses were claimed in the original application (recreation was an amended use). Most importantly, the State is asking for review of SB 216, not SB 212, which is cited as background for SB 216. loThe Appellee never argues that the Water Court granted only "minimum" flows, but rather argues that the flows were "reasonably necessary to accomplish without waste the purpose of providing the reasonable recreation experience." (Brief, p. 25). 5