Answer Brief of the Colorado River Water Conservancy District

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 1/1/3000
• Author: Peter C. Fleming, Kristin M. Gillespie
• Title: Answer Brief of the Colorado River Water Conservancy District
• Water Supply Pro - Doc Type: Court Documents

Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38)
Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District
Answer Brief ofthe Colorado River Water Conservation District
of control over refill water released from reservoir); Three Bells Ranch Associates u Cache La
Poudre Water Users Ass'n, 758 P.2d 164,173 (Colo. 1988)(use of man-made ponds for recreational
purposes "falls within the statutory definition of beneficial use"). This case law unequivocally
demonstrates that recreation was confirmed as a beneficial use of water long before the adoption of
SB 216.
3. By definition, an RICD requires a statutory diversion of water.
The State suggests that an RICD is an entirely new creature of statute, and that SB 216
therefore should be construed in a tortuous manner that effectively would place absolute control of
recreational water rights in the hands of the CWCB. The basis of the State's position is that SB 216
legislatively enacted a rare exception to the historical diversion requirement necessary to obtain a
water right and that an RICD therefore is a new type of instream flow. State's Opening Brief, p. 8,
13. The State then claims that, because the CWCB has special expertise in non-diversionary water
rights, SB 216 vested the CWCB with the exclusive authority to determine the minimum flow rate
of an RICD. State's Opening Brief, p. 19. The State's argument fails for a number ofreasons, but
particularly because it requires the Court to ignore that an RICD, by definition, requires a statutory
diversion of water.
An RICD is statutory defined as:
The minimum stream flow as it is diverted, captured, controlled and placed to
beneficial use between specific points defined by physical control structures pursuant
to an application filed by [certain municipal and quasi-municipal entities] for a
reasonable recreation experience in and on the water.
C.R.S. § 37-92-103(10.3) (2003) (Emphasis added).
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