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: <br />Supreme Court, State of Colorado (Appeal from District Court, Water Division No. 4, Case No. 02CW38) <br />Case No. 04SA44: Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District <br />Answer Brief of the Colorado River Water Conservation District Because an RICD is statutorily defined to require a diversion water, the State's argument that <br /> <br />it has specific expertise to determine the flow rate simply fails to make sense. <br />In 1992, this Court recognized that the statutory definition of diversion contained in the 1969 <br />Act permits a water user to make an in-channel diversion for recreational purposes. Cityof Thornton <br />v. City ofFort Collins, 830 P.2d 915, 929-930 (Colo. 1992) ("Fort Collins"). It is important to note <br />that this Court in Fort Collins did not create R.ICD water rights out of thin-air. Rather, this Court <br />simply recognized, for the first time, the existing statutory authority to appropriate in-channel <br />diversions for recreational purposes. That authority has existed at least since the adoption of the <br />WaterRight Determination and Administration Actof 1969,C.R.S. §§ 37-92-101 to-602 (the "1969 <br />Act"). From the time it was first enacted, the 1969 Act has contained a definition of diversion that <br />expressly includes "controlling water in its natural course or location...." <br />"Diversion" or "divert" means removing water from its natural course or location, or <br />controlling water in its natural course or location, by means of a ditch, canal, flume, <br />reservoir, bypass, pipeline, conduit, well, pump, or other structure or devzce. <br />ch. 373, sec. 1, § 148-21-3(5), 1969 Colo. Sess. Laws 1200, 1201 (currentlycodified as C.R.S. § 37- <br />92-103(7)) (2003) (Emphasis added). <br />SB 216 modified the definition of "diversion" by restricting who may appropriate an RICD, <br />but it did not change the language that provides a diversion may occur by controlling water in its <br />natural course with a structure or device. C.R.S. § 37-92-103(7) (2003). <br />The legislature expressly acknowledged, through the Legislative Statement for SB 216, that <br />the authority to appropriate an RICD water right already existed when it adopted SB 216: <br />Page 10