Answer Brief of the Colorado River Water Conservancy District

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Supreme Court, State of Colarado (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 SB 216 is designed to ensure that decrees for recreational in-channel diversions, as recognized by the Colorado Supreme Court in the City ofThornton v. City ofFort Collins case, are integrated into the state prior appropriation system in a manner which appropriately balances the need for water based recreational opportunities with the ability of Colorado citizens to divert and store water under our compact entitlements for more traditional consumptive use purposes, such as municipal, industrial and agricultural uses. Legislative Statement for SB 216. (Emphasis added) (R., v. III at 945.) Any ambiguity in SB 216 must be interpreted in light of the legislature's assumption that the authority to appropriate RICDs existed prior to SB 216. It would stretch the bounds of reason for the legislature to name the water right a"recreational in-channel diversion" if it did not intend that the appropriation of such a water right would actually require a statutory diversion. The State's argument that SB 216 created the second "exception to the diversion requirement" is therefore without merit. See State's Opening. Brief, p. 8. It follows that, because an RICD inherently requires a diversion, the CWCB has no special expertise to determine the appropriate flow rate for an RICD. Likewise, because a diversion is necessary for an RICD, the word "minimum" does not supercede the rest of SB 216 or otherwise impose extraordinary meaning separate from the traditional water law principles of avoiding waste and speculation. B. SB 216 requires the court to measure an RICD first by the intent of the appropriator, subject to possible reduction. A single minimum flow rate for an RICD is not required. SB 216 contemplates that the water court (1) determine whether the amount of water claimed by the applicant is the minimum flow that can be controlled (i.e., diverted and put to beneficial use without waste) for the reasonable recreation experience sought by the applicant, and (2) then apply the SB 216 "balancing factors" to the flow rate claimed by the applicant. The State's interpretation Page 11