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 SB 216 would require that the court ignore the intent of the appropriator and rely solely on the
CWCB to determine a single minimum flow rate for an experience determined only by the CWCB
to be reasonable.
1. SB 216 requires that the initial measure of an RICD must be based on the intent
of the appropriator.
Contrary to the State's interpretation, nothing in SB 216 eliminates or reduces in any way,
the long established principle that the intent of the appropriator is critically important to determine
the measure of a water right. See Sante Fe Trail v. Simpson, supra, at 53, 55 ("what constitutes a
beneficial use tracks legislative enactments, court decisions, and principally, the acts of
appropriators who control the water for their purpose.") (Emphasis added).
The necessity to consider the intent of the appropriator also is firmly embodied within the
statutory definition of beneficial use, which was amended by SB 216 to expressly incorporate uses
for RICD purposes:
"Beneficial use" is the use of that amount of water that is reasonable and appropriate
under reasonably efficient practices to accomplish without waste the purpose for
which the appropriation is lawfully made, and without limiting the generality of the
foregoing includes the ... diversion of water by [certain municipal and quasi-
municipal entities] for recreational in-channel diversion purposes.
C.R.S. § 37-92-103(4) (2003) (Emphasis added).
The statutory definition of an RICD contains another express incorporation of the intent of
the appropriator in the measure of an RICD water right by emphasizing that an RICD is determined
"pursuant to an application filed by [the appropriator]". C.R.S. § 37-92-103(10.3) (2003).
Page 12