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1 } <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 Canservancy Dishict <br />Answer Brief of the Colorado River Water Conservation District <br />the Gunnison whitewater course during periods when other rivers and whitewater courses throughout <br />the state would have higher flows would not achieve the purposes sought by the Upper Gunnison <br />District. (R., v. III at 1101-02.) <br />The water court carefully reviewed the claimed flow rates to determine whether the flows <br />were the minimum rate for the intended purposes of the RICD. The water court gave substantial <br />consideration to the meaning of the term "minimum" and determined that the word "minimum" must <br />be read in the context of the entirety of SB 216, together with traditional principles of water law, <br />including waste and speculation. (R., v. III at 1106-07.) The court ruled that the claimed flow rates <br />would accomplish the purposes sought without waste, so that a reduction in the variable rates <br />claimed was not necessary in order to meet the stream flow required by SB 216 for the reasonable <br />recreation experience sought by the Upper Gunnison District. Id. <br />3. The State ignores the obvious difference between instream flow rights and <br />recreational in-channel diversion rights. <br />In order to justify its argument that RICDs are new exceptions to the histarical diversion <br />requirement, the State blatantly ignores the fundamental difference between instream flow water <br />rights and recreational in-channel diversions. Instream flow rights (which are limited to <br />appropriation by the CWCB) have no control structures and therefore do not constitute a statutory <br />diversion. C.R.S. § 37-92-102(3) (2003) ; and Colorado River Water Conservation Dist. v. <br />Colorado Water Conservation Board, 594 P.2d 570, 574 (Colo. 1979). In contrast, an RICD water <br />right must make a diversion of water by using man-made structures or devices to control water in <br />its natural course or location. C.R.S. §§ 37-92-103(7) and 37-92-103(10.3) (2003). Because RICDs <br />Page 14