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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 B rief of the Colorado River W ater Conservation District <br />in promoting the beneficial use of water for the welfare of its inhabitants. (R., v. IV at p. 37, lines <br />11-17; p. 38 lines 6-19; p. 48, line 2 to p. 49, line 13; p. 198, line 4 to p. 199, line 25.) <br />III. SUMMARY OF ARGUMENT <br />The State mistakenly believes that the water court, in order to protect the constitutional right <br />to appropriate, refused to reduce the flow rate claimed by the Upper Gunnison District. To the <br />contrary, the water court plainly acknowledged that SB 216 might require a reduction in the claimed <br />RICD if warranted by the evidence.. The water court's reference to the constitutional right to <br />appropriate therefore was merely intended to confirm that SB 216 must be applied to the flow rates <br />claimed by the appropriator, not a flow rate determined by the CWCB. <br />The State tries to construct an odd argument that SB 216 created an entirely new type of non- <br />diversionary instream flow water right; one similar to the non-diversionary instream flow rights <br />appropriated by the CWCB to protect the natural environment. The argument is peculiar because, <br />by definition, SB 216 requires that recreational in-channel diversion water rights must include a <br />diversion of water. The Division 4 Water Court properly found in its Findings of Fact, Ruling of <br />Law and Order that "as designed the [kayak] course will divert, capture and control the water applied <br />for in its natural course and location..." (R., v. III at 1109.) In fact, the water court correctly noted <br />that the ability of the designed course to meet the statutory definition of diversion by controlling <br />water in its natural course was not disputed at trial. Id. The CWCB therefore has no special <br />expertise on RICDs that would justify the argument that the CWCB is vested with the exclusive <br />oversight of such water rights. <br />Page 3