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jL. <br />to and not a part of the traditional fabric of Colorado water law borders on frivolous. This <br />argument should be summarily rejected. The State uses its theory that RICDs are an entirely <br />new type of water right as the basis for its argument that the Court should divorce the "minimum <br />flow" language in SB 216 from the rest of the statutory language; in particular, the more <br />traditional "beneficial use" and "reasonableness" terms that also appear in the definition of <br />RICD and that generally apply to the appropriation of water in Colorado. Because no support <br />exists for the premise that recreational water rights are merely a creature of statute without any <br />constitutional or water law underpinning, the State's conclusion that RICDs should be limited to <br />a CWCB-imposed bare minimum flow - an amount sufficient "to float a kayak" (State at 14, 22) <br />- must also be rejected. <br />II. SENATE BILL 216 DID NOT GIVE THE CWCB THE AUTHORITY THAT IT <br />SOUGHT FROM THE GENERAL ASSEMBLY. <br />As originall,y introduced, SB 216 would have completely altered existing law by granting <br />the CWCB the authority to decide RICD applications. See Pre-Amendment Bill (Appendix Tab <br />C). This initial version of SB 216 required an applicant to submit its claim to the CWCB before <br />filing it in water court, and then obtain from the CWCB a final recommendation on whether the <br />claim should be grantea, granted with conditions, or denied. The water court could then review <br />the CWCB's final recommendation, but only on the administrative record and only under an <br />arbitrary and capricious standard. The initial version of the bill sought by the CWCB would <br />have also applied retroactively to existing applications,Z which obviously would not have been <br />necessary if the State is correct that RICDs did not exist prior to SB 216. This bill did not pass. <br />2 The CWCB proposed this legislation in the Spring of 2001 during a break in the Golden trial, and while the <br />Breckenridge and Vail cases were also pending. <br />Tm 1650 <br />6