Answer Brief of Amici Curiae - Laserfiche WebLink

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the control structures is left for other Colorado consumptive uses and to fulfill Colorado's compact delivery obligations. The State's "maximum utilization" argument is essentially a qualitative argument - that water claimed for recreation is better left for other more traditional future uses. The State is attempting to limit severely the allowable beneficial use for a recognized type of water right. This is not the law. Water rights for recreation are a beneficial use just like rights for agriculture, hydropower, municipal use, and other more traditional purposes. No matter how the State dresses up its argument, it is attempting to impose a misguided public trust doctrine to limit the guaranteed right to appropriate the unappropriated waters of the State for the benefit of future, speculative, and as yet unknown uses. Const. Art. XVI, § 6. This is contrary to the Supreme Court's clear direction that the right to appropriate cannot be limited based on policy concerns not specifically grounded in statute. In Board of County Commr's of the County of Arapahoe v. United States, the Court held, "a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy." Board of County Commr's, 891 P.2d 952, 972 (Colo. 1995); see also, Aspen Wilderness Workshop v. Colorado Water Cons. Bd., 901 P.2d 1251, 1263 (Colo. 1995) ("This court has never recognized the public trust doctrine with respect to water."). Not only is there no legal basis to justify minimizing or denying RICD water rights on policy grounds, there is no practical reason to do so. Any new water right has the potential to impact more junior future water rights or exchanges, but that is not a reason to limit that water right. This is the nature of our prior appropriation system of water rights. Nor does the mere Tm 1650 19