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<br />I. SENATE BILL 216 DID NOT CREATE NEW WATER RIGHTS. <br />Upper Gunnison's claim in this matter is the latest in the line of recreational boating <br />cases that began with City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). In Ft. <br />Collins, the Colorado Supreme Court upheld recreational boating as a recognized beneficial use <br />of water, with specific reference to "kayaks and inner tubes." Id. at 932. Citing the definition <br />of "diversion" at C.R.S. § 37-92-103(7) and the constitutional right to divert the unappropriated <br />waters of the state found in Article XVI § 6 of the state constitution, the Supreme Court <br />confirmed that in-channel boating structures that function as designed to control water in the <br />river channel to achieve the appropriator's intended beneficial use constitute a statutory <br />diversion, and a constitutional appropriation of water in Colorado. Id. at 930-931. <br />Relying on the Ft. Collins decision, the City of Golden, the Town of Breckenridge, and <br />the Eagle River Water and Sanitation District acting on behalf of the Town of Vail filed water <br />right claims to protect their respective boating parks. The water courts in Division No. 1 and <br />Division No. 5 decreed each of those in-channel recreational water rights for the full amounts <br />claimed. Those water court decisions were subsequently affirmed by operation of law by this <br />Court.' State Engineer v. City of Golden, 69 P.3d 1027 (Colo. 2003); State Engineer v. Eagle <br />River Water & Sanitation District, 69 P.3d 1028 (Colo. 2003) (Consolidated with State Eng'r v. <br />Town of Breckenridge). <br />If the foregoing authority is not conclusive that recreational water rights including RICDs <br />existed prior to SB 216, one need only look to the legislation itself for further confirmation. The <br />1 The State's argument that RICDs did not exist before SB 216 ignores the precedent created when this Court <br />affirmed those earlier water court decisions and could be construed as a collateral attack on the decrees in those <br />earlier cases. Having been affirmed by operation of law, those decrees are not subject to collateral attack. <br />Tm1650 4