Amici Curiae Brief of Northwest Colorado Council of Governments, Town of Minturn, Grand County, Gunnison County, Pitkin County

• File Number: 8230.2F
• Description: Colorado Supreme Court Appeal
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 9/29/2004
• Author: Barbara Green, Anne Castle, John M. Ely, David Baumgarten
• Title: Amici Curiae Brief of Northwest Colorado Council of Governments, Town of Minturn, Grand County, Gunnison County, Pitkin County
• Water Supply Pro - Doc Type: Court Documents

Likewise, after the 2002 drought, the General Assembly passed severalL statutes designed
to provide more Elexibility for water suppliers by allowing temporary water transfers and the
creation of watei, banks. See generallv H.B. 03-1318; C.R.S. § 37-80.5-102 et seq. Without
these fundamenta.l changes in the law to accommodate shifts in societal value:,, Culorado water
law no longer would reflect the needs of the State's water users. If not for this evolution,
Colorado would still only recognize mining and irrigation as beneficial uses, reservoirs would
have been prohit>ited, and the prior appropriation system would have been abandaned years ago.
2. The le,gislature did not intend to create a"new water right" when it enacted
S.B. 216.
The CWC-B characterizes RICDs as new water rights that fall within an exception to the
traditional diver:;ion requirement, not dissimilar to the statutory exception for CWCB in-stream
appropriations. i;CWCB's Opening Brief at 4 and 13). Even a cursory readin,g of case law, the
plain language of S.B. 216 and the accompanyiaig legislative statement, demonstrates that
CWCB's charaaterization is without merit. As acknowledged by Amici CurizLe The Rio Crrande
Water Conservai:ion District et a1., this Court decided over ten yeazs ago that in-channel control
of water, in its natural course or location, constitutes a diversion. City of Thomton v. Ci y of
Fort Collins, 83U P.2d 915, 929-30 (Colo. 1992) ("Fort Collins"). The court held that "when the
application of witer to a beneficial use is effected by some structure or device:, the resulting
appropriation of water to beneficial use is a diversion within the meaning of fhe [Water Rights
Administration] Act " Id. at 931.
This Cou.rt subsequently upheld decrees for in-channel kayak courses for Breckenridge,
Golden and Vail under the reasoning in Fort Collins. See State En .g v. Citv cof Golden,
69 P. 3d 1027 (C:olo. 2003); State Eng v. Eagle River Water and Sanitation I)ist., 69 P.3d 1028