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Opening Brief
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Last modified
1/26/2010 4:41:42 PM
Creation date
7/29/2009 3:05:54 PM
Metadata
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Template:
Water Supply Protection
File Number
8230.2F
Description
Colorado Supreme Court Appeal
State
CO
Basin
Colorado Mainstem
Water Division
4
Date
7/26/2004
Author
Ken Salazar, Susan Schneider
Title
Opening Brief
Water Supply Pro - Doc Type
Court Documents
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IV. WHETHER THE PRESUMPTIVELY VALID CWCB FINDINGS AND <br />RECOMMENDATIONS MUST BE UPHELD UNLESS THERE IS CLEAR AND <br />CONVINCING EVIDENCE THAT THEY ARE IN ERROR. <br />SUMMARY OF THE ARGUMENT <br />The Water Court's holding that it would infringe on the constitutional right to appropriate <br />to "preclude an Applicant from determining precisely the size and scope of any recreational in <br />channel diversion" disregards the plain language of SB 216 and effectively means that the <br />Legislature's limitation of RICDs to a"minimum stream flow" is unconstitutional. (Exhibit A, <br />pp. 19, 17). Throughout this state's history, there has never been a constitutional right to <br />appropriate water for instream recreational uses. Further, neither the Legislature nor the <br />Colorado Supreme Court has ever recognized a constitutional right to appropriate water for <br />instream uses. Rather, this Court has recognized the Legislature's authority to sanction instream <br />uses as a statutory exception to the traditional diversion requirement. Colorado River Water <br />Conserv. Dist. v. Colorado Water Conserv. Bd., 594 P.2d 570, 574 (Colo. 1979) (hereinafter <br />"CWCB"). Throughout the state's history, the Legislature has granted only two narrow instream <br />flow exceptions to the diversion requirement. <br />The first exception occurred in 1973, when the Legislature enacted Senate Bill 73-97 <br />("SB 97"). SB 97, a novel and controversial law, granted the CWCB the sole authority to <br />appropriate a"minimum stream flow" necessary to preserve the environment to "a reasonable <br />degree." This Court recognized the Legislature's authority to allow the first minimum instream <br />use, not as a constitutional right, but rather as a limited exception to the diversion requirement. <br />CWCB, 594 P.2d at 574. Similarly, in 2001, the Legislature enacted SB 216 (also controversial) <br />4
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