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determine whether and under what conditions Colorado will recognize recreational instream flow <br />water rights. <br />Traditional diversionary water rights have always been the foundation of Colorado water <br />law. Denver v. Northern Colo. Water Conservancy Dist., 276 P.2d 992, 998 (Colo. 1954); <br />CWCB, 594 P.2d at 574. The long-standing diversion requirement set forth in Colorado's <br />constitution created inherent physical limitations on the amount of water that can be claimed, <br />thereby ensuring "maximum utilization." Unlike prior appropriation, with instream uses (such as <br />under a riparian system), there are no limits on the amount of water claimed except what remains in <br />the stream. When the importance of instream uses gradually became recognized in Colorado, the <br />Legislature had to provide limitations on such instream uses to preserve this scarce and valuable <br />resource. Accordingly, in sanctioning the only two exceptions to the diversion requirement, the <br />Legislature limited both CWCB instream flows and recreational instream flow water rights to a <br />"minimum" streamflow. <br />B. The Legislature Properly Exercised its Authority to <br />Grant Limited Instream Uses in Colorado by <br />Enacting Senate Bills 97, 212 and 216. <br />The Legislature's decision to allow limited instream uses under SB 97 was so <br />revolutionary that the Legislature sent interrogatories to the Supreme Court to determine whether <br />it would be unconstitutional to allow such appropriations of water because there was no <br />diversion. (Exhibit E, House Journal, March 19, 1973, pp. 626-627).2 This legislative history <br />2 The State has attached relevant provisions of the transcripts of the legislative hearings. The <br />entire transcripts are attached to the Brief of Amici Curiae for the attorneys for the Rio Grande <br />Conservation District, et al. <br />8