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shows that there has never been a constitutional right to appropriate water for instream uses, but <br />only limited, legislatively prescribed rights. <br />In upholding SB 97, this Court emphasized that it was "not hereby causing any erosion of <br />the many opinions of this court ... holding that a diversion is an essential element of the water <br />appropriations" in Colorado. CWCB, 594 P.2d at 574 (emphasis added). "The crucial <br />consideration is that this court has never decided a case such as this on a constitutional basis." <br />Id., at 575. With this holding, the Supreme Court also upheld the first right to appropriate <br />"minimum" instream flows, not as a constitutional right, but as an exception to the diversion <br />requirement. <br />SB 97's limitations were tested when the City of Fort Collins claimed a water right for a <br />boat chute carved into a traditional dam impoundment structure. After the appropriation date, <br />but before the issuance of a water rights decree, the Legislature reacted by passing Senate Bill <br />87-212 ("SB 212") to prevent recreational instream flow appropriations and to clarify that only <br />the CWCB could appropriate water for instream uses.3 The case was appealed in City of <br />Thornton v. Citv of Fort Collins, 830 P.2d 915 (Colo. 1992). This Court sanctioned only "low <br />flows" in the river. Id. at 932. In contrast to the 1500 c.f.s claimed here, Fort Collins obtained a <br />water right for 30 c.f.s. (Ft. Collins Decree, Case No. 86CW371, pp. 11-12). Thus, the Court <br />' With SB 212, the Legislature intended to prevent other entities from trying to "command the <br />flow of streams for their own aims, without proceeding through the administrative and statutory <br />provisions for an instream flow appropriation by the Water Conservation Board". (Exhibit F, <br />Excerpts from SB 212 Legislative History Transcripts, p. 1). The Legislature also intended to <br />prevent "speculation" caused by allowing instream flows "for recreation purposes" without <br />having to "use that water and capture it" "because there will be no objective test to figure who's <br />sincere and who's really trying to come up with a valuable water right." (Exhibit F, p. 2).