Answer to Applicant's Closing Brief: Case No. 02CW38

• File Number: 8230.2B3
• Description: Pleadings
• State: CO
• Basin: Colorado Mainstem
• Water Division: 4
• Date: 1/1/3000
• Author: District Court, Water Division 4
• Title: Answer to Applicant's Closing Brief: Case No. 02CW38
• Water Supply Pro - Doc Type: Court Documents

history, the Legislature has granted only two exceptions to the diversion requirement: in
1973, Senate Bi1197 ("SB 97") and in 2001 Senate Bi11216 ("SB 216")
SB 97 was so revolutionary, that the Legislature sent the supreme court
interrogatories (Exhibit A? DAWN) to determine whether allowing limited instream uses
under SB 97 would violate the constitutional diversion provision. Colo. Const., Art. XVI,
sec. 6.1 The supreme court did not answer the interrogatories, but later upheld SB 97,
ruling, however, that this exception did not indicate "any erosion" of the prior case law
"holding that a diversion is an essential element of the water appropriations". Colo.
River Water Conserv. Dist. v. Colo. Water Conserv. Bd., 594 P.2d 570, 574 (Colo. 1979).
The Legislature provided physical limitations on the amount of water that could be
appropriated and granted authority over the process the CWCB (a 15-member board from
all major river basins) to prevent abuses and ensure fair and measured instream uses.
Until SB 216, the Legislature never provided for recreational instream uses, and
the courts never had authority to grant such revolutionary uses. "If the increasing demand
for recreational space on the waters of this state is to be accommodated, the legislative
process is the proper method to achieve this end." People v. Emmert, 597 P.2d 1025,
1029 (Colo. 1979). In SB 216, the Legislature again provided physical limitations on the
amount of water that could be appropriated and granted authority over the process the
CWCB to prevent abuses and ensure fair and measured instream uses.
IThe Constitution provides that the right to divert the unappropriated waters of any natural stream to
beneficial uses shall never be denied. Colo. Const., Art. XVI, sec. 6(emphasis added). "The reason and
thrust for this provision was to negate any thought that Colorado would follow the riparian doctrine,"
because the maintenance of the flow of a stream is a riparian right, which is completely inconsistent with
the doctrine of prior appropriation. CWCB, 594 P.2d at 573; citinQ Schodde v. Twin Falls Land and Water
Co., 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed. 686 (1912).
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