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

of diversion.2 830 P.2d at 930. Further, Fort Collins was limited to low flows only,
unlike the vast amounts claimed here. Fort Collins, 830 P.2d at 932.
Even if the Fort Collins decree (30 c.f.s.) were similar to the Applicant's proposed
decree (seeking 1500 c.f.s.), the Fort Collins case is inapplicable because SB 212 was
passed specifically to prohibit such appropriations. SB 212 was enacted in 1987, while
Fort Collins' water right was appropriated in 1986.3 Thus, unless the Court had
specifically applied the statute retroactively, it could not have governed Fart Collins'
application. Although the Fort Collins Court cited the newer statute, there was no
retroactive application. Unless specifically stated, it cannot be presumed that this Court
was retroactively applying a 19871aw to a 1986 application. Shell v. Dolores County
Com'rs, 948 P.2d 1002, 1011 (Colo. 1997).
Further, legislative history of SB 212 clearly shows an intent to prevent
appropriations similar to Fort Collins'. The Legislature passed SB 212 to address the
potential for a"a rash of water rights filings by cities, organizations and individuals who,
for some reason or other, wish to command the flow of streams for their own aims,
without proceeding through the administrative and statutory provisions for an instream
flow appropriation by the Water Conservation Board."4 The Legislature intended to
Z The essential holding was whether the definition of diversion could encompass the traditional dam
impoundment structure used for boat passage. Thus, Fort Collins was about the evolving definition of
diversion, not about substantially changing Colorado water law to include recreational instream flows.
Notably, in the same year that this Court upheld the right of the CWCB to obtain instream flows and
required diversion as an essential element for all other water rights, this Court also ruled that the legislative
process was the proper method to accommodate "the increasing demand for recreational space on the
waters of this state...." Id.; Emmert, 597 P.2d at 1029. Thus, in order for Fort Collins to have ruled that
recreational instream flows were thereafter legal, the Court would have had to overrule both CWCB and
Emmert and the "long line of precedenY" upholding the diversion requirement.
3Although the effective date of the decree was a contested issue at trial, the Court ultimately found that "the
1988 amendments [to Fort Collins' application] relate back to the 1986 application". Fort Collins, 830 P.2d
at 923. Thus, the appropriation date was prior to the effective date of SB 212.
4 Senator McCormick, co-sponsor of both SB 97 and SB 212, House Coimnittee on Agriculture, Livestock,
and Natural Resources, p. 3(hereinafter referred to as "Exhibit C," as attached hereto).
4