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In Ft. Collins, the Colorado Supreme Court upheld recreational boating as a recognized
<br />beneficial use of water, with specific reference to "kayaks and inner tubes." Id. at 932. Citing
<br />the plain language of the statutory definition of "diversion" at C.R.S. § 37-92-103(7), the
<br />Supreme Court also confirmed that in-channel boating structures that function as designed to
<br />control water in the river channel to achieve the appropriator's intended beneficial use constitute
<br />a statutory diversion.' Id. at 931-932. In reaching that conclusion, the Supreme Court cited
<br />among many other cases, the 1886 decision in Larimer Co. Reservoir Co. v. Luthe, which held
<br />that "there may be a constitutional appropriation of water without its being at the instant taken
<br />from the bed of the stream." Larimer Co., 9 P. 794, 796 (Colo 1886).
<br />Relying on the Ft. Collins decision, the City of Golden, the Town of Breckenridge, the
<br />Eagle River and Water and Sanitation District acting on behalf of the Town of Vail, and other
<br />Colorado communities filed water right claims to protect their respective boating parks. See,
<br />Concerning the Application for Water Rights of the City of Golden, Colorado District Court
<br />Water Div. No. l, Case No. 98CW448 (June, 2001) (hereafter "Golden"); Concerning the
<br />Application for Water Rights of the Eagle River Water & Sanitation District, Colorado District
<br />Court Water Div. No. 5, Case No. OOCW259 (June, 2002) (hereafter "Vail"); Concerning the
<br />Application for Water Rights of the Town of Breckenridge, Colorado District Court Water Div.
<br />No. 5, Case No. OOCW281 (June, 2002) (hereafter "Breckenridge"). In stating the applicant's
<br />burden with respect to whether the amounts claimed were reasonable in the Golden matter, the
<br />Water Court for Division No. 1 framed the inquiry as whether Golden had claimed "reasonable
<br />rates needed to fulfill its [Golden's] stated purpose." Golden, Order on Motion in Limine, March
<br />1, 2001. (Exh. 5-30.) The final Decree in the Golden decision went on to explain: "The
<br />question, therefore, is qot whether the amount of water claimed is "reasonable" in the
<br />abstract, or as compared to other potential future uses of the water, but whether the
<br />amount claimed is reasonable for the purposes for which Golden made the appropriation."
<br />Golden, Decree at 7. (Exh. 5-10.) The Water Court for Water Division No. 5 reached the exact
<br />same conclusion in the Breckenridge and Vail cases.2 All of these decisions were affirmed by
<br />operation of law by the Supreme Court at 69 P.3d 1027, 1028, 1029 (Colo. 2003).
<br />' In a January 2001 whitepaper titled "Recreation Water Rights Legislation" urging the
<br />legislature to limit the Ft. Collins case, the CWCB explained its understanding of that seminal
<br />decision as follows: "The Supreme Court held that boat chutes and fish ladders are structures that
<br />concentrate the flow of water. Therefore, they may qualify as a`structure or device' that controls
<br />water in its natural course or location (and thus qualify for a water right) under section 37-92-
<br />103(7). .. ." (Exh. 5-19.)
<br />2"The question, therefore, is not whether the amount of water claimed is "reasonable" in
<br />the abstract, or as compared to other potential future uses of the water, but whether the amount
<br />claimed is reasonable for the purposes for which the appropriation was made." Vail, Findings of
<br />Fact, Conclusions of Law, and Decree of the Water Court, June 5, 2002, at 6(Exh. S-11 ); see
<br />also Breckenridge, Findings of Fact, Conclusions of Law, and Decree of the Water Court, June 5,
<br />2002, at 6. (Each. S-12.)
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