Transcript of SB216, Second Reading in the Senate

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• Rep. Spradley: Thank you. And I think maybe we're getting confused between a conditional water right and a recreational water right. The courts have made a decision about the recreational water rights and so what we're trying to do is set forth the framework and the process to deal with a recreational water right which the court has set. The conditional water rights are also a legitimate matter, but whether or not they can be converted to a recreational water right, the court has not [unintelligible]. And we're setting forth what we believe is the appropriate way to deal with that issue. And so we would be giving direction to the court as to how we believe that that should proceed or not proceed as far as conversion of a conditional water right or recreational water right. I don't know if that helps or muddies the waters. Mme. Chair: Mr. Kuharich? Rod Kuharich: Representative Plant, the legislature did exactly what we are proposing when they created the CWCB in- stream flow right. They specifically prohibited the Water Conservation Board from accepting the conditional. water rights and turning them into very senior in- stream flow rights. And they recognized the character of an in- stream flow right or an in- stream flow diversion at that time and • were simply carrying this forward. We are currently prohibited by statutes from doing that for our environmental in- stream flows. Mme. Chair: Representative. Plant? Rep. Plant: [unintelligible] [crosstalk] And I think there is some, a you said, some question, but it seems that the courts historically, and maybe, Steve, when he gets .up -here [unintelligible], but they said that under [unintelligible] versus Christiansen [sp] that application for a conditional water right involves a water matter over which there is jurisdiction in the courts. They said that water matters include application for a change in water right. And so it seems that if we're going down the line here, the conditional water right is a water matter over which the court has the jurisdiction and the changing in the water right constitutes something over which the court has a jurisdiction that — to specifically put into statutes that no decree shall be entered adjudicating a change of conditional water right [unintelligible] going directly counter to that. Mme. Chair: Representative Spradley? Rep. Spradley: Thank you. I think what we're having is a fundamental discussion about separation of power. And that is should the legislature be setting forth the law in the courts and interpreting it and doing that. May 7, 2001 Page 10