SB01-216 Senate Committee on Public Policy and Planning

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Sen. Perlmutter: Chris, I was thinking about this. Why — let's say you have Golden and it's a pretty junior right on the creek. And Coors sells its water rights to Westminster and they have to have an upstream diversion. Why isn't Golden taking its junior water right subject to that possibility that a senior water user downstream sells its water rights and it's now — it gets diverted upstream. I mean, aren't they, isn't that junior water user subject to that kind of an exchange or sale? Mme. Chair: Representative Paulson. C. Paulson: The answer is no. In that stretch of stream it is to the mouth of the diversion. And that's why these things are so unique, because through technical language in the Supreme Court case, they've used a legal fiction to say that leaving it in the stream is a diversion. And so we're in new territory here. And I know that's what Rod and the drafters of this bill struggled with, is to try and go half way, to say yeah, you can leave it in the stream as a matter of public policy we're going to allow recreational use, new concept. But they still haven't changed the basic tenant of water law, which is if there's a physical molecules in the stream above your point of diversion, you're appropriation date counts. And it's those exchanges that are going to be hurt the most here. We aren't talking about the right that the fellow from Golden was talking about. Of course he went to Water Court and of course he dealt with all the objectors. And he stipulated them out. That's what you do. Those are the people with senior rights and those are the people that have the fight. What I'm talking about here is the public policy implications for you folks. Because as we destroy our ability to be flexible in our supply, we're making subsequent generations pay for that lack of flexibility. Mme. Chair: Representative Paulson, I have a question. [unintelligible] My question is wouldn't you recommend to a client of yours that they take a lawyer when they go before the Water Board? C. Paulson: I'd recommend — Mme. Chair: Such as yourself. C. Paulson: I'd recommend they take when they go across the street. But definitely, what we're talking about here is if you put these standards in the statute, then you've got to make sure you meet that burden when you go ask for their permission. And let's make no mistake about it, you're going to ask for their permission. But unless the legislature wants to review each one of these applications, you have to delegate that responsibility to somebody and you got to set the criteria. And I April 12, 2001 Page 26