SB01-216 Senate Committee on Public Policy and Planning

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whitewater courses to minimum flows, it means you won't have first rate whitewater courses in the state. The third point I wanted to make is the bill deprives people of their constitutional right to appropriate. And I think this is a real key point to make, because Article 16, Section 6 of the Constitution states that the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. The problem here is that the bill limits who can get these kind of water rights, cities, counties, water - districts, what about universities, what about businesses, what about kayak clubs. The water is available to appropriate, the Constitution allows them to appropriate it. You're going to have to amend the Constitution for this bill. That's our opinion. • There's a second constitutional defect, in that if the water is available to appropriate and if it's a city that's appropriating the water for these kind of recreational diversions, the bill said it's limited to minimum flow. That means they have leave water that's available and not appropriated. Again, that's unconstitutional. The fourth point I wanted to make is that the bill is retroactive. As you've heard testimony from Vail and Breckenridge, they've been involved in constructing and designing their courses for some time now. Their applications were filed back in December of 2000. The reason this bill goes back to December 1, 2000, is to make those applications subject to new law, essentially changing the law in mid- stream, so to speak. There's also a provision, and I have not seen the amendment, but there's_ a Golden provision in this bill. This bill unless the amendment changes that, this bill also applies to Golden, because in Section 3792305(16) it says that even if the application was filed before December 1, 2000, if the trial record is still open, that case is subject to the bill. This bill, unless the amendment changes it, this bill also applies to Golden, because in Section 3792305 (16), it says that even if the application was filed before December 1, 2000. Now, if the file record is still open, that case is subject to the bill. And this is an important point, because although that case was filed years ago, and it's already gone through [unintelligible] court, it didn't quite fmish. The [unintelligible] court continued the trial for one more day in the middle of May this year. That means technically that trial record is not open —or is still open, right? So it's a crafty way to do it, but [unintelligible] 99 percent of the evidence had already been presented to the [unintelligible] court, and unless that provision is stricken, Golden is not grandfathered in. And I guess I would say that's the only other application that I'm aware of that's out there right now, and April 12, 2001 Page 34