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government and traditional state water law, we ought <br />to more accommodating now that the federal government <br />is starting to say "we'll play by the rules of the <br />prior appropriation sy stem and wait in Zinc. and <br />y -� <br />�' g a <br />priority date just like everybody 'else ., <br />y y " That is the <br />direction I think we aught to be moving, The final <br />issue raised by the bill is the question of third <br />Party enforceability, It seems to me that is it <br />inappropriate to be limiting the enforceability of <br />the instream flow water rights if they are to'be held <br />solely by the Board to the Board. The legislation, <br />the initial legislation made it quite clear that <br />there would be held in the name of the people in the <br />entire state, and it makes sense then that if the <br />Board failed to protect the interest of the <br />People, <br />then the private citizen should be able.to go into <br />water court and make that argument. To a limited <br />extent that has been Provided for in the bill,.but I <br />think the extent is unsatisfactory. For instance, <br />private citizens are required to demonstrate that the <br />Board's da"Ier is arbitrary and capricious; <br />that is a difficult burden one which no other party <br />before a water court in the State of Colorado is <br />required to make. If Farmer Jones believes that his <br />interest in water are being interfered with by an <br />upstream junior for instance, that person doesn't go <br />into water court - and argue that the junior is being <br />arbitrary and capricious. Rather that person argues <br />with the standard of material injury. It would seem <br />that that would be a more appropriate standard. In <br />addition, it seems that at a minimum the Board ought <br />to have the burden of proof in'showing that it is not <br />appropriate to enforce the water right it has <br />acquired on behalf of the people rather than the <br />other way around. The procedure For enForcing these <br />rights is also confusing to me. It indicates that <br />—12— <br />