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these questions can be determined in the course of <br />the water proceedings, but how really would that <br />work? If someone has filed for a water right that <br />would injure instream flow water rights held by the <br />Board. If the water court then holds that matter i_n <br />abeyance while it hears the argument of the Sierra <br />Club that the Board was arbitrary and capricious ill <br />their determination not to enforce its water right in <br />filing objections. What happens if the Board isn't <br />even a party because it hasn't filed? •What happens <br />if there isn't even anyone to have standing? We may <br />be into a Catch 22 situation. The bill seems-to <br />imply that private citizens - don't have a right to <br />•enforce'a right, Does that mean that they don't have <br />the right to be in water court in the first place? <br />If that is the case, who is going to make the <br />arbitrary and capricious argument? I think that <br />there are some uncertainties there that need to - be <br />resolved, And finally I think it is important to <br />Point out that while it is certainly comforting to <br />know that private parties can contract with the Board <br />for enforcement rights, that doesn't assure that the <br />Board will .agree to provide such conditions, and I <br />don't understand why it is that someone who pays <br />their own cash dollar for a water right ought not to <br />be able to assure that that water right is going to <br />be applied to the use that they intended it rather <br />than have them subject to the whims of the water <br />board; which might decide that it did not care for <br />that particular instream flow water. In sum, Mr. <br />Chairman, members of the committee, I think that <br />there are real problems with the Colorado instream <br />'flow program. This bill does-not really address <br />them, I think instead that this committee ought to <br />turn itself towards reducing the conflict and tension <br />between the traditional western water law and <br />—13— <br />