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1. No action. Given the problems with the existing law, this solution is not <br />ideal. However, at least one water user may challenge Golden's application <br />because Golden cannot put the amount of water they are seeking to beneficial use. <br />Beneficial use is defined as "that amount of water that is reasonable and <br />appropriate under reasonably efficient practices to accomplish without waste the <br />purpose for which the appropriation is lawfully made." It is possible that a water <br />court, or the Supreme Court may interpret the term "beneficial use" broadly so as <br />to prevent water users from appropriating an amount of water for a recreational <br />instream flow that would prevent all future water development, or severely restrict <br />water development potential, in a given watershed. In addition, the CWCB could <br />argue that the Supreme Court should overturn Fort Collins. Given that the Fort <br />Collins was a 4/3 split decision, and that there are several new justices on the <br />Supreme Court, the Supreme Court could decide to overrule the Fort Collins <br />decision. However, both these approaches would be costly and unpredictable, <br />and would take several years to finally resolve the issue. <br />2. Recommend that the General Assembly amend the statutes. The <br />CWCB could request that the General Assembly consider the following possible <br />statutory changes: <br />A. Alter the definition of structure or device. One solution would <br />be to remove the words "other structure or device" from the definition of <br />diversion or divert in section 37 -92 -103, C.R.S. (1999). As stated above, <br />diversion and divert means "removing water from its natural course or <br />location, or controlling water in its natural course or location, by means of <br />a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or <br />other structure or device." Section 37 -92- 103(7), C.R.S. (1999). <br />However, there are two potential problems with this alternative. First, the <br />removal of the words "other structure or device" would eliminate <br />recreational instream flows altogether. Second, while this change does not <br />appear to affect any valid water "diversions" other than recreational <br />instream flows, there may be other types of diversions that could be <br />eliminated by the removal of these words. In addition, this type of change <br />could face opposition from municipalities and other entities. <br />B. Clarify the legislation to abrogate the Fort Collins decision. <br />Under this solution the General Assembly could cut the cloth more <br />narrowly and merely state that boat chutes and fish ladders do not qualify <br />as structures or devices which control water in its natural course. This <br />approach would eliminate the problem of affecting any unintended types <br />of "diversions" but it faces the other difficulties of solution 2.A, above. <br />C. Expand the CWCB's authority. Another solution could be to <br />vest the CWCB with the authority to appropriate recreational instream <br />flows. Such a legislative change could be attached to section 37 -92- <br />102(3) and stated in the following manner: <br />