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MAR -27 -2002 17:07 FROM -DOL NATURAL RESOURCES 3038663558 T -711 P.003/009 F -015 <br />to appropriate in- stream flows. There is no merit to this argument. As set forth below, SB 212 is <br />entirely irrelevant here as Applicants do not seek an in- stream flow. Moreover, contrary to the <br />State's assertion, SB 212 was enacted prior to the amended a lication in Ft. Collins was <br />expressly considered by both the trial court and the Supreme Court in that matter, and was held <br />not applicable to the in- channel diversions at issue_ This Court is bound to reach the same <br />conclusion. <br />Response <br />1. SB 212 is irrelevant to the diversions at issue. <br />SB 212 modified § 37- 92- 102(3) to clarify that only the CWCB can hold in- stream flow <br />water rights. In arguing that SB 212 prevents the appropriations at issue, the State ignores the <br />fundamental fact that the applications in these cases do not seek in- stream flows. Applicants <br />seek water rights to protect the considerable investment and legitimate expectations they have in <br />the highly engineered and expensive diversion structures in their respective whitewater courses. <br />In contrast, a CWCB minimum in- stream flow is for a reach between two points on a stream, is <br />appropriated for the purpose of protecting the natural environment, and does not require any <br />control. In fact, the Supreme Court held in Ft. Collins that an in- stream flow "usually signifies <br />the complete absence of a structure or device" on the stream reach. Id., 830 P.2d at 931. <br />2. The Supreme Court considered and rejected the State's argument in Ft. Collins <br />The original water rights application filed in Fort Collins in 1986 was expressly for "in- <br />stream flows." Fort Collins 830 P.2d at 919 -20. It was in that context that SB 212 was <br />proposed and then passed in 1987. After that, in 1988, the City of Fort Collins amended its <br />application, eliminating any claim for an in- stream flow for a stream reach. Instead, it claimed <br />Ph0454 -2- <br />