Laserfiche WebLink
MAR -27 -2002 17:07 PROM -DOL NATURAL RESOURCES 3038663558 T-711 P.004/009 P -015 <br />water rights for diversion structures -- the Nature Dam, and the boat chute and fish ladder in the <br />Power Dam. Id. at 920 -21. Accordingly, SB 212 was applicable to the amended application. <br />In Ft. Collins, the Supreme Court considered SB 212,' the revised language of § 37 -92- <br />102(3), and its clarification that "exclusive authority [is] vested in the CWCB to appropriate <br />minimum stream flows." Id, at 930. In fact, every opening brief filed with the Supreme Court in <br />that appeal specifically referenced, discussed, and attached copies of SB 212 and/or the resulting <br />statutory language. On its review of those arguments, the Court found the "exclusive authority" <br />argument irrelevant to the 1988 amended application under consideration, and easily <br />distinguished between the CWCB's exclusive authority to appropriate minimum in- stream flows <br />and the right to appropriate "by a structure or device ... which controls water within its natural <br />watercourse." Id_ at 930 -31. Citing Article XVI, § 6 of the Colorado Constitution, the Supreme <br />Court held: <br />The exclusive authority vested in the CWCB to appropriate <br />minimum stream flows does not detract from the right to divert and <br />to put to beneficial use unappropriated waters by removal or <br />control. <br />Ft. Collins at 930. As noted above, the Ft. Collins court found that a CWCB minimum in- <br />stream flow "usually signifies the complete absence of a structure or device" on the stream reach. <br />Id., 830 P.2d at 931. Thus, the State's argument for why Fort Collins is no longer good law is <br />'The Supreme Court cites the session law, 1987 Colo. Sess. Laws, ch. 269 at 1305 -06, <br />where SB 212 was published. Ft. Collins at 930. <br />2 See "Opening Brief for the Appellant (Thornton)," p. 7 fn.3, p.23 fn.17, and Appendix <br />A; "Memorandum Brief of Northern Colorado Water Conservancy District in Support of <br />Affirmance of Water Court Decision," p. 3 -4, and Appendix 2; and "Combined Answer Brief and <br />Opening Brief on Cross Appeal (Fort Collins)" p. 19, 25, and Appendix 3, the relevant pages of <br />which are collected and attached hereto as Exhibits I A, IB, and 1 C. <br />Ph0454 -3- <br />