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MAR -27 -2002 17:08 FROM -DOL NATURAL RESOURCES <br />3038663558 T -711 P.006 /009 F -015 <br />sponsors and supporters of the bill during committee discussions. Even those sponsors, though, <br />made clear in their comments that SB 212 was not a change in the law, but only a reaffirmation <br />of existing law regarding the appropriation of minimum stream flows to protect the environment. <br />See State Motion, Exhibit A, p. 1 of the written statement of Sen. McCormick (the bill was <br />introduced to "reaffirm the principle that the Water Conservation Board is the only person or <br />entity authorized by state law" to appropriate or hold water rights for the purpose of maintaining <br />minimum stream flows or natural lake levels); State Motion, Exhibit A, p. 38, comments of Sen. <br />Anderson ( "212 is a reiteration of what is existing law "); State Motion, Exhibit B, p. 2, <br />comments of Rep. Paulson (SB 212 "is an attempt to clarify once again for the courss - . _ that in <br />1973 the Legislature really meant it when they only permitted the Conservation Board to make <br />an in- stream nondiversion appropriation ")(emphasis added). In short, there is nothing in the <br />legislative history, even in the selective comments quoted by the State, that suggests the <br />legislature meant to prohibit diversions by in- channel structures. It is important to note that the <br />diversion statute, § 37 -92- 103(7), which expressly allows a "diversion" by "controlling water in <br />its natural course or location," and which was the subject of the extensive analysis in Ft. Co lips, <br />was not modified by SB 212. <br />5. ^ Actual diversion out of the stream or impoundment in the str a o a ao el are not <br />technical requirements of the prior appropriation doctrine in <br />The State makes the erroneous assertion that appropriations in this state are limited to <br />"the long- standing diversion requirement or the requirement that the water be controlled in its <br />natural course or location by storage (impoundment) in the streambed for later diversion." State <br />Motion at 3; 5. That is an incorrect statement of the law. Applicants' response to this argument <br />Ph0454 -S <br />