56 (H) Motion for Determination of Question of Law (2)

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Senate Bill 87 -212 ( "SB 212 ") was enacted in response to the Fort Collins appropriation, in an effort to prevent such appropriations from reoccurring. SB 212 did not apply to that application because the appropriation date was 1986, and the legislation went into effect in 1987. The General Assembly passed SB 212 to clarify that only the CWCB can appropriate water by leaving it in the stream. SB 212 amended the statute to grant the CWCB the "exclusive authority" to appropriate water for flows in the stream. SB 212; § 37 -92 -102, C.R.S. (1987). SB 212 also added the following language: In the adjudication of water rights pursuant to this article and other applicable law, no other person or entity shall be granted a decree adjudicating a right to water or interests in water for instream flows in a stream channel between specific points, or for natural surface water levels or volumes for natural lakes, for any purpose whatsoever. 1987 Sess. Laws, 1305 -1306, ch. 269, § 2 (amending 37- 92- 102(3), C.R.S. (1973) (emphasis added). The legislature enacted SB 212 to reaffirm the principle that the Applicants in this case cannot appropriate flows of water in the stream. 1987 Sess. Laws, 1305, ch. 269, § 1 (Legislative Intent Section). The legislature intended that other appropriators were still subject to the long- standing diversion requirement or the requirement that the water be controlled in its natural course or location by storage (impoundment) in the streambed for later diversion. (Written statement to the House Committee on Agriculture, Livestock, and Natural Resources, pp. 1,3 (between pages 5 & 6 of transcript of May 28, 1987 Hearing) (hereinafter referred to as "Exhibit A," as attached hereto)); see also Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd. 594 P.2d 570, 574 (Colo. 1979) (The Court emphasized that it was "not hereby causing any erosion of the many opinions of this court, some of which are cited above, holding that a diversion is an essential element of the water appropriations involved in those cases. ")(emphasis added) Senator McCormick (one of the co- sponsors of Senate Bill 97, which first authorized the CWCB to make minimum stream flow appropriations) sponsored Senate Bill 212. Senator McCormick expressed concern about cities filing for instream flows for recreation: Late in 1986 a city filed for preservation of minimum flows in the Poudre River through its municipal boundaries, assertedly for recreation and dilution of pollution.... This may only be the start of a rash of water rights filings by cities, organizations and individuals who, for some reason or other, wish to command the flow of streams for their own aims, without proceeding through the administrative and statutory provisions for an instream flow appropriation by the Water Conservation Board.