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

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Former Senator Fred Anderson, who co- sponsored the original instrearrl flow legislation, testified that the original legislation was intended to prevent bank -to -bank appropriations by entities other than the CWCB: Now as I sponsored that bill along with Senator McCormick, Senator Kenny, Senator DeBerard, all the rest of them that were on this and there were about fifteen sponsors, it was to be a minimum stream flow because we were worried that somebody might come along and want a bank -to -bank type appropriation which would create havoc all the away (sic) down the stream." (Exhibit A, p. 38 (emphasis added)). Mr. Anderson also expressed concern to the House Committee about bank -to- bank appropriations that might arise after the Fort Collins filing. (Exhibit A, pp. 34 -35). While SB 212 was inapplicable to the Fort Collins appropriation, it does apply to the appropriations made for the Vail and Breckenridge courses. The CWCB is the only entity that can appropriate water flows in the stream (until the passage of Senate Bill 216 which provides specific limitations and procedures for recreational in- channel diversions). The Applicants are subject to the long- standing diversion requirement or the requirement that the water be controlled in its natural course or location by storage in the streambed for later diversion or impounded for recreation. (Exhibit A, written statement, pp. 1, 3; see footnote 4); see also Colorado Water Conservation Bd. 594 P.2d at 574. These appropriations for Vail and Breckenridge are exactly what the legislature was trying to prevent -- appropriations of water for flows in the stream. SB 212 and the legislature made it clear that such appropriations were impermissible, and this Court should honor the General Assembly's explicit intent to prevent claims for water in the stream. CONCLUSION SB 212 was enacted to prohibit an appropriation like that in Fort Collins by any person or entity other than the CWCB. SB 212 and its accompanying legislative history clarify that the CWCB has the exclusive authority to appropriate water without diversion or impoundment of the water for later diversion. Under SB 212, the appropriations made for the Vail and Breckenridge whitewater courses are impermissible instream flows: WHEREFORE, the State respectfully requests this Court to grant the State's Motion for Summary Judgment and hold that SB 212 prohibits entities other than the CWCB from appropriating water in the stream.