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water court eviscerates the diversion requirement, allowing a would -be appropriator simply to <br />roll some rocks in the river and command the use of the entire river. The water court erred in <br />granting this water right, and that decision must be reversed. <br />B. A water right for recreational instream uses <br />constitutes an instream flow, which only the CWCB <br />can appropriate. <br />In 1973, the Legislature, recognizing the need to preserve the environment through <br />appropriations of water to remain in the stream, crafted a careful and cautious expansion of <br />Colorado water law. Senate Bill 97 ( "SB 97 ") vested the CWCB with the authority to <br />appropriate water within a natural stream for environmental reasons without requiring a <br />diversion "in the conventional sense." CWCB 594 P.2d at 575. <br />In passing SB 97, the Legislature expressed concern that the constitutional right to divert <br />water would be violated by allowing an entity to obtain a water right without diversion. <br />Consequently, in granting the CWCB the right to appropriate instream flows, the Legislature <br />accordingly removed the diversion requirement from the definition of appropriation to avoid <br />conflict. See, CWCB 594 P.2d at 574; (Legislative History, SB 97, February 5, 1973, pp. 1 -5, <br />(attached as "Exhibit B "); § 148 -21 -3, C.R.S. (1973). However, the Legislature never had any <br />intent that SB 97 would be the beginning of the end of the diversion requirement in Colorado. A <br />co- sponsor of SB 97 stated (in a different legislative session) that the chief concern regarding SB <br />97 had been "that instream flow appropriations are designed to keep water in the stream, whereas <br />5 The Legislature requested this Court to answer the question prior to enactment of SB 97, <br />(Exhibit B, pp. 2, 3; Exhibit A, pp. 626 -627), but the Court declined to answer the <br />interrogatories. (Exhibit A, p. 666). <br />10 <br />