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CWCB could obtain a water right for an instream use and provided this Court the opportunity to <br />revisit and shape the law defining diversion. <br />A. The Legislature reacted to Fort Collins' application <br />with legislation reiterating that only the CWCB could <br />appropriate water for uses instream. <br />In response to Fort Collins' application, the Legislature enacted SB 212 in 1987 to <br />prevent both a proliferation of Fort Collins -type appropriations and any further erosion of the <br />diversion requirement. SB 212 reaffirmed the principle that no entity other than the CWCB <br />could appropriate water for any instream use. 1987 Sess. Laws, 1305, ch. 269, § 1 (Legislative <br />Intent Section). The Legislature intended (as the Colorado Supreme Court had held in CWCB <br />that a diversion was still an "essential element" of water appropriation. (Exhibit B; v. II, pp. <br />366 -367); 594 P.2d at 574. <br />The Applicant's claim is exactly what the Legislature was trying to prevent by passage of <br />SB 212. A co- sponsor of both SB 97 and SB 212 expressed concern that after Fort Collins' <br />application, other entities would try to "command the flow of streams for their own aims, <br />without proceeding through the administrative and statutory provisions for an instream flow <br />appropriation by the Water Conservation Board." (v. II, p. 371). At the hearing on SB 212, <br />members of the Legislature also predicted "speculation" caused by allowing instream flows "for <br />recreation purposes" without having to "use that water and capture it" "because there will be no <br />objective test to figure who's sincere and who's really trying to come up with a valuable water <br />right." (v. II, p. 416). The legislators specifically dismissed the concerns expressed by <br />recreational users that SB 212 would prevent recreational instream water rights. (v. II, pp. 399- <br />13 <br />