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reach which allegedly benefit recreational, piscatorial, wildlife or even aesthetic uses through <br />inefficient diversions could demonstrate the "control" necessary to obtain a decree and thereby <br />impair upstream water diversion and storage activities and foreclose future exchange opportunities. <br />The significance of the Golden decision in this regard cannot be underestimated.' <br />D. RECOGNITION OF THE DECREE WOULD UNDERMINE THE <br />DOCTRINE OF MAXIMUM BENEFICIAL USE. <br />As noted in Empire Lodge Homeowners Association v. Moyer, OOSA211, 2001 Colo. LEXIS <br />1061 (2001): <br />By the late 1960's, it became clear to Colorado citizens and to the three branches of <br />state government that principal river systems in Colorado, particularly the Platte and <br />Arkansas Rivers, were reaching an over - appropriated status, and junior un- <br />administered diversions, particularly wells depleting tributary groundwater, were <br />intercepting water necessary to fill senior decreed water rights. It also became clear <br />that strict application of the priority doctrine to over appropriated basins would <br />restrict new water uses to changes of water rights only. How to protect prior <br />appropriation rights while also allowing new uses required a governmental response. <br />Fellhauer v. People, contains this court's response to these critical issues. See <br />Fellhauer v. People, 167 Colo. 320, 336, 447 P.2d 986, 994 (1968). See Empire <br />Lodge at *25. ( "It is implicit in these constitutional provisions that, along with <br />vested rights, there shall be maximum utilization of the water of this state. As <br />administration of water approaches its second century the curtain is opening upon the <br />new drama of maximum utilization and how constitutionally that doctrine can be <br />integrated into the law of vested rights. ") Id. at *26. <br />.1 The state legislature realized the potential negative implications of such a situation. <br />Thus, in adopting S.B. 216 last session and allowing appropriations for recreational in- channel <br />diversion rights, it limited the scope of those who could file an application for such rights to <br />certain identified "governmental" entities, and provided the CWCB a significant role in <br />reviewing such applications. See § 37- 92- 103(4), 10 C.R.S. (2001). <br />C:\DATATifber \Golden Appeal\Full Brief 2 -7 -02 glmwpd <br />February 7, 2002 (1:30pm) 13 <br />