Case No. 01SA252 Amici Curiae Brief of Colorado Springs Utilities February 2002

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The court expressed similar sentiment in Board of County Commissioners v. Crystal Creek Homeowners' Ass'n, 891 P.2d 952, 962 (Colo. 1995): The policy of maximum beneficial use is derived from an understanding that the waters of Colorado are a scarce and valuable resource. State Engineer v. Castle Meadow, Inc., 856 P.2d 496, 505 (Colo. 1993). The Water Court's assumption that holders of absolute and major senior conditional water right decrees will divert and appropriate to the decreed amounts projects water usage that is unrealistically high, and undermines the policy of maximum beneficial use of water. If the type of control recognized by the Water Court herein is all that is required, there will be a similar undermining of maximum utilization of state waters and the effort to "integrate" recreational in- channel diversions will have failed. In fact, water supplies, whether acquired through direct diversion or exchange, will become even more scarce if flow decrees of this nature begin to control large river segments! 1. The Amount is Not Reasonable and Appropriate. . As noted by others, Golden seeks virtually all available flow in the stream. Water Court Decree at page 5. It freely admits, nevertheless, that such amounts are not necessary to effectuate the intended use. The use can occur at 20 cfs and whitewater features appear at 200 cfs. Water s Amici are aware of the passage of S.B. 216 by the 2001 State Legislature and this bill's placement of some limits on future recreational in- channel diversions. However, it must not be forgotten that: (i) the Water Court is not bound to follow the recommendations of the CWCB under S.B. 216; (ii) the Water Court currently has no guidance in applying the recreational in- channel diversion criteria as set forth in the bill; (iii) S.B. 216 applies only to recreational in- channel diversions as compared to other similar "in- channel" activities that are nonrecreational in nature; and (iv) some of the limitations found in S.B. 216 may be subject to judicial challenge in the future. C:\DATA\Pifher \Golden AppeaITWI Brief 2 -7 -02 ghn.wpd 14 February 7, 2002 (1:30pm)