Case No. 01SA252 Brief of Amici Curiae February 2002

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the definitions of "diversion" and "beneficial use" in the Water Right Determination and Administration Act of 1969, §§ 37 -92 -101, et. seq. 10 C.R.S. (2001). Beginning with the passage of the Colorado Instream Flow Law in 1973, Colo. Sess. Laws 1973, Ch. 442, codified at §§ 37 -92- 102(3) & (4), 37- 92- 103(4), 10 C.R.S. (2001), the Colorado legislature has carefully limited the appropriation of water for instream flow purposes. These careful limitations are necessary because rights for instream flows could prevent the future development of waters to which the state of Colorado is equitably entitled under interstate compacts and decrees of the U.S. Supreme Court. In authorizing the appropriation of instream flows to preserve the natural environment, the General Assembly carefully limited the amount of such appropriations to the minimum flows between specified points on natural streams that are required to preserve the natural environment to a. reasonable degree. § 37- 92- 103(4), 10 C.R.S. (2001). The General Assembly has vested the Colorado Water Conservation Board with the exclusive authority, on behalf of the people of the state of Colorado, to make 3h appropriations and has stated that no other person or entity shall be granted a decree adjudicating a right to water for instream flows "for any purpose whatsoever." § 37- 92- 102(3), 10 C.R.S. (2001). The General Assembly further provided the admonition that nothing in article 92 of title 37 shall be construed as authorizing any state agency "to deprive the people of the State of Colorado of the beneficial use of those waters available by law and interstate compact." Id. See also §§ 37- 81- 101(1)(a) and (b), 10 C.R.S. (2001) (legislative declarations regarding the transportation of water resources into another state). The Supreme Court in its decision in City of Fort Collins v. City of Thornton, 830 P.2d 915 (Colo. 1992), held that controlling water in its natural course or location by a structure or device for recreational boating or fishery and wildlife purposes might be a beneficial use.