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Case No. 02SA224 Reply Brief March 2003
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Case No. 02SA224 Reply Brief March 2003
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Water Supply Protection
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Case No. 02SA224 Reply Brief March 2003
State
CO
Date
3/17/2003
Author
Schneider, Susan
Title
Case No. 02SA224 Reply Brief March 2003
Water Supply Pro - Doc Type
Court Documents
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I] <br />Notably, in the same year that this Court upheld the right of the CWCB to obtain <br />instream flows and required diversion as an essential element for all other water rights, this <br />Court also ruled that the legislative process was the proper method to accommodate "the <br />increasing demand for recreational space on the waters of this state...." Id.; Emmert, 597 P.2d at <br />1029. Thus, in order for Fort Collins to have ruled that recreational instream flows were <br />thereafter legal, the Court would have had to overrule both CWCB and Emmert and the "long <br />line of precedent" upholding the diversion requirement. <br />This Court should reverse the water court's grant of recreational instream flow <br />appropriations because such uses have never been authorized by this Court or the Legislature <br />until SB 216. <br />M. Prior to SB 216, the Legislature Had Never Authorized a Right to <br />Appropriate Recreational instream Flows. <br />In 1979, this Court clearly recognized the legislative intent that diversion was an <br />"essential element" of water appropriations (except for CWCB appropriations). CWCB, 594 <br />P.2d 570. Nonetheless, the Legislature was prompted to pass another law reiterating that the <br />CWCB was the only exception to the diversion requirement after Fort Collins applied for its <br />water right for a traditional impoundment structure to be used for non - traditional purposes. <br />Thus, the Legislature enacted SB 212 in 1987 specifically to prevent both a proliferation of <br />Fort Collins -type appropriations and any possible "erosion of the diversion requirement" for <br />entities other than CWCB. (Exhibit B, attached to Opening Brief, v. H, pp. 366 -367; CWCB, <br />594 P.2d at 574). <br />7 <br />
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