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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
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Court Documents
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any analysis of that contentious issue, and without explicit authority via the "legislative process" <br />as required by Emmert, 597 P.2d at 1029.10 <br />The Fort Collins case was about the evolving definition of diversion, not about <br />substantially changing Colorado water law to include recreational instream flows. Because Fort <br />Collins involved a traditional dam impoundment structure) 1, it was part of the gradual shift in the <br />definition of "diversion" under Colorado water law and not part of a "long line of precedent" <br />eroding the diversion requirement as Appellee mistakenly asserts. (AB, p. 11). In 1969, a <br />subtle change occurred when the Legislature defined diversion as removing water or <br />controlling water in its natural course or location. §§ 148 -21 -3, C.R.S. (1969); 148 -9 -1, <br />C.R.S. (1963); 37- 92- 103(7). The "controlling water" language was never intended to <br />abrogate the diversion requirement, but rather was designed to include diversions into a <br />reservoir or impoundment of the water for later diversion. See Colorado River Water <br />Conservation Dist. v. Colorado Water Conservation Bd., ( "CWCB "), 594 P.2d 570, 574 (Colo. <br />1979); see also, House Journal, March 19, 1973, pp. 626 -627, 666, (attached as "Exhibit A" <br />to Opening Brief). <br />to In Colorado, the constitution "obliterated the common -law doctrine of riparian rights" or <br />"continuous flow," and substituted in lieu thereof the doctrine of appropriation. OOppenlander <br />v. Left Hand Ditch Co., 31 P. 854, 856 (Colo. 1892); Stemberger v. Seaton, 102 P. 168, 169 <br />(Colo. 1909). Recreational instream flow rights are riparian in nature, and thus, have never <br />been a part of Colorado water law until SB 216. <br />11 This Court merely recognized that "[a] dam certainly qualifies as a structure or device" <br />under section 37 -92- 103(7), even though it is not specifically listed as a means of diversion. <br />830 P.2d at 930. If, on the other hand, the dam incorporating the boat chute had allowed the <br />water to "continue[] to flow as it did prior to the renovation" then that dam structure would <br />not have controlled the water. Fort Collins, 830 P.2d at 932. <br />7 <br />
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