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water from the river ... does not constitute a diversion ?" To which he replied: "It's not a <br />diversion, no." (v.IX, p.21, 1.7 -11). In other words, the State's witness ignored the clear <br />language of the statutory definition of diversion. <br />ii. Breckenridge Claims Water Rights for Structures, Not an In- Stream Flow <br />The water rights decreed to Breckenridge are for the Park structures, not for a stream reach. <br />Each Park structure is a highly- engineered rock and cement structure. Breckenridge seeks <br />neither a riparian right or an in- stream flow right, but rights for the water these structures divert <br />and control in creating a whitewater course. In contrast, a CWCB minimum .in- stream flow is for <br />a reach between two points on a stream, does not require aM control and, in fact, "usually <br />signifies the complete absence of a structure or device" on the stream reach. Fort Collins, 830 <br />P.2d at 931. Indeed, this Court rejected the same argument when it was raised in Fort Collins. <br />Clearly, if the CWCB's statutory right to appropriate an in- stream flow right without any <br />control structure is constitutional, CRWCD, 594 P.2d at 575, then the Legislature may also <br />provide statutory authority to allow a water right by building a structure in the channel which <br />does divert and control the water.5 <br />The State argues that the passage of SB 212 modified the holding in Fort Collins because it <br />provided the CWCB with. "exclusive authority" to appropriate in- stream flows under section 37- <br />92- 102(3). SB 212 is entirely irrelevant as Breckenridge does not seek an in- stream flow right. <br />Even if SB 212 were relevant, no ambiguity regarding the statute exists or is even alleged, thus <br />5 Moreover, if an in- stream flow right is not a riparian right, Bd. of County Comm'rs v. Collard, <br />827 P.2d 546, 549 (Colo. 1992), then neither is a water right appropriated by in- channel control <br />structures. Even a cursory review of the elements of a riparian right makes a comparison to such <br />rights meaningless. See David Getches, Water Law in a Nutshell 33 (3d ed. 1997). <br />Sb 1546 -15- <br />