Case No. 02SA226 Town of Breckenridge Answer Brief February 2003

Home Browse Search

requirements were not retroactive to the RICD applications already pending. § 37- 92- 102(6)(d). The Breckenridge application was one of four applications pending at the time. The passage of SB 216 renders the State's arguments moot. RICDs are not impermissible in- stream flow rights or riparian rights, they are a manifestation of in- channel control to a beneficial use. The passage of SB 216 also makes it clear that the parade of horribles urged by the State are nothing more than scare tactics. Indeed, these very concerns, such as injury to compact entitlements, are factors that will be considered in future applications, as they were in this case. Accordingly, Breckenridge contends it would be wrong for this Court to reverse Fort Collins or limit the legislative definition of "diversion" on policy grounds as argued by the State. The General Assembly considered the policy issues, it reconfirmed RICDs as a beneficial use, and it decided the extent to which the long- standing law should be modified for future RICDs by developing new procedures and considerations. As this Court has repeatedly held, changes in long- standing law are best made by the legislature, not the judiciary. See Bd. of County Comm'rs, 891 P.2d at 972; Emmert, 597 P.2d at 1027. 2. SB 216 Is Not Applicable and Would Not, in any Event, Limit the Park As noted above, SB 216 was not made retroactively applicable to pending applications for RICDs, including Breckenridge's application. Even if it were applicable, RICDs are defined in a manner generally consistent with the "beneficial use" provision already applied by the Water Court. Both consider what is "reasonable" in the context of the intended beneficial use. Here, it was unrebutted that Breckenridge sought to design a Park that would attract the greatest number of users and attendant economic benefit. The Water Court held that the structures function at an Sb1546 -28-