Case No. 01SA252 Motion for Leave to File a Breif as Amici Curiae April 2002

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This situation prevails because the courts have not imposed a public interest test in deciding whether to award a decree for a water right applicant's proposed use. Arapahoe County I, at 971 -972. Nor has the General Assembly amended Colorado's water appropriation statutes to require such a test expressly, as this Court suggested in Arapahoe County I would be the proper course to introduce such a test. Id. In rejecting an argument made by conservation interests, this Court stated, "Conceptually, a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy." Arapahoe County I, at 972. As organizations whose missions include the conservation of waterways, the undersigned wish this Court might have reached a different conclusion, but the holding of Arapahoe County I is that what constitutes a beneficial use in Colorado turns not on the value of the use to society, but rather on whether the user is applying the water to a use recognized as beneficial in common law or statute. Yet, while not stated in precisely these terms, the State and State Amici are arguing for this Court to create a public interest test, designed solely to diminish certain recreational, in- channel, non - consumptive uses. Certainly, there is no precedent for the Court to mandate such a test for only one class of use. Moreover, no existing common or statutory law requires water users — including those with non - consumptive uses like hydropower or flood control —to reduce the quantity of their uses in order to conserve water for future unspecified but "more beneficial" uses. Therefore, it would be an unprecedented departure from existing law for this Court to require Golden alone to conserve water in achieving its beneficial use. If this Court is inclined to 7