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

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noting that the instream rights did not injure existing water users or deprive anyone of the beneficial use of water. Id., 197 Colo. at 477, 594 P.2d at 575. 4. There is no evidence that upholding Golden's decree or similar applications will stop water development, even upstream. The State and State Amici seem particularly uncomfortable with decrees for recreational in- channel diversions because such rights may limit new upstream development and exchanges. C. Springs Brief at 10, Water Congress Brief at 10. Yet, they cite no evidence that these types of rights limit upstream development or exchanges any more than other new appropriations, particularly, for example, new hydroelectric power rights. Certainly, in the factual context of the Golden case, all of the upstream water development interests settled. Golden Decree, ¶ C, at 2. Ironically, recreational in- channel diversions are, in this respect, most similar to the approximately 1350 minimum instream flow decrees that the Colorado Water Conservation Board (CWCB) holds pursuant to §37- 92- 102(3), C.R.S. (2001). The CWCB, one of the State Appellants here, participates actively in water courts cases to force upstream developers to protect the CWCB's decrees. See, e.g., Findings of Fact, Conclusions of Law, Judgment and Decree, Case No. 82 -CW -328, Water Division 5, Application of Vail Valley Consolidated Water District, % 4J & 9E, pp. 3A & 18 -20 (CWCB stipulated to decree based on applicant's agreement to provide augmentation for instream flow right from upstream storage) (attached hereto as Appendix I). Thus, for the CWCB to claim in this case that a recreational in- channel diversion stops upstream development belies that agency's own almost 30 years of experience with the instream flow program. The undersigned are unaware of any case where the existence of the CWCB instream flow right actually precluded upstream development. The CWCB knows 15