Laserfiche WebLink
Contrary to the Water Court's suggestion, the recognition of a water right based on <br />controlling water in its natural location within a stream channel in City of Thornton v. City of <br />Fort Collins did not create an unrestricted constitutional right to appropriate water for such uses. <br />The Fort Collins case was based on the definition of the term "diversion," as that term was <br />defined by the General Assembly. This Court held that "water may be appropriated by a <br />structure or device which either removes water away from its natural course or location and <br />towards another course or location or which controls water within its natural watercourse, <br />assuming such action puts the water to beneficial use." 830 P.2d at 930 -31. Stating the issue as <br />"whether the appropriation of water effected by the Nature Dam is a removal or control of water <br />for beneficial use within them meaning of [the 1969 Act]," the Court held that it was. Id. at 931. <br />Thus, this Court did not hold that Fort Collins had an unlimited constitutional right to appropriate <br />water for in- channel recreational use, but instead found that Fort Collins had effected a diversion <br />and applied water to beneficial use as those terms were defined by the General Assembly in the <br />1969 Act. <br />This Court has never recognized an unlimited constitutional right to appropriate water for <br />in- channel recreational use. People v. Emmert, 198 Colo. 137, 141 -142, 597 P.2d 1025, 1028 <br />(1979). In Emmert, the Court said: "If the increasing demand for recreational space on the <br />waters of this state is to be accommodated, the legislative process is the proper method to <br />achieve this end." Id., 198 Colo. at 143, 597 P.2d at 1029. The General Assembly here has done <br />exactly that by removing the traditional requirement of a diversion for certain recreational in- <br />channel diversions, § 37 -92- 103(7) (definition of "diversion "), and defining beneficial use to <br />include the diversion of water by certain governmental entities for recreational in- channel <br />diversion purposes, § 37 -92- 103(4), subject to reasonable limits designed to appropriately <br />21 <br />