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<br />e <br /> <br />e <br /> <br />e <br /> <br />LOCAL GOVERNMENT <br />RESPONSES TO SPECIFIC QUESTIONS <br />POSED IN E. WILKINSON MEMO. <br /> <br />1. <br /> <br />If a RISF right is adjudiCated, must it be for the minimum flow needed to achieve <br />the beneficial use cited? Should it specify the range of flows that are reasonable to <br />accomplish the beneficial use up to the maximum amount of flows that would be <br />needed to meet RISF needs? <br /> <br />RESPONSE: <br /> <br />I. In the first instance, a water right for a kayak course is not an instream flow, <br />it is a diversion for recreation purposes. The CWCB must stop pretending <br />that this issue has not already been decided. It is the CWCB that is <br />attempting to change existing law. <br /> <br />. <br /> <br />The claims of Golden, Breckenridge, Vail and others are "diversions" <br />under Colorado statutes, diversions under the case law interpreting those <br />statutes, and fundamentally not "instream" uses. The very point of the Ft. <br />Collins decision is that the natural stream channel must be altered to assert <br />the degree of control required for an appropriation. The CWCB may not <br />like the Ft. Collins decision, but it is the law in Colorado. It is a disservice <br />and misleading to the public for the CWCB to call a kayak water right for <br />a kayak course something that it is not. Accordingly, a "Recreational <br />Diversion" (RD) is a better term. <br /> <br />. Under Colorado statute: "Diversion" or "divert" means removing water <br />from its natural course or location, or controlling water in its natural <br />course or location, by means of a ditch, canal, flume, reservoir, bypass, <br />pipeline, conduit, well, pump, or other structure or device. C.R.S. S 37- <br />92-103(7)( emphasis added). The kayak courses of these three <br />municipalities contain many dams and other structures that control, <br />concentrate and direct the flow of water through the course. It is, <br />therefore, a diversion under Colorado law. In construing C.R.S. S 37-92- <br />103(7), the Colorado Supreme Court explained, "controlling water within <br />its natural course or location by some structure or device for a beneficial <br />use thus may result in a valid appropriation." City of Thomton v. City of <br />Fort Collins, 830 P.2d 915, 930 (Colo. 1992). <br /> <br />. Fact: The kayak courses of Golden, Breckenridge and Vail are far more <br />highly engineered, more expensive, and exert more control over the water <br />in the stream than the structures at issue in the Fort Collins case. <br /> <br />. <br /> <br />Fact: Instream flow rights require no capital investment, no structures to <br />control and divert water. <br />