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<br />, <br /> <br />. <br /> <br />The purpose of recreational diversions are different than the purpose <br />of instream flows: a kayak course water right is to directly benefit <br />people. The purpose of an instream flow is to "preserve the natural <br />environment to a reasonable degree." C.R.S. S 37-92-103(3). It is based <br />upon the minimum amount necessary to protect a cold water fishery. By <br />way of contrast, each of the municipal entities building kayak courses <br />initiated an RD water right to protect their substantial investments in the <br />kayak course, i.e. so that the course would be useable and attractive to <br />boaters, and would invigorate their downtown waterways and economies. <br /> <br />e <br /> <br />II. An RD is no different from other commonly decreed rights with respect to the <br />need for decreed minimum and maximum flows--they are Dot specified in other <br />rights, they should not be specified for RD's. <br /> <br />. Beneficial use and water availability are always the limiting factors on <br />what the maximum size a water right can be. A kayak course has a design <br />capacity selected by the course creator. In the case of the Golden kayak <br />course, it was expressly designed for the specific purpose of creating a <br />world-class course capable of hosting international competitions. Water <br />up to that design capacity that is physically available is beneficially used. <br />Water in excess of that design capacity and what is not physically <br />available will not be a part of the water right. <br /> <br />III. RD'S should not be limited to what the CWCB believes to be the minimum <br />amount required. <br /> <br />e <br /> <br />. By "minimum flow," EW is referring to the first incremental amount of <br />water above the amount that is too small to be beneficially used and <br />therefore vulnerable to the "futile call" doctrine. In other words, he would <br />limit the right to the amount that can be used to float a single small boat in <br />the course. <br /> <br />. Golden's RD was designed for world-class kayaking events. Water in a <br />quantity necessary to conduct such events is put to a beneficial use under <br />Colorado law and therefore a legitimate part of the right. The CWCB does <br />not get to decide how many acres someone's alfalfa field should be, nor <br />how many turbines a power plant can operate, and it shall not be allowed <br />to limit the size of someone's right based on its notion of what a particular <br />water user needs--i.e., what the CWCB feels is "reasonable" for the right <br />or what it feels must be reserved for the public. Its attempt to do so is an <br />ironic imposition of the public trust doctrine in reverse. Under long <br />established Colorado law, an appropriator gets the amount it has put to <br />beneficial use and that is decreed by the Water Court. <br /> <br />2 <br /> <br />e <br />